Hollow

Reports indicate that Senate Minority Dean Skelos is rejecting a deal with the Majority Democrats that would have potentially granted Committee Chairmanships to around 4 of his Republican Senators.

At the time of writing, just one of these Minority Chairmanships, of four that we know of that were being floated, is still in-play (Senator Maziarz, to chair the Standing Committee on Energy).

In a piece posted on the Albany Times Union's Website, Senator Skelos had this to say:

Senator Sampson, as the Democrats' new leader, believes that offering committee chairmanships to a few minority senators will change all that {the negative impact of one-party rule}. While well intentioned, his offer rings hollow.

Hollow. A very interesting word to use.

Elsewhere, Leader Skelos said:

“Senator Sampson’s proposal to appoint new chairs should be considered along with these other recommendations, by the bipartisan committee, before any action is taken," Skelos said.

"Our conference strongly believes that additional reforms must be made in a comprehensive way and not in a piecemeal fashion."

"We fought hard for the reforms that were enacted in July," Skelos continued. "We will continue to push for internal reforms, as well as other governmental reforms to make this Legislature and our government more responsive to the people’s needs."

And Senator Bonacic, in the same article, said something very similar:

"Chairmanships are positive. However, as the Majority repeatedly has said, real reform is not about titles. In fact, titles can sometimes mask dysfunction, since they create a presumption of bi-partisanship, when one may not truly exist. Chairmanships do not equate to reform."

The above quotes point to one of two stated reasons for the refusal: “Good government.” Reform of the Senate must be “real,” and committee chairmanships are a “hollow” half-measure. Another reason, however, was pointed to by Skelos spokesperson John McCardle, in the same article linked to above.

"Members would love to be chairs again," McArdle said. "But I think they all understand as a conference that there needs to be a sense that we're all in this together."

"(Skelos) has spoken to all of them {the Republican Senators}. He's not speaking for anyone, but everyone agrees a comprehensive solution is better than something done individually."

Party unity. Really, this is all the Senate Republicans have going for them, all they can offer, all they bring to the table.

Citing the “good government” reasons described above is, I believe, at best disingenuous of Leader Skelos. Anyone who knows anything about how legislatures operate, be it the U.S. Congress or the New York State Legislature or the Senate of Ancient Rome, knows that the committee system, by whatever name it is known, is critical to the operation of a legislative chamber. The idea of a committee system is simply to spare every lawmaker having to read every bill. On non-major issues, you can often simply trust your colleague who chairs the relevant committee.

Further, one of several insights reached by Political Scientist Joseph M. Bessette in his book The Mild Voice of Reason: Deliberative Democracy and American National Government is that true deliberation over public policy, at least in the U.S. Congress, tends to take place mostly at the committee level and below, mostly outside the public eye. (I should note that this statement is at best an oversimplification of the insights achieved by Bessette's in his complex and insightful work.)

Exactly how critical committees are in the legislative process depends of course on the legislative body and the particular policy at stake. And, of course, the ultimate say over what comes up for a vote, and usually what passes, is up to the leader of the chamber. No amount of “reform” can change the basic fact of majority rule in pretty much any legislature that is recognizable as such.

Under these real world conditions, minority committee chairmanships fit pretty much any reasonable definition of “real” reform. Committee chairmanships represent a real impact on policy outcomes, both directly (through influencing what bills can be considered by the whole Senate) and indirectly (by placing the Republican Senators in the most logical place for policy deliberation, where their ideas can be heard and matter).

Senator Skelos calls this “hollow.” A realistic chance for real, tangible influence is “hollow.” But what else is it that legislatures are supposed to do, if not legislate?

Democratic Conference Leader John Sampson's argument in favor of such an arrangement, also posted on the Albany Times Union's Website, is infinitely more convincing than is Senator Skelos's argument against it, if only because Sampson's argument recognizes that legislatures primarily exist to legislate.

Now, {wrote Leader Sampson} through the offering of bipartisan appointments to committee chairmanships, the Republican minority conference will enjoy an unprecedented level of involvement in the legislative process. Their constituents, as well as the entire state will realize a Senate more representative of all New Yorkers.

When the Republicans held the Majority in the State Senate, and they offered a single Democratic Senator a committee chairmanship (Senator Carl Kruger, Social Services), the Republicans hailed the move as unprecedented and bipartisan. If one Chairmanship was supposed to be good enough for the Democrats back then, why is more than one not good enough for the Republicans now?

Based on what I have seen, and based on Senator Skelos's own words cited above, I believe the answer is that legislation is not Leader Skelos's goal.

And thus we return to party unity. Leader Skelos appears to see unity not as a means to an end (as a tool to be used to influence policy), but as an end by itself. All he and his Republicans have going for them is party unity, or at least the appearance thereof. To run even a minor risk of losing unity, even if it is for the sake of doing the business that legislatures are supposed to do in the first place, is unacceptable politically to the Republicans.

I also cannot help but wonder if what Leader Skelos is really after is a higher central staff allocation. This presents him with a potentially large patronage base, and could allow him to increase his influence in New York State's shattered, increasingly irrelevant Republican Party. Central staff is nice. The Republicans, at least initially, were denied even the allocation that they granted to the Democrats, the Minority Conference staff budget having gone down from $7 million a year to $3 million a year, according to this New York Times article.

Senator Skelos's desire for more staff is certainly understandable. But, staff allocation should not be seen as an end. Nor should party unity. Both should be seen as different means to an end: Influence over policy. A Committee Chairmanship, or two or three or four, is another such means. It is most definitely not "hollow."

Whether or not a deal that involves Minority Chairmanships is ever reached, Leader Skelos has already tipped his hand. Based on his own statements, he appears to see the central activity of legislatures, enacting and influencing legislation, as “hollow.” This does not speak well for what he might do with the staff allocation he wants if he ever gets it.

A Reaction to the Gay Marriage Vote

The outcome of this vote was sad, but predictable.

I have a few messages for several parties.

• Firstly, to the supporters of liberal causes in New York State
Democrats are not automatically your friends. Flipping the Senate has not done you all that much good. The Senate Democrats have failed you.

• To Governor Paterson
Flipping the Senate did not help you. It has in fact hurt. You lack a foil now, you lack someone you are able to blame things on. It's just you, Speaker Silver, and the cowardly, incompetent people you helped to put in place in the Senate. They did not help you balance the budget, they did not help you pass gay marriage. Blaming failure on those of your own political party just does not work as well.

The Senate Democrats have failed you.

• To Senator Duane
You should have gone along with the Skelos-Espada coup, the bill would have stood more of a chance a few months back. Your personal distaste for Senator Espada pales in importance by comparison to the issue of gay marriage.

Your colleagues have failed you, and it is not only the Republicans' fault now.

• And, finally, to Republicans in the State Senate
I find it likely that many of you are basing your nay votes on the a misinterpretation of the events of the North Country Congressional race. This is a strategic error on your part, and a very bad one at that.

If this trend continues, if you continue to take your marching orders from Glenn Beck, I would be surprised if there were not a price to be paid.

The Attorney General's Pension Management Proposal

• The Bill That Isn't

The first thing to know about Attorney General Cuomo's pension bill is that it doesn't exist, at least not in public. Or if it does, it hides extremely well.

The bill was announced on 8 October 2009, in this Press Release of the Office of the Attorney General. Entitled the “Taxpayers’ Reform for Upholding Security and Transparency” (T.R.U.S.T.) Act, the bill's main feature is the replacement of the State Comptroller as “sole trustee” of the Common Retirement Fund (CRF) with a Board.

But the bill doesn't appear to actually exist yet, as far as I can tell. I can find no bill number, no public language. (And when I say “exist” I mean “exist in public.”) Senator Foley, alleged to be the bill's prime Senate sponsor, doesn't have the bill on his introduction record, and a search of two New York State bill databases, here and here, with the search terms “Transparency” and “Retirement” (separate searches) comes up with no relevant legislation. The former term I used because, often, when a bill has a popular name, like this one does, the name will appear in the bill's first Section, or in the Sponsor's Memorandum in Support. And the latter term because the bill's likely to amend New York State's Retirement and Social Security Law.

Either way, the point is that those searches were likely to have found the bill, if it were introduced. I must conclude therefore that the bills are not yet introduced. The Attorney General has spent a lot of time and money drumming up support for his bill, in suburban downstate, and on Long Island, and in Rochester, and in Western New York, but not one of these Press Releases features a bill number. The Attorney General has managed to build a lot of bipartisan support for a bill that does not, as far as I can tell, actually exist.

If someone knows the bill number, please E-Mail me with it at Albany_Exile at Yahoo.com. I'd love to take a look at it.

We are not assessing a bill, as there isn't one. Rather we're assessing a concept.

The best-known piece of this proposal, and apparently its centerpiece, is the proposal to dump the “sole trusteeship” of the CRF and replace it with management by a board of directors. So that's what this article is devoted to.


• Backdrop

The CRF is the pool of money that pays for the pensions of most State and local employees, including pretty much everyone except for most teachers. Teachers are covered by the fund of the New Yorks State Teachers' Retirement System (NYSTRS). The CRF has the money from 2 separate retirement systems, one for police, one for everyone who is neither a cop, nor a firefighter (they seem to be in the police system), nor a teacher.

The NYSTRS fund is managed by a Board, the CRF is run by the State Comptroller as a sole trustee.

The Attorney General's policy concern for this issue arises from multiple scandals that have arisen revolving around former Comptroller Alan Hevesi.

I make no claims to know the facts of the various Hevesi matters in any kind of detail. In broad terms, however, the scandals revolve around the exchange of money or employment of certain individuals to encourage certain pension fund investments. Effectively it's a form of lobbying the Comptroller to invest in certain ways. Some of these lobbyists were honest, some less so. The system has come to be known as “pay to play.” The investments themselves may have been legitimate in many cases, but the system itself is obviously questionable at best.

