Notes From an Exile

Leave Bruno Alone

2011-04-08T13:44:00.000-07:00

Dear Federal Prosecutors:

I read more and more about the possibility of a federal government shutdown and all that would mean to the people, whether the people like to acknowledge it or not. I also read about our large federal budget deficit, the looming necessity to increase the federal debt ceiling, and, perhaps worst of all, the possibility that some Republicans will decide to oppose raising that ceiling, never-mind the catastrophe that would cause.

And in the midst of all this I also read that you, federal prosecutors, are looking to retry now-former New York State Senate Majority Leader Joseph L. Bruno. You have convicted him once on some charges, but lost other charges to an acquittal. His convictions were in effect overturned by the United States Supreme Court's understandable concerns about the law he was convicted under.

The federal government's damaged finances may appear unrelated to the ongoing efforts to put Joe Bruno in jail. But consider this undeniable fact: Prosecutions cost money. And for now we're only talking about the costs to the government and thus, indirectly, to the taxpayers. We are leaving aside the costs to middle class people who will be dragged into court, again, to testify.

Focusing only on the government's costs, as a taxpayer in the United States, I plead with you: Leave Joe Bruno alone. It's just not worth the money anymore.

I do not make this plea because I like Bruno, or because I consider the efforts you made against Bruno to have been entirely wasted.

While I began looking at this matter as a Bruno supporter, that eroded. Thanks in part to your efforts, to your previous semi-successful prosecution, I was able to see that Bruno surely was corrupt in some sense, despite my early support of him. You were clearly not prosecuting Joe Bruno for being Joe Bruno, as Roger Stone had suggested and as I'd initially feared. Even if Bruno's corruption didn't quite cross the line into illegality, he came close enough for me. Your prosecution thus highlighted Bruno's corruption and the way in which State law is lax enough that Bruno probably managed to not break any State laws while he was being corrupt. In other words, a federal prosecution highlighted the need for a better, more reasonable State law. While this isn't the primary purpose of a federal prosecution, at least I hope it is not, it is a valuable purpose, and I honor it.

By mostly failing, your previous prosecution also unintentionally highlighted that it was indeed possible to be a business consultant and a State Legislator at the same time. Bruno was, generally speaking, acquitted on charges related to consulting work he'd done that was in fact legitimate consulting work or at least appeared to be so. Where his problem came was treading in the gray area between legitimate consulting and influence peddling. A consultant-legislator who actually has consulted would appear to not be in much danger.

At least after Bruno was mostly acquitted, anyway.

Your prosecution, however, has already served the only good purposes it can. Please leave Bruno alone now. It is simply not worth your time and taxpayer money, my money, to keep going after him. Not in the age of a huge federal budget deficit, a looming government shutdown, and worst of all the distant but real possibility that some of Joe Bruno's fellow Republicans may decide to make the most irresponsible possible decision and block the increase of the debt ceiling. Joe Bruno hasn't been in power for years. He will never be in power again. It is just a waste of taxpayer money, a commodity in ever-shorter supply, to keep going after him.

It's time to let go. Spend my money going after other crimes. Make sure you convict Senator Carl Kruger. Go after lawyer-legislators, like John Sampson and Sheldon Silver, whose legal work may not be any more real than you accused Bruno's consulting work of being. Use the precious, dwindling resources the people give to you to investigate people currently in power. Not to keep up after people you've already gone after oncem haven't been in power for years, and likely won't ever be in power again..

There is simply no longer any money to spare for fishing expeditions, or for vendettas. And, honestly, a vendetta is what this is starting to look like.

Please stop and let it go. There just isn't any money for this anymore.

Sincerely,
The Albany Exile
(a taxpayer)

Honest Lawyers

2011-03-15T10:32:00.000-07:00

Where, I wonder, are all the corrupt lawyers.

Of the various New York State politicians who have been credibly accused or convicted of various corruption charges of late, only one that I can think of, former State Senator Vincent Leibell, was a lawyer, and what he did was an old-fashioned mafia-style shakedown more than it was anything actually political.

Neither Carl Kruger nor William Boyland are lawyers. Nor Joe Bruno, nor Shirley Huntely, nor Vito Lopez, nor Shirley Huntley, nor Tony Seminerio. None of these people are described as lawyers in their official biographies, and they are not listed in the Office of Court Administration's attorney directory.

I suppose I might have missed another scandal involving a lawyer-legislator. There have been so many scandals, losing track is easy. Assuming I haven't, though, one could think that lawyer-legislators are probably the most honest and least corrupt. While that may be true, I don't think it's the reason comparatively few of them are either convicted of or credibly charged with crimes.

Many, but not all, of the allegedly corrupt legislators have been accused of variants on the same crime, which is using fake “consulting” firms to in essence funnel bribes collected for performing legislative work. In these arrangements, little or not actual consulting work is done. If I recall Joe Bruno's convictions correctly, he was acquitted when the jury thought he was doing real consulting work and convicted when they thought he wasn't. So it's not like there's no way to be a business consultant and a legislator at the same time. One just has to, you know, actually consult.

An old saying in Albany goes something like, “you don't bribe a legislator anymore, you hire his law firm.” It's only been pretty recently that we could add, “or you hire him as a business consultant.”

Assembly Speaker Sheldon Silver is “of counsel” at a prominent law firm, as is Senate Minority Leader John Sampson. Senate Majority Leader Dean Skelos also has a law firm, exactly what his title and role are I don't know. How many people with business before New York State, we wonder, have hired one, or all, of those firms. And is any real legal work done.

Has anyone looked? Maybe they have. But my distinct impression is that lawyers are potentially given a free pass for no-show work because they are lawyers.

I'm not saying legislators' law firms are hired for no-show work. I'm saying that, the way the rules are written and interpreted, they could easily be.

The rules are written, mostly, by lawyers, and are enforced by other lawyers who are called prosecutors and judges. Lawyers like to hide behind the concept of lawyer-client confidentiality. Other professionals, such as business consultants, security consultants, or private detectives, clearly do not deserve the same considerations that lawyers have, or at least so say the lawyers who write the rules. Lawyers, you see, can think in boxes. Therefore, surely a lawyer-legislator won't be influenced by, say, the Trial Lawyers' Association or one of the Koch Brothers' businesses hiring his firm for big legal fees.

But those businessmen. You have to watch out for them. Surely, they will be influenced by those big consulting fees.

I understand of course that lawyer-client confidentiality is important; but is it really any more important than consultant-client confidentiality, when it starts to rub against public trust? Does a legislator's bank account know the difference between a legal fee and a consulting fee?

There is simply no good reason to hold legal fees as more sacrosanct than consulting fees. Both can be used as a form of influence, and both probably are. There is no good reason to think that, in terms of influence peddling, a no-show legal job is any less dangerous or corrupt than a no-show business consulting job. We shouldn't allow a New York State Legislator to be more efficiently corrupt because he happened to go to law school as opposed to business school or accounting school.

There are, of course, several other signs that New York State doesn't take ethics seriously as a policy issue, but in a way this one is the most telling, and almost certainly the least-sung. In effect one profession is singled out. The legal profession is in essence excused from the kind of corruption that seems to be the most common these days. Not excused from committing it, I mean, but excused from being legally held accountable for it. In the strictest legal sense, lawyers can only be corrupt by going far out of their way to be so, like Vincent Leibell did.

Or so it seems.

Joe Bruno once stated that he'd pitched to Eliot Spitzer that ethics reform should include full disclosure of all outside income for legislators, including lawyer-legislators, but that Spitzer balked at the inclusion of lawyers.

New York must take ethics seriously if it is to bother proceeding at all. It needs to start with putting all outside income for legislators on an equal footing, if outside income is to be allowed at all. (And if it's not you need to at least double the legislators' legislative pay and tie it to the inflation rate.)

When I hear about a potential Moreland Act Commission to deal with the issue of ethics reform I get very nervous. A Moreland Act Commission is a blunt instrument by definition, and is beholden only to the Governor. But you know what? If such a Commission will take ethics seriously as an issue and have all options on the table, including ending the disparate treatment of lawyers and other professions?

Then I, for one, will take it.

Adult Supervision

2011-02-16T17:36:00.000-08:00

“Wall Street,” a financial expert once said on National Public Radio, “needs adult supervision.” I have heard of something very similar said by some Wall Street guy or other, in the pages of the book The Big Short, one of several books about the financial crisis that I have yet to read but really should.

Basically, this Wall Street guy said that the financial industry kept doing what it did in-part because it kept expecting the adults to come in and stop it. "Surely the adults won't let us play this dangerously forever," the thinking went. But then the financial industry realized that there aren't any adults anymore. Along very similar lines, note this New York Times' interview with grandmaster Wall Street con artist Bernie Madoff. Madoff claims it likely that the banks had to have caught onto what he was doing, and chose to look the other way.

The need for adult supervision isn't confined to Wall Street. Albany is a city which seems to be almost entirely devoid of adult supervision. Come to that, the oil industry doesn't seem to have many adults either. Nor does the auto industry. To pick but one glaring example, it shouldn't have taken Congress, or the ever-reliable mainstream media, to point out that showing up to ask for money in your own private jet sends entirely the wrong message. That's a child's mistake, not an adult's.

The debt collection industry is another example. A series of articles and documentary films have convinced me that this industry is largely made up of overgrown children, pretending to be pirates. I didn't make that comparison up. It came straight from the mouth of a debt collector quoted in the documentary film Maxed Out. Similarly, the Fall 2010 newsletter of the New York State Collectors' Association termed “ridiculous” a bill introduced in the New York State Legislature that would prevent the collection of debts from the dead. Only someone who doesn't know the debt industry would be surprised by the thought of a collector attempting to collect from the family of a corpse. The Association similarly opposed vociferously a bill that would require debt collectors to be (gasps in horror!) licensed. How dare adults try to spoil our fun!

Adult supervision.

When the British Petroleum oil spill happened in the Gulf of Mexico, I, like Roger Ebert, was struck by the incredible degree to which attempts to get BP to clean up after its own mess were taken by Fox News and the like as an attack on the capitalist system itself. Did this remind anyone else of a chastised child claiming “it's not fair” and then running to a neighbor or a favored uncle? What, I wonder, would the hue and cry have been if regulators had stepped in to try and stop Bernie Madoff?

Are there no more adults? Consider this. It's not like financial regulators did not exist even before recent changes to the system. Madoff had to do filings with them; in the New York Times interview cited above, Madoff expresses surprise that no one caught onto the discrepancies in his filings. It's not like Albany politicians don't have to do filings. Indeed, filings were a menace to Senator Pedro Espada even before the potential extent of his corruption was authoritatively established. And it's not like debt collectors don't already have rules to follow.

Adult supervision exists on Wall Street, and in Albany, and in the debt collection industry. It probably exists in the auto industry and oil industry as well. I wonder if it isn't that there are no adults, but rather that the children have merely figured out ways to hide from them. I read of changes to the financial industry regulatory system, changes which are surely needed. I read of ethics reform proposals in Albany. I read of private lawsuits against debt collectors, and of an New York State Attorney General crackdown on the industry. And then I read that, at the same time that the Attorney General is investigating debt collectors, he's also hiring them.

If I am right, and it isn't that there are no more adults so much as the children are quite adept at evading the adults, then all the additional supervision in the world is simply may not matter.

Not on Wall Street, not when the debt collector is pounding on your door, and surely not in Albany.

Zero Effect: The Arizona Shootings

2011-01-12T21:06:00.000-08:00

It wouldn't surprise me whatsoever if the shooting of Representative Gabrielle Giffords by Jared Loughner was politically motivated. And that's the picture that's starting to emerge. (Mr. Loughner shot others besides Representative Giffords, of course, but Giffords was his primary target, so I refer to the incident as her shooting.)

Indeed, it would surprise me if the incident were NOT politically motivated. If it turned out it was merely the product of voices in the gunman's had, or if there were some old family grudge he thought he was settling, basically ANY non-political motivation, that's what would surprise me.

With all the violence inherent in today's politics, I refer to violent rhetoric and violent implied inclinations, it's surprising that such an incident hasn't happened sooner. And let me say something that isn't politically correct, but is true: This violence is mostly, almost exclusively, found on the right. The days of the Black Panthers and the Symbionese Liberation Army, violence on the left, are for the moment long past. Perhaps the most-violent rhetoric from the left I've seen in awhile came from Eliot Spitzer, and we saw what happened to him.

Some folks wish this shooting to be what public policy scholar Thomas Birkland calls a “focusing event,” a moment that crystallizes the need for a change. Seen as a focusing event, presumably the shootings would focus our attention on the need to increase civility in our public discourse, to recognize that there's a difference between winning an election and “knocking you down,” as now-former New York Governor Eliot Spitzer so eloquently threatened to do to now-former New York State Senate Majority Leader Joe Bruno. Birkland was talking about a policy change following a focusing event, not a change in political tone or a process change, but the principle is the same in both cases.

And it sure would be nice if this shooting could serve some good. I'm tired of seeing the right portray President Obama as the Joker from Batman, or with a Nazi flag behind him. I'm tired of people bringing guns to meetings with their Representatives to protest the government giving them health care. I'm tired of people at rallies threatening to lynch the Attorney General of the United States. I'm tired of hearing the likes of G. Gordon Liddy advise people to shoot federal agents in the head. I'm tired of Newt Gingrich thinking he knows what a “normal American” is and who the enemy of those “normal Americans” are.

And, mostly, I'm tired of hearing Sarah Palin and Carl Paladino and those of their ilk use sex-laced, incendiary rhetoric and then hide behind the First Amendment when something bad happens. The First Amendment, after all, doesn't give one the right to yell fire in a crowded theater.

It would be nice if this shooting helped to end all that, helped to restore to America a conservative movement that not only understood that compromise was necessary but that praised the idea of compromise (as Ronald Reagan once did) and that understood your opponents could be friends after 6pm (as Ronald Reagan and Tip O'Neil claimed to be). But let's face it. Even if the shooting was politically motivated (which it may-yet turn out to not be), and even if that fact if true were undeniable (and, sadly, everything is deniable these days), it still wouldn't change anything. The shooting will not be a focusing event for anything.

The shootings by army psychologist Nidal Hasan were successfully directed into scrutiny on American Muslims, and logic suggests the Arizona incident will direct a similar scrutiny toward the right. But contemporary American politics, as the shooting itself ironically suggests, is not about logic.

The violent rhetoric of the right isn't new, and we've seen similar potential focusing events before. The Oklahoma City bombing; the Branch Davidians' madness at Waco Texas; the Olympic Centennial Park bombing; the anti-government Right Wing rhetoric and violence of the Unabomber; various abortion-related killings; the flying of an airplane into IRS offices in Texas; the shooting at the United States Holocaust Memorial Museum; etc. All of these, and others, many others, were potential focusing events to change the increasingly ugly nature of our political discourse. But all were successfully redirected. Instead of focusing on militias, we focused on the alleged root cause of the militias: Bad government. Ironically, this is the same thought process, focusing on society and not the criminal as the root cause of crime, that the right has long decried when it's convenient for them, such as now, wherein we are told that Loughner is totally responsible for his own actions. The right wing insisted that we reach out to gun-toting politically-motivated lunatics (as long as their actions can be somehow traced to spontaneous anger at the government itself, and not the result of things said by the political right) with sympathy and understanding, even as they explicitly denied similar considerations to gun-toting, economically-motivated urban street thugs. Or to gun-toting politically-motivated lunatics whose actions can in part be traced to violent political rhetoric.

And that's what'll happen this time. Nothing. Or, worse than nothing, the incident will somehow be used to cast scrutiny in the wrong direction.

The corrosive influence of Post-Modern philosophy on America's public life, once feared by the right, has become their greatest friend, because it enables them to sell us political goods we can't afford and have no good reason to buy. When all facts become opinions, it's the opinions of those with the biggest mouths and the most money that get to become facts again. And when all values are openly questioned, anger becomes the most-important value. Anger focuses, cuts through, motivates, intensifies. And, best of all, anger cheap to buy or manufacture.

The right, by far, has the most money (the Koch Brothers, unlike George Soros, aren't going to back down for fear of being misunderstood), the biggest mouths (conservative talk radio has reigned since the 1980s), and certainly the most anger. And if the anger already present isn't sufficient, the money can be used to buy more.

If Sarah Palin's pathetic, self-serving video, and her bizarre public E-Mail exchange with Glenn Beck, showed us anything, it's that the redirection process has already begun. And if the polls showing that Americans mostly think that the shootings in Arizona had nothing to do with politics are accurate, it may mean that the redirection process has already succeeded.

Zero effect. This, America, is the politics we're stuck with, the politics we've made. Focusing events may have no actual meaning.

On Legislative Staff

2011-01-12T08:17:00.000-08:00

In a recent piece on Senator Leibell's ethical issues, I briefly mentioned Senator Leibell's staff. I wondered aloud if maybe one of Senator Leibell's problems was that he lacked staff with either the guts or the authority, or both, to tell him that what he was doing was both wrong, and stupid, and would harm all of them. (This of course assumes his staff had any idea what he was doing, and simply “knew better” than to call him on it. It might be the case, of course, that they had no idea at all.)

I was criticized for these remarks; I was accused of blaming Senator Leibell's problems on his staff. But I was doing no such thing.

Well, then was I saying that it was staff's responsibility to police the actions of the boss? Again, no, I wasn't. The responsibility for all legislators' actions, and all of a legislature's or legislative conference's actions as a collective body, falls on the legislators themselves.

What I was doing, however, was highlighting the important and oft-overlooked role of legislative staff. As a legislator, a good staff can, if you let them, save you from yourself, at least temporarily. (In the long run, of course, no one can save anyone from themselves. But staff can help in the short term.) Staff should be good enough, trusted enough, and have enough integrity to tell you that what you're doing is wrong, whether it's an unjustifiable policy choice, or an unethical or even an illegal action. Political trust between legislator and staff is important, yes. (Note, though, that political trust is not the same as political agreement.) But, at the end of the day, competence, intelligence, and guts are all more important than is political trust.

I should imagine that for a legislator one of the most tempting things in the world is to hire staff that will just stroke your ego, reenforce your ideology and your preconception, and find smart-sounding ways to simply confirm what you say. This is an understandable temptation that should be avoided.

It's incumbent upon legislators, individually for their offices and collectively for the house or conference, to build a good staff. To seek out people who know what they are doing, have integrity, and are unafraid. As the legislator, ultimately the decisions are yours, and staff should respect that. But the staff also shouldn't be afraid to tell you to your face, behind closed doors of course, that what you're doing is wrong. Whether it's a bad policy, or an unethical (or illegal) action. If you discourage staff from performing that critical function, or even worse if you initially hire staff who isn't inclined to perform it, you have done yourself, your constituency, your conference, your chamber, and your state a disservice.

Sadly, I have no impression that the New York State Legislature (I speak especially of the State Senate, which seems to make the news a lot more often) agrees with me. If they have the tough, smart, capable staff I envision, they keep it well-hidden, and seem to rarely or never listen to it. Bad policy and lack of ethics don't always, or even mostly, go hand-in-hand, but there are important linkages. Staff is one of those linkages.

I don't know for sure, of course, that Senator Leibell's staff didn't try to talk to him. Ditto for Senator Espada, Senator Bruno, Assembly Member Seminerio, or any of the others who have faced problems. It might be that in all these cases, staff tried to warn legislator, and legislator didn't listen. Or staff might have not known at all. (With Bruno at least, thanks to his trial, there's a record at least of what people say or claim went on, so someday perhaps I will obtain that record and see for myself. With the others, though, we may never know for sure.)

But with all the problems New York's state legislators have had of late, one wonders if part of it is that they are hiring folks who kiss up and kick down, John Bolton style, rather than the people they should be hiring. And indeed, there's actually some specific reasons to think that hiring bad staff might be part of the New York State Legislature's problem, at least as far as the Senate is concerned.

Our first example comes to us from the Senate Democrats. Under Democratic rule, the State Senate hired former disc jockey Christopher Sealey as “Director of Creative Services” (huh?), at a 2009 pay rate of about $92,000 a year. Published reports indicate that even he was surprised by his hire. Luckily, he's ended his State service entirely, and he can go back to being a disc jockey. I have no idea what he did for the Senate and I don't think he did either.

For our second example, we go to the Senate Republicans. Who could forget the bizarre E-Mail from Senator Dean Skelos' aide, Thomas Dunham, to then Senate employee Edward Lurie, which was sent in late 2008 and hit the news in early 2009, wherein Dunham blatantly plotted to use Senate research staff for electoral purposes? To do such a thing at all was bad enough, but Dunham also put it in E-Mail, apparently not aware that E-Mails sometimes get leaked. It was, thus, not enough for Dunham to do something wrong; he had to also do it stupidly. Despite this, Dunham continued to work for the Senate Republicans during their two-year stint in the minority, and in 2009, according to SeeThroughNY.net, he made $150,000 working for the Senate Minority. (Almost double what the Senate Democrats' disc jockey made.) One wonders how much he'll make in the Senate Majority.

