Gov. Andrew Cuomo's Moreland Commission on public corruption is careening toward release of its initial recommendations. What seemed a good idea at the outset has stalled. The commission can still redeem itself, but it will need to move forward on a hard-edged agenda that identifies real problems and sets forth real solutions.
The idea of convening a high level inquiry into ethical issues was a good one. There have been way too many examples of individuals breaking the law, and way too little thoughtful analysis of the real problems. What was needed most was a hard look at legal corruption. However bad the behavior of individuals who commit crimes, it pales before the corrosive effect of big money steering debate and issues its own way using perfectly legal tactics.
It's hard to figure out what the commission is doing. Various glimpses and indications showed a focus on legislative peccadilloes, the outside income of legislators, and a breathtaking misstep when the governor's office had the commission pull back on subpoenas to political entities he controls. There's now a full-throated legal battle over subpoenas to legislators that will not be resolved soon.
The reason for the uncertainty isn't hard to figure out. From the beginning, Cuomo has presented the problem as that of a rogue legislature that he would coerce into enacting his ethics reform package by investigating it. In an unexpected outburst of candor, Moreland Co-Chair William Fitzpatrick said as much: "Cuomo warned the Legislature probably two, three dozen times that if they didn't make some efforts to reform their activities, that he was going to appoint this commission, and he did."
The commission will fail if it focuses on additional examples of criminal behavior by public officials. The existing anti-corruption laws are pretty good and are being enforced more vigorously in recent years. The commission will also fail if it is used as a sledgehammer in a conventional fight about which bill to pass. It's the wrong way to go, it's of dubious legality, and it pretends that the governor's prodigious fundraising from special interests isn't a problem. What the commission can and should do is focus the debate on practical reforms that limit the damage done by legal corruption. There has been very little in the way of practical proposals of that kind so far.
What follows are five proposed laws on legal corruption that the Moreland Commission should adopt. They are practical, focus on the areas where the damage occurs and there's little in existing law, and will change the way the system works:
• Restrict "procurement lobbying": For all the fuss about money intended to influence the passage of legislation, there's a huge amount of activity surrounding the awarding of government contracts by state agencies and authorities like the MTA or the Empire State Development Corporation. These decisions are directly or indirectly controlled by the governors office. Lobbyists are hired, and contributions made, by those who do business with the state. It's legal and an open sore on the body politic. The Moreland Commission should recommend that, as a requirement of bidding on a state contract, the bidder must reveal all direct and indirect political contributions by the company, officers, owners, families and associates. This should be part of the contracting laws, not the election laws. There's no constitutional right to bid on a state contract and therefore less worry about infringing on constitutional rights.
• Restrict "housekeeping accounts": "Housekeeping accounts" are political committees that receive huge contributions from special interests and almost no contributions from citizens involved in political activity. They're supposed to be a political afterthought, ostensibly used only for the mundane activities of paying rent, hiring staff, etc. They are often abused and little noticed. The Moreland Commission should recommend significant limits on both contributions to and the use of housekeeping accounts.
• Restrict member items: Member items are small grants to community organizations that are recommended by legislators and approved in the budget. They are generally good things that help build communities, but they have too often been abused and turned into benefits for the recommending legislator. The Moreland Commission should recommend an absolute ban on any funds from such an organization going to the legislator, his family, friends, associates or allies, directly or indirectly. That would preserve community building and limit self-dealing.
• Expand the attorney general's role: The attorney general has little ability to investigate corrupt and unethical behavior. The AG now needs a "referral" by the governor of the kind that took place with the Moreland Commission. That makes it almost impossible to investigate the Legislature and governor's office, leaving the big investigations to the feds. They've done a good job, but more law enforcement would be helpful, and it's time to unleash the AG. The Moreland Commission should recommend that the AG be able to investigate public corruption without the governor's permission.
• Public financing of campaigns: This is the one that everyone talks about, and rightly so. It will dramatically lessen the leverage of wealthy players on the right and the left. There's been a lot said already, but it's a necessary part of real reform so it's included with these other less familiar ideas. The Moreland Commission should recommend that legislative, statewide and judicial campaigns be publicly financed.
There may better or different ideas out there. But these five reforms have the virtue of responding to the evidence of where corruption, especially legal corruption, actually occurs. They're practical and they're do-able.
Whatever missteps might have occurred, the Moreland Commission has a genuine opportunity to improve the legal and ethical climate in Albany.
Let's hope it can produce these or better reforms of a system of legal corruption that needs to change.
Richard Brodsky is a fellow at the Demos think tank in New York City and at the Wagner School at New York University.