Some allege that the sole trusteeship system, which places sole responsibility for a rather large pile of money with one person, encourages corruption by providing a readily available point of entry for those who would engage in corrupt practices. The Attorney General thus proposes establishing multiple points of entry. The bill has this as its specific, explicit purpose. The following is a quote from the Press Release linked to above:

“For decades, the State pension fund has been weakened and corrupted by the sole trustee model,” said Attorney General Cuomo. “The model has allowed pay-to-play to flourish in a system meant to protect the retirement accounts of thousands of hard-working public employees. To put it simply - the model doesn't work. It’s about as sensible as having a single lock on Fort Knox. Today’s legislation will ensure that the fate of our public retirement fund isn’t decided by one individual, and that the entire system is rid of the kind of pay-to-play that infected and derailed it in the first place.”

That's the policy purpose of the bill. Obviously it's quite possible, and I'd go so far as to say it's likely, that the bill also has a political purpose: To undermine the current State Comptroller (Thomas DiNapoli, a potential rival, though for what I can't really guess), and add to Attorney General Cuomo's emerging reputation as a fighter of corruption in all its forms.


• The Sole Trusteeship

Having established that the explicit, deliberate purpose of the Cuomo proposal (we can't quite call it a bill yet, regrettably, as seen above), is to lessen corruption, judging the bill is thus heavily contingent upon its ability to do just that. That's only fair.

The CRF may or may not be unique among public pension funds in having a sole trustee, but it surely is at least nearly so. As described above the teachers' retirement fund, the NYSTRS, is managed by a board, as are the 5 pension funds for New York City employees. Jun Peng, in his 2009 book State and Local Pension Fund Management, does refer to the CRF's sole trusteeship system as “unique” (page 93). So, even allowing for the fact that Peng might be wrong, at the very least we can fairly say that the sole trusteeship system is very rare.

Now keep in mind I am fairly certain that in most cases it isn't the Comptroller actually running the CRF on a day-to-day basis. He likely has staff who does most of that. In fact they are likely career civil servants who are highly-paid, highly-skilled, very good at what they do, and largely invisible to us. But the point is that the Comptroller is responsible for the fund. (Such terms as “trustee” and “fiduciary” are made to imply responsibility as much as they are made to imply day-to-day duties.) And, further, that he could steer investments in certain directions regardless of what his likely-capable staff tells him.

I went through some of the writings on management of pension funds. For the most part, the writers assume it is a board or committee of some kind managing the fund. The sole trusteeship is rare enough that the issue of the relative advantages and disadvantages of sole trusteeship versus board management hasn't come up all that much. That doesn't mean, however, that the issue hasn't come up at all.

In 1968, a conference on pension fund management was held, and in 1969 a book was produced based on this conference, with the awkward title of, Pension Fund Investment Management: Proceedings of the CFA Research Seminar, Sep 13-14, 1968, Charlottesville, VA. For some reason, when this book was published, all the conference participants were assigned 3-letter false names, and those false names were then randomly-rotated, thus keeping everyone anonymous. (Why people would participate in a conference and think they had some kind of expectation of anonymity is completely beyond me.)

At a panel discussion at that conference, the following relevant exchange was had:

“HAP: Isn't the conclusion that somebody should act alone, either the company or the bank? It's a joint management that runs into trouble, it's the centralization of responsibility that produces the best results in performance, whether it be company-operated or bank-operated.”

“VAL: The closer you get to one man doing it, the better. Get away from the committee. You've got to get down to one man. Get the right man, give him responsibility, and let him go. Not only in investment, but in anything you do.”

“KEN: That's true. That works in the bank too. You must get away from the committee system.”

“TED: The investments that two people are going to agree on, are going to be insipid investments. They are the ones that are not going to be very bad or very good. But the investments that they're going to disagree on may be those that make a lot of money.” (Pages 10-11)

On page 12, all of the participants in the panel again agree that unitary management of a pension fund is best.

Jun Peng's 2009 work has already been mentioned. The following quote is telling:

This brief story of the New York pension system offers two lessons. First, the unique pension governance structure [the sole trusteeship] limits to some extent the reduction in pension contribution by the State government, which can be best appreciated in comparison with New Jersey. The independence of the New York pension system trustee allows it to be more willing to challenge any government attempt to reduce pension contribution. Second, even such independence cannot render the system impervious to the temptation of pension contribution reduction in times of strong investment return and, thus, the risk of volatility to state and local government operating budgets. (Page 164)

Peng, mostly by accident, does point to a specific disadvantage of the sole trusteeship system, which he curiously fails to consider seriously. On Pages 162-163 he considers then-Comptroller H. Carl McCall's reduction of local government employer pension fund contributions to near-zero levels, which occurred in the late 1990s and early 2000s. Peng considers this move solely in the context of that the fund was doing quite well at the time, and didn't necessarily need a great amount of money from the employers. Investment returns were funding the system quite well. He fails to consider, however, the obvious fact that Comptroller McCall was preparing for a run at the Governorship in 2002, for which the support of perpetually cash-strapped local government officials would surely have helped.

Based on these writings, it appears as though the best thing that can be expected from switching to a board system is an at-best neutral result. So, I must ask, why spend the money to establish a board and then staff it up and then make it work on a day-to-day basis for a result that's at best neutral.

What kind of analysis did Attorney General Cuomo engage in to produce this proposal? Did his policy people find writings that I didn't find?

Well, perhaps he studied the fund management of other States, which by and large do not have the sole trusteeship system, and discovered it to be corruption-free or nearly-so.


• Pension Fund Corruption in Other States

So, are pension funds managed by boards corruption-free or nearly-so?

In a word, no. In and of itself, that fact didn't surprise me, but what did surprise me was to find this article on the website of Governing magazine, dated 5 November 2009, detailing a “pay-to-play” scandal in California's CALPERS retirement system, which is run by a board. I must admit that I expected to find the occasional scandal or corruption involving other states' pension funds, but I hadn't expected to find something that similar to New York's scandals, that quickly, dated that recently.

In the Spring of 2009 a civil trial began related to an odd, multi-layered scandal involving the city of Milwaukee's public pension funds, as detailed in this article on the website of the Milwaukee Journal-Sentinel, posted 2 May 2009. This scandal didn't involve investments, but still.

Here, the Heartland Institute discusses the under-funded and “scandal-plagued” nature of the State of Illinois' public pension funds. And, also involving Illinois, here is an April 2009 proposal from the Illinois State Treasurer to reform the Illinois pension funds in the wake of various scandals. The funds at issue are all managed by boards, but it hasn't helped Illinois remain scandal-free. In an interesting twist, the Treasurer has proposal involved consolidating the State's 5 pension funds into a single entity. While this isn't quite the same as his having proposed a sole trusteeship, it does provide some evidence against the “more is better” idea underlying the Cuomo proposal.

It is clear that, at least at first glance (and second glance, for that matter), that neither the body of writings on pension fund management nor a cursory analysis of other states' funds so much as suggests that changing the management system would exclude corruption from the system. At most it would offer the potential, sooner or later, for a pay-to-play system to emerge with multiple points of entry.

If the Attorney General and his policy staff have some kind of specific reason to think this measure will work, if they have some analysis indicating why their idea will succeed where other board management schemes have failed at forestalling corruption, if they have some kind of analysis showing that corruption in other states' pension funds, while it does happen, is measurably less than in New York? If they have any of that? They are for some reason keeping it a secret. To rely on “common sense,” is a bad idea. As journalist (or is he a “humorist?” I'm not sure honestly) Charles Pierce points out in his darkly humorous 2009 work Idiot America: How Stupidity Became a Virtue in the Land of the Free, common sense “rarely is common and even more rarely makes sense” (page 35). At the very least, it is fair to say that common sense alone is not enough to justify this conclusion.


• Conclusion

Why do something like this in the middle of a fiscal crisis when the State might run out of money for normal operations in under a month? From the body of writings on pension fund investment, the move from sole trusteeship to board management would be a neutral one, and that's being rather generous. It would doubtlessly be expensive, and disruptive. How could it not? The board will need staff. The board will need to be elected. The board will need to do a lot of report-reading in order to come up to speed.

And is there anything New York State needs less at the moment than to enact a policy potentially expensive, doubtlessly disruptive, and unlikely to achieve its specified aims?

In any other time, if the money was there, the answer would be a “why not?”

But, not now. This measure ultimately has a lot more to do with Attorney General Cuomo's quest to become Governor of New York (and why anyone would want that job is beyond me) than it does with policy.

Scenes from an Extraordinary Session

I wandered about the New York State Capitol building for a few hours on November 10, 2009, before and during the Extraordinary Session of the New York State Legislature. I was even more smartly dressed than usual. I appeared to blend in well. I left before the Legislature passed the few bills it would pass during the Session. During my brief visit, this is what I saw.

For some reason I start on the 5th floor, I guess so I could wander my way down which seems easier than wandering up. The Capitol is very much like a maze, with twisty passages and rooms that sometimes seems slightly bigger from the inside than you'd think they “should” be from the outside. There's a lot of climbing up and down short staircases. The 5th floor is a little dingy, more dimly lit than you would expect.

There are several Senate Majority offices about, and one Senate Minority office, mostly different kinds of counsels. This implies lawyers, and there's a good amount of these offices, so that implies a lot of lawyers. This makes me think of how the Majority has hired outside counsel to manage the investigation into Senator Monserrate. They obviously have a lot of lawyers on payroll, and they can't all be that busy. They should use in-house counsel for the investigation.