For our third example we return to the Senate Democrats, and highlight the hiring of Senator Pedro Espada's son for a six-figure job, from which he was quickly removed after the hiring broke as a scandal, part of a small series of Senate Democratic hiring scandals.

Sadly, I have no impression these hires were atypical for the Senate. Any good people they may have hired have quite likely been simply drowned under the weight of the bad ones. It came as no surprise to me to read that the Senate Democrats had exceeded their staff budget by a considerable amount. It actually wouldn't surprise me if it turned out that the Senate Republicans had done it too, but I've read nothing that says so.

Political Scientist Alan Rosenthal once wrote that legislative staffing is an important element in building the capacity of state legislatures. A more-prepared staff means a more-prepared legislature. Political Scientist Michael Malbin has argued that at the federal level, legislative staff (which of course at the federal level means Congressional staff) has become so important to the legislative process that it endangers the principle of representation.

After two years, a little more, really, of the least competent State Legislature that I am aware of (the Senate casting a terrifying shadow over the State Assembly), I think New Yorkers are probably ready for a legislative staff that endangers the principle of representation, if such also means a Legislature that is run well and enacts policies that have at least the semblance of being thought out.

Now, let's be clear: None of this is staff's fault. The legislators' actions are ultimately the legislators' responsibility, and that includes building up staff.

I have to wonder, though if anyone told the Legislators any different. Did anyone drag Vincent Leibell aside and say, “please don't do this?” Did anyone tell Eric Schneiderman, “this millionaires' tax....what you're saying on floor of the Senate greatly exaggerates its potential?” Even if staff didn't know about Leibell's lack of ethics they surely knew of Schneiderman's wild exaggerations on the Senate Floor. Did they say anything? Were they even allowed to?

Or of the State Legislature, especially the Senate, has simply been hiring people who will help keep up the bubble?

If so, that's the wrong approach. It hurts the effort to make public policy that there's at least a good argument for. And, it hurts the effort to change the bizarre culture of Albany, which it seems only gets worse with increasingly strict ethics reforms. There are two aspects of Albany's corrupt culture that are within the State Legislators' direct control: Their own behavior, and who they hire to watch their backs. Someone can't watch your back when he's afraid he'll get fired for yelling in your ear. Or if he lacks the capacity to recognize a threat when one appaers.

In many ways, the key to good legislative staffing is to resist the temptation to stuff your ranks with political loyalists, cronies, and those to whom you owe favors. (Or, those whose families you owe favors to.) Currently, one could be forgiven for suspecting that staffing at the New York State Legislature is little more than a patronage mill. There are a few internship programs (for undergraduate students) or fellowship programs (for graduate students), in both chambers, that attempt to draw individuals with actual qualifications into both houses of the Legislature. But these are small in scale compared to the problem itself.

If ethics and good policy (or at least justifiable policy) aren't enough too make the Legislature think twice about who it hires, then consider this.

Competition was an important buzz word in Andrew Cuomo's 2011 State of the State message. Based on what I have seen and heard at the capital, the Legislature's staff, especially the Senate (both Conferences), is simply unprepared to compete with Andrew Cuomo. They will need smart, tough, educated, prepared people in order to remain relevant over the next few years.

Gubernatorial behavior, Legislators, is not within your power to control. Your capacity to respond to it, however, is. Good staff is your sword and your shield.

What's Wrong With New York?

2010-12-04T09:37:00.000-08:00

I've written about political corruption in Albany a few times in these pages. See here and here.

Mostly I concluded, and continue to conclude, that the issue is very complex, politicians' approaches to the issue have tended to infantilize it, and that no approach will succeed until the issue is taken seriously. Stricter rules, by themselves, are not an attempt to take the issue seriously. They are window dressing, at best, distractions at worst.

That corruption is rampant in Albany is something of a cliché at this point. Usually corruption is, like dysfunction, a code word for “the system didn't produce the results I wanted, therefore there must be something wrong with it.” Few, however, would disagree that the New York State Legislature has been corrupt and dysfunctional even apart from any results it has, or has not, produced! But I have to say I think there is a degree to which I didn't realize just how corrupt Albany was until I heard about the plight of now-former (as of Friday December 3, 2010) State Senator Vincent Leibell. See here and here.

From everything I have read and every insider I have spoken to (or listened to when it appeared I was not listening), Vincent Leibell would have stood an excellent chance of winning a “State Senator least likely to be corrupt” award, had such an award existed. If there were any indications until now that he was corrupt, I didn't see them in anything I read about him, and no one I ever spoke to or listened to had any inkling.

Did I miss something, I wonder? Did those whom I spoke to or listened to miss something? Perhaps. Maybe this wasn't a surprise to everyone, like it was to me.

Or, perhaps, things have gotten so bad in Albany that even whose who appear honest aren't.

After Leibell's troubles have come to light, the cliché that Albany (and the New York State Legislature in particular) is corrupt to the core seems to me to be less cliché than fact. I do not mean to say that every politician, or even every State Legislator, whose feet have ever touched Albany is corrupt; that would be a statistical implausibility. (I am no longer prepared to call anything impossible, but calling it implausible seems safe.) But I do mean that, after Vinnie Leibell's troubles came to light, I no longer feel safe in assuming that most of New York's public servants are honest, keep their noses as clean as the savage nature of political life will allow, and want to do good. I no longer believe that corruption isn't the norm. I no longer believe that Albany's “culture of corruption” is the product of too many bad apples whose actions have a very large ripple effect. Such beliefs, which I once considered realistic, now seem naïve.

In brief, after the revelations about Vinnie Leibell, I'm way more inclined to think that corruption is the norm.

Through a lot of reading on political ethics, I've realized something interesting and disturbing: The corruption in the New York State Legislature breaks many key expectations Political Scientists have about corruption in State Legislatures. Alan Rosenthal, a scholar from New Jersey, suggests we can expect State Legislatures to be less corrupt if they are professionalized, which New York's Legislature surely is. He also writes that by and large State Legislatures are less corrupt today (though technically when he wrote this it was in the 1990s) than they were in the 1960s. If this is true in New York I dread to think of the 1960s.

So what's going on? What's wrong with New York? What's going on that makes Alan Rosenthal, who has devoted a career to studying State politics, wrong in some of his key expectations (at least when it comes to New York)?

Another Political Scientist, Joseph F. Zimmerman (who teaches at SUNY Albany and, like Alan Rosenthal, has been investigating state politics for many years), suggests that an “individualistic” political culture, like New York's, promotes political corruption. While this may be true, he also suggests, rightly, that alternative political cultures can't be set up easily. And I would like to think that there are ways to stem corruption other than wholesale alterations of a State's political culture. New York State's individualism has had many positive effects which I would hate to lose.

Zimmerman also wrote that political corruption was “limited only by the ingenuity of the human mind.” Surely, and sadly, this is one way in which Political Science's expectations are not broken by the New York State experience.

From what I have heard and read of baseball during the 1980s and 1990s, if you were a baseball player back then, you faced a stark choice between using steroids and accepting a second-class status. Maybe that's the issue here as well. Maybe after seeing “everyone else” get away with so much, one feels stupid for not being corrupt.

Maybe the New York State Legislature, despite having a pretty large staff (the State Senate alone is a $100 million a year business and surely a good amount of that is staff), doesn't have the right kind of staff. Perhaps the staff is too politically minded, is too focused on finding problems that need to be solved and not focused enough on finding solutions to known problems, and perhaps telling the boss what he doesn't want to hear. (Another Political Scientist, Michael Malbin, describes a similar dynamic among Congressional staff. Now that I think about it, he's written about ethics too. And now that I think about it a little more, he teaches at SUNY Albany, along with Joseph Zimmerman).

One would think that someone on staff should have told Vinnie Leibell to not do whatever it was he was doing. Maybe no one felt comfortable saying no to the boss. Maybe he kept whatever he was doing to himself. Even had Leibell's actions not risen to the level of a federal crime, surely they would've looked bad. And I should think that, as a politician, Vinnie Leibell understood that he had to mind his image. And if he didn't, someone on staff should have. Or, perhaps Leibell just didn't listen.

Perhaps it's simply the fact that New York State doesn't take ethics seriously. Alan Rosenthal and Joseph Zimmerman both agree that ethics needs to be taken seriously as a policy issue. There are no easy answers. Attempts at easy answers fail. New York's current ethics law is alone proof of that. The pathetic “mocha protocol” has done nothing to stem the rising tide of legislative corruption.

No matter how much more there is to say on political ethics, I find myself returning again and again to my shock. Vinnie Leibell, who from what I can tell was known for his honesty and integrity and intelligence, is, it would seem, corrupt.

If Vinnie Leibell is corrupt, as far as I am concerned, all of them probably are, to one degree or another.

So, what's wrong with New York?

Perhaps Leibell's troubles will serve as a wake-up call? No, I don't think so. Joe Bruno's conviction wasn't a wake-up call for the Democratic Senate leadership. If it had been, surely the AEG scandal wouldn't have happened.

So, what's wrong with New York? How many wake-up calls does the New York State Legislature need before it finally wakes up? How does New York so-completely break the expectations of people who have spent a career studying politics?

I have cited three Political Scientists in this article. Any one of them, or all of them together, could help to inform a new ethics policy, one which would surely be literate and realistic and deal with the issue in an intelligent way. And they may even have insights into what makes New York so unique, or at least makes it seem so unique, on this front, why New York breaks expectation. Two of them work in walking distance of the New York State Capitol. The other works in New Jersey, which isn't all that far away. Pick up the phone, send staff to the library.

What's wrong with New York?

More words fail me.

The Paranoid Prince: Carl Paladino and Two of America's Darkest Political Traditions

2010-11-11T09:19:00.000-08:00

Carl Paladino is many things, but going away is not one of them. First of all he's said he isn't going away. And secondly, nothing about his personality that we've seen in public suggests that he'd go away, even if he hadn't already said he wouldn't.

So, no, as much as we might like, Carl Paladino isn't going away. As a present and potentially future political power, Paladino warrants further consideration despite his crushing loss. His defeat at the hands of Andrew Cuomo was so crushing that it's easy to forget his rout of Rick Lazio to win the Republican gubernatorial nomination in the first place.

Carl Paladino, I argue, can be understood in part as belonging to two dark American political traditions. Referencing these two traditions is not the only appropriate way to understand Paladino, but they are a way to do so.

One of these traditions is described by Niccolo Machiavelli in The Prince, one of the most famous books about politics ever written (and deservedly so). Among many other observations, much of Machiavelli's work can be seen as describing politics as a kind of fetishized violence. Politics, as Machiavelli described it, is the imposition of one's whims on the unwilling. Politics is rape.

The other tradition is what Historian Richard Hofstadter called the “paranoid style.” The political paranoid tends to see his political enemies as part of a great conspiracy, against the paranoid and against the paranoid's way of life, which typically is seen by the paranoid as representative in some way of the best American traditions and values.

Neither of these traditions are exclusive to America, of course, but we'll mostly be considering them in their American forms.

The Would-Be Prince: Machiavelli and Paladino

In 1513, Niccollo Machiavlli wrote The Prince as in essence a job interview for a gig as a political consultant or adviser. In this work, Machiavelli more or less by accident changed the face of political analysis, and arguably at once made himself into the first modern political scientist and the first modern political consultant, both at once.

The term “Machiavellian” has become something of a political slur, implying a total, amoral ruthlessness. However, legitimate interpretations of Machiavelli do not stop at the famous formulation of “the ends justifies the means.” Machiavelli is much more complex than that, and can alternately be described as either “better” or “worse” than his famous restatement. Better in the sense that there's some evidence that Machiavelli's real ambition was to find a kind of patriot-king to unify Italy and lead it out of a dark spot in its history. Worse in the sense that, if the ends justify the means, that assumes there's some objective moral criteria by which both can be judged. Whereas Machiavelli might suggest that no such moral objectivity exists, and that all we really have is the ends and the means.

As political scientist Hanna Pitkin put it:

Machiavelli's thought is as problematic as politics itself, presenting a different face to each observer. Thus, he is also one of the most misunderstood political theorists, or at any rate the most subject to conflicting interpretations. Some see him as a tough-minded advocate of raison d'etat, others as a romantic who idealized Ancient Rome; some see him as a passionate patriot, others as a cynic; some as a detached, objective observer, others as a teacher of evil; some as a republican, others as worshiping strong leaders and military might. (Hanna Pitkin, Fortune is a Woman, 1984, page 3)

Pitkin is right even if one only reads The Prince, and neglects his second most famous work, The Discourses on Livy, or his various lesser-known works. If you read those, the picture grows ever-more complex and ambiguous. Machiavelli understood his subject matter well, and arguably the ambiguities in his thought reflect the ambiguities of politics.

Today, I would like to highlight an aspect of Machiavelli that isn't written about as often as other aspects are, and that is his emphasis on politics as fetishized violence, as sexual aggression. Pitkin's book touches on this. She writes about Machiavelli as an advocate of masculine autonomy, as incorporating the various contradictions of masculinity.

One element of masculinity Machiavelli surely does not neglect in The Prince is that of sexually aggressive violence; of politics as a violent imposition of will on another. I have always seen the violence Machiavelli writes about in The Prince as something more than a sad consequence of pursuing politics as the situation requires. Every time I read The Prince, and I've read it a lot, I cannot escape the feeling that there is something fetishized about Machiavelli's violence. Something that suggests maybe the violence itself is a kind of end, as much as it is a means. To be crude about it I can rarely help but wonder if Machiavelli's Prince isn't getting off on the horrors he has to perform.

Doubtlessly, the rawest example of what I'm talking about is this oft-neglected quote, used by Pitkin for the title of her book:

Fortune is a woman who to be kept under must be beaten and roughly handled; and we see that she suffers herself to be more readily mastered by those who so treat her than by those who are more timid when she approaches. And always, like a woman, she favors the young, because they are less scrupulous, and fiercer, and command her with greater audacity. (Machiavelli, The Prince, end of Chapter 25)

I am informed that the more literal translations of this passage actually make the rape image rawer and more horrifying, “beaten and roughly handled” becoming “it is necessary to beat her down, and strike her down.” The closer we get, in other words, to Machiavelli's original words in his own language, the more politics is like rape, the greater the sick horror of the image.

And, indeed, even in the present day, when politics ends with shattered careers and shattered lives rather than a broadsword through the heart or breaking on the wheel or rack, there is an element of fetishized violence in politics, an element of the violent imposition of will of one upon another. Some politicians find it convenient to not compromise, not deliberate, but rather to attempt to steamroll over their enemies, because they see their enemies as true enemies, not as colleagues and honorable opponents.

There is surely an element of fetishized violence in every politician. However, those such as Eliot Spitzer who are so open and public about it are to be feared, because it shows that they likely aren't capable of the other elements of politics, especially democratic politics: deliberation, compromise, negotiation. If the politics they pursue in public is one of violent imposition of will, imagine what they are capable of doing in private. It is scarcely possible to imagine that in private, they deliberate and compromise. It is one thing to compromise after a strongly-worded ideological or policy debate. That's hard, but it's doable. When the imposition of will itself becomes the important thing, however, compromise and deliberation would seem to be nearly impossible.

Carl Paladino can fairly be said to have made his prowess a centerpiece of his campaign. He hard-balled nearly everything. Perhaps the most ridiculous example of this was a bizarre E-Mail exchange with some random fellow who sent him a rude E-Mail about the gay marriage issue. Then, of course, there's the E-Mails that first brought him to prominence (take care with that link by the way, it's "not safe for work"), which included sexually violent images alongside the racist ones. (And, I'm sorry, but a horse having sex with a human woman is violent by definition, even if she wanted it with every fiber of her being.) He threatened to take a baseball bat to Albany, he referred to a sitting United States Senator as a “little girl”
(an obvious attempt to belittle her). He showed us an even-darker side of his violent politics of imposition in an incident involving Fred Dicker of the New York Post (I almost mis-typed and referred to Dicker as a “reporter”). Cal Paladino put his sexual prowess on such display that he in essence, as I have argued here, begged to make it a political issue. And when he succeeded, he then whined.

I haven't even gotten into one quarter of the obviously sexualized moves Paladino made before and during this campaign, for example I haven't cited his numerous exhortations to Andrew Cuomo to debate “like a man.”

These moves will continue for as long as Paladino is in politics, and as I stated he isn't going away. The only question will be whether or not anyone listens anymore.

Machiavelli's aggressive, hyper-sexual politics, as emulated by Carl Paladino, can be seen in stark contrast to the ideal model of how politics in the United States, and by extension in New York State, is supposed to work. That model, best described by James Madison, is a politics of deliberation, compromise, pluralism, and institutions, a politics of laws and informal rules, not men, not personalities. James Madison knew very well that there would be personalities, Princes, in politics. The Madisonian system is designed to both channel and restrain a Machiavellian Prince's ambitions (see Federalist Papers numbers 10 and 51). Madison still feared that sometimes the “mild voice of reason” would be drowned out by a Prince's passions (Federalist Papers number 42). He was right to so fear.

In an American context, you can see this aspect of Machiavelli's politics, the violent and fetishized imposition of will, in the presence of such figures as Newt Gingrich, Carl Paladino, and Eliot Spitzer. These people look at the institutional constraints on them, and laugh and scoff, and decide they will do what they want. Typically, the system constrains them, forces Machiavelli's Prince into a Madisonian hole. Sometimes they are destroyed by the constraint, sometimes they are smart enough to work within Madison's system and get what they want anyway. It all depends on the Prince and his political skill. Either way, however, the intimate relationship between politics and sex is played out on the political battlefield.

The only thing that made Carl Paladino less successful than the other examples I have presented was, to be crude about it, that he couldn't keep it in his pants. Ever. Paladino apparently, for whatever reason, had to be hyper-aggressive all the time. He made his fetishized, violent anger the sole focus of his campaign, the only thing he had going for him. When he attempted to lose it, to avoid making himself look totally ridiculous, he came across as weak and ineffectual. In the gubernatorial debate, for example, Paladino's failures were so obvious that even he had to acknowledge them, though he ridiculously blamed his poor performance on the format. (Which of course was his idea to begin with.) Another example would be Paladino's last-minute, rambling video, recorded in a diner.

Neither the debate nor the diner video allowed Paladino much opportunity to show off his swaggering, aggressive sexuality. Lacking that, he had virtually nothing, and came across badly.

To be Machiavellian in the sense of being ruthless is one thing. Andrew Cuomo is surely Machiavellian in that sense, I know of no one who would dispute that. Paladino's brand of Machiavellianism, however, is something different entirely. Cuomo's Machiavellianism is, if handled properly, the kind that gets things done. Paladino's is chiefly conducive to self-aggrandizement.

There is another American political tradition to which Paladino belongs.

The Paranoid Style

Historian Richard Hofstadter may well have produced the best and most relevant works of academic history ever written. In 1965's The Paranoid Style in American Politics, he, I am sad to say, captured much of the present political era, perhaps more of our present era than the one he wrote during.

American politics, Hofstadter wrote, “has served again and again as as an arena for uncommonly angry minds,” some of which are prone to “qualities of heated exaggeration, suspiciousness [sic], and conspiratorial fantasy.” (Paranoid Style, page 3.) Hofstadter outlined many examples of the paranoid style in American politics. These examples raged from a few now-unknown people who complained that the fluoridation of the water supply was an attempt to institute socialism; to other now-unknown people who complained that a bill introduced in Congress to ban gun sales through the mail was an attempt to institute socialism; to the Black Panthers; to Joseph McCarthy. Outside of an American context, it's led, Hofstadter told us, to such diverse figures as Hitler and Stalin.

Fortunately, at least at the time Hofstadter wrote, the paranoid style was not preferred on American shores by majorities, merely by minorities. In an American context, the paranoid style in Hofstadter's day was and is now primarily, but not exclusively (as the Black Panthers case shows) found on the right. (Paranoid Style, pages 5-10.)

Hofstadter was careful to state that political paranoids were not necessarily paranoid in the psychological or clinical sense. The political paranoid, in the sense of a political actor using the paranoid style, is I suspect rarely, if ever, actually mentally ill. The paranoid style is, after all, a style above all else. The political paranoid is a political persona some present, the same way that Machiavelli's sexual aggression is a persona, and the heroic “white knight” is a persona.

