THE BLOG
11/12/2013 05:57 pm ET Updated Jan 23, 2014

Is Gov. Cuomo's Anti-Corruption Commission Going off the Rails?

When he announced the creation of his anti-corruption commission last July, Gov. Cuomo was responding to both the public's anger and the State's humiliation at the breadth and audacity of misconduct by members of the State Legislature. Following the legislature's refusal to enact the Governor's ethics legislation - or even to negotiate about it - the Governor essentially took the position that "If you can't police yourselves, I'll police you." And thus the Moreland Commission was created. While the Governor's position may be understandable, and popular, his response appears to be heading for a train wreck.

The Moreland Commission's mandate ostensibly is to investigate weaknesses in state election and campaign finance laws relating to lobbying, public corruption, conflicts of interest, and government ethics. But from its inception last summer, the commission had an air of unreality. Stacked by prominent prosecutors along with some Cuomo and Attorney General Schneiderman insiders - all of whom were denominated "Deputy Attorneys General" - this amalgam of muscular power seemed to lack direction: who was to be investigated? Or was the real question what was to be investigated? Allegedly a criminal investigation commission, what crimes was the commission investigating? Was the focus of the probe on specific legislators, or specific individuals or groups that had bestowed lavish campaign contributions on lawmakers? Was the focus on the entire state legislature, and the reputed "show-me-the-money" culture in Albany?

This amorphous focus is particularly troublesome because this Commission uniquely was created by one branch of government to investigate another co-equal branch of government, arguably an infringement of the Separation of Powers principle. Given its clear prosecutorial expertise, one would have expected the commission to carry out this function carefully, by the book. But from observing the work of the commission for the past several months, the opposite seems to be the case. There have been several disturbing occurrences.

First, while it is clearly important that the commission appear utterly independent and non-partisan, that appearance was compromised as soon as it started issuing subpoenas. One of the commission subpoenas went to the Real Estate Board of New York, and apparently sought information on special tax breaks given to several real estate developers. It appears from news reports that five luxury developments in Manhattan were given tax exemptions that were secretly slipped into a bill and that cost the city millions of dollars in property taxes. It also turns out that these developers, relatives, and companies gave $1.5 million to various state campaign committees. Indeed, the 37 companies comprising the leadership of the Real Estate Board contributed $40 million dollars to state and local candidates, committees, and PACs, and the Real Estate Board's contributions alone have increased dramatically to over $17 million since 2011. However, the subpoena was withdrawn after pressure from Cuomo's office not to investigate the Board, whose members are among Cuomo's most generous campaign contributors.

Similarly, the commission's attempt to create an image of non-partisanship was further demolished after a flurry of subpoenas was served on political campaign committees. Thus, the commission issued subpoenas for a huge array of financial records, campaign contributions, and media expenses, but only to the Senate Republican Campaign Committee and the state Independence Party. Subpoenas that were slated for the Cuomo-controlled state Democratic Party were withdrawn, once again after pressure from Cuomo's office.

The bizarre nature of this so-called investigation was highlighted a few weeks ago when one of the co-chairs of the commission, Onondaga County District Attorney William Fitzpatrick, was interviewed by a radio station in Albany. According to a transcript, Fitzpatrick reinforced the idea that the commission was created by Cuomo to coerce the state Legislature into passing Cuomo's ethics bill ("Cuomo warned the Legislature probably 2, 3 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."). And while one would have expected this blue-ribbon commission to be above any charges of corruption, Fitzpatrick himself may not be: while in the interview he supported the Commission as necessary to end widespread legislative corruption ("Well, 30 members of the Governor's staff haven't been walked out in handcuffs in the past five years, 30 members of the Attorney General's office haven't been walked out in the past five years"), there are accusations that Fitzpatrick used his own campaign funds for lavish vacations, golf outings, and expensive hotels and meals. Nor has he been outspoken about corruption scandals in the executive branch involving two democratic governors and the state comptroller.

Finally, the breadth and burdensome quality of the commission's use of its subpoena power - subpoenas that do not require a judge's authorization - is unusual, and appears to be punitive rather than investigatory. Indeed, there is no precedent for the commission's extraordinary use of the subpoena power to demand from every lawmaker, law firm and business with which the lawmaker is or was associated, virtually every communication and every document these recipients ever made or possessed. District Attorney Fitzpatrick, in his radio interview, said the charge that the subpoenas were overbroad is "absurd," adding, quite inappropriately coming from a sitting District Attorney, that some legislators "don't do anything for this massive amount of money that [they] get," that "it's kind of like a game show," and "You've got to be kidding me that this is legal."

As of this writing, it appears that the commission may be only partially committed to a full-blown and aggressive investigation of state corruption. And its subpoena practices may have already called its legitimacy and non-partisanship into question. The rhetorical battle between the Executive Branch and the Legislative Branch appears to be diluting the well-intentioned goal of ending the embarrassing level of state corruption, and the legislative battle over the commission's subpoena practice is draining sorely needed state funds.

Given the course of this investigation, one should ask: Is this commission really necessary? Whether it was created in a fit of political pique or in a good faith effort to enact tighter ethics rules, the fact remains that federal and local prosecutors have ample tools to prosecute corruption. If ethics reform legislation is really what the Governor is after, and if it is needed, there should be a better way to bring the legislature and the executive to the bargaining table. Historically, many more difficult negotiations - like those between New York City and its unions, or major league baseball and its players, for example - have surely been successful in the past.