Senator Neil Breslin has an office in the Capitol Building, as advertised on his official Senate website. This might imply that he, and Upstate, retain some influence in the New York City-dominated Democratic Conference. But what you can't see from the website is that Senator Breslin's office is off in a particularly dingy, dimly lit corner of the fifth floor, which is as I mentioned generally speaking dingy and dimly lit to begin with. Frankly, based on where his office is, Senator Breslin actually seems rather marginalized. Later on this afternoon, I'll come to see Senator Breslin, on the floor of the Senate and in the hallways outside the Chamber. He's confined to a wheelchair for some reason. Was there some news about him that I missed? Google searches tell me nothing. He seems unhappy.

In an amusing case of bad timing, Senate Elevator 3 is out of service. Senate Elevator 4 is manned by an elevator operator, whom I now know is the retiring “Sandy,” one of the last elevator operators at the Capitol. The Extraordinary Session marks her last day on the job. An era has ended.

I see someone on Sandy's elevator with two apparently identical Blackberries. Overkill much? Even assuming one is State-issued for State-business and the other is for political and personal business, wouldn't it be cheaper to the State to reimburse him for State business done on his personal Blackberry rather than buy him a second one? Does he ever confuse them and accidentally send a political E-Mail or two from his State Blackberry? Or perhaps they are both his, neither belonging to the State, and he just really, really likes Blackberries? There is no way to know.

I decide that I should not fret over how many Blackberries some random person has. I wander to the Senate, and I sit in the gallery and I look around at the magnificent chamber. Some of the Anti-Federalists, writing about the U.S. Senate, worried that it would maintain itself in “opulent splendor” on the public dime. I don't know if the New York State Senate Chamber qualifies as “opulent splendor,” but it's certainly something above nice. The Chamber looks very old, very historic. This is not the first time I've been in the Senate Chamber, I attended a couple of the Extraordinary Sessions during the coup period, but the effect hasn't worn off for me yet. Each time I see it I understand less and less how the Senators can sometimes behave so pettily. Just seeing this chamber makes me want to behave well, makes me want to impress the history that surrounds me. I can imagine many historic moments taking place in this chamber. I know all-too-well that pettiness and thuggery is part of the story of Albany as well; it always has been, and it always will be. I know this, but somehow, in the gallery looking down at the Senate Chamber, I can't imagine it.

I look over and see Senator Bonacic flirting with one of the female clerks, teasing her about her “science fiction” colored glasses (they are some kind of neon color). I shouldn't say he's flirting; I don't know his intent. He may just being friendly. But from my vantage point it looks like flirting, and whatever it is the girl doesn't appear to be enjoying it very much. She seems embarrassed, but she does put up with it well, giggling in a manner that to me sounds fake to me. But, again...Just like I can't know his intent, I can't know her feelings. I just describe what I see, as best I can.

I look at the staff of the Senate Republican Minority. They look lean, hungry, tired, defeated. Even a little scared. I wonder if a lot of them have been called to testify at the trial of former Majority Leader Bruno. I know some have, you see their names on the witness list.

Or perhaps they are just tired. It's likely been a long night. Because the Democratic Majority is so narrow, a few Republican votes can matter a lot, and hence the Minority staff is likely to be involved in the deficit reduction negotiations.

I see Senator Addabbo, who beat then-Senator Maltese to represent a district in Queens. From his look, I would think he was either a cop or a mob enforcer (the two types are physically similar, which I guess makes sense), not a Senator. I think perhaps he is an ex-cop, but his official biography says no. He seems to be a career politician.

To some that would sound like an insult I suppose, but I don't mean it that way. I don't mind the thought of career politicians. Max Weber wrote that politics is a vocation and calling, and if it's a vocation it can surely be a career.

Like Republican Senator Joseph Robach and Democratic Member of the Assembly Kenneth Zebrowski, Democratic Senator Addabbo is following in his father's footsteps; politics is the family business. All 3 of these families are thus contenders to join the long-standing New York tradition of political families and political dynasties. I don't mind dynasties, so long as the individual members of the dynasty are deserving. This has surely been the case with at least some of New York's dynasties, which include the Yates, Livingston, Jay, and Roosevelt families. It's easy to think of those people as being national figures, but they were all New Yorkers.

I wonder if the Robachs, the Zebrowskis, or the Addabbos will become New York State's next political dynasty. Or perhaps all 3 will.

I see Jim Odato, reporter for the Albany Times-Union, wander across the Senate floor. I hadn't realized reporters were allowed there. I have read that bloggers can supposedly get credentials now-a-days, I wonder if I should. Odato doesn't seem to be comfortable with the fact that people recognize him, which seems odd to me. More on that in a few paragraphs.

The gay marriage activists are out in force today. This is understandable. As I write this, 2 days after the Extraordinary Session, we know that they were to be disappointed; there was no vote on gay marriage on the 10th. But during the Session, none of us knows that yet.

Some of the activists remain out in the hallways, chanting slogans very loudly. Anywhere except the Senate Chamber, it's impossible to not hear them, and that's the point. Some of them file into the Senate Chamber, and during the Pledge of Allegiance they loudly over-emphasize “with liberty and justice for all,” their meaning clear. The gay marriage activists, though loud, are not disruptive. In video footage, I see them being more confrontational than I witnessed personally, but they still were not disruptive or violent. I think of how Senator Diaz has claimed activists “jammed” his phone and threatened his staff. I wonder if he was exaggerating or not.

I note the presence of Lieutenant Governor Richard Ravitch at the podium, fulfilling his Constitutional duty to preside over the State Senate. I note Temporary President Malcolm Smith sitting in “floor leader” chair. I hadn't expected this somehow. The Senate has 3 leaders at the moment, and it's hard to tell who does what. Somehow, though, I had expected to see Conference Leader John Sampson in the chair, but he deceptively sits like an ordinary member. Same with Majority Leader Pedro Espada. They all share some power, but, today at least, they allow Malcolm Smith the dignity of the spotlight.

The gay marriage activists appear to think that the issue of gay marriage will be dealt with as soon as the Senate gavels in, which is of course not the case. We endure many long minutes (20 or so, maybe more) of speeches honoring veterans, especially those who currently serve in the State Senate. Senator Eric Adams manages to work his support for gay marriage into his speech in a clever way. Honoring veterans is a noble cause to be sure, but it seems cruel to do it at the start of an Extraordinary Session with so many important issues are up for consideration. Eventually, the Senate goes “at ease” (basically meaning they are still in Session but there's nothing to do just now). The bills, they say, are being printed. After the bills are printed, they will, we are told, go through the Rules Committee or the Finance Committee first. Despite its name, which might imply that it deals with the Rules of the Senate, I know that the Rules Committee has broad jurisdiction and can deal with any matter the leader of the Senate deems appropriate. (For the moment there are at least 3 leaders of the Senate so I'm not sure how they manage that.) For a bill to go through Rules during the normal Sessions means it's on the fast track. And I have read that, in the waning days of a regular Session, when most important things go through, Rules and Finance are the only committees that meet regularly. Rules can meet several times a night during the final days of normal Session.

The activists in the gallery don't seem to know the process. I find this interesting; I wonder if it's the fault of college Political Science classes, not giving a practical enough political education, or perhaps the fault of whatever advocacy organization they are part of not informing them. I suppose it could be the fault of the Senate itself, but somehow I don't like to think of it that way. I expect legislatures to have seemingly-arcane rules, and I don't blame them for it

I leave the gallery foolishly thinking that a Rules Meeting might be imminent. If it is, I want to be sure I catch it, but it was not to be. Too bad, I was looking forward to seeing my first Rules Committee meeting.

I wander out into the lobby of the Senate; the location where, I have read, the term “lobbying” was supposedly coined. (I actually don't believe that story.) The couches are obscenely comfortable, even if they are ridiculously over-sized. You sink into them, like quicksand. I'm not an overly small man, and they surround me, envelop me. It's a very strange feeling, sinking into this big couch, surrounded by powerful people. The activists wander through the lobby on occasion. This seems appropriate, as in a sense they are lobbyists, they are just using different tools than we normally understand lobbyists to use. Placards and signs and demonstrations aren't allowed in the lobby, so they fold their signs in half, and wander through to get to the other side, then unfold the placard and resume demonstrating. Outside the lobby, where signs and placards are definitely allowed, the loud demonstrations continue. The sound of it echoes through the lobby. There is a State Police presence, but they don't interfere. Nothing illegal happens.

I see Senator Pedro Espada in the lobby, conversing with a group of people. I wander close, trying to hear (you can't possibly have an expectation of privacy having an open conversation in the lobby of the New York State senate), but between the loud roar of protests and the low drone of conventional lobbying there's too much ambient noise. I see the Senator straining to hear the voices of those to whom he's talking, so I know he's having trouble too. I note that he looks different than the other times I've seen him in-person. He seems tired, worn, a little hunted. Jet lag from Puerto Rico? Is the pressure finally getting to him, breaking through the frighteningly calm facade he likes to project?

I converse briefly with some lobbyists, because it seems I look like I might know what's going on. I am, after all, more smartly dressed than usual (did I mention that?). I explain what I know. I don't know how to describe myself. Do I pretend to be a lobbyist? Do I call myself a reporter? A blogger? Luckily it doesn't seem to come up. I find it odd that the lobbyists don't seem to know the process any better than the activists. And, again, I wonder if this is the fault of Political Science classes in college or of the organization not properly informing its employees. Or both. And then there's always that other possibility, that maybe parliamentary procedure could be a lot clearer than it is, and not something you'd have to become familiar with. That still feels unrealistic to me, but I need to keep it in mind.

My mind wanders a bit. I try, unsuccessfully, to overhear some random conversations. I wonder if real reporters will report what they hear in public conversations, or if this is considered taboo. Or perhaps they know that nothing of importance is ever discussed that openly. I'm not interested in "scoops," however, I just want to hear informal political discourse. I want to hear if these people use the same kind of language in informal political discourse as they do in speeches and the like.