The political paranoid often forgets the distinction between saying that there have been conspiracies in history, and that history is, itself, a conspiracy. The political paranoid holds that there is a vast and sinister conspiracy, somehow both gigantic and subtle, to undermine and destroy our way of life. This conspiracy is a primary, or the primary, force in historical events. Only an all-out-crusade can stop this conspiracy. The end is always just around the corner, and time is forever running out. The crusade against the conspiracy is as-military in nature as it is political in the traditional sense. There can be no compromise, no negotiation, none of the traditional stuff of politics. The enemy is usually personified in some way. The personified enemy is portrayed as moral-less, both politically and sexually. The latter, Hofstadter pointed out to us, has been of particular and surprising importance to political paranoids. It seems to be important to them that their enemies have no sexual morality. The renegade from the enemy, an informant figure, typically is featured prominently. The arguments of the paranoid have a peculiar mix of verifiable and unverifiable proof, with wild extrapolations being made from what is verified to what is not, and in many cases cannot be, verified. (Paranoid Style, pages 29-38.)

As described by Hofstadter, the paranoid style of his day, in America, consisted of the following claims: There is a long-standing conspiracy to undermine capitalism, bring the economy under the control of the federal government, and pave the way for socialism or communism, and high levels of government have been infiltrated by communists. The communists infiltrators in government are supported by a vast network of communist agents throughout the country. Unlike some perpetrators of the paranoid style, American political paranoids often seem to de-emphasize distant, unseen enemies such as the Illuminati, Jews, and the Roman Catholic Church, in favor of then-more-recent, public figures such as Franklin Roosevelt and Harry Truman (Paranoid Style, pages 23-29.)

There is very little that Hofstadter has described that is not seen in Glenn Beck today. Indeed, Glenn Beck's 2009 book Arguing With Idiots: How to Stop Small Minds and Big Government, the cover of which features Beck in a Soviet military uniform, can be seen as a veritable tribute to the paranoid style, were it not clearly intended to be taken as serious political commentary.

The paranoid style among the contemporary right isn't limited to Glenn Beck; Newt Gingrich has been practicing it for awhile. Note these passages from Gingrich's 1995 book To Renew America:

Since 1965, however, there has been a calculated effort by cultural elites to discredit this civilization [American civilization] and replace it with a culture of irresponsibility that is incompatible with American freedoms as we have known them. (To Renew America, page 7)

In the mid-1960s, this long-held consensus [on American values] began to founder. The counterculture began to repudiate middle-class values . . . “Situational ethics” and “deconstructionism” –the belief that there are no general rules of behavior– began to supplant the centuries-old struggle to establish universal standards of right and wrong.

All this has led to a collapse in our own ability to teach ethical behavior to our own people. Traditional history has been replaced by the notion that every group is entitled to its own version of the past. (To Renew America, page 30)

It is sad indeed if a centuries-old moral consensus had, by 1994, collapsed as a result of a conspiracy that had begun as recently as 1965. Sadder-still is the irony that, to the degree to which Gingrich is correct, the true beneficiaries of deconstructionism have been the American right, as I have outlined here. What else does Glenn Beck do, after all, if not attempt to create his own version of history in the manner suggested by Hofstadter?

Moreover, at least one conservative thinker, Leo Strauss (a teacher and inspiration for many on the contemporary right), seems to date the decay of American values earlier than Gingrich did.

Does this nation [the United States] in its maturity still cherish the faith in which it was conceived and raised? Does it still hold these 'truths to be self-evident?' (Leo Strauss, Natural Right and History, page 1.)

Strauss went on to suggest that the decay of American values, indeed the questioning of the very notion of values, can be traced back to Nazi Germany, and that the idea's import to America was in essence a form of Nazi political revenge on America.

It would not be the first time that a nation, defeated on the battlefield and as it were annihilated as a political being, has deprived its conquerors of the most sublime fruit of victory by imposing on them the yoke of its own thought. (Leo Strauss, Natural Right and History, page 2.)

The contemporary rejection of natural rights leads to nihilism – nay, it is identical with nihilism. (Leo Strauss, Natural Right and History, page 5.)

Strauss wrote these words in 1953, a full 12 years before the date Gingrich gave for the start of the conspiracy. The American right has been practicing the paranoid style for a very long time, and the degree of consistency has been remarkable.

Carl Paladino is in this political tradition too, along with the tradition of Machiavelli's political-sexual aggression.

For the first example, we return to Carl Paladino's last-minute campaign appeal, recorded in a diner, a place of "normal" Americana if ever there was one. At about the 7 minute, 38 second mark of that video, Paladino begins to stray from a message of tax cuts, spending cute, and economic development into the following conspiratorial fantasy, wherein he incorporates an impressive variety of events which someone else might think are, more or less, unrelated. Andrew Cuomo is corrupt, he does not understand honor (presumably the way normal people like Paladino do), and is connected with a corrupt political conspiracy that includes AEG and "Obamacare."

Government corruption is just rampant. My opponent's been the chief prosecutor of a state for three years, a state that has the most corrupt government in America, and now he wants to be a Governor. I don't understand those things. I don't understand why he doesn't respect honor. Honor. You make a promise, you keep the promise. He said at the debate anybody that does anything wrong will go to jail. But at the same time he cut a deal with Hevesi to allow Hevesi to walk! He cut a deal so he could make a political announcement to advance his own political career, so he could say he convicted Hevesi, who he knows won't be sentenced until after, after election day, and he made a deal that the man doesn't have to go to jail. A public official is held to a higher standard, and if we don't put them in jail, we're not sending the right message out for every other public official. And you saw what happened with Aqueduct. Aqueduct. That stunk six months ago. And who's involved. Sampson. Smith. Our Governor's secretary . . . 'Cos in the end, the people today are un-grounded. They don't trust the government. The government is corrupt, the government doesn't do their work, the government gives 'em the worst possible lives in the world, there's nothing on the horizon except it getting worse, Obamacare's gonna lay a million, five hundred thousand new people onto the taxpayers, of the State of New York. My opponent won't speak to the issue. That's what he's afraid of. But the people, they want a government that's gonna cut back on its size.

In the context of a political campaign, with vitriol on the one hand and rational fears of government corruption and incompetence on the other, these remarks weren't necessarily taken as paranoid in the political sense. They were surely not given the same level of scrutiny that Hillary Clinton's oft-quoted "vast right wing conspiracy" remark was given. (And, it should be noted, when talking about New York State's politics, all bets are off and sometimes conspiratorial fantasies can seem true. Or, at least, truer than they probably are.)

Now that a little distance has passed however, granted not much distance, I can hope that Paladino's remarks will be seen in light of the paranoid style, because that's the light in which they make the most sense.

Paladino's use of the paranoid style wasn't limited to election eve. Note his blaming of the now-infamous release of his pornographic E-Mails on Andrew Cuomo's people hacking his computer. The cute thing about that accusation is that when you send an E-Mail, messages by definition leave your computer, and thus no one needs to hack someone your computer to get it. It's already left your computer, because you deliberately sent it out.

Despite his own non-mainstream tastes in pornography and his close association with Roger Stone, a self-described “libertine,” Paladino follows the paranoid style even to the point of questioning his opponents' morality, their connection to the culture's commonly held moral values. (Including, but not limited to, matters of sexual morality.) Here, some will recall, he stated the following about Governor David Paterson.

I'm telling you that Paterson is not your friend. Paterson is, Paterson's a drug addict, he's been a drug addict his entire life.

Paterson has not just used drugs, which presumably any number of otherwise-normal people may experiment with, but he's an "addict." Addicts deviate from our values in a way mere users may not. And, in this video, Paladino made the following now-famous remark:

For weeks the media has badgered me about affairs because, unlike a career politician, I was honest enough to acknowledge she was my daughter when I announced my candidacy. “Are you having an affair now?” “How many have you had?” “When was your daughter conceived?” What I meant to express in my anger was simply this: Does the media ask Andrew such questions? Andrew's prowess is legendary! No! This campaign must be about bigger issues, not affairs or divorces.

Paladino admits his own affairs, but Andrew's, which he to this day has presented neither proof nor even specific allegations about, are “legendary.”

Finally, note the following outburst to the Buffalo City Council, recorded in the Summer of 2010.

Our city has the renown of being known as the second poorest city in America. We worked very very hard to get there, to have that distinction. We've done everything just the opposite of the way things should be done. And now we're, we're drifting over into a socialistic environment. The people that wanna bring to us a community benefit agreement. What is it? ACORN? Sam Hoyt and Sheldon Silver giving us the same old stuff?

The conspirators identified, as is the nature of the conspiracy. The specter of socialism, this time not a world away but very, very close at hand. And, Paladino states, it's been a long time in coming. Luckily, he is there to save Buffalo, and then New York State after that, if only the conspiracy would allow him.

It is very difficult, at least for me, to listen to or read Carl Paladino without the lingering figure of Joseph McCarthy coming up in the corner of my eye. Note McCarthy's rant on Edward Murrow's television program and how it incorporates many elements of the paranoid style which we now see are also reflected in Carl Paladino, and others on the American right. In particular note the use of the accusation presented as fact.

Conclusion

Carl Paladino, New York's paranoid would-be Prince, is not going away. His personality alone probably dictates that much, but more importantly he's not going away because he represents two long-standing tradition in American politics. Those of his ilk have, in fact, obtained prominent roles in the Republican party, and their post-modern, paranoid rants have become mainstream. This is no longer the stuff of secret meetings or Internet message boards. Glenn Beck makes millions of dollars, Sarah Palin is considered a serious presidential candidate, and Carl Paladino defeated the mainstream Rick Lazio to become the official candidate of the Republican party to be Governor of the State of New York.

At the end of the day, as has been shown, in this article and by political experience, Paladino has little if anything save for the paranoid style fused with a fetishized politics of imposition.

It is not to America's, or New York's, credit that he was taken seriously at all, let alone that he's very unlikely to go away anytime soon.

The State Senate Democrats: Dysfunction Defined

2010-11-09T14:12:00.000-08:00

I read today of the deep campaign debt the New York State Senate Democratic Conference have found themselves in, and the many problems they have had raising money.

How could this happen, I thought....Every Majority Conference can rake in money, surely, and even a Minority Conference can rake in money if they're smart.

Then, the obvious occurred to me: The Senate Democrats have almost literally nothing to raise money on.

Assuming a lack of flat-out, quid pro quo corruption in the process, legislative conferences bring in money by pointing to their agenda, to their accomplishments, and sometimes to the legislative process itself.

As to agenda, I can't even remember what the Senate Democrats' agenda was, outside of a few matters which were specifically NOT enacted into law, gay marriage or “marriage equity” being the primary example. I'm trying to remember more, and I can't. And for present purposes, understanding the Senate Democrats' fund-raising issues, the fact that I can't remember what the Senate Democrats' agenda was is more important than is the content of that agenda.

As to accomplishments? Same. This Legislative Session is notable chiefly for things that were specifically NOT enacted into law. Gay marriage wasn't enacted. A property tax cap wasn't enacted. Corrections to the ill-considered Spitzer-era political ethics reform were enacted, but the corrections were about as ill-considered as the original bill was, and were vetoed by Governor Paterson. In a unique twist, the Senate tried an override vote on ethics, and it failed.

As to the legislative process, the Senate Democrats managed to straddle multiple dichotomies of dysfunction. Until the 2009-2010 New York State Legislative Session, I didn't know a legislative process could be both inefficient and corrupt, both secretive and messy, and both violent and ineffective. It is fitting that, at the close of 2010 the potential limbo of 2011 looms so large that it's squeezed out fixing the current budget. The Session began, and now ends, in limbo.

Why are the Senate Democrats having trouble raising money? Because they have substantial negatives and few, if any, positives. They did nothing with the Majority, which they barely managed to hold during 2 years and seem likely to lose in the immediate future. Any positives they had were easily drowned out by laughable dysfunction.

What, exactly, would the Senate Democrats raise money on? Their agenda was forgettable; their accomplishments negligible; and their process combined ethics that would make both Joe Bruno and Eliot Spitzer blush and the efficiency of a kindergarten class.

To say Albany is dysfunctional is a cliche. What it usually means is "the process did not produce results I approve of. However, after years of Albany being called dysfunctional, finally we have a good, working definition of that term. Political dysfunction is the worst of both worlds: A bad process, and bad (or no) policy. The State Senate, in the Democratic Conference's hands, was a messy, unhealthy sausage factory that made bad-tasting sausage nobody wanted to buy.

Now here's another thing: Isn't it sad that the process has gotten bad enough that whether or not a legislative conference brings in money can be taken as a good measure of their success, or lack thereof?

-The Albany Exile

Paladino and Dicker

2010-09-30T16:48:00.000-07:00

I don't like Fred Dicker, and I don't like the New York Post. The fact that Carl Paladino called the Post his favorite newspaper is, as far as I'm concerned, yet another point against him. I agree with what Paladino's aide said during the attack (for want of a better term for it) about Dicker being a “terrible reporter.” To this I will add that Dicker is also a terrible writer and (at best) a second-rate intellect.

OK, now that we got that out of the way, let's make a few assumptions favorable to Carl Paladino, in order to better frame the incident between Paladino, Paladino's aide, and Dicker.

Let's assume, first of all, that Fred Dicker and the Post did send a “goon” photographer “after” the daughter Carl Paladino had with his mistress. Let's say the photographer took a picture of her, or tired to, through a window, thus making the girl upset, and frightened, and making her cry. Assume it happened just the way the candidate says it did. For the moment, never mind that there's no particular reason to believe this. Some reason might emerge later.

Let's further assume that his daughter's welfare is Carl Paladino's true concern. Never mind, for now, that Paladino seemed friendly to Dicker until Dicker asked a tough question, and only became hostile after the question was asked. Never mind that Paladino's daughter's existence is not a secret. Never mind that Paladino and his aide spent more of their time accusing Dicker of being biased against Paladino and in favor of Andrew Cuomo than they did expressing anger over what might've happened to Paladino's daughter. Never mind that Paladino has, as I've discussed elsewhere, tried very hard to simultaneously make himself into the “conservative values” candidate and deliberately project an image of dangerously aggressive sexuality, this in effect opening up his own bedroom, and the potential products of what goes on in there, to public scrutiny.

Let's go a little further. Let's assume that Carl Paladino has a moral right to seek some kind of retribution against Dicker, assuming all the above-stated facts are true. (And, I stress again, at the moment there's no particular reason to believe they are.) Not a legal right, which is a separate concept. But let's for now assume that he has that moral right.

I am in brief giving Paladino every benefit of the doubt, for argument's sake.

Then, New York, let me ask you this: Do you want a Governor who capable of behaving in such a volatile, thuggish manner in public and on camera? Comparisons with Senator Kevin Parker, similarly volatile and often accused of being thuggish, are easily made. Does anyone think Kevin Parker should be Governor? Probably not.

Do you like this idea, New York? Or, maybe, have you maybe gotten tired of Governors who make such obvious errors in judgment and make themselves look stupid?

Sadly, thuggery is, always has been, and always will be part of New York State's grand political tradition. Theodore Roosevelt admitted that his first election to the State Assembly was in part due to thuggery. I'm not asking for an end to political thuggery in the State of New York. I know that's, sadly, too much to ask. But, does New York want a Governor who drags such things out into the open, then further boasts of it and defends his right to do it? When Roosevelt wrote about the political thuggery undertaken on his behalf it was years after the fact and was spoken of with a sad regret, not with a swagger. For Theodore Roosevelt, perhaps the King of Swagger, to not swagger over something is I think significant.

What happens to someone else, to just a regular everyday person, who given a similar set of circumstances responds similarly to how Paladino did? That person would probably be in jail. I've seen people go to jail for a lot less.

Personally, I like the thought of a Governor of New York State who is capable of showing enough discretion to take revenge privately, if he does it at all.

This, to me, can be seen as a matter of judgment. Sure it can be a moral or legal issue too. But let's give Paladino the benefit of every doubt and focus on the incident solely as a matter of executive judgment and discretion. Let's perform the most cynical analysis possible. When you do this Paladino still comes out in the wrong.

If candidate Paladino reacts this way toward Fred Dicker, a mere reporter with no power (per statements made by Paladino's own aide), how will a Governor Paladino react to legislative leaders? Legislative leaders do have power. They have the power to persuade their members to pass a budget that is not the Governor's, and then to get their members to override the Governor's vetoes. And they may not, after this campaign, be inclined to enact Governor Paladino's proposals should he win.

How will Paladino react to someone who accidentally hits his gubernatorial SUV in traffic, as once happened once to George Pataki? How will he behave at press conferences? (Remember that, even if we assume Carl Paladino's primary concern is with his daughter's well-being, he didn't react angrily until he was asked a tough question. I think that's telling.)

What good has New York done for itself if it elects a Governor who's arrested for assault while in office? Was Eliot Spitzer not enough?

I'm not naive I'm not asking for a New York Governor who is any kind of saint. There are no saints in politics, not anymore, if there ever were.

But the Governorship of New York State is important enough that it warrants someone who can keep his temper in check in public.

That really isn't too much to ask. We all have to do it.

Why Carl Paladino's Adultery Matters

2010-09-28T09:16:00.000-07:00

Periodically, the issue of whether or not politicians' sexual improprieties should be a factor in judging them comes up. Typically one camp suggests these are private matters that should stay private. The other camp, arguing that politicians' sexual improprieties should and do matter, typically advance one or more of four distinct arguments.

The first argument isn't really an argument at all, and it doesn't really deserve consideration beyond mentioning that it's out there. There's a degree to which some people will use a politician's sexual improprieties simply as a vehicle to attack him, but it's not the real reason for the attack. The relentless, sex-based attacks on Bill Clinton throughout his Presidency, even before credible allegations of adultery finally emerged, are an excellent example. Unfounded rumor at one point, as I recall, even had him hooking up with actress Sharon Stone.

This isn't really an argument per se. By definition it means you'll care about the sexual improprieties of a politician you disagree with, and not care about the sexual improprieties of a politician you agree with.

But, there are there arguments for caring about politicians' sexual improprieties that I, for one, consider perfectly legitimate.

First is what I call representational morality. This is the idea that our elected leaders should represent the best of us, including exemplifying the moral ideals that we hold more often than we live up to. Reason two comes to us from the Biblical saying that he who can't be trusted in small matters can't be trusted in great ones. In other words, if a man will betray the trust of his family he might also betray the trust of his people.

Applying these two arguments is a personal matter, depending on each voter's values and expectations.

The third reason is what will be mostly considered today. Whereas the other two reasons to care are essentially private, this one is essentially public.

A politician's first duty is to remain true to the political persona he creates, and that persona is also the first thing we have to judge him by, even before he enacts a single policy. Politicians, wrote Political Scientist Richard Fenno, spend a lot of their time engaging in the “presentation of self.” When they do this, by definition they are playing a character. Sometimes that character is a version of the real person, sometimes it's not, but sincerity isn't the issue here. The issue is that when a politician creates a public political persona to play, it's fair to judge him by how well he can hold do it. To thine own self-created image be true. Or else why bother creating it at all. And further, it's fair to judge him by the logical consequences of that persona.

By this standard, sexual improprieties might matter a lot more for some politicians than for others. David Paterson, for example, has not made his happy marriage part of his political persona. Therefore, shocking allegations of public “necking” with a lady not his wife at a New Jersey steak house were shocking chiefly for their undeniable stupidity; it was stupid of the Governor to allow himself to be seen this way even if there was nothing going on between him and the woman. We may not want David Paterson to be cheating on his wife (though we know he's done it in the past, as he's spoken about it), but if he were still cheating and it became known, no one would be terribly surprised. He hasn't put his own personal morality into play as a political issue.

John Edwards, on the other hand, made his happy marriage part of his political persona. And, thus, his adultery was genuinely shocking in a way it wouldn't be for David Paterson. If a politician cannot be true to his own political persona, what's left for him to be true to? There are excellent reasons why sexual improprieties have likely ended his political career. He put the issue out there.

Eliot Spitzer's sexual improprieties were particularly easy to judge. He violated both his own political persona, and the law. Bill Clinton's were harder, as his persona was as ambiguous as the legal status of many of his actions to cover up his affair.

Some politicians, when caught, can plausibly make the excuse that their private lives are entirely private and we shouldn't judge them by it. Whether or not we agree is another matter, but some can plausibly make the case. And some politicians can not plausibly make this case. Either they have put their values or their own domestic bliss front and center, or in some (seemingly rare) cases they present a persona that's so hyper-sexual in nature you can't help but look.

Carl Paladino is perhaps the rarest case of all. His weirdly contradictory persona, not ambiguous like Bill Clinton's but openly contradictory, is both hyper-sexual and values laden. Either way, he's in effect put his own bedroom front and center. His adultery should matter, and matter a lot.

