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Did Cuomo's Killing the Anti-Corruption Commission Restore Public Trust?

04/14/2014 05:22 pm ET | Updated Jun 14, 2014

In killing New York State's anti-corruption Moreland Commission well before it completed its mission, Governor Andrew Cuomo badly played a strong hand. Given the spiraling incidence of corruption by New York State lawmakers, and their refusal to enact Cuomo's legislative reform package, or even negotiate about it, Cuomo, with much fanfare, empaneled last July the Moreland Commission -- stacked with a dozen heavy-weight prosecutors -- to investigate public corruption and "restore public trust." Cuomo tasked the Commission with the responsibility to address the "corrosive influence of money in elections," "strengthen prosecutors' ability to fight corruption," and "give voters more access to the ballot box."

As Cuomo stated in his press release, from the outset he had demanded that the lawmakers enact his "comprehensive and aggressive legislative package," and made it very clear that he "would not accept a watered-down approach to cleaning up Albany." But now, nine months after, as a result of a budget deal with the state legislature, Cuomo has given the public exactly what he promised he would not accept -- a "watered-down approach to cleaning up Albany." This cynical arrangement has provoked outrage from good government groups, withering criticism from U.S. Attorney Preet Bharara, and disappointment and frustration from several members of the Commission itself.

From the outset, Cuomo's relationship with the Commission raised embarrassing questions about whether the Commission was really non-partisan and independent, as it was publicly touted to be, and the extent to which Cuomo and his staff were muscling in on Commission investigations. According to news reports, after a Commission subpoena was served on the Real Estate Board of New York apparently seeking information on special tax breaks given to real estate developers, the subpoena was abruptly withdrawn after pressure from Cuomo's office not to investigate the Board, whose members are among Cuomo's most generous campaign contributors. After a flurry of subpoenas were served on political campaign committees seeking financial records, campaign contributions, and media expenses, only the subpoenas to the Senate Republican Campaign Committee and the state Independence Party were served; subpoenas slated to be served on the Cuomo-controlled state Democratic Party were withdrawn, again after pressure from Cuomo's office. The Commission's attempt to subpoena various vendors also was blocked by "Team Cuomo." The Commission's attempt to subpoena prior ethics complaints from its predecessor, the Legislative Ethics Commission, was stopped by Cuomo's aides. According to news reports, a subpoena served on an ad firm the Democratic Party used to promote Cuomo's agenda was rescinded after Cuomo aides erupted in fury.

Nevertheless, despite interference from the governor's office, the Commission appears to have been engaged in an aggressive and ongoing effort to investigate public and political corruption and systemic weaknesses in New York's "Pay to Play" political culture. According to its Preliminary Report, the Commission issued over 200 subpoenas, reviewed millions of documents, conducted dozens of interviews and depositions, including of former and current legislators, lobbyists and their clients, political insiders and whistleblowers, and experts, heard testimony from federal and state prosecutors, good government groups, and the public during three public hearings, and conducted undercover investigations, surveillance, and recorded calls and meets.

The Commission also engaged a leading investigative and risk analytics consulting firm to analyze data and uncover unusual and suspect connections and relationships that might reveal patterns of potential misconduct. Commission investigators, to take one of many examples, focused on one company that made outsized, bipartisan contributions to the chairs of legislative committees that regulate its industry, and ultimately won passage of a controversial bill, after which the company made many large payments to so-called "housekeeping" accounts for both parties, and to the industry committee chairs for both chambers. Many of these payments were made through clandestine corporate affiliates with generic names that do not appear to have anything to do with the company.

Indeed, at the time the governor terminated the Commission, the Commission was engaged in several active investigations using its own investigative resources and the powerful analytics tool to expose the way money and influence gave powerful special interests the ability to undermine the integrity of New York government, and corrupt many lawmakers and other government officials. At the time Cuomo killed the Commission, the Commission had issued its 98-page report describing its investigations into public corruption and its proposals for reform. According to the Report, the Commission was actively investigating "Pay-to-Play" arrangements in which wealthy donors make targeted campaign contributions in exchange for targeted legislation; gaping loopholes in limited liability companies (LLC) and party "housekeeping" accounts that allow wealthy donors to evade the already astronomical contribution limits -- among the highest in the U.S; the use by certain legislators of campaign funds for personal expenses; and conflicts of interest that allow legislators to engage in outside employment and allocate funds for member item grants and other discretionary grants. Cuomo's abrupt termination of the Commission effectively canceled all of these investigations.