I sink back down into the over-sized, overly comfortable couches in the Senate lobby. Senator Monserrate walks by. I jot down “it's funny seeing someone walk by whom you've advocated should resign.” I don't know if he notices me or not.

I see Fred Dicker of the New York Post, wandering around. He seems, oddly, to be in the same kind of confused fog that I and the lobbyists are in. I infer that he doesn't know what's going on either, and that he and I are in the same boat. I quickly jot this down. I am far from only one who notices Dicker. I take note of the others and wonder who they are. Do they think that Dicker knows what's going on, and that they can figure it out themselves by watching what he does and noticing who he speaks to?

Like Odato had earlier, Dicker seems nervous and suspicious that people know who he is, are noting his motions and trying to see where he may be going. Famous reporters, like Fred Dicker, Jim Odato, and Liz Benjamin are part of the story of Albany. They are not really neutral observers. Willingly or not, they have worked their way into life at the Capitol and are part of the story as much as tellers of the story. These people are often opinion makers as much as they are reporters, and are thus used by “sources” who wish to plant a story or two. Dicker's column in particular seems like a grand place to plant a story, and of late I can't help but notice how many of his stories are beneficial to Attorney General and apparent Gubernatorial hopeful Andrew Cuomo. It makes me wonder who his sources are, which of course is part of the point. To wonder about his sources I had to read the story to begin with, and that means I bought the paper or visited the website or both. The reporter gains a source, the sources gets the story planted, and we in the public “gain” juicy political gossip. Fred Dicker's targets, however, sometimes suffer, and not always justly. In my brief period “covering” State politics I've so far seen little in the way of concern on Dicker's part for his targets.

For the moment, however, Dicker is the target. He's been noticed, by multiple people, and he oddly enough doesn't seem to like it. Has he not realized after all these years that he is part of the story? That he's subject to scrutiny as much as the politicians are? Perhaps he hasn't. What about Odato? Benjamin? I make a note to later see if anything's been written about this, about the "reporter as story" phenomenon.

I wander to the Assembly side of the Capitol, which seems quiet and boring. Today at least, the upper house, which Political Science teaches us should be genteel and scholarly and collegial, is actually the nexus of activity and action. Some of this is doubtlessly due to the fact that the Assembly has already passed gay marriage, multiple times, and thus the activists are drawn to the Senate. But some of it must also be due to the way the Senate's ongoing implosion generates news, excitement, and activity.

I leave, convinced I've seen everything I can see for today. And besides, I have someplace to be.

The oddest thing about my afternoon at the State Capitol is that I almost feel more in-touch behind a computer, occasionally checking the blogs, than I do in the center of the action. Granted, information in the blogs is not always accurate, and can be out-of-date by the time it's uploaded (5 minutes or less after it was obtained, that's how fast things move around here). But is that any different from if I had sources of my own, telling me the same thing I'd have learned from some blog anyway, 5 minutes after I was told and 10 minutes after it was proven wrong or out-of-date?

But what I do not have is an excuse to be as smartly dressed.

The Case for Senator Monserrate's Resignation

Introduction

In this article I shall outline a case for Senator Hiram Monserrate's resignation from the State Senate.

I'm not the first person to call for his resignation, and I doubt I'll be the last. My argument might have some similarities with those of others, but I'm pretty sure mine is noticeably different. I don't only deal with the assault conviction, for example. My argument is also pretty cynical, is amoral, and is based on an overall pattern of conduct and on lost credibility. The assault conviction is a factor, but not the only one. I don't care about Senator Monserrate's defense fund. I have no anger toward him about the coup. Though the way he started it, then backed out of it so quickly, is a factor, because I feel that reflects a great personality defect.

However, I take the position that, between the assault conviction and other circumstances, Senator Monserrate has destroyed all credibility for himself, and has crossed a line that makes him unfit to hold public office. There's quite likely other incidents reflecting his various personality defects, but frankly I've spent too much time and bandwidth on this matter as it is.

Senator Monserrate seems unable to follow-through on any important political action he takes, and seems to be brave only when he has a lot of backup or is facing someone weaker than he. This is the mentality of a bully, and while there may be other bullies in New York State politics besides Senator Monserrate, none of them have had public downfalls the way Senator Monserrate has.

Senator Monserrate picks fights, or starts them, and then backs down when he realizes he's in over his head. Contrast this with Senator Perdo Espada. Whether you like Senator Espada or not, he is not afraid to fight an opponent as strong as, or stronger than, he. Like him or not, that's an admirable character trait, one which is necessary to be a leader in State politics, and one which Monserrate lacks to such a degree that he's incapable of being credible even as a follower, let alone a leader. He has chosen to be a high profile Senator, and has since this decision revealed himself to be not up to the challenge. As it's too late for him to be an anonymous back bencher, it's time for him to go and find something else to do.

Who I feel the most pity for is his staff.


Resignation, Not Expulsion

I find resignation, not expulsion, to be the appropriate path here. I am not comfortable with the bizarre, expensive process to “investigate” Senator Monserrate that the Senate Democrats have initiated.

Expulsion has been used but one time in the recent history of the State Legislature. (Maybe one time ever.) In 1920, several sitting, duly elected, sworn-in Members of the State Assembly were expelled for the crime of belonging to the completely legal Socialist party. Their expulsion took place after they had been sworn in, and had voted for leadership positions. The expulsion process they were put through was lengthy and bizarre, incorporating what amounted to a full trial in the Assembly Judiciary Committee that went on for months. (Sources: Louis Waldman's Albany: The Crisis in Government, 1920; Seymour Martin Lipset and Gary Marks's It Didn't Happen Here: Why Socialism Failed in the United States, 2000; New York State Senate, Revolutionary Radicalism: Its History, Power, and Tactics, 1920.)

In my research, I haven't located a price tag for the proceedings (granted, I wasn't looking very hard, as it was of secondary concern to me), but it doesn't sound cheap and, so far, the contemporary Senate Democrats have shown no sign of being able to handle it at a discount rate in the case of Senator Monserrate. The process the Senate Democrats have initiated is thus not only expensive, but historically tainted.


Why is This Even an Issue?

Some appear to wonder why this is even an issue. Why not have automatic expulsion upon conviction of any crime? Shouldn't out public servants be exemplary?

At this point, we need to face the fact that the notion of an “exemplary public servant” is a myth. Your favorite politician has done something wrong, or borderline, or will be accused of doing something wrong even if he hasn't. The basis for the accusation will be something innocuous that will appear bad or wrong somehow when the correct tone of voice and choice of words is used to describe it.

And that's the best case scenario. The worst case scenario is that your favorite politician has some deep flaw, which will one day become public in an alarming and hurtful way.

It's really best if you disavow yourself of the notion of an exemplary politician. There are no real “good guys” in this story. We need to be more realistic about our expectations.

Even more importantly, Senator Monserrate was elected by the people of his district. What you or I may think of him matters a lot less in our system than does the mere fact that he was elected. This is an electoral democracy, after all. To throw out Senator Monserrate, or any elected politician, is to undo the outcome of an election. That should be a rare and terrible occurrence.


A Matter of Credibility, Not Morality

But, as stated above, Senator Monserrate needs to, for the good of the Senate and (more importantly) his district, resign as soon as possible. He simply has no credibility left. None. As we shall see, the assault conviction is simply one incident among several.


Incident One: The Gang of Four....Sorry, Three

Readers will likely recall that Senator Monserrate, actually he was Senator-Elect at the time, was part of the original “Gang of Four,” or “Four Amigos,” four dissident Democrats who were decidedly uncomfortable with the idea of Senator Malcolm Smith as Majority Leader and Temporary President of the Senate.

Readers will also, however, recall that Senator Elect Hiram Monserrate caved in early, after just a few days really, and the Gang of Four quickly became the Gang of Three.

For the first time since his election to the State Senate, Senator Monserrate picked a fight he was not prepared for. The next time he made a big move and wasn't prepared to follow through, the consequences were greater.


Incident Two: The Coup That Wasn't

As is well-documented, Senators Monserrate and Espada, together with all 30 Republican Senators, launched a successful coup against then-Majority Leader and (then and current) Temporary President Smith back in June 2009. (Seems so long ago, doesn't it?)

Note Senator Monserrate in the picture attached to this article. He appears to be attempting to hide in plain sight, and to me at least he looks slightly uncomfortable. He had helped to initiate chaos he was unable to deal with the consequences.

And this was the second time, a more serious variant on what he had already done when he flirted with the Gang of Four. Whether the reasons for the Senator's actions were cynical or sincere is beside the point. Regardless of his motives, Senator Monserrate seems unable to stand up to anyone for very long. In Senator Monserrate, we have a person who is capable of causing chaos and then being frightened by it, like a child who is bewildered when his castle made of building blocks topples after he kicks it. It's not like the level of opposition his actions engendered was somehow not predictable. He just wasn't prepared.

Senator Monserrate really should have confined himself to the back bench. It would not have saved him from Incident Three, but it would have prevented the cumulative weight of these incidents from bearing down upon him.


Incident Three: The Assault Conviction

The details of Senator Monserrate's assault conviction are pretty well known, but let us review them anyway. In middle December 2008, then Member of the City Council and Senator-Elect Monserrate and his girlfriend had some kind of accident or altercation at their apartment. The girlfriend ended up with a seriously slashed face.

Hiram Monserrate was eventually charged with felony and misdemeanor assault. He was acquitted of felony assault, related to the slashing. He was, however, convicted of misdemeanor assault, relating not to the slashing but what happened afterward.