First of all, he has expressed his political persona in values terms. His verbal assaults on President Obama as not being Christian “in his heart” are one example. Especially when one considers that, in context, Paladino's statements went beyond answering the question he was asked. Paladino was clearly attempting to to cast himself as a values candidate. To refer to someone as being “not Christian in his heart,” as Paladino did to President Obama, is clearly to imply that you're qualified to judge. Paladino's website, and his recent Daily News interview, also reference Paladino's staunch Catholicism. In Catholicism, adultery is a serious sin. Paladino and his supporters have openly touted the candidate's “conservative values.” Typically, the phrase “conservative values” implies a lot more than cutting taxes, at least to the voters if not to the political class.

Values are clearly part of Paladino's political persona. And his adultery violates his own publicly-held, much-trumpeted values.

Another part of Paladino's political persona, which has surprisingly been little-commented on in the mainstream media, is sexual potency, especially as contrasted with that of Andrew Cuomo's It seems very important to Paladino that he show he's bigger than his opponent (and I think we all know what I mean by that). A picture on Paladino's Internet site, for example, contrasts the two candidates by presenting Paladino as a big, masculine looking dog, and Cuomo as a small, feminine looking dog (named Fifi). Paladino's repeated threats of physical violence and his expression of political matters in violent, physical terms are surely also proof of a man showing off his testosterone count, as is his repeated references to the political contest as a fight. Almost all American politicians to some degree engage in this kind of hyper-masculine discourse. In fact it's almost impossible to avoid, to some degree even for women in politics. But Paladino's put hyper-sexuality front and center, deliberately and intentionally.

Paladino's public persona thus presents us with a strange paradox: morally righteous and devout Christian on the one hand; sexually aggressive, baseball bat wielding, street fighting overman on the other.

Paladino's adultery, especially as ongoing, secret, and child-producing as it was (this was not the openly “libertine” sexual impropriety of a figure like Roger Stone), is a violation of the first half of his persona, and a logical and necessary consequence of the second half.

And, thus, it's fair to judge him by it. He's put it out there, for all to see.

Personal Politics: Charlie Rangel and Andrew Cuomo

2010-09-05T18:35:00.000-07:00

As most readers doubtlessly know by now, Andrew Cuomo, self-styled reformer and Democratic candidate to be Governor of New York State, was seen recently at Representative Charlie Ranger's birthday celebration, which in good political fashion doubled as a fundraiser for the embattled Representative.

Cuomo's opponents have taken his attendance as an opportunity to question Cuomo's reform credentials, to paint Cuomo as politics as usual.

There's surely a grain of truth to the accusation that Cuomo is, or at least has been, an insider. Cuomo doesn't actually seem to deny this. For example, on the campaign trail he talks openly about his time working in the gubernatorial administration of his father, Mario Cuomo. Andrew Cuomo appears to base his reform credentials not on a complete lack of insider status, which if he tried to claim it would be a lie for sure, but because but because as Attorney General he hasn't directly been part of the political game as it's currently being played.

But why would any would-be reformer, even a would-be reformer who's also an unapologetic once-insider, want to be seen with a politician like Rangel, who's rarely referred these days to without being described as “ethically challenged” or “disgraced?” Especially since Rangel's career appears to be the ultimate American political cautionary tale. Rangel replaced the famous Adam Clayton Powell in the U.S. House of Representatives after the latter's ethical problems, only to now face ethical problems of his own.

Andrew Cuomo himself provided one answer:

“Let’s get the facts and then we’ll make the decision once we have the facts,” Cuomo said. “I think we have to be careful jumping to conclusions before we have all the facts and we get both sides of the story. But I’ve been at this long enough to know there’s always two sides to a story—and sometimes there’s a third side.”

And while his statement is surely correct, I don't think anyone believes that was the only reason for Cuomo's attendance. There's two or three sides to every story, but not everyone who has a story has Andrew Cuomo in attendance at his or her birthday party. Not even every politician, or every Democratic politician, does.

Another answer of course is that provided by radio commentator Alan Chartock:

Because, clearly these people [politicians] know that he's highly popular, Rangel, within a certain community [the Black community], and he [Cuomo/generic politician] doesn't want to lose those votes.

Chartock wasn't talking exclusively about Andrew Cuomo, but did clearly mean to include him.

Andrew Cuomo in particular cannot take the Black vote for granted, as he faces a challenge from fringe candidate Charles Barron. Barron is a current Member of the New York City Council, and a former Black Panther, whose campaign is explicitly based on race and racial issues. Indeed, the candidacy was founded over Barron's unhappiness with Cuomo's White running mate. Though considered a fringe candidate, Barron did manage to get nearly 45,000 petitions for his candidacy, in contrast with Carl Paladino's 28,000.

As far as I'm concerned, that means that if Paladino is a viable candidate, necessarily so is Barron. Therefore, Andrew Cuomo can't take the Black vote for granted.

There is, however, potentially another, more personal, reason for Andrew Cuomo's attendance at Rangel's birthday party.

The relationship between Rangel and the Cuomo family, it seems, goes back awhile, to an early run by Mario Cuomo to be Mayor of New York City. Then-incumbent Mayor Ed Koch had rankled the city's substantial Black population rather badly. Rangel and Percy Sutton (another Harlem-based Black political leader) were looking for a reason to endorse anyone other than Koch, and Cuomo first seemed viable. Cuomo, however, didn't meet Rangel's and Sutton's hopes or expectations. As Rangel described in his book, And I haven't Had a Bad Day Since,

When we [Sutton and Rangel] met with Cuomo, he took great pains to explain that he was color blind, and therefore could not promise a certain number of positions for blacks in a Cuomo administration. He said that he himself wasn't even Italian; he was just an American. The very idea that blacks would need particular political support was racist, Cuomo told us. (And I Haven't Had a Bad Day Since, page 206)

This simply wouldn't do, especially as contrasted with Ed Koch's more accommodating stance. “What do you want,” Koch asked Rangel and Sutton. “How can we work this out?” Interestingly, and tellingly about how politics is done in Harlem, Rangel also complained bitterly about how “a handful of blacks,” without his approval, endorsed Cuomo on the steps of City Hall. (And I Haven't Had a Bad Day Since, page 207.)

Rangel also related how he was upset about Mario Cuomo becoming nominated by then-Governor Hugh Carey to run to be Hugh Carey's Lieutenant Governor in the election of 1978.

In my opinion, Mario Cuomo had done nothing to merit getting on the very short line to the governor's chair. What had he done? He arbitrated a nasty dispute between residents of Forest Hills [a neighborhood in the New York City borough of Queens] and advocates seeking to build public housing there.

Meanwhile, we in the African-American community believed State Senator Basil Patterson [sic] deserved consideration. The whole idea that [Mario] Cuomo was slam-dunked for the governor's chair while Patterson [sic] was overlooked didn't sit well with us. Twenty-four years later, Andrew Cuomo didn't do much to redeem his dad when he challenged our Carl McCall in the 2002 [gubernatorial] primary. (And I Haven't Had a Bad Day Since, page 210, emphasis added by me.)

Sometimes, politics in New York State is personal. Could it be that Andrew Cuomo showed up at Rangel's birthday party in part because he feels the need to redeem his father in the eyes of Representative Rangel?

Dear Glenn Beck: Regarding Carl Paladino....

2010-09-02T11:29:00.000-07:00

Dear Glenn Beck:

I hope this letter finds you well.

I write you today because you are America's leading expert on the ongoing threat of Nazi Germany. Your efforts to expose the Nazi influence in American political life have been tireless. You have exposed things as diverse as the Peace Corps, President Obama, Al Gore, the concept of empathy, and Rockefeller Center as being secretly, or even overtly, Nazi in origin.

Oh wait, sorry, Rockefeller Center wasn't Nazi, it was Communist. You'll forgive the error, I'm sure. What's the difference anyway. After all the full name of the Nazi party was National Socialism, right?

At any rate, I am simply dumbfounded by your apparent lack of attention to the race for the Republican nomination to be New York State's Governor. A source close to one of the two candidates, Carl Paladino, recently described, to the mainstream media, the candidate's upcoming pre-primary ad buys as a “wall to wall blitzkrieg.” As I am sure you are aware, blitzkrieg is a Nazi military term roughly meaning "lightning war."

Further, the Paladino Blitzkrieg was announced on or very close to the anniversary of the Nazi invasion of Poland, wherein the Nazis used blitzkrieg techniques. Unless he was the source himself, Paladino I guess didn't actually use that term himself. (Though, really, there's no evidence that he wasn't the source, or that he didn't use the term in private even if he wasn't the source.) But neither has he repudiated such an explicit Nazi reference being used on his behalf. I mean, President Obama wasn't even necessarily aware of his making a Nazi reference when he described a Supreme Court nominee of his as having “that quality of empathy,” yet surely he should have repudiated that statement once you pointed out to him how Nazi he was being! So shouldn't Paladino explicitly repudiate such an overtly Nazi statement being made on his behalf?

Surely, Mr. Beck, your tireless attempts to expose the Nazi threat in American political life should be extended to include this. Unlike the other Nazi threats you've exposed, this one isn't even subtle. It's explicit.

Perhaps you just didn't know about it? When you spend all the time looking for the subtle, sometimes you miss the obvious; I understand that. Happens to me too. In fact I almost didn't catch this one. Those Nazis sure are crafty.

You know, maybe, Glenn (do you mind if I call you that?), you have spoken out against the, explicitly, consciously Nazi-like activities of Carl Paladino and I just missed it. Sorry if that's the case.

If you haven't noticed this one yet, however, you may now consider yourself informed. You should surely devote a two-hour special to this one.

Maybe you're already planning one?

Sincerely,
-The Albany Exile

The Era of Making Things Up: Postmodernism, Conservatism, and the Assault on Reality

2010-08-22T17:47:00.000-07:00

A very popular conservative blogger recently wrote the following, about the so-termed Ground Zero Mosque project (which, by the way, as we all know by now, is not quite a mosque and isn't quite at Ground Zero either):

Yes it will take years and years but that did not stop Bloomberg and "Big Brother" Obama making it national issue in under 1 minute.

Except that this isn't true. It was Republicans, that party's New York State gubernatorial candidates in particular, who made the project a “national issue.” Republicans well outside of New York State were making it an issue well-before President Obama's remarks. (I'm not counting Bloomberg, because he's the Mayor of New York City, last I checked, and he of course addressed the issue in that capacity. Any Mayor of New York should have addressed it.)

Note the headline of this Fox News story, and note the date, 11 days before President Obama's remarks.

Other mosques, nowhere near Ground Zero and not in New York State, have also caused controversies. Note the date of that story too. The project (Park 51, Ground Zero Mosque, whatever you want to call it) was clearly a national issue well-before Obama's remarks.

On a probably not-unrelated note, a growing percentage of Americans believe President Obama is a Muslim. But he isn't. Not that a Muslim President would be a bad thing in and of itself. But, Obama is not Muslim.

I keep reading about how Andrew Cuomo wants to shut down local governments and the people will reject it. But when you actually read Cuomo's plan, which mirrors very closely one pitched by his father in 1994, you'll see (I should hope) that it isn't at all like it's sometimes portrayed.

That last example isn't as extreme as the others. Distorting your opponent's position is a long-standing tradition in American politics, as long as you remain more or less within the confines of reality. Ok, fine. One would expect Andrew Cuomo's opponents to distort his plans and ideas. If a plan of his would cost, say, $2 Billion, you'd expect his opponents to say it would cost "nearly $5 billion." 2 is nearly 5, right?

Fine.

But Barack Obama being a Muslim, when he isn't? Or him making the mosque a national issue, when it clearly already was one before he spoke? Those go beyond being distortions. Oh, let's try the one about the drapes in the Oval Office being switched to a Middle Eastern color. Nope, that one's not true either.

It's easy to say what you want when you, in essence, construct reality as an opinion. Opinions can be freely rejected, and everyone is entitled to one. Dinosaurs walked the Earth with humanity, and humanity domesticated dinosaurs, right down to putting them in English saddles for Dinosaur shows. (See Charles Pearce, Idiot America 2009, pages 1 to 12.) Except that neither of those things is true.

When you recast fact and analysis as opinion, all bets are off.

Al Gore wrote a book called The Assault on Reason (2007) wherein he outlined....Well, look at the title. But in fact what's going on, I would suggest, isn't an assault on reason, but on reality itself. The assault on reason is simply a technique. It makes the assault on reality easier. Without reason, reality becomes an opinion, and everyone's entitled to one.

Andrew Cuomo should investigate the funding stream for the Ground Zero Mosque (which again is neither a mosque nor at Ground Zero). But we now know publicly what, it seems, has been known privately for a long time: There is no funding stream to investigate.

The project could not yet have been funded in an illegal, or even morally questionable, manner because it hasn't been funded yet at all, not to any substantial degree. This doesn't stop Rick Lazio from saying he should investigate that funding stream, even after the revelation that it didn't really exist.

Political Theorist Sheldon Wolin wrote in 1989 about how the conservative Philosopher Allan Bloom, who was extremely influential in conservative intellectual circles, was defined largely be a rage against Postmodernism (Sheldon Wolin, The Presence of the Past 1989, pages 47-65). Postmodernism is an academic movement that has sought over the years to challenge some very fundamental things about reality, about science, about reason. As Wolin put it:

Although the postmodern mind, as yet, hesitates to provoke a head-on confrontation with modern science . . . the subversion of the supporting culture of science is clearly under way. The postmodern individual has pretty much renounced the objectivist view of scientific knowledge, indeed all forms of knowledge. (Sheldon Wolin, The Presence of the Past 1989, page 70.)

Postmodern Philosopher Richard Rorty, exactly the kind of thinker against whom Allan Bloom was raging, once wrote that abandoning Western rationalism “has no discouraging political implications.” Society can abandon rationalism, the intellectual legacy of the Enlightenment, and retain the Enlightenment's politics of human dignity and liberation. (Richard Rorty, Truth, Politics, and 'Post-Modernism' 1997, pages 36-42.)

But there's an important thing Rorty and other Postmodernists didn't think of, and thus didn't account for. And that is that when the sources of reality and the very nature of empirical observation are questioned, when you can no longer accept the results of an empirical test (like dropping 2 objects at the same time to see if 1 falls faster than the other) all that you have left is power. Someone with the power to enforce his or her vision can ram it down the throats of everyone else. To use an exaggerated example from literature, if Big Brother says that 2 plus 2 is 5, then it's 5, even if it's not. Who are you to say otherwise?

In the absence of thought or reason or empirical observation, all that's left is power. Who has it, who doesn't, and how those with it can enforce their ideas upon those who don't.

The Federalist Papers repeatedly remind us that, in the American system, the base of power is with the people. Federalist Paper # 46 (attributed to James Madison) reminds us, for example, that a reliance on the people as the ultimate source of authority means that the American system can get away with having both a national government and state governments, and yet expect the two layers of government to work together and not against each other. The more-famous Federalist Paper # 51 (attributed to either James Madison or Alexander Hamilton) reminds us that, in a system where the people are the ultimate base of power, the people are also a source of potential oppression.

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.

In later years, this concept would come to be known as “the tyranny of the majority.”

Outside the offices of the Minority Leader of the New York State Assembly there once sat (and for all I know still does sit) a plaque with a quote:

"It does not take a majority to prevail, but rather an irate minority keen on setting brushfires of freedom in the minds of men."

The quote is variously attributed to either John Adams or Samuel Adams; I forget which one the Assembly Minority's plaque attributes it to. At first, this sentiment may sound healthy. And in fact in many circumstances the sentiment has been as healthy as it sounds like it could be. An irate minority can be a check against the potentially tyrannical majority feared by the authors of The Federalist Papers. Black people fighting for Civil Rights were nothing if not an "irate minority."

The dark side of the sentiment, however, is that you might not need a majority to do something horrendous. Sometimes an irate minority can do the trick. Majorities, after all, can be expensive and time-consuming to achieve. But an irate minority is pretty easy to come by these days, now that reality itself can be called into question so easily. Reality is expensive, almost as expensive as majorities are. But an irate minority that's been spoon-fed semi-plausible falsehoods? Cheap. And effective.

There were no death panels in the Obama health care bill. To bring things back to New York State politics, David Paterson is not “a drug addict,” any more than Carl Paladino is “addicted” to bestiality porn or “addicted” to fathering children out of wedlock.

These are two flawed men, who did what they did, and we judge them according to our wit and our expectations. But neither is, so far as we can reasonably know, addicted to anything.

“As far as we can reasonably know.” Reasonably know. Quite a concept there.

It even comes close to an objective fact that Thomas Jefferson is an excellent example of an important political philosopher. Indeed its hard to imagine someone whose political philosophy has been of greater importance in practical politics. Jefferson more or less invented what we now call American political values.

The Texas Department of Education, however, disagreed,

and agreed to replace Thomas Jefferson as an example of an influential political philosopher in a world history class.

Thomas Jefferson's thought, it seems, also didn't influence any important revolutions:

Cynthia Dunbar, a lawyer from Richmond who is a strict constitutionalist and thinks the nation was founded on Christian beliefs, managed to cut Thomas Jefferson from a list of figures whose writings inspired revolutions in the late 18th century and 19th century, replacing him with St. Thomas Aquinas, John Calvin and William Blackstone. (Jefferson is not well liked among conservatives on the board because he coined the term “separation between church and state.”)

I can't think of any revolutions Thomas Jefferson inspired, can you? If you can, E-Mail the Texas Department of Education.

Reason has made America great. Our country was founded on reason, and New York State led the way for a very long time. Reason helps us deal with reality rather than bury our heads in the sand.

But now, New York State, and the nation as a whole, are losing reason, and reality along with it, and, while I suppose I could find some examples of liberal irrationality (in fact, with the crowd that's currently in charge of the New York State Senate I'm all-but-certain I could), conservatives are clearly leading the way. Fortunate for them that the abandonment of reality ensures they won't have to admit that they're abandoning reality.

Soon, we'll have conservative Christians turning the Bible into a wiki, editing their own Holy Book according to their preconceptions, rather than reading it, or hiring a professional to do a professionally done translation that's more to their liking. (There's plenty of conservative Bible scholars, after all.) Oh wait, that's already happening.

Thomas Jefferson wasn't an important political philosopher, it's President Obama's fault that the Park 51 project is a national issue, David Paterson is a drug addict, and the Holy Bible is a wiki.

Welcome, readers, to a new political era: The era of making things up.

Every Petition Tells a Story

2010-08-18T12:56:00.000-07:00

Gubernatorial petitions, like pictures, tell stories.

In New York State, 15,000 petitions, it seems, are required to run for Governor without the endorsement of a major party. 15,000 to launch a third party or independent bid, and to force a major party primary. (Unfortunately, I can't find where in the State Election Law it says this, so I have to go off of press accounts. The State Board of Elections Internet site doesn't seem to have a “how to run for Governor” pamphlet or anything, which is regrettable, if unsurprising.)

Further, the conventional wisdom seems to be that one really needs 3 times the required number, or 45,000. Challenges to ones petitions are seen as almost inevitable, and 3 times the required number should render one about challenge-proof.

There's several high-profile, or at least medium-profile, gubernatorial runs going on that are reliant upon petitions rather than upon major party endorsement.

Charles Barron, a former member of the Black Panthers, has gathered 44,500 petitions to run for Governor on his new Freedom Party line. Libertarian Party candidate Warren Redlich filed 34,000 petitions.

Redlich and Barron can fairly be described as fringe candidates. However, the much-ballyhooed Carl Paladino, who is considered a serious candidate, has filed only 28,000 petitions, less than double the required amount, and well under the preferred “3-times what's required” standard. In fact, Paladino's petition numbers are most comparable to those of Kirsten Davis (22,000), the Eliot Spitzer-affiliated madam-turned-candidate. And even Davis's highest-profile supporter, Republican operative Roger Stone, referred to Davis as a “protest candidate,” and expressed support for Paladino, the 28,000-petition man.

In polls, Paladino scores about as well against Cuomo as Lazio does. (Which, it must be said, isn't a great showing.)

Interesting that Roger Stone's “protest candidate,” Davis, and his other favorite, Paladino, who in his words “has a chance” to win, managed to garner a comparable number of petitions. The other fringe candidates, by contrast, managed to garner noticeably more than either Paladino or Davis.

So who really has a chance here?

Petitions tell stories. They tell stories about who has some degree of popular support, and who has the ground operation that's necessary to rally that support. To get people to openly support a candidate on record. Sure, someone might sign a petition in the name of having an open process, and not intend to vote for the candidate. But I think, and the press seems to agree, that signing a petition is really a display of support for a candidate. (One day I should see if any studies have been done on that, actually.)

What stories do these petitions tell us? Well, let me tell you what I think.

I think either Paladino's ground operation is horrid and ineffective, or that he has more support in the context of an anonymous poll than he does when people actually have to stand behind their views. Fewer people will support Paladino in public than in private. And voting, perhaps even in a primary election and definitely in a general election, is, secret ballot regardless, ultimately a public act.