Needless to say, watchdog groups expressed anger and disappointment at the governor's dismantling of the Commission, particularly given the governor's aggressive public pitch to root out corruption. One of the most outspoken critics of the governor's action was U.S. Attorney Bharara, whose office was exclusively responsible for the numerous prosecutions of corrupt Albany lawmakers. Bharara questioned whether the governor had abandoned his commitment to fight corruption, and worried that potentially significant investigations were "bargained away" for a short-term deal with the legislature. Moreover, members of the Commission itself complained of the governor's "meddling" in the Commission's investigations, and his pulling the plug on the Commission's work before it could finish. According to recent news reports, several members of the Commission expressed anger and bitterness at the governor's action. Also according to news sources, the Commission's chief investigator quit, fed up with having his hands tied by Cuomo aides.

Despite the heavy criticism, Cuomo and his supporters have touted the "legislative reform package" that was enacted as part of the budget deal as a "significant" and "robust" achievement for election law enforcement, government transparency, and criminal law enforcement. One member of the Commission stated ecstatically that the new laws are "just fantastic." However, no amount of overheated hyperbole can disguise the reality. The so-called "reform" laws are for the most part paltry, innocuous, redundant, and insignificant. Consider the so-called achievements. Campaign finance reform, including public financing of campaigns, reducing contribution limits, strengthening disclosure and enforcement requirements, were given short shrift. Loopholes that allow donors to give unlimited amounts of money to campaign accounts were left untouched; conflict of interest laws requiring legislators to identify their clients were virtually ignored, and subpoenas to lawmakers for information about clients became moot. Public financing of campaigns, one of the most sought-after initiatives by good government groups, was jettisoned, except for a minor, one-year experiment for the office of state comptroller, that was denounced by six good government groups, and was so badly written that Thomas DiNapoli, the present state comptroller, has chosen to ignore it as unworkable and unjust. Also, in another so-called achievement, a new board member was added to the notoriously ineffectual and incompetent state Board of Elections, but this addition is a minimal measure, and without new and aggressive election law tools and resources it will do nothing to change election policy or improve enforcement. Finally, a proposed law enforcement tool to fight corruption which federal prosecutors use aggressively -- giving grand jury witnesses, especially targets, limited use immunity instead of the much broader "transactional" immunity -- was rejected.

To be sure, considerable hoopla accompanied a new change in New York's definition of the crime of bribery of a public official -- a change that was praised by some law enforcement officials as an important measure. In reality, the change is cosmetic and redundant. Under existing law, the bribe giver to be guilty must have a "belief or perception" that the bribe will influence the recipient, rather than a mere hope. Under the new change, the bribe giver is guilty if he "intends" that the bribe receiver's conduct will be influenced by the bribe. The difference is negligible, and touting it as a major change that will now unleash New York's prosecutors to go after corrupters is ridiculous. Indeed, the dismal failure of New York State's District Attorneys to investigate and prosecute legislative corruption is assuredly not because of a lack of tough laws and severe punishments. According to Lawrence S. Goldman, respected New York attorney and former chair of the State Commission on Judicial Conduct and past President of the New York State Association of Criminal Defense Lawyers, the failure is attributable to a "lack of will and lack of resources." In stark contrast to the energetic and successful efforts by federal prosecutors, New York District Attorneys, according to Goldman, "hesitate to vigorously investigate and prosecute political figures whom they know, or to whom, they are or may be beholden." Pretending that new laws and punishments will unleash more aggressive enforcement is just puffery.

Cuomo, and his Commission, had an opportunity to make significant changes in New York State's epidemic of corruption. The Commission's Preliminary Report was a template for what's wrong with New York's political and electoral system, and the kinds of bold and aggressive reforms that are needed to root out public corruption. Cuomo had a strong hand last July when he appeared to stake out an aggressive stand to battle corruption and "Restore Public Trust." Unfortunately, the governor, by abandoning his stand for a short term political gain, not only squandered a valuable opportunity, but exposed himself to accusations of cynicism and hypocrisy.

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