I am normally loath to post links to the New York Post (a publication which usually belongs not in the newsstands but in the toilet hanging off a plastic roll) but the article linked to above (the first of 2 links in the previous paragraph) has an important virtue: It features embedded video footage of now-Senator Monserrate dragging his bleeding girlfriend, post-slashing, first through a hallway, then through the apartment building foyer, then into an emergency room. She appears to be frightened, and clearly makes repeated attempts to get away from him.

Senator Monserrate was not convicted of anything related to the slashing incident. On that matter, there was clearly reasonable doubt, as the alleged victim had recanted her story and clearly did not want Monserrate prosecuted. However, the Judge concluded, the post-slashing dragging constituted misdemeanor assault. There was no reasonable doubt on that fact pattern; it was caught on video.

A sitting New York State Senator now faces jail time. While this outcome is not likely, jail time for first-time misdemeanors seems to be rare, it's well within the realm of the possible. That means it's also possible that the Senator will be drawing public pay while being unable to fulfill his public duties, because he is sitting in a jail cell.


Conclusions

Senator Monserrate should resign. He's done for anyway. As this link shows, the Queens Democrats, never his friends to begin with, have already designated his replacement, Assembly Member Jose Peralta. If there is a primary, all that's necessary to win is showing footage of these 3 incidents (the assault; the Gang of Four/Three; and the coup).

Again, and again, and again.

Senator Monserrate is the political equivalent of the schoolyard bully. Some of those guys can stand up for themselves, but most can't. Senator Monserrate can't. He clearly has personality flaws. If he had remained a back bencher, a member of the body who kept mostly quiet and did his thing, this wouldn't have mattered so much. He may have even been able to survive the assault conviction, by arguing that it was a private matter that didn't impact his job. But it's far too late for that.

And if he doesn't resign? Should the Senate follow through with the expensive and historically questionable process of removal?

I have no answer for that. Right now I'm just hoping he does the right thing and resigns.

My (Delayed) Reaction to Skelos v. Paterson

The first thing that struck me when I read the final State Court of Appeals decision in Skelos v. Paterson was the lack of explicit references to historical research and the innumerable “friend of the court” briefs that the Court undoubtedly received in order to help it make its decision. I guess I half-expected a long, in-depth historical analysis, but I noticed no explicit references in the decision to any part of the historical record, with just the following exceptions:

• The legislative history of the relevant portions of the Public Officers Law;

• The related legislative history of the relevant portions of the State Constitution; and

• Also related, the old Court of Appeals case Ward v. Curran, and the political reaction to it.

But upon a moment's reflection,I can understand why there weren't more explicit references to history. Readers will recall an earlier entry wherein I, unsuccessfully, sought answers to these questions in the record of the 1966 New York Constitutional Convention, and in other historical materials. I couldn't find much. With one exception (see that entry for details) almost everyone who ever thought about this issue seems to have just assumed, without thinking, that the Governor could not appoint a Lieutenant Governor. This is not one of those instances where the past has a lot to teach us, and where questions being asked now have been asked before. It's really quite the opposite. The politicos of the past seem to have never really thought to ask this question, let alone answer it. They assumed the answer, rather than analyzed the issue.

Given the ambiguity of the issue, the majority and minority opinions both make about an equal amount of sense. I can only assume that those who attribute the decision solely to partisan politics are reacting in a knee-jerk manner. While I firmly believe that politics always plays a role in any decision of any high court in any jurisdiction, and somehow I doubt the New York State Court of Appeals is an exception, even a cursory review of the relevant materials will reveal that the decision is equally plausible on the merits as it is on the politics.

Long ago I had suggested that the matter would come down to judicial orientation. Judges, I felt, who broadly speaking believe that Governors cannot perform actions not specifically allowed to them would rule for Skelos. And by contrast, Judges who broadly speaking believe that Governors can perform actions not specifically forbidden to them would rule for Paterson. I was probably right when I said this, but I now see that I have to qualify my claim somewhat. I haven't extensively reviewed Court of Appeals decisions on Executive-Legislative relations, and thus have no evidence upon which to draw broad conclusions about the philosophy of any of its individual judges.

So, let me qualify my proposition: The decision I feel came down to judicial philosophy on executive power, at least as it related to this particular issue. It's conceivable that a judge's philosophy could lead him or her to pro-executive power decisions in some cases, and anti-executive power decisions in other cases, depending on the circumstances and what the law said. (I doubt it though.) However, in this particular case, the ambiguity was so great that there was little to hang a decision on except for one's personal judicial philosophy. Neither side of the argument has any firmer basis than the other. Almost everything in this case is a matter of how one squints.

The majority opinion (the ruling of the court) basically held that the preference of current law is that vacancies in office need to be filled. Elections to fill a vacancy in the event of a vacancy in this particular office have been specifically overruled by statutes and constitutional provisions, and gubernatorial appointment is how vacancies in elective offices are generally filled. The performing of the duties of Lieutenant Governor by the Temporary President of the Senate during the vacancy is not the same as actually filling the vacancy. This could easily result in the same situation post-Ward decision that caused the Governor and the Legislature to change the law to what it is today: A Lieutenant Governor that was politically opposed to the Governor who would attempt to hinder the Governor's agenda and the operations of the government. If the Legislature had wanted to exclude the Lieutenant Governor from gubernatorial appointment, it would have done so more explicitly.

The minority opinion basically held that the Temporary President of the Senate's acting as Lieutenant Governor effectively filled the vacancy; it was an alternative to gubernatorial appointment under the Public Officers Law. If the Legislature had wanted to subject the office of the Lieutenant Governor to gubernatorial appointment, it would have done so more explicitly. Reversing 2 centuries of judicial interpretation opens up the State to a bizarre scenario wherein the Governor could one day be a person for whom no one had voted for any office whatsoever. The Temporary President of the Senate is at least elected by the voters in his or her district, is then further elected by Senators who have themselves been elected by voters in their district, and as Temporary President serves a statewide constituency.

Neither side argued their case with particular strength. There were, for example, none of the sly, literate, very judicial insults that one often sees in high court decisions. No one referred to their position as inherently obvious. Both sides respected one another's sincerity, and the sincerity of the litigants. Both sides appeared to recognize that their cases were weak by definition, and thus hedged their bets.

The majority relied in large part on how similar statutory or constitutional frameworks are interpreted in other states. The minority criticized this reliance, but then themselves relied upon an analogy to the federal constitution. I found this mild hypocrisy amusing, if curious.

The majority, to their credit, bypassed the question of Skelos's “standing” to file the suit to begin with. The question of standing is often used by high courts who want to sidestep an important issue. The Court of Appeals's majority recognized that this matter was too important to not address. The minority, by contrast, devoted over 6 pages (but not quite 7 pages) to confirming Skelos's standing to sue.

This is a strong, solid decision that will have a positive impact on New York State for years to come.

Whether or not it will help New York State's current budget woes and its current Governor remains to be seen.

Eliot Spitzer: A Response to Something Posted on Yahoo Answers

The following question was raised on Yahoo Answers:

So former NY gov Eliot Spitzer paid for sex with a call girl? So what? I honestly don't think having sex just for the sex is worse than BOTH physically and emotionally cheating on your wife and using tax money to help fund your first class trips to Argentina (ala Sanford). What Spitzer did in no way affected his ability to do his job as governor. It was a poor personal choice of his, but I think it is a shame that he was so pressured to leave his job because of a personal indiscretion completely removed from his role as governor. Now we have David Paterson running NY and doing a terrible job, especially in such a recessionary time when people like Spitzer, who went after high finance and AIG way before they were in the news, are so knowledgeable and have had so much experience fighting against the big guys.

It is a shame he is not in office right now and everybody knows it. I don't care if you're a democrat, independent, or republican, New York would be WAY better off if he were still in office.

And here's my answer.

First, let me tell you what I'm not going to do. I am not going to answer based upon my assessment, or anyone else's assessment, of Spitzer's policies. For full disclosure purposes, I'll tell you that I agreed with some things he did and disagreed with others. And I mean that on both the substance, and the style. Further, know that I'd come to the same conclusions about a politician I agreed with or disagreed with 100%, or at least I would try to.

I'm also not going to address whether or not Spitzer was "worse" than Sanford.

I will also try to not deal with the issue on the basis of conventional morality. I have my own moral views, but I've decided I don't care much about them, especially when it comes to politicians. At this point, morally speaking I expect the worst of all politicians, when it comes to their personal lives. I used to care about such things. I don't anymore.

But, as I shall try to demonstrate, the Spitzer matter was a public one, not a private one. And that, I do care about. In fact I care an awful lot about it.


The Law

Spitzer broke the law of at least 3 jurisdictions: New York State, Washington DC, and the United States. Prostitution is illegal in both Washington and New York. The scandal did not just involve prostitution, it also involved financial improprieties that violated federal law. What brought Spitzer's activities to the attention of federal authorities? He did a money transfer that in some way related to the prostitution, then tried to get his name taken off the transfer. This set off a red flag, and the bank informed the federal government.

I remember reading this at the time, and most sources attribute this revelation to Newsday, but unfortunately the story no longer appears on Newsday's website. So examine this article on talkingpoitnsmemo.com, which quotes the Newsday story. The Newsday story was also reprinted in the 12 March 2008 issue of the Albany Times Union, located here. Be aware, though, that the Times Union's site isn't that great, so the link only works about half the time.

And let's not forget the Mann Act violation. Merely transporting young Ashley across state lines to whore for him violated a federal law called the Mann Act. Sure, it's an obscure law, and it has questionable origins. But, at the end of the day, it's the law, and Spitzer knew it, and others have been prosecuted for it, including but not limited to singer Chuck Berry. Roger Stone writes about that here.