And I think that, either way, Paladino remains a fringe candidate. If Lazio loses the nomination to him it will far more speak ill of Lazio than it speaks well of Paladino.

Identifying, and Addressing, New York State's Local Government Problem

2010-08-11T16:27:00.001-07:00

New York State has a local government problem.

I think that's a fair statement. Almost more important than the statement being fair is that most of New York's political class would appear to agree. New York has a lot of local governments. No one really knows how many, but Andrew Cuomo, several times in his policy book The New NY Agenda, cites a figure of roughly 10,000.

This plethora of local governments has various consequences, few of which good. Political accountability is too-difficult to establish, because it's too difficult to know who answers to whom, who is supposed to do what, and who did what. Certain important political and governmental decisions are in effect subject to no scrutiny whatsoever, because few know who is making them. Further, all these layers of government get expensive. It doesn't take a Tea Partier, or any kind of conservative, to understand that.

I suppose all these local governments might make increase the points of access to citizens. If the citizens know where to look for that access, of course.

New York State has a local government problem. And it isn't new. Look at the following quotes.

The term “county government,” as applied in the commonly accepted sense of a single governing body for county affairs, is misleading. There is no such thing in New York State as a single, or a unified, government for an entire county. Instead, there are for each county several independent governing departments and officials, the functions of each being territorially coextensive with the county boundaries in general. (County Government, Page 85)

And:

For the purpose of government, which means for purpose of raising and expending money for the advantage of the people, we have in this State and within its counties many units or districts. Many of these districts are included within others and many overlap each other. Each has certain officers and certain powers of local government and support. Consider a typical New York county, my own [Oneida County], containing 2 cities, 26 towns, 19 incorporated villages, 23 special districts and 355 school districts outside of the cities. (County Government, Page 27)

The book those quotes are from, County Government, was published in 1915.

The Oneida County official who made the second statement, the one from page 27, went on to point out how all of the 400 or so governments within Oneida County had the power to tax the citizens. In 1915, there were roughly 400 taxing entities within Oneida County alone. It's undoubtedly more now.

79 years later, in 1994 (the year of the so-called Republican Revolution) the situation had not improved. Then-Governor Mario Cuomo raised the issue in his Message to the Legislature (State of the State message).

Trading the unaffordable luxury of autonomy for the substantial economies of consolidation is one of the most constructive steps communities can take to lighten their tax load . . . I propose giving local voters the power to insist that the merits of consolidation be studied—not by politicians with a personal interest in the outcome but by forming Citizens' Restructuring Initiatives (CRIs) . . . The people would have the power both to launch a CRI and to determine, in the voting booth, whether to go forward with its recommendations. (1994 Message to the Legislature, pages 119-120)

It's scarcely deniable that one of the reasons local taxes are so high in New York State is that there are so many entities that can, and do, tax the State's citizens. Even if reducing the number of entities would somehow not reduce taxes, then at least the people would know who was taxing them, and what for.

Mario Cuomo lost the 1994 election to George Pataki, who rode the wave of Newt Gingrich's Republican Revolution and entered office spouting a lot of Reagan-era rhetoric about reducing the size and cost of government. Pataki uttered the phrase “the heavy hand of government” again and again during his administration.

One indicator, not a perfect one of course, of reducing the size of government is reducing the size of the government workforce. It's even better if this can be done without layoffs (and State layoffs did not happen under Pataki) because layoffs hurt local economies more than high taxes.

By this measure, during the Pataki era the size of State government did indeed shrink. According to an annual Rockefeller Institute of Government publication called the New York State Statistical Yearbook, the State workforce had approximately 17,419.89 fewer full-time positions on January 1, 2007, when Pataki was replaced by Eliot Spitzer, than on January 1, 1995, when Pataki replaced Mario Cuomo. (The Rockefeller Institute's State workforce data uses a thing called a “Full-Time Equivalent.” 2 half-time workers would count as 1 FTE.)

On the surface, we can congratulate George Pataki on accomplishing one of his policy goals. (Even though this figure doesn't include the public authorities, or the Legislature, or private sector consultants hired by the State.)

However, during that same time period, according to the same publication, positions under the jurisdiction of the County Civil Service agencies, outside of New York City, actually went up by 31,506. And there's a lot besides New York City that this figure doesn't include: certain political appointees; employees of cities; local elected officials; employees of local legislatures such as Town Councils. Somehow I doubt that the increase noted by the Rockefeller Institute was somehow compensated for by a decrease in areas not recorded by the Institute.

New York State has a local government problem.

There are currently 3 major candidates for Governor of New York State. Andrew Cuomo has the Democratic nomination. Carl Paladino and Rick Lazio are currently in a bitter contest for the Republican nomination.

As far as I can tell, neither Rick Lazio and nor Carl Paladino have a plan for dealing with New York's local government problem.

Lazio, in his policy book (entitled Building a Better New York), outlines a plan for a property tax cap (Building a Better New York, pages 4 and 12). He also professes a desire to “end” State unfunded mandates on local governments (Building a Better New York, page 9). But I see nothing there for the problem of there being simply too many local governments and too much overlap between them all. We know that these issues are not simply byproducts of unfunded mandates, because as far as I can tell unfunded mandates were not considered a big issue in 1915, and we know that New York's local government problem goes back at least that far and probably a lot further.

Paladino makes no mention of the local government issue whatsoever in the plan for New York (which consists of 8 bullets) that is posted on his website. The one mention of property taxes on the site appears to come in reference to Medicaid spending.

By contrast, however, Lazio's campaign website mentions the word “mosque” 33 times, and Paladino's 294 times, according to a Google search on both sites.

Andrew Cuomo has, by far, the most detailed plan to reform local government. It's found on pages 82 through 92 of his policy book, The New NY Agenda. The details are available for anyone to read, so I won't get into them, but broadly speaking it revolves around allowing local governments, and local voters, to initiate and lead efforts to cut layers of government and share services. It would ultimately, it seems, be up to the voters to decide if they prefer the unaffordable luxury of autonomy, or not. While he also deals with unfunded mandates (The New NY Agenda, pages 55, 56, 155), and has a fairly detailed property tax cap plan (The New NY Agenda, pages 42-45), it's clear that Cuomo is placing most of his faith in this area in the local government reform plan.

Importantly, Cuomo also appears to have a good handle on the depth and extent of the local government problem.

Our system of local government was constructed hundreds of years ago and is the product of historical accumulation.109 As a result, at the local level there exists overlap and duplication, resulting in high taxes, inefficiency and waste.110 In fact, there are more than 10,500 local governmental entities --- including 62 counties, 932 towns, 555 villages and more than 7,000 special districts --- imposing taxes and fees across New York State. (The New NY Agenda, page 82)

If there's a similar understanding of the issue displayed, or a plan for the issue outlined somewhere in documents on either Carl Paladino's or Rick Lazio's websites, I somehow missed it completely. E-Mail me a link and I will take a look.

It should be noted that Andrew Cuomo's local government reform plan has a lot in common with the one his father outlined in his 1994 Message to the Legislature, as cited above. This isn't necessarily a bad thing, as it might suggest that Andrew, like his father before him, understands that the local government issue isn't totally the fault of Albany, but rather in part is the fault of the localities themselves, and thus the solutions might also be found locally.

But, I have to wonder if anyone could really solve this problem. It's long-standing, and to the degree to which Andrew and Mario Cuomo are correct, the local government problem is one in-part of local government's making. And therefore, indirectly, of our own.

Andrew Cuomo, at least, appears to recognize that a problem exists, and that it goes beyond the “unfunded mandates,” a term which during the Pataki years was used so often that it effectively lost all meaning.

Whoever wins the Gubernatorial election will have to deal with the issue, one way or another. Andrew Cuomo, it seems, will at least have a head start.

Sins, and Gifts, of the Father: Andrew and Mario Cuomo

2010-07-14T07:30:00.000-07:00

Andrew Cuomo is very likely going to be New York State's next Governor.

His father, Mario Cuomo, of course was Governor in his own right some years ago (1983-1994). Radio commentator Alan Chartock in 1995 called Andrew and Mario's relationship “one of closest father/son relationships and collaborations in all political history.” (Me and Mario Cuomo: Conversations in Candor, page 104.) Andrew's likely Republican opponent, Rick Lazio, has attempted to use this relationship against Andrew in a variety of ways. Andrew has attempted to use it in his own favor.

There's an aspect of this important father-son relationship that's unlikely to be seriously explored, and that's the way the political similarities between the men could play out in Andrew Cuomo's Governorship, if he wins. I suppose Lazio will try to address this issue sooner or later, but the issue deserves more serious consideration than it can possibly get in the context of a political campaign.

It's widely believed that Andrew and Mario have always been close, which is very near to, but not quite, the truth. According to Robert S. McElvaine's 1988 book Mario Cuomo: A Biography, Mario was working too much during Andrew's early years for the two to be close then. Mario did not, for example, know how well Andrew was doing in High School. When Andrew went to Albany Law School in the late 1970s and early 1980s (he graduated in 1982 and was admitted to the New York State Bar in 1984, according to the State Office of Court Administration), Mario was to be working in Albany as Lieutenant Governor of New York State, and he insisted that the two men live together in an apartment on State Street. They have been close ever since, and Mario has made a conscious effort to make up for his not being around much during Andrew's early years. (Mario Cuomo: A Biography, pages 157-159.)

Andrew was a close adviser to Mario throughout Mario's tenure as Governor, but especially during his first term, when Andrew had an actual job in the administration (for $1 a year). After that, Andrew left to work for the Manhattan District Attorney's office. (Mario Cuomo: A Biography, page 130; “About Andrew Cuomo” from the Cuomo campaign's Internet site.) When Andrew got married, Mario lamented to Alan Chartock about how he would lose the ability to consult his son during the early morning hours. (Me and Mario Cuomo: Conversations in Candor, pages 103-104.) Andrew book-ended Mario's tenure as Governor, by first encouraging him to run after perceiving then-Governor Hugh Carey's position as vulnerable (Diaries of Maruo M. Cuomo: The Campaign for Governor, pages 66-67), and then twelve years later by informing Mario of his loss to George Pataki in 1994 (Andrew Kitzman, Rudy Giuliani: Emperor of the City 2000, page 139).

The close relationship carried into Andrew Cuomo's 2002 attempt to run against George Pataki. In Andrew's own words:

My race was great political theater. I was running last year in a primary to challenge George Pataki, who had defeated my father, Mario Cuomo. The New York press had choreographed the campaign into an Italian opera in which the son was to avenge the father's death. Unfortunately, the conclusion did not support the premise. [Andrew lost the Democratic nomination to then-Comptroller H. Carl McCall.] There is no romance in the opera: father dies, and then son does. (Andrew Cuomo, Crossroads: The Future of American Politics 2003, page xi.)

Based on this passage, Andrew seems to be well aware of the political importance of his relationship with his father. Note that Andrew in no way implies that the way the press had “choreographed” the race was inaccurate or inappropriate.

The relationship continues into Andrew's current gubernatorial race, as do the potential comparisons. In calling his political program “The New NY Agenda,” Andrew Cuomo in effect invited the comparisons to continue, and intensify. Because, as public radio reporter Karen DeWitt remembered, this slogan was first used by Mario. Karen trotted out a license plate from early in Mario's 1994 campaign that bore the phrase.

Mario Cuomo's use of the slogan went much further than a license plate, however. It also graced the covers of the official printings of Mario's 1993 and 1994 Messages to the Legislature. (Copies were located in the New York State Legislative Library.) That means “New New York” was more than just a political slogan to Mario. It was an attempt at a governing strategy. Andrew appears to view it similarly. After all, the phrase isn't just on Andrew's bumper stickers and buttons; it's the title of his policy book.

In addition to the title, some of the content of Andrew's policy book is also echoed in his father's long-ago Messages to the Legislature. To pick just one example, the embryo of Andrew's proposal for locally-led consolidations of and service sharing among local governments (The New NY Agenda, pages 85-92, also a policy concern of his as Attorney General, see here) is found in Mario's 1994 Message to the Legislature (pages 119-121). The proposals are not identical, but there are more similarities than differences.

The two men also appear to share similar overall political philosophies. In a 1999 speech to the National Press Club, then Secretary of Housing and Urban Development Andrew Cuomo argued for a positive role for government, spoke of how part of his role as a government official was to convince the people that government could be a positive solution to a given problem. He had a well-conceived, supportable analysis of why government-based solutions to social problems had or had not worked in the past. His analysis reflected eloquence, intelligence, and (and this is critical) a bureaucrat's appreciation of the necessity for competent public administration. (Andrew Cuomo, “Remarks at the National Press Club,” 28 April 1999, pages 7-9.)

Mario Cuomo has long-held to a similar pro-government philosophy, and by pro-government I mean a firm, anti-Reagenite belief that government can be a positive good. Many of Mario's written works, including 1995's Reason to Believe, 1994's The New York Idea, and 1974's Forest Hills Diary are nothing if not impassioned defenses of that philosophy. If it sounds a bit obvious to say that government “can” be a force for good, it must be remembered that Mario Cuomo's tenure as Governor overlapped with the Reagen era, wherein America's top government official, the President of the United States, paradoxically proclaimed “government is the problem.” Merely to defend the idea that government could do good for people, as Mario did, was to swim against the political tide, and risk drowning.

Much is made of Anderw Cuomo's current anti-tax and “rightsizing government” rhetoric. In this interview with Alan Chartock, for example, Andrew comes out staunchly against both new taxes and new government borrowing. Further, point 3 of Andrew's “New New York” agenda is the following:

Rightsizing Government. Government in New York is too big, ineffective and expensive. We must enlist the best private sector minds to help overhaul our more than 1,000 state agencies, authorities and commissions and reduce their number by 20 percent. We must make it easier to consolidate or share services among our more than 10,000 local governments. (The New NY Agenda, unnumbered page.)

7 out of 10 of the “10 Troubling Facts” described in his policy book relate to government being too big and expensive, and/or to New Yorkers' tax burden. (The New NY Agenda, pages 1-2.)

Some have said that Andrew Cuomo is trying to sound like a Republican, but I think he'd disagree. I think he might suggest nothing in his agenda is specifically Republican, or specifically conservative, and nothing is necessarily inconsistent with a pro-government, liberal philosophy. I can see no evidence that Andrew has ever, or likely will ever, pretend to be anything other than some kind of liberal, along very similar lines to his father.

Mario and Andrew have also both cast themselves as defenders of the downtrodden in society, those usually ignored by the political system and by politicians, those left behind by economic prosperity, progress, and growth.

None of Mario Cuomo's expressions of this are better-known than his 1984 “A Tale of Two Cities” speech.

Ten days ago, President Reagan admitted that although some people in this country seemed to be doing well nowadays, others were unhappy, even worried, about themselves, their families, and their futures. The President said that he didn't understand that fear. He said, "Why, this country is a shining city on a hill." And the President is right. In many ways we are a shining city on a hill.

But the hard truth is that not everyone is sharing in this city's splendor and glory. A shining city is perhaps all the President sees from the portico of the White House and the veranda of his ranch, where everyone seems to be doing well. But there's another city; there's another part to the shining the city; the part where some people can't pay their mortgages, and most young people can't afford one; where students can't afford the education they need, and middle-class parents watch the dreams they hold for their children evaporate.

In this part of the city there are more poor than ever, more families in trouble, more and more people who need help but can't find it. Even worse: There are elderly people who tremble in the basements of the houses there. And there are people who sleep in the city streets, in the gutter, where the glitter doesn't show. There are ghettos where thousands of young people, without a job or an education, give their lives away to drug dealers every day. There is despair, Mr. President, in the faces that you don't see, in the places that you don't visit in your shining city.

In 1999 remarks to the National Press Club, which were also cited earlier, Andrew Cuomo made the following eerily similar statement:

The new American paradigm is the great American paradox.

President Clinton says this is not a story of success and that this nation can do better and that it's not truly a success until the economy is working for everyone, everywhere, and that now is the time to take this great economy, use it as a tool, use the resources to make the economy work everywhere. And he is right.

I have been to the other America, if you will. I have seen the dual reality of the time that we live in. And I can tell you the sense of hopelessness is just as bad as it has ever been. For all the progress we've made, Lord knows we have longer to go.

I also believe that if the American people saw the reality, the other reality, the other America, they would do something about it. If they saw the conditions of poverty that still exist in this nation, they would not allow it to continue. It's not about the America we know. We have to expose that reality, show them the other America, and they won't stand for it.

We also have to show them that we can actually solve it and that government can be an instrument in that solution.

And, finally, one similarity between the two men needs no citation: Their voices. No one could reasonably disagree that Andrew likely learned how to make a speech in large part by listening to his father. Sometimes even the minor differences vanish or lessen, and then the similarities are eerie.

There can be little doubt that Mario Cuomo and Andrew Cuomo have many commonalities that are potentially of great political importance.

New Yorkers have reason to both fear, and look forward to, another Cuomo administration.

Mario Cuomo had many gifts, but also many faults, and his twelve-year administration appears to be regarded by many New Yorkers as a failure. His 1994 defeat at the hands of the then-comparatively unknown George Pataki is surely enough proof that he was seen as a failure at least at the time. Hy Rosen and Peter Slocum's account of the Cuomo Administration in their great 1998 book From Rocky to Pataki paints a complex picture of a gifted Governor constrained by several factors some of which were beyond, and some within, his control. I'll outline three of these factors I saw at work, based on Rosen and Slocum's account.

Firstly, Mario was a liberal Democrat, explicitly in the FDR vein, in a decidedly conservative Republican era, personified by Ronald Reagen. Mario had to spend twelve years straddling the long divide between the FDR and Reagen archetypes. While he may have straddled it well for the most part, he couldn't do it forever. He appears to have in response adapted an incrementalism that he doesn't appear to have been comfortable with, and which had paradoxical effects. Secondly, Mario's tenure coincided with two recessions, and Mario managed to create the perception he, and by extension New York State, were generally anti-business. And thus, it was easy, and in-part true, to blame New York State's economic woes on Mario. From Rosen and Slocum's account, Mario doesn't appear to have ever realized the degree to which he'd helped to create the negative perception. (Andrew has certainly made attempts to paint himself with a pro-business brush.)

Thirdly, and most importantly for our present purposes, is that Mario appears to have just not been that good of a manager. He was part inspirational speaker and part policy wonk, but he failed on translating his principles into policy, into making government match his vision. Lacking that skill, complexity too-often became incoherence. (From Rocky to Pataki, pages 94-136.) It is this third factor that I think of as Mario Cuomo's primary political sin, the one his son needs most to not duplicate. Mario Cuomo could show New York where he wanted us to go, could even convince people, in the abstract, to go there. But, for whatever reason, he had difficulties finding the path, or following it once he found it, or in getting others to follow it. Or all three. Always not quite.

As a result, after twelve years of not quite, in 1994, George Pataki defeated Mario Cuomo with what amounted to one argument alone: That he was not Mario Cuomo.

Andrew Cuomo is likely New York State's next Governor.

There are many political similarities between Andrew Cuomo and Mario Cuomo, but there are also differences. Mario Cuomo earned the nickname “Hamlet on the Hudson” for giving off what were popularly perceived as perpetually-mixed signals on whether or not he would run for the Presidency. But Hamlet wasn't quite indecisive. He knew what he had to do. Where he failed was translating thought into action. The Hamlet analogy is thus appropriate to Mario Cuomo, but not quite in the way it was popularly used.

A picture on Andrew Cuomo's campaign Internet site illustrates what I think Andrew Cuomo hopes will be a difference between himself and his father. In that photo, Andrew is seen with Bill Clinton and Al Gore. The Clinton administration is firmly associated in the American mind, especially in the New York mind, with competent administration, and with good reason. Among other accomplishments, Clinton turned the Reagen-era federal budget deficits into a surplus.

Andrew Cuomo is likely the next Governor of New York. Rick Lazio has thus far been as unable to find campaign traction as he has a convincing argument. Anything can happen in politics, and 4 months is over 120 news cycles and several lifetimes, but at the moment the chief danger to Andrew Cuomo appears to be if starts to take victory for granted, and he shows no sign of doing so.

There are some signs that Andrew might be better than his father at translating thought into action, at overcoming Hamlet's dilemma. Andrew appears to have more of a bureaucrat's sensibility, which goes beyond having an idea of what's doable, into the realm of figuring out exactly how to do it.

Chris Smith wrote the following in late May:

Spitzer was ahead of the curve in his embodiment of voter anger, and fighting consumed him. Cuomo is no Mr. Nice Guy—many pols who know him well fear him—and he arrives as public rage with government soars. Yet his success in Albany will likely hinge on whether he can stroke people at the same time as he’s pushing them around: Manipulation we can believe in.