When announcing the decision to not prosecute Spitzer for his crimes, federal prosecutors at no point denied that he broke the law; they just said it wasn't in the public interest to prosecute him, and that there was “insufficient evidence” to bring charges (which is a very different thing from saying “what he did might not have been illegal,” and in any case it feels like something that was said as part of a deal, not something that bears resemblance to reality). The exact quote is here, in a New York Times article. Also here, in a Washington Post article.

“We have determined that there is insufficient evidence to bring charges against Mr. Spitzer,” Mr. Garcia said in the statement. “In light of the policy of the Department of Justice with respect to prostitution offenses and the longstanding practice of this office, as well as Mr. Spitzer’s acceptance of responsibility for his conduct, we have concluded that the public interest would not be further advanced by filing criminal charges in this matter.”

These crimes are clear, direct, and understandable. These are not the kinds of crimes that you have to build a case for, that you have to take a lot of time demonstrating why and how they broke the law. This is not the same as “did Bill Clinton commit perjury or not,” or “did Joe Bruno 'steal honest services' or not.”

For a public official to break the law in this clear and undeniable manner causes practical issues. Not just ethical issues or moral issues or philosophical issues, but clear, practical issues. The lack of prosecution doesn't reflect the “black and white” nature of the crimes themselves.

Prostitution is organized crime. That means the customers of prostitution are vulnerable to blackmail, especially if they are famous and powerful and wealthy, because those kinds of people don't like to go to jail, and have a lot to lose by being accused of crimes. And there's maybe 10 to 20 positions in politics more powerful than that of Governor of New York, and most of those are at the national level. Even aside from the blackmail potential, Spitzer's actions means that the Chief Executive Officer of New York State, one of the most important States in the Union, was a customer of organized crime.

Think about that for a moment. The Governor of New York, a customer of organized crime. This is very much a throwback to earlier days in New York State politics, when the mafia was a player in the game, competing for attention, or cooperating with, corrupt urban political machines. With his reckless actions, Spitzer did even more damage to the reputation of a State that really doesn't need more damage done to it. A few more scandals like this, and New York will be down with Illinois.

If Spitzer were in Washington DC to meet with his drug dealer instead of meeting with a prostitute, what should our response be?

In an earlier article, I suggested that New York State needed to ask the “big questions” about ethics before we worried about the composition of its ethics agencies. However, I can think of no ethical system that wouldn't forbid a Governor violating the laws of 3 jurisdictions, for sex. This is one case where the big question already has a fairly self-evident answer.


Recklessness

Spitzer's actions betrayed a recklessness unworthy of any Governor of New York, on multiple levels.

A Saturday Night Live sketch featured Governor David Paterson asking Eliot Spitzer, “you wanted to have sex with a prostitute without a condom? That's like driving in a convertible through New Jersey!” Another Saturday Night Live sketch told Spitzer, “really Governor Spitzer? You wanted to have sex with a prostitute without a condom? That might not be scary if you were client 1, but you were client 9!”

And that's not the only way Spitzer's actions were reckless.

Let's be very cynical for a moment. Can you think off-hand of a public figure more qualified to get away with prostitution than Eliot Spitzer? I could, but not many. Do you want as Governor or any other high government official someone who knows full well how to get away with something, yet still manages to get caught doing it?

Eliot Spitzer, by virtue of being a great lawyer and a former Attorney General of New York State (wherein as part of his job he went after prostitution rings), was by any standard eminently qualified to get away with what he was doing, and to keep getting away with it indefinitely.

He didn't. Why didn't he? He was reckless. He did stupid things, and he did them in stupid ways. He should have known that he would set off red flags and violate the federal Patriot Act by attempting to have his name taken off the account transfer. He should have known that by transporting Ashley across state lines he was violating another federal law, the Mann Act. He should have known that it's bad for a Governor of New York to violate the laws of his own state, and of the jurisdiction he was in at the time.

And in fact...I'll bet he not only should have known, but did know. And he did it anyway. He knew how to get away with what he was doing. Yet he still did not get away with what he was doing.

Why? Many explanations are possible. Arrogance, a desire for self-destruction....Many explanations are possible. They all go together to some degree, I suppose.

Either way, regardless of which explanation you accept, the result was a recklessness that I feel renders someone unable to be any kind of high public official, especially Governor of a large, important State with issues in the areas of crime and political ethics. A recklessness which there is no doubt whatsoever would sooner or later have impaired his functioning as an official even if he hadn't been caught violating the laws he used to be charged with enforcing.


Hypocrisy

Eliot Spitzer was supposed to be different. He held himself up as different, he made it part of his political persona. He held himself up as the White Knight, the one who was going to “clean up Albany.” He was known as “Mr. Clean.” “The Sheriff of Wall Street.” He had more nicknames than many professional wrestlers.

But, he wasn't different, except that he maybe might have been worse than others he was supposed to be immeasurably better than. Unlike the Wall Street guys he went after as Attorney General, his conduct was clearly illegal, there could be no argument, no fancy legal maneuvering away from their illegality. In terms of being prosecuted for criminal conduct, he had his options, but they do not include “yes I did these things, but they weren't crimes.” They were definitely crimes and were definitely unethical.

In this case, hypocrisy matters. (I'm not going to address the question of whether or not it would matter in other cases.) Why does it matter here? Because his being clean was part of his political persona, part of what was supposed to make him so effective. It was part of the package that the voters of New York voted for. I guarantee you that not everyone who voted for or endorsed him agreed with everything he said, or did, or promised to do. However, I can mostly guarantee you that they all bought into his persona, to his overall package. And his being “clean” was an integral part of that package.

And, it was a fraud. If he were merely an adulterer, you could accuse me of exaggerating, but he wasn't. This is not the same as the Clinton-Lewinsky scandal, wherein the politician at issue stretched the truth, but may or may not have actually lied, under oath in order to cover up a tawdry, stupid affair. That case was bad, don't get me wrong, but the Spitzer matter was worse. In the Spitzer case, the politician violated federal laws to commit and cover up violations of State and local laws. There is simply no comparison there. None. There is no way to look at this matter without concluding that Spitzer behaved hypocritically, thus violating an important part of his own political persona.


Conclusions

I could, I suppose, go on and on, just about forever, but I don't feel like it, so I hope that will suffice as an answer to the question. Why should Eliot Spitzer be demonized? See above.

I feel that Spitzer's use of prostitutes may have just hinted at larger personality issues he had, and that he may have been headed for some kind of downfall had he not cut the process short. Lucky us, potentially, that he cut it short when and how he did. If I'm right, imagine a Governor trying to deal with a fiscal crisis in the middle of some kind of political and personal meltdown. David Paterson has his issues to be sure, but I have a strong feeling that Spitzer would have ended up being worse. Whatever is wrong with David Paterson, it's not self-destructive recklessness.

Now, most of what's above is factual, and undeniable. I've tried to be clear about what my opinions are and what the facts are. If you accept all my facts, and still feel that Spitzer doesn't deserve to be demonized, then there's really not a lot I can say. We just disagree. In all likelihood, you liked and agreed Spitzer's policy proposals and found him to be an effective advocate for them, and further you are willing to overlook an awful lot, on that basis.

Lots of people think that way. There's a good case to be made for thinking that way. But I disagree. I think, whether you agree with him or not, a politician who violates the laws of 3 jurisdictions, hypocritically violates his own political persona, and engages in hyper-reckless behavior on many levels, has voided his right to hold office.

Under these conditions, when you are a public official, adultery is no longer a private matter, it's a public matter with public consequences, and a public punishment.

Ethics

I attended the Commission on Public Integrity's hearing on its “Staff Legislative Proposals” on September 8, 2009, at the Legislative Office Building. There's all kinds of things I could write about that oddly magnificent building, but I was unfortunately distracted by the hearing itself.

There was something important missing there that, at the time, I just couldn't quite put my finger on.

It wasn't the fact that whomever it was actually conducting the hearing (I believe this would be Commission Chair Michael G. Cherkasky) introduced the Commissioners to his right and rattled off 6 names even though there were only 5 people to his right. It wasn't the fact that I wasn't sure if I was in the right place or not, because the announcement listed “Meeting Room B” when it meant “Hearing Room B,” and because there were no placards outside the room that explicitly stated what event was being held there. Or because the witness list they handed out lacked a header saying something like “Witness List of the Hearing on the Commission on Public Integrity's Staff Legislative Proposals.” It wasn't the fact that at least half the attendees were, from what I could tell, there mostly to hear the Chair's post-hearing remarks defending the Commission's existence and railing against the Assembly's new ethics bill.

No, it wasn't all that. I didn't put my finger on what was missing until I did some reading later on, on political ethics generally, and then it hit me.

The hearing, the Commission's work in general, and the halting, half-hearted discussions that have been held about the issue of political ethics in New York State in recent years, were all being conducted in the near-total absence of any kind of theoretical idea or conception of what we want ethical politicians to be. Hardly anyone has given much thought to what these ethical politicians will “look” like, what they will do, how they will conduct themselves.

We may I suppose take as a given that ethical politicians won't openly, or even covertly, seek or take money or gifts in direct exchange for votes or influence, be that money in the form of campaign contributions or out-and-out bribes. But, as soon as we leave that clear territory, the waters get more murkier than we like to admit. Will these ethical politicians be allowed to have outside business interests at all? If so, are they to be allowed to associate with other businesses who have business before New York State? Should lawyers have some kind of privileged status, wherein it's presumed that their outside business interests don't interfere with their public role? (Because that's how it is now, you see. You can't buy Speaker Silver dinner, but you can fire his law firm.)

Perhaps, it's best to keep even the appearance of impropriety away from Albany. So let's say we decide to bar our public officials from all outside business interests. Are we then prepared to pay legislators, say, $125,000 a year plus more “lulus” in order to make up for the fact that they could likely make at least that in the private sector? Remember that many legislators are lawyers, or have Master's Degrees, or have successful private businesses. In fact I'll bet some of them could to better financially in ordinary state service than they are doing in the State Legislature. Though granted it would take many years to get to that salary level in the civil service, once they got there they would find the work steadier, the situation more rational, and the possibility of sudden employment even more remote. Though we all know that incumbents tend to get re-elected, recent events have shown us that incumbency isn't what it once was.

What was missing from the hearing, and from all discussions of the issue so far that I've heard, was any kind of consideration of the big picture issues of political ethics. Indeed, apart from brief discussions between some of the Commissioners and some of the witnesses (mostly a representative from the Business Council), there appeared to scarcely be an acknowledgement that such issues existed at all.

I didn't really notice that, though, until after I did some reading. After a bit of reading, the absence was suddenly glaring. It made me wonder how much, if any, reading on the topic the Commissioners had done.

The first book about political ethics I read this weekend was Three Men in a Room (2006), by former New York State Sneator Seymour Lachman. That book actually didn't help as much as I'd hoped. Lachman is a Political Scientist, and a former State Legislator, so I considered his book likely to provide insights both practical and theoretical.

I was wrong. In fact, reading this book made me question how good Lachman's Political Science education could possibly be. He was shocked, shocked I tell you, to see a political culture in Albany that was leadership-centric! He was shocked that what he encountered in Albany didn't match the theoretical ideal of democracy!

I'm pretty sure that there has not been a single legislative body in the history of humanity that has matched the ideal. That's why it's called an “ideal.” This includes the Athenian Assembly, which founding father James Madison described as a “mob” in Federalist Paper # 55. “Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob,” wrote Madison. I'm pretty sure that "mobs" are considered bad for democracy.

I think it's safe to say that James Madison didn't expect any lawmaking body to be ideal, including the U.S. Congress that he had basically designed in the Constitution, and the design of which he was defending in the Federalist Papers. It's unclear to me why Seymour Lachman would be shocked that the New York State Legislature wouldn't match an ideal image, when Madison didn't have that expectation of either the Athenian Assembly or the U.S. Congress. Further, Lachman's doctoral dissertation dealt with the legislative process (it was on Congressional funding of education programs). Lachman, in short, should have known better. This is not to defend Albany or its odd political culture, but I'm shocked by the fact that Lachman was shocked by it.

Thus, one reason that Lachman's book wasn't as useful for understanding political ethics as I'd hoped it'd be was its strange naivete. Lachman seems to have had expectations that no real world legislature, not even the Athenian Assembly, could meet.

Lachman also made a critical error that someone with a PhD in Political Science shouldn't have been capable of making. When most people speak of political ethics, we really don't care all that much about ethics as an independent issue. What we care about is achieving certain results and seeing certain policies enacted. A politics that fails to enact policies we favor must be corrupt. A politics that does enact policies we favor must be honest.

Lachman made this error in his book. As a Political Scientist, he shouldn't have.

For example, Lachman bemoans the loss of the New York City “commuter tax” (pages 15-17), and cites it as an example of bad ethics in Albany. (As I understand it, the commuter tax was a special tax on people who lived outside of New York City but worked in it. The argument for it was that, while they were in the City, those people took advantage of the city's taxpayer-funded amenities, took up space and resources like everyone else, etc. The argument against it was that it primarily funded services and amenities that the payers couldn't possibly have benefited from.)

The commuter tax, Lachman suggests, was a victim of the desire of Assembly Democrats to elect a Democrat in a largely Republican, suburban Senate District. While this may be true, I've never looked into this nor am I ever likely to (I don't care that much, frankly), is it really bad legislative ethics? No one with a PhD in Political Science should be surprised that politics plays a role in legislative outcomes. Anyone who thinks that politics shouldn't play such a role is extremely naive, and doesn't get the whole “politics” thing. Lachman also speaks badly of public employee pension “sweeteners” (I didn't write down the page numbers for that one) and of David Paterson's coup against then-Minority Leader Martin Connor (pages 105-107).

Is it really bad ethics when a policy you disapprove of is enacted, whether it's pension sweeteners or ending the commuter tax? Can't it be that you just lost the debate? Is it bad ethics for a legislator to execute a successful coup against ones his or her leader? Or is that just a case of deciding that the current leader should no longer have a job, and then seizing an opportunity.

Robert Roberts (no that name is not a joke) and Maria Dasi wrote a book called From Watergate to Whitewater: The Public Integrity War (1997), wherein they argued that recent fights over ethics have by and large been extensions of pre-existing ideological and partisan conflicts. Progressives (their term, others use the term Liberal to mean the same thing) see “corruption” as a bi-product of “big money” in politics, and tend to seek ethics reforms that reduce big money's presence. Conservatives tend to see “corruption” as an inevitable bi-product of the increasing size of government, and tend to seek smaller government both as a policy end and as ethics reform. Both sides end up spending most of their time trying to develop new ethical systems and mechanisms (special prosecutors and the like), rather than asking the truly fundamental questions.

Upon reading this book my mind recalled a book I had read long ago, called Politics by Other Means by Ginsberg and Shefter (the most recent edition of this book seems to date to 2002, but the edition I read was older than that). This book had a very similar thesis to Roberts' and Dasi's, that the machinery and language of ethics had become just another means of partisan conflict. If you can't beat your opponent at election, investigate him. Bill Clinton in particular was a victim of the politics of investigation.

I also picked up philosopher David Wood's The Step Back: Ethics and Politics After Deconstruction (2005). This book is insightful and potentially important to the ethics debate, and it helped me put into words certain thoughts I'd been having that I had, hitherto, been unable to articulate. However, the problem is that David Wood is a philosopher, writing in the way that modern philosophers write, and writing mostly to his colleagues in philosophy. This is to say that his work is nearly-incomprehensible to a non-philosopher like me. His chapter titles are hard to understand, let alone his main text.

However, in between the excessive use of the jargon of academic philosophy, David Wood gives us some remarkable insights. He begins his book with this:

Whether we try to speak about Ethics or take up a specific ethical topic such as justice or responsibility, it is not hard to conclude that we have arrived on the scene too late, that our access to what is fundamental to these issues is fading. While we can still speak about those things, even in interesting ways, it can seem that something vitally important has been lost – as if all one knew about plants came from frequenting a shop selling cut flowers. (Page 1)

He goes on to argue, to the extent that I can decipher him, that we (by which I think he means America and Americans), no longer ask the fundamental, philosophical questions of ethics. Or anything else for that matter.

We live in an infantilizing culture, sadly one of our healthiest exports to the rest of the world. How? It promotes cartoon-level simplifications of complex problems, it confuses individualism with selfishness, imagines a freedom without responsibility, it cultivates an ever-reduced attention spawn, and it promotes ignorance and disdain of what is foreign – this applies to our own racial diversity, to relations between states, and to the rest of the world. (Page 190)

One need not look too far to see this “infantilizing” at work in the debates over New York State political ethics. The Commission on Public Integrity's “mocha protocol,” described in a previous article, is an excellent example. The Commission's “staff” legislative proposals are also good examples. They consist largely of redundant disclosures, and an attempt to bar all gifts from lobbyists to legislators, including holding receptions. Such proposals are nothing if not “cartoon-level simplifications of complex problems.” New York State has no obvious coherent vision of what ethics is, what ethics should be, what an ethical politician would be like, what he or she would do. We are asking small questions and are confusing the outcomes of politics with the ethics of politicians.

The small questions are critically important to ask, when the time comes. The “small” questions of ethics deal with important matters, such as how ethical guardians are to be established, and structured. But the point is that the big questions have to be asked first.

One point that David Wood didn't think of, however, is that it's partly his fault the big questions aren't being asked. Well, not his fault in particular, but his book is an inadvertent and amusing symptom of an important malady.

The people most qualified to help us answer the big questions about political ethics are Philosophers, Political Scientists, and the like. Retired politicians can help, can offer insights. But at the end of the day it's academics that are trained to ask, and answer, the big questions that we need, desperately, to think about. And they, sadly, are caught up in a trap of only addressing one another, rather than addressing the rest of us (who genuinely need their insights), and they do so often in a language that is nearly impossible by outsiders to decipher. David Wood's book, as insightful and potentially important as it is, contains maybe 3 or 4 paragraphs that are understandable to anyone but one of his fellow academics.

One reason we're having such difficulty asking, let alone answering, the big questions is that those most qualified to help us don't try anymore. Whether this is their fault, or ours, or both, I can't guess.

We need to settle the big questions before we undertake further attempts at ethics reform. We need to decide what “ethics” means beyond policy outcomes. If New York doesn't settle these questions, and settle them soon, we'll be stuck forever in a strange world of extremes. Behavior that's unethical by anyone's definition will continue, and paranoia will take the place of genuine, well-thought-out ethics reform.

The Mocha Protocol

Here is Advisory Opinion 08-1 of the New York State Commission on Public Integrity (commonly abbreviated to PIC).

Advisory Opinion 08-1, dated March 25, 2008, is a 36-page, barely coherent document wherein the PIC outlines its interpretation of provisions of the New York State Public Officers Law and Legislative Law that deal with gifts lobbyists and others with business before public officials, can give to public officials.

I take note of the fact that the computer file of Advisory Opinion 08-1 lacks a basic amenity common to most PDF files these days: character recognition. This means that you can't copy/paste from it easily, nor can you easily electronically search the document for specific words. I also note that as the document proceeds the pages tilt more and more, giving the general impression of laziness and lack of care in their work product.

At any rate....Per the Spitzer ethics law that PIC enforces, lobbyists are allowed to give legislators (and other officials before whom they have business) gifts “of a nominal value,” in acknowledgment of the fact that relationships and friendships build up over time. (Before the Spitzer ethics reform the standard was gifts of $75.) Food, drink, refreshments, etc., all count as gifts under the law. The PIC claims that the “nominal value” language occurs in the laws of other States, and the rules of the U.S. House of Representatives. I am not about to run around confirming this claim, so I'll just accept it for now.