Absolutely true. But there's another, related but separate, issue upon which Andrew Cuomo's success, and hence New York's, will in-part depend: Andrew's ability to translate principle into politics and policy, and thought into action. His ability to neither water-down the analysis nor remain paralyzed by it.

Andrew's ability to duplicate his father's gifts, but not his father's sins.

Works Consulted or Cited

“About Andrew Cuomo.” http://www.andrewcuomo.com/about

Alan Chartock. “Interview with Andrew Cuomo.” 3 July 2010. http://www.publicbroadcasting.net/wamc/news.newsmain?action=article&ARTICLE_ID=1670295

Alan Chartock. Me and Mario Cuomo: Conversations in Candor. 1995.

Andrew Cuomo. Crossroads: The Future of American Politics. 2003.

Andrew Cuomo. “Remarks to the National Press Club.” 28 April 1999.

Andrew Cuomo. “The Empire Strikes Back.” Undated Speech at University of Buffalo. http://www.youtube.com/watch?v=ZWAZTtTYC9M

Andrew Cuomo. The New NY Agenda: A Plan for Action. 2010.

Andrew Kitzman. Rudy Giuliani: Emperor of the City. 2000

Bob Herbert. “Unmasking Poverty.” The New York Times. 29 April 1999.

Casey Seiler. “Everything New is Old Again.” Capitol Confidential (blog). 28 May 2010. http://blog.timesunion.com/capitol/archives/27494/everything-new-is-old-again/

Chris Smith. “The Silver Surfer.” New York Magazine, online edition, 28 May 2020. http://nymag.com/news/intelligencer/66300/

Elizabeth Benjamin. “Settling The ‘Status Cuomo’ Score.” Capital Tonight (blog). 4 June 2010. http://capitaltonight.com/2010/06/settling-the-status-cuomo-score/

Hy Rosen and Peter Slocum. From Rocky to Pataki: Character and Carictures in New York Politics. 1998.

Lars-Erik Nelson. “A New and Better Vision For Cities.” New York Daily News. 30 April 1999.

Mario Cuomo. 1993 Message to the Legislature.

Mario Cuomo. 1994 Message to the Legislature.

Mario Cuomo. “A Tale of Two Cities” (speech). 1984. http://www.americanrhetoric.com/speeches/mariocuomo1984dnc.htm

Mario Cuomo. Diaries of Mario M. Cuomo: The Campaign for Governor. 1984.

Mario Cuomo. Forest Hills Diary: The Crisis of Low-Income Housing. 1974.

Mario Cuomo. More Than Words: The Speeches of Mario Cuomo. 1993.

Mario Cuomo. The New York Idea: An Experiment in Democracy. 1994.

Mario Cuomo. Reason to Believe. 1995.

Michael Gormley. “Democratic Nominee Cuomo Seeks 'New' New York.” Associated Press. 28 May 2010. Found many places, accessed most recently here: http://pressrepublican.com/0100_news/x433574646/Dem-nominee-Cuomo-seeks-new-New-York

“President Clinton Announces Another Record Budget Surplus.” CNN.com. 27 September 2010. http://archives.cnn.com/2000/ALLPOLITICS/stories/09/27/clinton.surplus/

Rick Lazio. Various documents on lazio.com.

Robert S. McElvaine. Mario Cuomo: A Biography. 1988.

Star-Ledger Editorial Board. “NY Democrat Andrew Cuomo sounding a lot like NJ Gov. Chris Christie.” Star-Ledger, online edition. 30 May 2010. http://blog.nj.com/njv_editorial_page/2010/05/ny_democrat_andrew_cuomo_sound.html

Is the Budget Done?

2010-07-07T08:05:00.000-07:00

Is the New York State Budget done, as Senate Democratic Conference Leader Sampson claims? (See here and here.)

Leader Sampson makes this claim despite the Senate's inability to pass a revenue bill.

Is he right? It depends on your point of view I suppose. Most things do these days.

But personally I'd say no.

Budgets require two things as a general rule: Money earned, money spent. As mentioned above, a key revenue bill remains un-passed, due to the public objections of Senator Stachowski and the less-public objections of Senator Thompson, Senator Foley, and Senator Breslin, who are holding out for some kind of change on how SUNY tuition works.

Senator Stachowski has become the public face of this particular battle, because he's the one actually stalling the revenue bill on this proposal's behalf. The other interested Senators appear to be willing to vote for the revenue bill and deal with SUNY tuition separately. Stachowski, however, is effect derailing the entire budget to deal with the SUNY tuition issue here and now.

So, no revenue bill. Yet, Conference Leader Sampson thinks the budget is “done.”

Is it? Frankly, I'm amazed someone so much as suggested that. The Capital Tonight article linked to above, and linked to again here, states that the Legislators aren't getting paid yet. Only a New York State Legislator could proclaim a job done when he is specifically having his paycheck withheld for not finishing that same job.

As far as I can tell the Governor's budget vetoes have knocked the State's budget back to the Governor's initial proposals, more or less, but the Governor's budget included some additional revenues. Anyone remember the “fat tax?” Even the Governor's austere budget needed that, along with other revenue items, or at least needed other revenue items to replace them. And, unless I've missed something, no replacements have passed. That's kind of what the revenue bill was about.

The State Comptroller has an “auditing” power under the State Constitution, and traditionally that power is used by the Comptroller to sound off on the State Budget in an annual report traditionally called the Review of the Enacted Budget. Sometimes the press refers to this report as the Comptroller “certifying” the budget.

The current Comptroller, Thomas DiNapoli, and at least one previous Comptroller, H. Carl McCall, have agreed that the Comptroller's “certification” of the budget is oft-exaggerated. Presumably, Comptrollers do not wish the political process to in effect assign their office responsibilities that they may lack the power to fulfill.

“There's a general conception,” Comptroller DiNapoli stated here,

“that I certify that the revenues are there, but that's beyond what we're called on to do," DiNapoli said. "The comptroller does not certify as to the validity of the budget appropriations and the presence of revenues. That's not a a power I have."

"Under New York law, we have a very limited role and it's limited to a determination that there are sufficient appropriations in budget bills for state operations and local assistance. That doesn't mean we make a decision that the revenues are there to back up those appropriations."

"The only certification is with repsect [sic] to whether they acted on budget bills so the legislative pay can happen."

The Comptroller is right, as far as I can tell. See Joseph Zimmerman's The Government and Politics of New York State 2008, pages 249-251, and Robert B. Ward's New York State Government 2006, pages 85-87.

While, the Comptroller may lack the power to actually block a badly-done budget that lacks revenues to back up the appropriations, surely the case this year, the Comptroller's Review of the Enacted Budget report has often not been shy about publicly taking the Governor and the Legislature to task for such budgets. To see what the reports look like, see the index of reports here.

Sometimes the Reviews are friendly. For examples, see the Reviews of the 2003-2004 and 1998-1999 enacted budgets.

Sometimes, though, the Reviews are less friendly. For example, the Review of the 2009-2010 budget in effect stated that the budget was technically balanced, but was on shaky ground, and was subject to the potential for mid-year changes. The Comptroller's office repeatedly warned of “structural imbalances.” The report opened with the following devastating lines:

The Enacted Budget for State Fiscal Year (SFY) 2009-10 clearly demonstrates the need for comprehensive fiscal reform. It relies on practices and patterns that result in poor fiscal outcomes over the long-term—recurring spending that outpaces recurring revenue, and the use of temporary revenues including federal stimulus funds to support ongoing costs. (Page 1)

The Review of the 2002-2003 enacted budget was similar.

While the budget as presented by the Division of the Budget is balanced it relies on fiscal gimmickry and dubious funding streams that may not materialize. (page 1)

Also very similar was the Review of the 1999-2000 enacted budget.

Most of the 1999-00 spending increases, when compared to the Executive Budget, are driven by current law and the legislative rejection of proposed cuts in education and Medicaid, rather than by program expansions. Even the large education aid increase was driven by the phase-in of multiyear programs and by general growth in current school aid formulas. The General Fund budget was balanced with virtually no spending cuts. (Page 1)

Also:

The level of non-recurring resources used in the enacted budget increases ten-fold from $64 million last year to nearly $600 million in 1999-00. This is particularly disturbing given the current robust economy. The use of significant one-time revenues to balance budgets was common practice during economic recessions. The use of non-recurring resources to fund ongoing spending exacerbates future budget imbalance. (Pages 1-2)

This year's budget, of course, from what we can tell from the press, leaves behind budget gimmickry and trickery for flat-out fantasy. The budget is so far from being done in any meaningful sense that the Legislators themselves aren't getting paid.

Is the budget done? No, it's not.

The Republican candidate for Comptroller, former hedge fund manager Harry Wilson, has called for Comptroller DiNapoli to not “certify” this year's budget. We've seen above that the Comptroller actually doesn't have the power to "certify" the budget per se. Wilson's implication that the Comptroller does have such a power reflects what might be a poor understanding on part of candidate Wilson of the office he seeks, and frankly makes me wonder about his hedge fund.

We've seen, though, that Comptrollers haven't been why about using the Review of the Enacted Budget report to highlight problems or issues in the State budget. As well they shouldn't be. New York State elects its Comptroller separately from the Governor for a reason, and that's to serve as a counter-weight. Comptrollers rarely have an electoral incentive to sugarcoat the budget review, certainly no more incentive than they have to sugarcoat their famous audits of State agencies and programs, even if the Comptroller and Governor are friendly. This year's Review should be an interesting read, and that's assuming the Comptroller even bothers to write one given the lack of a revenue bill.

One thing is clear, however, it's likely to be difficult politically for the Legislature to campaign on having accomplished a budget that a Comptroller they appointed to fill a vacancy in the office, and who is a former Legislator himself, doesn't feel comfortable signing off on. And, really, how could the Comptroller's Review this year be positive, especially with no revenue bill?

Is the budget done?

I'm amazed any State Legislator would say so. It's telling that Conference Leader Sampson, who as a lawyer employed by a law firm probably doesn't need his legislative salary, was the one to say it.

Newsflash: Yes, Richard Ravitch's Appointment is Legal

2010-06-24T08:07:00.000-07:00

I periodically read in the “blogosphere” that Richard Ravitch is, despite a ruling of the New York State Court of Appeals to the contrary, an “illegal” Lieutenant Governor. Basically, some bloggers sometimes feel that the Court erred in the Skelos v. Paterson decision of September 2009, granting Governors of New York State the right to fill an opening in the position of Lieutenant Governor through appointment.

It is of course anyone's right to disagree with the Court's legal or policy reasoning. That would be an opinion, to which one is entitled. But to say that Ravitch is an “illegal” Lieutenant Governor is, simply, a defiance of reality, not an opinion. You are entitled to your own opinion, not your own facts.

In our system, the State Court of Appeals is the final arbiter of official interpretation of the New York State Constitution. End of story. As far as I can tell, if for example another State agency openly defies a Court of Appeals ruling, they are in violation of the law

If we here below disagree with a Court of Appeals decision, we have two choices aside from just speaking out (which of course is also our right). One is to lobby our elected representatives to change the Constitution. Two is to lobby our elected officials to only support nominees to the Court of Appeals whose interpretations of the Constitution are closer to our own.

A similar system, of course, exists at the federal level, wherein the U.S. Supreme Court is in effect granted the power of officially interpreting the U.S. Constitution. Sometimes, the Supreme Court hands down ridiculous decisions. One example would be Dred Scott v. Sanford (60 US 593, 1863), which affirmed the Constitutionality of slavery, despite its being an affront to the fundamental American values on which our Constitution was based. Another would be the recent decision declaring that a prisoner in police custody had to specifically declare his right to remain silent, merely remaining silent wasn't invoking your right to remain silent. Of course, once you open your mouth to say something, you're waiving your right to remain silent. Another example would be Plessy v. Ferguson (163 US 537, 1896), which affirmed the Constitutionality of racially segregated schools.

Ah, but when I was a student, about a million years ago, it was popular to teach Brown v. Board of Education (347 US 483, 1954) which, in effect if not in formality, reversed Plessy and declared the racial segregation of schools to be unconstitutional and mandated the integration of schools, in a similar light. Brown, one of the most important and central Supreme Court rulings in American history, was disparaged in a depressing way.

Disagreeing with the high court of whatever the relevant jurisdiction of is a common pastime in America. Disagreeing with the Court of Appeals on the Lieutenant Governor matter is but one example. For years and years, wrote legal scholar James Pope, organized labor had developed what amounts to an alternative constitution, wherein the U.S. Constitution specifically granted the right strike (James Pope, “Labor's Constitution of Freedom,” Yale Law Journal, 1997).

I suspect that a similar article to Pope's could be written about gun rights advocates, and to a lesser degree about Conservatives in general. In the Conservative “alternative Constitution,” the 10th amendment grants all powers “not specifically delegated” to the federal government “to the States,” as opposed to how the language actually reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

People sometimes like to read in “expressly delegated” and leave off “or to the people.”

Now, one could say that an alternative Constitution has developed in New York State, wherein it is not legal for a Governor to appoint a Lieutenant Governor.

The power granted to courts does, sometimes, frighten me. Some of the decisions cited above, Plessy and Dredd Scott, for example, were spectacularly bad calls, for the Constitution, for the Supreme Court itself, and for America. One of the founding fathers of New York State, Robert Yates, advocated against the ratification of the U.S. Constitution under the pen name Brutus. One of his arguments, which proved to be quite prophetic, was that the Supreme Court would have the sole power to decide the Constitutionality of laws, and to interpret the Constitution, and there would be no appeal from it. (For more detail, see Jackson Turner Main's 1961 book The Antifederalists: Critics of the Constitution, 1781-1788, and Herbert Storing's 1981 book What the Anti-Federalists Were For.)

“Brutus” was of course exactly right about the potential power of the Court. It is telling, I think, that when Thomas Jefferson, in a letter to James Madison in 1787, appeared granting a kind of veto power to the Supreme Court (similar to but not quite the same as what we now call “Judicial Review,” the ability of the Supreme Court to nullify legislation on the grounds that it violated the U.S. Constitution), that it was specifically to be with a possible 2/3 override by the Congress, highly similar to their override power over the Presidential veto.

But, the concerns of Yates and Jefferson regardless, this is the system we have. I'm sure there have been several examples of openly defying the Supreme Court's view of the U.S. Constitution (or of the Court of Appeals' view of the New York State Constitution) for that matter. In fact I think I remember hearing some years back about how the Secret Service consistently defies standard Court interpretation of the statute that prohibits threatening the life of a U.S. President, treating every threat as illegal when, the Courts say, it's supposed to include only threats that have some likelihood of being carried out.

However, the biggest example of openly defying Supreme Court interpretation of the Constitution that I can think of then-President Andrew Jackson's defiance of Worcester v. Georgia (315 US 515, 1832).

The result of Jackson's defiance, by the way, was the Cherokee Indians' famous Trail of Tears.

I find it to be potentially telling that one of the most prominent examples of open defiance of the Supreme Court was so catastrophic, and is so poorly regarded today. President Jackson had raw power at his fingertips, and the Court didn't. And at the end of the day that's really all Jackson's defiance was about. Arguably, it was the same dynamic that led to the Trail of Tears in the first place. We (America) had the power, they (the Cherokee) didn't.

One may disagree with Ravitch's appointment, on Constitutional or policy grounds. Or even just because you don't like Ravitch. Or maybe you want Senator Malcolm Smith to be Governor if David Paterson dies. (Though I can't guess why anyone would want that.)

But, please, don't call the appointment illegal. It's legal. How do we know it's legal? Because the Court of Appeals said so. You can argue it shouldn't be legal. You can point out reasons why it shouldn't be legal. You can disagree with the policy. But you can't say it's illegal and be consistent with reality.

That's the system we have. Judging by the Trail of Tears case, we appear to do better when we go with the system, and seek to change a law that we view as wrong, than when we try to somehow pretend a law isn't really a law when we disagree with it.

(Re-)Considering the Disgraced: Spitzer vs. Bruno

2010-05-25T08:42:00.000-07:00

To put it as kindly as I can, at this point it's clear that both former New York State Governor Eliot Spitzer and former New York State Senate Majority Leader Joe Bruno have more negatives than positives. Each man appears to be corrupt in his own way. Each man appears to suffer from what I've termed "The Entitlement Syndrome."

Measuring the two against each other, though, is less difficult than one might think. I can't quite decide what's sadder, the mere fact that Bruno clearly comes off better, or the fact that of the two Bruno's the only one who's been convicted and sentenced for his illegal conduct.

Eliot Spitzer served as Governor from the beginning of 2007 through March of 2008. His brief reign was marked with acrimony and scandal, and he was finally forced to resign in disgrace. Joe Bruno, by contrast, had a distinguished, long career as a Senator before taking the Majority Leader spot. He took that spot in 1995 and served until he resigned, under a cloud but on his own terms, late in 2008.

After Eliot Spitzer was forced to resign in disgrace, the press repeatedly handed Bruno opportunities to gloat. Wisely, however, Bruno, at least publicly, remained at once gentlemanly and cautious. Bruno expressed concern for the Governor and his family, during this difficult time. Bruno carried on the machinery of government, passing the Senate's draft of the State Budget quickly on the heels of the scandal breaking.

By contrast, Spitzer, already long out of office by the time Joe Bruno was convicted and sentenced, responded to Bruno's troubles with ridiculous gloating. Spitzer, you see, knew Bruno was on the take all along. Spitzer, with his keen investigator's instinct, could tell right away. Not addressed by Spitzer is that he was also engaging in illegal conduct himself at the time, and thus was familiar with some of the warning signs.

Bruno's crimes were the type you had to build not just a factual case for, but a legal case for. Prosecutors had to show that not certain conduct occurred, but that the conduct fit the definition of some crime or other. They did it well enough that I began watching the trial as a Bruno supporter and soured on him day by day. By contrast, however, Spitzer's conduct was clearly illegal. There was no legal argument to be made, one could only dispute the fact pattern. And Spitzer didn't dispute the fact pattern, at least not publicly that I saw. We'll never know the details of why Spitzer was not prosecuted, and it's best that I not voice my strong suspicious, but it should be clear, however, that there was no doubt whatsoever that what Spitzer had done was actually illegal.

Bruno's legislative achievements over many years as Senate Majority Leader were numerous. Spitzer's legislative achievements during his brief, terrifying reign consisted largely of Workers' Compensation reform, ethics reform, and one on-time budget. I'm informed through conversations with knowledgeable folks down at the State Capitol building, and by going over old documents, that Workers' Compensation reform had been in the works for years and years before Spitzer's reign, and that the final bill had considerably more input from the State Legislature than from Spitzer and his people. The Spitzer-era ethics reform has been something of a disaster, with the head of the Public Integrity Commission already having to defend the Commission's existence, and the Commission issuing such bizarre, thoughtless, senseless edicts as what I've termed the “Mocha Protocol.” Spitzer also had a record of quasi-legislative Executive Orders to consider, but these didn't amount to much either.

Bruno was a self-made man, who rose from the streets of Glens Falls to the corridors of power. I have little doubt that Spitzer wouldn't have gotten anyplace without his father. The best evidence of this is the fiscal shenanigans Spitzer and his father used during Spitzer's first run at Attorney General. Regrettably we must go to ever-not-quite-reliable Roger Stone as the primary source of this, as he's been the only one really highlighting it to any degree. And, then of course, there's the fact that after resigning as Governor, Spitzer ran right back to Daddy as his primary source of income.

And we won't even begin to get into Spitzer's role on Wall Street as Attorney General, where his juvenile “sheriff” act, I have argued, forced unethical and perhaps illegal conduct even further underground, where it was harder to ferret out, while simultaneously driving good, needed Wall Street analysis jobs to India.

I come here not to praise Bruno, but to help bury Spitzer, whose bizarre, snide “I knew it all along” act is pathetic and disgraceful.

And, therefore, in its own way, quite fitting.

The Entitlement Syndrome

2010-05-15T15:15:00.000-07:00

• Introduction: The Entitlement Syndrome

There is much in New York State's brutal political scene that I find noble, perhaps mostly the way, as observed by Political Scientist Sarah F. Liebschutz, it's driven by conflict and cooperation between the contrasting forces of competition and compassion.

I have taken note, however, a third force at work in the Empire State's politics. It takes the form of a disease, or contagion. I suspect the disease has been around for awhile, festering in the dark corners of the Capitol Building and causing an occasional outbreak, but these days it appears to be particularly virulent. While I know a fair amount of New York's fascinating political history, I can't reliably tell you if the contagion has ever been as bad as it is now.

I call the contagion the Entitlement Syndrome; a distinct and destructive sense of entitlement among many in New York State's political class.