The PIC's definition of “nominal value” begins on page 12, and continues on through page 16. Their interpretation is noticeably stricter than those of the other entities whose interpretations of similar or identical language they cite. Those other entities use as standards such tangible items as t-shirts, baseball caps, etc. But, that's just not ethical enough for New York State.

What follows is an exact quote from PIC Advisory Opinion 08-1. I had to type this by hand, rather than copy/paste, because, as I mentioned above, the PIC has neglected to include character recognition in their PDF document. So typos are a possibility, but I have proofread it a few times.

Given the legislative purpose to remove improper influences from State government, the Commission adopts a narrow construction of the term “nominal value.” We do not define “nominal” with a dollar limit. It is our view that nominal value is considered such a small amount that acceptance of an item of nominal value could not be reasonably interpreted or construed as attempting to influence a State employee or public official. Therefore, items of insignificant value as, for example, a regular cup of coffee or a soft drink, are considered nominal. Nominal value would not include a meal nor would it include an alcoholic beverage. However, even items of nominal value can be improper depending on the context. (Page 16)

Ah, yes, that clears it up. “Regular” cups of coffee, and maybe a little soda, are proper except of course when they are not.

Also note this article authored by Elizabeth Benjamin for the Daily News's Daily Politics blog which contains the following quote:

And by "ordinary," the commission means "not a Starbucks mocha latte," according to PIC spokesman Walter Ayres.

(The actual word in the PIC document is “normal” but for some reason in that article they use “ordinary.")

The Mocha Protocol. A key facet of New York State's ethic reform law now seems to rest on it.

The Mocha Protocol is a good title for a Robert Ludlum novel, but a rather bad standard for ethics. It potentially kills the reception business in Albany, which hurts local caterers. It also destroys one of the last physical places wherein politicians from opposing parties, regions, or points of view could get together and see one another as something other than mortal enemies. Note Political Scientist Alan Rosenthal's article “Ethics and Lobbying,” originally published in a 1996 issue of an American Political Science Association—Legislative Studies Section newsletter called Extension of Remarks, and recently republished in the newletter's January 2006 issue, located here.

Quoted in its entirety, here is Rosenthal's frightening conclusion:

The irony of changing from an inside to an outside game is that instead of the ethical issues being solved, they have only changed shape and size.

Despite the sense of obligation inside lobbying may engender, it is overall an honest game. It has to be. Lobbyists must hew to the straight and narrow. They cannot afford to jeopardize their credibility, so they communicate truthfully to legislators. It they deceive, mislead, or perhaps omit, they risk making enemies. Lobbyists are in the business for the long run, so no single issue is worth mortgaging the future. Moreover, the work spreads quickly in a legislature; wronging one member can tarnish a lobbyist’s reputation with all members.

The objective of the outside game, in which constituencies and publics are mobilized, is to exert pressure on legislators. This can be done by having citizens contact their representatives or making it appear to representatives that citizens are concerned. Managers of such an enterprise are in the business of shaping public opinion and/or the perception legislators have of it. These issue campaigns, like candidate campaigns, can be highly manipulative. The political strategists, pollsters, and media consultants who run them need not worry about their reputations in a particular legislature. Their reputations derive from the victories they achieve, whatever the techniques they use. It is not unusual for these campaigns to deal in the slanted, negative, and misleading.

The integrity of the information the public and legislators receive as a result of grass roots, public relations, and advertising campaigns is considerably less than that which legislators receive as a result of lobbying based on relationships. Ethics laws have dealt with some old problems, but have given rise to some new ones. (Pages 11-12. I note that, because this document, unlike Opinion 08-1 of the PIC, has character recognition, and thus I was able to copy and paste this extended quote rather than retype it. In other words, any typos can be blamed on Rosenthal and whatever secretary at the American Political Science Association who typed up this issue, not on me.)

In that same issue of Extension of Remarks, Political Scientist Ronald Shaiko has an article on lobbying in Washington, DC called “Changing of Washington Culture: Lobby Disclosure and the Gift Ban.” He notes the following:

What is truly ironic about the gift ban efforts in the House and Senate is that these attempts to limit the role of money in the political process through the acceptance of gifts and travel from lobbyists and other interested parties have made money more important in the political process. Now the only time a lobbyist may have access to a Member or Senator outside of the confines of a congressional office or in the hall on the way to a vote is at a fundraising event. (Page 5.)

I can't know for sure, of course, but my impression is that Rosenthal and Shaiko are more skeptical of any kind of ethics reform or lobbying reform than I am. This would almost definitely be true of Alan Rosenthal, who based on other things he's written is nothing if not a fan of old-school cloak room politics. For example, one of my favorite solutions to ethics, full disclosure of pretty much everything, is viewed by Rosenthal with what I'd call skepticism, and he seems to suggest that disclosure is ultimately as destructive to legislative cultures as are gift bans.

But, that's not me. I just want the PIC to use a standard that's marginally less asinine than a “regular” cup of coffee, but “not a Starbucks mocha latte.”

Many convenience stores sell their coffee for 89 cents a cup or cheaper. Starbucks, by contrast, will sell you a “regular” cup of coffee for $3 or more, depending on size. Maybe they'll use a cup of coffee at the Empire State Plaza, or at the capital. What size? Does “regular” equate to small, medium, large, or “super.” From which location? How do they calculate the value of a reception? Do they take the total cost of the reception, divide it by the approximate number of attendees (and did they know for sure or could they have been off by a few), and then apply The Mocha Protocol?

Ethics reform is a risk. It is a risk that may be worth undertaking, especially given New York's rather checkered political history, but I for one would rather that risk be undertaken on the basis of a standard that makes sense. To undertake this risk on the basis of a standard like the PIC's just makes New York State look ridiculous, and adds to the increasing, and increasingly justified, feeling that the Empire State's best days are well behind it.

No State that uses a cup of coffee, excuse me, a “regular” cup of coffee (one has to capture that important nuance), as an ethical standard is anything other than a joke, and a bad one at that. I can imagine a Saturday Night Live sketch, broadcast at 12:45, featuring an exaggeratedly blind Governor David Paterson being dragged off by the State Police, saying "where are you taking me guys, New Jersey?", with Eliot Spitzer stuffing money in the PIC members' pockets and picking up hookers.

New York State when it comes to ethics seems to have become an either/or state. Either its politicians are blatantly and ridiculously corrupt, or they have to worry about someone buying them a cup of coffee.

There are, for example, doubts about the residency of one of Governor Paterson's key aides. OK, so doubtful residency isn't “blatantly and ridiculously corrupt,” to quote myself. And “doubtful” isn't the same thing as “true” or “proven.” But, if true the allegation is definitely worse than someone being bought a mocha.

Though it dates back to March 25, 2008, PIC Advisory Opinion 08-1 has been in the news lately. As this article on the Daily News's political blog, the Daily Politics, linked to earlier, notes, the first-ever enforcement actions for violation of The Mocha Protocol have begun. Also note this PIC Press Release, and the following quote from it:

Barry Ginsberg, Acting Executive Director of the Commission, said, “We are seeking the names of all public officials and State officers and employees who may have attended these events and will take appropriate further action.”

So not only has the PIC already nailed some people (specifically some lobbyists) for violating The Mocha Protocol, they are out looking for more people, specifically the officials who were entertained. Though it may seem like a joke, The Mocha Protocol is actually no joke. It is having real life consequences.

The timing of this matter is of particular interest. The PIC is fighting for its very existence. It has its own ethical problems. Note this article from NYPOLITICS.com, this article from NYTIMES.com, and this article from the the Daily Politics. All of these articles refer to how a now-former high official at the PIC may have improperly used his position to help Eliot Spitzer.

If nothing else, the first-ever application of The Mocha Protocol has successfully diverted press attention away from the PIC's own ethical problems, at least temporarily. How long that will last is anyone's guess.

I have a suggestion for the State Convenience Stores' Association: Greatly increase the prices of regular cups of coffee in your member stores to, say, $30 for 15 ounces. Sure, you'll lose some business, but your fellow interest groups can compensate you for the lost business, because so far as I know there's no law on interest groups giving money to each other (yet). The average price of a regular cup of coffee throughout New York state will increase astronomically, and eventually even the most ethical legislators can enjoy their triple mochas (don't skimp on the whipped cream please) while their less ethical colleagues will continue to enjoy “under the table” perks the way they always have, and always will, regardless of ethics laws.

The Mocha Protocol is a fake ethics standard, that will do nothing but hurt local catering businesses and ensure that legislators even more resent the fact that they gave up the chance for six-figure consulting jobs for this, and that lower end and middle end legislative staffers resent even more the fact that the staffers above them are over-paid while they are under-paid. Legislators who are not lawyers, or not otherwise independently wealthy, will further resent their wealthier colleagues. Because, somehow, I have the feeling that, say Senate Secretary Angelo Aponte and Assembly Speaker Sheldon Silver will still be able to afford to pay their own way everyplace. The perpetually-whining Senator Eric Adams, however, may not.

As if the existence of The Mocha Protocol weren't enough, it has a potential loophole, just to make things more interesting. PIC Advisory Opinion 08-1 pages 23 through 25 describe an exemption for “widely attended events.” Citing an opinion of one of its predecessor agencies (I'm not sure which one) the PIC defines a widely attended event as one “open to members from throughout a given industry or profession, or if those in attendance represent a range of persons interested in a given matter” (page 23). I'm not sure if this applies to the Legislature or not, but given that many of the groups that come to Albany to lobby helpfully coincide their lobbying efforts and annual conventions, this is a potentially big loophole. A loophole in a standard that shouldn't exist to begin with.