• The Syndrome in Albany

Assembly Speaker Sheldon Silver and Senate Democratic Conference Leader John Sampson are both “of counsel” at prominent New York City law firms. As near as I can tell, being “of counsel” at a law firm means they get to do hardly any work for large fees and never ever once have to disclose a client list. That many of those undisclosed clients have business before the State Legislature is pretty much a foregone conclusion. Hey, you need legal representation anyway, right. Assuming you can afford it, why not retain either Silver's firm or Sampson's firm or both? At the very least, it sure can't hurt your chances with the Legislature.

Former Senate Majority Leader Joe Bruno was recently sentenced to two years in federal prison for “theft of honest services.” He set up a business consulting firm, but produced little or no written products for his clients, and routinely mixed up his State and private business interests.

I'm sure most readers are familiar with the recent, bizarre incident at a Senate Finance Committee meeting, wherein Senator John DeFrancisco expressed an ignorance of racism in the State contracting process. Senator DeFrancisco's ignorance, however, was quickly eclipsed by a nearly-violent, angry outburst by Senator Kevin Parker.

It should be noted that Senator Parker, in the words of reporter Liz Benjamin, “has a history of anger management issues.” Kenneth Lovett goes over some of these issues here, in a story on a Senator Parker outburst against fellow Democrat Diane Savino. (In that story, please note how Senator Carl Kruger, whom Senator Parker threatened during the Finance Committee incident, was egging on Senator Parker in the Senator Savino incident. No real purpose to pointing this out other than the amusing irony.)

Senator Parker's response to Senator DeFrancisco is all the more fun when one considers that it wasn't just a single outburst. Senator Parker was a seething cauldron of hate for days afterward, accusing Republican State Senators of being “White Supremacists,” before he finally issued a half-assed apology.

Note the following excerpt from a speech Senator Parker made on the Senate floor, as cited by the Times:

To the extent that my words last week brought commotion and emotion to this house in ways that may distract or divert us from the important work of the people of New York State, work that’s so important for all of us, I offer my sincerest apologies for my zealous advocacy.

That isn't really an apology at all, as far as I can tell.

In other entitlement news, two State Legislators were overheard at the capital whining over their lack of a pay raise. This, in the middle of multiple fiscal and ethical crises and with a State budget well over a month late.

The Entitlement Syndrome is not only limited to individual politicians. It can infect interest groups too, for example the State government worker unions. Anyone who is familiar with my comments, here and elsewhere, knows that I am a big fan of labor unions, but the Entitlement Syndrome has torn through New York State's government employee unions, ravaging their characters, turning them from noble organizations into train wrecks waiting to happen. No union should ever favor layoffs over furloughs, and that's basically what they've been doing.

We could, I suppose, go on and on. We haven't once discussed former Senator Hiram Monserrate, current Senator Pedro Espada, Attorney General Andrew Cuomo, or Governor David Paterson.

The common thread here is the Entitlement Syndrome. It causes the victim to feel untouchable, to make him or her feel deserving of public office, of money, of power, of privilege. No one can touch me, the victim thinks, so why should I think about what I'm saying or what I'm doing. It causes victims to draw attention not to their beliefs or causes, but to themselves. It causes loss of the sense that actions have consequences, and a loss of the sense that it's important to get along, at least superficially, with the people you work with every day, even the ones you hate with a passion.

• The Syndrome Outside of Albany

It is frightfully easy to blame the Entitlement Syndrome on Albany, on its culture, on the sense of isolation from reality that, I am informed, can easily set in there. It's thus easy to see ethics reform, campaign finance reform, term limits, and a whole sad litany of standard “reform” ideas as a cure for the Syndrome.

Consider, however, the fact that Carl Paladino is not from Albany. (The link is not to a particular story, but rather to the Carl Paladino “category” on the Daily News's Daily Politics political blog.) Consider the fact that Mr. Paladino appears to consider himself qualified to run for Governor despite his racism, sexism, propensity for forwarding bizarre and offensive E-Mails without a care in the world, and overall lack of any kind of good judgment. Mr. Paladino appears to have one standard response to these stories when they come out, and that is that he's not politically correct and that these matters are all distractions. He is, in brief, attempting to turn behavior that, if any of us were engaging in it, would be considered a sign of a serious mental defect, into a political asset.

Clearly, Mr. Paladino is suffering from the Entitlement Syndrome.

Another victim is Suffolk County Executive Steve Levy. Executive Levy isn't from Albany either, though he did a brief stint there as a Member of the Assembly. Yet, he also suffers from the Entitlement Syndrome. In addition to his switch from the Democratic Party to the Republican Party, and his not understanding that his new fellow Republicans might, gasp!, not accept him right away, see this story from Liz Benjamin. Levy says he'll “shake up Albany,” and refers to himself as a “real man.” We've heard similar talk before, from a man named Eliot Spitzer.

Any man who feels the need to refer to himself as a “real man” is, in most instances, not.

Once again, a man who sees himself as entitled, who pounds his fist on the table when he doesn't get what he wants. If that's a “real man,” aren't there enough of that species in Albany already?

• Conclusion

I can only guess how the Entitlement Syndrome developed and how it spreads. It clearly is not limited to Albany. In fact it appears to be spreading rapidly, throughout New York's political class. Almost every prominent New York State politician and interest group appears to have it, to one degree or another. The examples I've cited are far from being the only ones.

I have no idea how to stop it.

Legislative Pay Raises?

2010-05-13T18:47:00.000-07:00

A rare display of bipartisanship occurred at the New York State Capitol Building earlier this week: A Republican State Legislator and a Democratic State Legislator commiserated over their lack of a pay raise.

The Republican complained that he ("he" could mean "he or she") “had been promised” a pay raise when he was first elected; from the context it appeared to me that the “promised” pay raise was part of how he was persuaded to run for the Legislature. The Democrat sighed sympathetically, agreeing that the lack of a pay raise was “ridiculous.” The conversation continued along similar lines as the Legislators moved out of my hearing range. I didn't follow them.

This was not some private conversation I spied on. The Legislators were talking openly, and in public. I was right around a corner, I saw them just before I fully rounded the corner, and I could hear them clearly. They couldn't see me, but there were about five people in the immediate vicinity whom these Legislators could clearly see, assuming they were paying any kind of attention to their surroundings.

If I heard it, others had to have heard it, and I'm willing to bet more Legislators than these two have recently engaged in similar conversations, especially as the story about the recent, now-rescinded, gubernatorial staff pay raises broke or was about to break.

What on earth could possess any Legislator to openly discuss a pay raise for themselves in this climate, I can't imagine.

The funny thing is that under normal circumstances I would probably agree with this pair of Legislators. Despite the disparaging portrait of the State Legislature painted by former State Senator Seymour Lachman in his book Three Men in a Room, from talking to people and hanging around at the Capitol it does indeed appear to me that those Legislators who bother to work at all do in fact work hard, and probably deserve more money than they are getting.

And I, personally, would rather not draw elected officials solely from a class of people who can afford to acquire and hold office. I'd rather have a more open field to select from. No one save the corrupt should ever have to look upon public service as their greatest career mistake.

Further, when Legislators are underpaid relative to the demands of the job, they can be tempted by outside income, and sometimes that outside income can taint political outcomes, taint the people's faith in the process, and can lead to criminal activity.

Under normal circumstances, thus, I'd be sympathetic to the idea of a Legislative pay raise.

Present circumstances, however, are far from normal. New York State is in the middle of severe, system-threatening fiscal and ethical crises. I could easily go on and on for pages about all the troubles New York State faces, but instead I'll focus on the most obvious: The State Budget is over a month late and the budget extenders haven't exactly been peaches and cream. These two Legislators were, literally, whining about not having pay raises while simultaneously failing on what is arguably their primary responsibility.

Under normal circumstances, I'd be sympathetic to a pay raise for State Legislators. Under current circumstances, however, so much as thinking about it, let alone talking about it publicly, is disgraceful.

I recommend that the leaders of the four legislative conferences advise their members to not discuss this issue publicly for the next couple of years. Save the money to avoid bankrupting the State. If you discover you have the money to spend that you didn't realize you had, I'm sure your constituents can think of things to spend it on that'll do the State, and yourselves, a lot more good than raising your own pay will. If you must spend it on yourselves, invest in competent staff, something which it appears all four conferences are severely lacking in. There's also bridges that need fixing; a lot of them. And I'm sure a lot of people would like to avoid Thruway tolls or mass transit fares going up.

Basically, anything would do more good right now than raising your own pay. Raising your own pay right now, or even talking about it, doesn't even help yourselves. Don't let the thought enter your minds, let alone openly discuss it in public areas, until maybe the State is no longer on the brink of fiscal, ethical, and political oblivion.

New York and Wall Street. Or, More Cocaine Please.

2010-04-27T12:36:00.000-07:00

What does cocaine make you feel like? Comic George Carlin supposedly once said cocaine makes you feel like having some more cocaine.

Money, especially money from Wall Street, and in this context “Wall Street” means the financial sector generally, is like cocaine for politicians. It makes them feel like having some more.

Wall Street's big money came largely during the Governor Pataki, President Clinton years, when legal and regulatory changes rendered the finance sector largely unwatched. We've seen the results. Wall Street cash flooded New York State's coffers in the form of tax revenues. What does a big influx of questionable Wall Street money make a New York politician feel like? Like having another, bigger influx next year.

No intelligent, reasonable, well-informed person can possibly think that Wall Street should remain as largely unregulated as it has been. The only halfway-reasonable argument for it, at this point, is that regulation itself is bad, and that almost nothing should be regulated, let the market rule. Sometimes, extreme libertarians on college campuses call themselves "anarcho-capitalists," and at this point only those people can possibly look at an unregulated Wall Street and nod their heads in approval.

Wall Street, unregulated, would bring the capitalist system itself to the brink. And how do we know this? Because it did, at least twice now. The Great Depression, and just a few short years ago. And please don't tell me that Wall Street needs another Sheriff, like Eliot Spitzer. Spitzer hurt, not helped. Wall Street doesn't need a Sheriff, it needs an adult.

How does cocaine make you feel? Like having some more cocaine. How does having all that Wall Street-driven tax revenue make a politician feel? Like having some more Wall Street-driven tax revenue. And spending it. And keep spending it, even when it's no longer there to spend.

New York State Governor David Paterson and New York City Mayor Michael Bloomberg like to point out the degree to which New York State and New York City depend upon Wall Street for revenue. Both politicians have emerged as champions of Wall Street even when much of the rest of the country has turned on it. Don't the people understand, they ask, that New York State and City depend on Wall Street? We need more bonuses. Less regulation. More revenue.

New York has a right to be proud of the financial industry. But what are Mayor Bloomberg and Governor Paterson really championing?

What does cocaine make you feel like? What happens when you have no more money to spend, and you have the need to feel that way again. Is your drug dealer still your best friend when your money's gone? Anyone remember that movie from the 80s, Less Than Zero?

I am no fiscal conservative. But a State needs a tax base that's stable in order to do expensive, liberal things. Derivatives, naked short selling, wild speculation, huge bonuses to CEOs who don't do anything resembling their jobs, and the like, the stuff of unregulated Wall Street, are not a stable tax base.

Recent Marist polls show that New Yorkers have largely turned on Wall Street, see it as part of the problem, not the solution. I'm not one of those who always sees “the wisdom of the American people.” More often than not I share James Madison's fear of mobs.

But on this one, I think the voters have it right. Wall Street is the problem in that they conned everyone into mistaking a semi-legal ponzi scheme, which is really all Wall Street was since the middle- to late-1990s, for stable growth. There's plenty of blame to go around, of course. Politicians are paid to know better, yet ignored the warning signs, and voters have consistently favored politicians who have told them what they wanted to hear rather than those who sound alarm bells.

But, at the end of the day, having an unregulated Wall Street is simply asking for trouble. The federal government cannot continue to play the part of the cocaine addict's rich uncle, taking pity and paying off the dealer while the addict makes vague promises about getting back into rehab for the fifth time.

Have we learned this lesson yet? Or do we still feel like having some more cocaine?

On (Not) Surviving Orchestration: David Paterson in New York's Political History

2010-03-23T07:50:00.001-07:00

• Introduction: Of Orchestration

The time was 21 January 2010, the Governor was (and at the time of writing still is) David Paterson. He said the following:

“Drumbeats remind me of orchestras and orchestras remind me of orchestration,” Paterson said, offering a zinger to which reporters could not suppress a snicker. “This whole idea that all of these people got this idea at one time is rather hard for me to believe, and what I would just point is that while they’re beating drums, I’m a drum major and I’m working very hard and I’m going to get this budget done, and they can do whatever they like.”Paterson was alluding, of course, to Cuomo. He did not mention him by name, even when asked a follow-up question about whether the “orchestration” was for Cuomo or against his budget.

Governor Paterson was of course probably correct. That any given Governor of New York State, let alone the least popular one in recent memory, would have political enemies who would conduct an orchestrated campaign against him can scarcely come as a surprise, to Governor Paterson or anybody else.

This kind of thing would happen anyplace there was politics, which is to say everywhere, but it's especially true in New York State, where the political class is known to play rather rough.

However, to follow the Governor's not-inappropriate metaphor through, Governor Paterson's enemies may have provided the orchestration, but the Governor himself helped to write the tune. David Paterson has earned a spot in one of New York State's oddest political traditions: Governors who were not only out-maneuvered by his political enemies, but behaved in a self-defeating manner, handing their enemies the tune for their own orchestras to play and effectively out-maneuvering themselves about as well as their enemies could hope to out-maneuver them.

Why this occurs, how someone could rise to be Governor of New York State and make these kinds of errors, is a puzzle with no answer I'm aware of. That it occurs, however, is scarcely deniable.

And no it isn't yet another symptom of New York's much-ballyhooed political decline. Two of my examples reach back to New York's hallowed antiquity, and involve Governors who met their fates at the hands of the infamous political machine known as Tammany Hall.

• The Politics of Constitution-Making: Governor DeWitt Clinton

The time was 1821, the Governor was DeWitt Clinton, and the issue was whether or not New York State should revise its Constitution. The then-current Constitution of 1777 was, as historian Gordon Wood tells us, “a constitution in tension” between old world aristocratic principles new world democratic principles. The farmers of that Constitution created various constitutional mechanisms in order to resolve the tension.

Wood called these mechanisms “ingenious,” and in a way they may have been, but to the contemporary eye they simply look odd. The Council of Appointment, for example, was a body of Senators, appointed by the Assembly, which handled appointments to high-level administrative positions. Currently, these appointments are simply made by the Governor, subject to Senate review and confirmation. There was also the Council of Revision, which consisted of the Governor, the Justices of what was then called the State Supreme Court and is now called the State Court of Appeals, and the Chancellor of the Chancery Court (a judicial position that no longer exists). The Council of Revision had the veto power now possessed by the Governor. The Governor was the only popularly-elected member of the Council of Revision. Not only were the various judges on the Council not elected, but the judiciary of the Constitution of 1777 was a direct holdover from the colonial days.

The Constitution of 1777, written by folks who were alternately hunting and being hunted by the British Army, and yet also wished to maintain the colonial aristocracy where possible, had worked as well as could be expected for a number of years. But by 1821, historians agree, a consensus had developed among both ordinary folks and the State's political class that it was time for the Constitution to be amended to better fit the democratic era.

Then-Governor DeWitt Clinton was a former Tammany Hall operative who had since turned on the Hall and tried to stake out an independent position. Governor Clinton and Tammany Hall agreed that the Constitution of 1777 needed extensive revisions, or needed to be rewritten entirely, but the Governor didn't want to hand the Hall a victory if he could possibly help it. The Governor thus found himself in a bind when a bill, supported by the Hall but responding to statements he himself had made, calling for the holding of a Constitutional Convention passed the State Legislature in November of 1820. Governor Clinton used his vote on the Council of Revision to help veto the bill. The Council, speaking through Chancellor James Kent, argued that it was undemocratic for the Legislature to seek to hold a Convention without holding a popular referendum on the issue first.

Because, you see, the Constitution of 1777, though written in large part by the aristocracy it partially sought to preserve, somehow represented the will of the people. The irony here, the political language of democracy being used to stand in the way of drafting a more democratic State Constitution, is hopefully obvious. Historians also tell us that it was widely believed at the time that the people by and large supported holding a Convention.

If the situation was ironic for the Council or Revision as a whole, it was especially so for Governor Clinton in particular. He had already stated his support for a Convention, and the Tammany bill largely mirrored public statements he himself had made. (He'd never to my knowledge stated that he preferred amending the Constitution through referendum.) And of course Clinton was the only elected official on the Council of Revision. The fact that he went along with the Council's vote, and the obviously disingenuous public reasoning behind it, didn't speak to his favor.

The Council won temporarily, however, as the Legislature did not override the Council's veto. Rather, the Legislature simply passed another Convention bill in 1821, this bill requiring a referendum first. The Council, backed into a corner by their own reasoning, allowed the bill to become law. (Chapters 190 of the Laws of 1871, with a Chapter Amendment, Chapter 246 of the Laws of 1821.) The referendum was held. The people voted overwhelmingly to hold a Convention, thus suggesting that the historians are correct that the people's will was overwhelming and likely was known to the political class. The Convention was held, and a new Constitution was written. The Councils of Revision and Appointment were both easily done away with.

Governor Clinton, having gone back on what was probably one of the most critical, if under-rated political stances of his career, was not nominated by his party to run for Governor. In a further, insult, the changeover between Constitutions shaved shaved 6 months off Clinton's term.

History has actually been kind to DeWitt Clinton. He's known in large part for his work on the State canal system, and some years after these events he would regain the Governorship. However, his own actions, combined with Tammany Hall's orchestration against him, in addition to making him have to look for work, denied him at least two important honors: To be the first post-Colonial Governor of New York with the power of veto and the power of appointment, two of the most important powers a Governor can hold; and to be Governor in 1825, when the project he's best known for today, the Erie Canal, was completed.

It's a lot easier for your enemies to orchestrate against you when you hand them a tune to play. Governor Clinton did just that, by turning his back on a measure he supported in order to avoid the appearance of handing his enemies a victory. In taking this action, Governor Clinton handed his enemies a still-bigger victory: His own political head on a platter. (Though, in politics, one can eventually recover from decapitation, as Clinton did.)

One would think New York State Governors would learn from Clinton's error. But one would be wrong.

• William Sulzer: Tammany Man, Would-Be Reformer, Disgrace

The time was 1912, and New York's Governor was a stone-faced fellow by the name of William Sulzer.

There was every reason to think that William Sulzer was an astute politician, who knew the politics of New York State very well. He had successfully navigated the Empire State's always-treacherous political waters since 1889, when he assumed a seat in the State Assembly. He served as Speaker of the Assembly from 1893 to 1894. In 1894 he successfully ran for U.S. House of Representatives, and held a seat there from the beginning of 1895 through the end of 1912. In 1912, he ran for Governor, won, and took office in 1913.

He had previously enjoyed the support of Tammany Hall, but after becoming Governor Sulzer suddenly turned reformer and decided to take on the Hall, leading to a feud with Tammany's “Boss,” the ruthless Charles F. Murphy. The newspapers of the time described secret and confrontational meetings between the Sulzer and Murphy. It's potentially telling that Sulzer appears to have taken the train to New York City for these meetings more often than Murphy took the train to Albany.

The feud started out being over Sulzer's refusal to take Tammany “suggestions” for appointees, Highway Commissioner for example, but soon moved into fighting over legislation, and the fight played out in various bills passed by the Legislature and vetoed by Sulzer, including an early Workers' Compensation proposal and a bill to enact direct primary elections.

The latter issue was particularly salient. Sulzer had openly supported a direct primary, but considered the bill passed by the Legislature to be watered down from his own proposal. Sulzer vetoed the legislature's bill, and delivered a veto message that two Political Scientists called “caustic,” but from their own description excessively confrontational sounds like a better term. Sulzer angrily rejected proposals both from the Legislature's Tammany-controlled Democratic majority and the Republican minority, though part of his “caustic” veto message had chided the Democrats for not listening to the minority, and called the Legislature into Extraordinary Session (what the newspapers call “special session”) to pass his own bill. Which of course they did not do, and he couldn't actually make them do. You know, the whole seperation of powers, checks and balances thing.

In addition to Sulzer's policy objections, however, it can be fairly presumed that Sulzer didn't want to be perceived as handing a victory to Tammany Hall and Charles F. Murphy.

This story should sound familiar. In Sulzer's backing away form a measure he had supported in part to avoid handing his enemies a victory we can see a shadow of DeWitt Clinton. In his being so “caustic” and openly confrontational, we can see a foreshadow of Eliot Spitzer. Neither of these shadows, one in front and one behind, are good omens for Governor Sulzer's fate.

Taking on Tammany Hall is hard enough when one is a genuine reformer. A Tammany-supported Governor biting the hand who fed him, however, is an especially bad idea. In Sulzer's case, Tammany Hall knew where Sulzer had buried a few corpses. Presumably in part because they'd helped him with the burial.

Soon enough, revelations came out about Governor Sulzer that made him look rather less like a reformer than he'd have liked. He'd committed perjury in Vermont, for one thing. For another, he had stolen funds from his own campaign to invest in the Stock Market. He had also openly threatened to use his veto power not just against legislation he didn't like, but against legislators who had defied him. (At the time this was apparently a bigger deal than it would be now.) He was finally impeached by the State Assembly and removed in a trial after judgment by the State Senate and the Justices of the State Court of Appeals, mostly for the campaign finance violations.

Conventional wisdom holds that Governor Sulzer was a genuine reformer, who was railroaded for defying Tammany Hall, by a Tammany-controlled, corrupt Legislature. There is surely an element of truth to this. Tammany Hall was definitely orchestrating against Sulzer. They made no secret of it, and even if they had tried to keep it a secret, it would have been widely guessed. And the Hall's corruption is as-legendary in most circles as there genuine contribution to democratic principles and popular political mobilization is in other circles. And I suppose it's likely that Sulzer's anti-Tammany effort was at least in part sincere. Otherwise why take it so far?

However, as was the case with Clinton before him, the orchestration of his enemies cannot alone explain Sulzer's downfall. At least some of the Justices of the Court of Appeals also appear to have voted to remove Sulzer, along with the Tammany-controlled Senate. I recall nothing in what I've read to suggest that the Justices were Tammany-controlled. Many of the legislators of course doubtlessly were. But if Sulzer's being an innocent-man-wrongly-accused was as obvious at the time as we like to pretend it is now, why did the Court of Appeals go along?

Ultimately, “Plain” Bill Sulzer, as he was sometimes known, was not a reformer. He was a Tammany Hall operative who saw the light only after a long career in politics. He openly defied people he had to have known knew exactly where to look for material to use against him.

Was Sulzer the victim of orchestration? Surely. But, like DeWitt Clinton before him and others after, Sulzer owes his downfall not only to orchestration but also to his own political failings. It's frightfully easy to paint Governor Sulzer as a hero, as I fear Governor Spitzer may be painted as a hero in the coming years.

But was Sulzer a hero? Or simply inept?

It depends, I suppose, on who is writing the history, and why.

• Eliot Spitzer: Enough Said

Governor Spitzer's downfall is well-chronicled elsewhere. See my own thoughts on Spitzer if you want or need some links to the details.

Like Clinton and Sulzer before him, that Spitzer had enemies, and that these enemies were orchestrating against him, was undeniable. That he was largely responsible for his own downfall, however, is also undeniable. I have seen no reasonable suggestion of anything else. Even Roger Stone's famous tip to the FBI, which the FBI denies was the deciding factor in investigating Spitzer, wouldn't have amounted to anything had Spitzer's own actions hadn't been of potential interest.

And Spitzer performed all these actions in the middle of bitter and highly public fights with the Legislature, when literally all eyes were upon him.

That, I feel, is what puts him in the pattern I am outlining here.

• Governor Paterson: The Accidental Governor

The time is where we started, the present, and the Governor is David Paterson, oft-referred to as the "Accidental Governor" due to his elevation following Spitzer's resignation. Ironically, though, Paterson's plans for being elected in his own right have been scuttled by a swirl of scandals and circumstances. Though the drumbeat for Paterson's own resignation has calmed down some at the time of writing, no one thinks the drums have gone away entirely. They're just, perhaps temporarily, quieter.

Governor Paterson pointed out, as quoted above, that the drumbeat against him has the feel of an orchestrated campaign. He's right on how it feels, and is probably right on the substance as well.

However, did Governor Paterson rise to the occasion and meet the political challenge? Did he meet his enemies' orchestration with orchestrations of his own?

No he didn't. Instead, as profiled in the New York Times, he appeared to be lazy, inefficient, and disinterested. The Governor, having unexpectedly defeated many years of conventional legal wisdom in New York State, managed to appoint his own Lieutenant Governor, only to largely marginalize the talented and experienced operative, Richard Ravitch, that he appointed.

Governor Paterson had set an extremely important precedent but didn't seem all that interested in benefiting from it himself.

Further, Paterson has further taken actions that, even if were completely legitimate, he had to have known would be wildly misinterpreted. One example would be being seen at a steak house, in New Jersey no less, with a lady not his wife. Perhaps the lady was just a friend, as Paterson indicated, but that isn't the issue. What is the issue is that Paterson should have known better. He should have taken others with them to eat, he should have brought work to the restaurant, should have taken any number of actions. But he didn't.

And then of course there's the potential use of the State Police, and his own personal power as Governor (in the form of an ill-timed and pointless phone call) to silence a lady who had accused an aide of his of domestic abuse. Even if Governor Paterson's, and those of the State Police for that matter, were perfectly legitimate, which seems unlikely, the point is that Paterson had to have known it would appear not appear legitimate.

After all, he himself pointed out that there was an orchestrated campaign against him. Why not give the campaign as little material as possible?

Governor Paterson's many other missteps have been well-chronicled elsewhere. See here and here.

The closer to right Governor Paterson was about the campaign against him being orchestrated, the dumber he was for not behaving as a vulnerable Governor who is being orchestrated against should behave. You need to be careful, knowing, and diligent. You need a talented, educated, and experienced staff who is not afraid to tell you what you don't want to hear.

Voters no longer ask for exemplary behavior from politicians. It is, however, a bit much for a politician to behave so self-defeatingly.

• Conclusions

The fates and circumstances faced by Paterson, Spitzer, Sulzer, and Clinton were not identical by any means, but all exhibited similar patterns. All had enemies, knew they had enemies, and yet behaved in self-defeating manners. And none of them got to remain Governor for as long as they would have liked.

New York is not a naïve state. It doesn't ask a lot of its politicians, it is even willing to tolerate contradiction as long as it can be sold as nuance.

But one pattern is surely clear: New York does not want its Governors to be incompetent as politicians. When one considers the amount of power New York grants to its Governors, this really isn't unreasonable. The least that can be expected as Governors of New York State is that they should be able to survive orchestrated campaigns against them. Or, at the very least, not hand the orchestras the tune to play.

When New York's Governors fail to live up to this pretty reasonable expectation, there's a high price to be paid.

And, really, that's how it should be.

David Paterson's answer should not have been to whine about orchestration. It should have been to beat Andrew Cuomo at the game.

Or, at least, to not seem to throw the fight.

• Sources

Albany Exile. “Eliot Spitzer: A Response to Something Posted on Yahoo Answers.” Notes From an Exile (blog). 22 September 2009. http://albanyexile.blogspot.com/2009/09/eliot-spitzer-response-to-something.html

Charles Lincoln. State of New York: Messages from the Governors. 1909.

Charles Lincoln. The Constitutional History of New York (many volumes). 1906.

Danny Hakim, Serge F. Kovaleski, and Nicholas Confessore. “As Campaign Nears, Paterson Is Seen as Increasingly Remote.” The New York Times. 18 February 2010. http://www.nytimes.com/2010/02/19/nyregion/19paterson.html?pagewanted=1&hp

David Hossack. Memoir of DeWitt Clinton. 1829.

David M. Halbfinger. “The Accidental Lieutenant.” The New York Times. 26 February 2010. http://www.nytimes.com/2010/02/28/nyregion/28ravitch.html?pagewanted=all

“DeWitt Clinton.” http://www.eriecanal.org/UnionCollege/Clinton.html

Dixon Fox. The Decline of Aristocracy in the Politics of New York. 1976

Dorothie Bobbe. DeWitt Clinton. 1962.

Evan Carnog. The Birth of Empire: DeWitt Clinton and the American Experience. 1998.

Frank Prescott and Joseph Zimmerman. The Politics of the Veto of Legislation in New York State (2 volumes). 1980.

Gordon Wood. The Creation of the American Republic, 1776-1787. 1998 (2nd edition, originally published in 1969).

Jay W. Forrest and James Malcolm. Tammany's Treason: The Impeachment of Governor Sulzer. 1913.

Jeffrey Toobin. “The Dirty Trickster: Campaign Tips From the Man Who's Done It All.” The New Yorker. 2 June 2008. http://www.newyorker.com/reporting/2008/06/02/080602fa_fact_toobin

Jimmy Vielkind. “Paterson: I smell ‘orchestration.’” Capitol Confidential (blog). 21 January 2010. http://blog.timesunion.com/capitol/archives/21819/paterson-i-smell-orchestration/

Matthew Nestel, Frederic U. Dicker, and Dan Mangan. “Dave Paterson's Latina lovely.” The New York Post. 18 January 2010. http://www.nypost.com/p/news/local/dave_latina_lovely_sRI4hN1iRjRomshAacs3PM

John Horton. James Kent, a Study in Conservativism. 1969 (2nd edition, originally published in 1939).

Samuel P. Orth. Five American Politicians: A Study in the Evolution of American Politics. 1906.

The Erie Canal. http://www.eriecanal.org/

United States Congress. “Official Biogrophy of William Sulzer.” http://bioguide.congress.gov/scripts/biodisplay.pl?index=S001065

William K. Rashbaum, Danny Hakim, David Kocieniewski, and Serge F. Kovaleski. “Question of Influence in Abuse Case of Paterson Aide.” The New York Times. 24 February 2010. http://www.nytimes.com/2010/02/25/nyregion/25paterson.html?emc=na

Regarding the current Senate Stalemate

2010-02-23T17:01:00.000-08:00

(Edited on 15 March 2010.)

As always, the New York State Senate is where the news is. The Assembly is so boring by comparison these days. When I visited the Legislature some months back, the Assembly was dead, and the Senate lively. The late February night I originally authored and posted this piece, it seems, was no exception. And now, a few weeks later, as I edit this piece, is also no exception

Liz Benjamin reported in late February that there was yet another stalemate in the State Senate. While the mere fact of another stalemate isn't necessarily surprising, the exact topic is, at least to me. Seems there's doubt about whether or not 31 votes out of 61 total Senators is enough to pass gubernatorial appointments.

Writes Liz in the article linked to above:

The state Constitution says that in order for a bill to pass, there must be a majority vote of the members elected to each branch of the Legislature. But the Democrats argue the requirement does not cover resolutions for gubernatorial appointments.

As I edit this piece on 15 March 2010, the issue of what constitutes a majority in the Senate is still a live one, as it relates to the ability of the Senate to pass budget bills before presumptive Senator Jose Peralta is elected in a Special Election to fill the seat vacated by the expulsion of Hiram Monserrate.

Let us leave aside the particular question about appointments, and go back to the passage of bills.

In the February piece linked to above, Liz meant to refer, I think, to Article III, Section 14 of the New York State Constitution, which reads in part:

nor shall any bill be passed or become a law, except by the assent of a majority of the members elected to each branch of the legislature

Normally, there have been 62 elected Senators, but right now, there's actually 61, thanks to Hiram Monserrate's expulsion.

31 is a majority out of 61 (about 50.8%).

So....Is there some court case, or some important precedent, or some common and binding interpretation of the Constitution saying that "of the members elected" refers to the total members there should be, even though now there's one less than that now? I looked through the court cases (the legal term is "case law") listed in McKinney's, one of the most popular and respected editions of the Laws of New York State. I didn't see anything on the issue of what constitutes a majority of the members elected.

Is there some part of the Constitution I'm missing entirely? Is there some critical case either not listed in McKinney's (doubtful) or that I somehow didn't notice (possible, I guess)?

Or is this another case of New York State politicians and their staffs not being up for the task they have been elected and appointed to not thinking outside the box? (Another example would be the Lieutenant Governor issue settled by Skelos v. Paterson.)

Sometimes, after all, the conventional wisdom is just what we have because no one's thought of anything else.

Just asking.

-The Albany Exile

Hiram Monserrate: His Own Victim

2010-02-10T07:26:00.000-08:00

As readers likely know by now, late on Tuesday 9 February 2010, the New York State Senate voted 53 to 8 to expel one of their own, Hiram Monserrate (D-Queens County), from the Senate (as reported by the Daily News's Liz Benjamin). Monserrate's misdemeanor assault conviction, stemming the videotaped aftermath of a violent incident that took place in his apartment between himself and his girlfriend, is well-known, and was the official basis for the expulsion.

Hiram Monserrate has long-argued that the pursuit of him by his fellow Senators is political in nature, and doubtlessly he'll continue to do so. He will paint himself as a victim of politics, a victim of his enemies.

I think it's beyond question that he's at least partly right. Really, how could he not be?

Hiram Monserrate, as Senator-Elect and Senator, betrayed both sides of the aisle at least twice. Twice he had either gone over to the Republican side, or floated the idea that he might, only to in short order turn his back on the Republicans and rejoin the Democrats.

Senator Marty Golden (R- Kings County) had, in a clear and desperate attempt to maintain Republican control of the Senate regardless of the outcome of elections, tried to keep Senator Monserrate from being seated at all. Yet, Senator Golden didn't have a problem voting with Monserrate in favor of the June 2009 coup. In the aftermath of that coup, Senator Diane Savino (D-Richmond County) snarled to Senator Monserrate “life is circular” as she left the chamber in disgust. To assume that Senator Savino's February 2010 vote to expel Monserrate is somehow unrelated to her obviously strong feelings about the coup stretches credibility to the breaking point, if only because it assumes Senator Savino lacks the courage of her convictions.

Monserrate's political actions gave certain people motive to get him. His personal, and violent, actions gave them the means.

It's ridiculous, however, to suggest that Hiram Monserrate was solely the victim of his enemies. He'll probably try to sell us on this notion in the coming weeks, and we shouldn't believe him. It was Monserrate's own actions, and those alone, that both made enemies and provided those same enemies with the means to get him.

Some might compare Monserrate to Members of the Assembly expelled in 1920, for the "offense" of belonging to the completely legal Socialist Party during the “Red Scare.” Monserrate's true political kinship is, I suggest, to be found elsewhere.

Monserrate has now joined a long, illustrious, and infamous list of New York State politicians, including figures as diverse as DeWitt Clinton, William Sulzer, and Eliot Spitzer. All of these figures, and others not named, made new enemies, or antagonized old enemies, who knew where to look for old indiscretions, or committed new indiscretions in full view of enemies old and new, and then had the abject nerve to whine and cry when those indiscretions were predictably used against them. Not all of these politicians fell the same distance, and the nature of their various indiscretions varied greatly, from prostitution to changing their positions on bills they had previously supported. But they all shared the same completely unwarranted sense of surprise at a fate that was predictable, and at least partly within their own power to change.

Hiram Monserrate's enemies didn't make him behave violently, and I didn't see any politics on that videotape of him dragging his bleeding, crying girlfriend to the hospital. Senator Monserrate's own behavior gave his enemies the means to get him.

Further, he made these enemies he made totally on his own. No one made Hiram Monserrate betray both sides of the aisle twice. No one made him decide to go back on political commitments multiple times.

Regardless of what one thinks of his expulsion, no one but Hiram Monserrate is to blame for Hiram Monserrate's self-defeating actions, personal and political. His own character flaws garnered him enemies, and then conveniently gave those enemies the weapons to use against him.

At the end of the day, regardless of the manipulations of his enemies, Hiram Monserrate is primarily a victim of his own actions.

Harold Ford and New York: An Issue of Attachment

2010-02-03T09:57:00.000-08:00

I know that New York is traditionally open to “carpetbaggers” (in this context meaning a politician or would-be-politician who moves to his or her non-primary State with the intent of running for office in the new State) in a way that, say, the Southern States are not. New York's own Governor has pointed that out.

"Well generally speaking, I don't think carpetbaggers - I mean if the people of the state want them they can have them," Paterson said on WOR this morning in an interview with John Gambling (and listened to by the DN's Glenn Blain).

"New York did do this with Robert Kennedy in 1964 and Hillary Clinton in 2000, and I know Harold. If he wants to run for Senator in New York State, I'm sure that's an interesting idea."

Ok, fine. New York's experience is greatly informed by waves of immigrants, so maybe immigration from another State directly into New York's corridors of power isn't as odd as I might think off-hand.

Still, the idea of a failed Tennessee politician (he lost a U.S. Senate race in his home State of Tennessee, to a Republican, in 2006, during the buildup to the Democratic sweep of 2008), coming to New York, working on Wall Street for awhile, taking helicopter rides around the City, and then deciding he's qualified to run for U.S. Senate, is, I think, a tad much, even for New York.

I remember when Ford's name was first floated for the U.S. Senate, back in late 2009 or in the very first days of 2010. I hadn't heard of him at all. I located his own website which, back then, expressly described him as not living in New York State, but only working there. "Ford lives,” the site stated, “in Memphis and Nashville and has offices in New York and Nashville." I was surprised to see a 5 January 2010 article in the New York Times, describing Ford as having “moved to New York three years ago,” presumably meaning sometime in 2006 or very early 2007. The bloomberg.com article announcing Ford's Wall Street job, also linked to above, is from early 2007. Even assuming Ford moved to New York State immediately upon getting this job, despite his own website indicating otherwise, this basically means he left Tennessee within just a few months of losing the U.S. Senate election, a fact that I find interesting all by itself.

Yet, even after this New York Times article, Ford's own website continued to refer to him as “working,” but not living, in New York. The mainstream media eventually caught up with me a couple of days later. On 7 January 2010, Josh Robin, a political reporter for New York 1, “Twittered” about the seeming contradiction. Shortly afterwards, Ford's site was changed to reflect a dual residency, in New York and Tennessee.

I'd suggest that the very least this strange incident means is that Ford has displayed a lack of common sense diligence. I know that if I were contemplating a run for the U.S. Senate representing a State I hadn't moved to all that long ago, updating my website to reflect my residency there would be one of my first priorities. But maybe that's just me.

I also have to wonder, strongly, if Ford's strange error reflects a lack of attachment to New York State as much as it reflects a lack of diligence. Length of residency may or may not be an issue in a U.S. Senate election, but attachment, I strongly feel, should be.

Ford is sometimes spoken of in the same breath as Robert Kennedy and Hillary Clinton, because, it is argued, all three are subject to the “carpetbagger” label. Surely, New Yorkers had little problem being represented by carpetbaggers named Kennedy and Clinton. So why not one named Ford?

From what I can tell, though, Clinton and Kennedy both bothered to form, or already had, attachments to New York State before they ran.

Regarding Kennedy, note the following passage from Arthur Meier Schlesinger's book Robert Kennedy and His Times (first published in 1978, reissued in 2002):

In fact, Robert Kennedy was less of a carpetbagger than his older brother had been in Massachusetts in 1946. He had lived in New York from a few months after his birth until 1942, indeed, had lived nowhere longer. Except for schools and summers, he had never really lived in Massachusetts. (Page 668)

The Clintons purchased, and lived in, a home in Westchester County. Granted, it was merely the September prior to her Senate run. But, in fairness, before that she had a place to live: The White House. She wasn't going to live anyplace else until January 2000, when her husband's term as President was up. Bill Clinton also set up his firm, the Clinton Foundation, in New York State, specifically on 125th Street in Harlem.

And, as far as I can tell, the Clintons maintain that residence, and Bill Clinton maintains his Harlem office.

Contrast this with Harold Ford. He supposedly moved to New York sometime in late 2006 or early 2007, but he didn't so much as update his official website to reflect the move until early 2010, after his technically-still-undeclared Senate campaign was already underway, and after he was "caught" twice. Further, as I also pointed out above, assuming Ford really moved to New York when he says he did, he had to have done so almost immediately upon losing a U.S. Senate run from his home state.

Governor Paterson pointed out something similar in an article also linked to above.

"But what's kind of interesting about the way he's [Ford] doing it than the way they [Clinton and Kennedy] did it is that both of them traveled extensively around the state and were pretty familiar with what was going on before they ran," the governor continued.

"I honestly - and I know Harold - had no idea he was interested in running for the Senate until the last few weeks." [emphasis added]

Interesting.

Full Circle: An Open Letter to Senator Marty Golden

2010-01-31T10:55:00.000-08:00

Dear State Senator Marty Golden:

I am nearly positive that your Brooklyn constituents appreciate the strong moral stance you have taken regarding your colleague, Senator Hiram Monserrate. You are undeniably correct that it's ridiculous for Senator Monserrate to compare himself to Civil Rights workers, or to Jesus.

As everyone reading this most likely knows by now, then-Senator Elect Monserrate and his girlfriend had an incident at his apartment late in 2008. Assault charges were filed against him. While he was acquitted of felony assault charges resulting from the incident itself, he was convicted on misdemeanor assault charges resulting from the aftermath, wherein he was seen on security cameras literally dragging her to the hospital.

Many were shocked by Senator Monserrate's conduct. Based on this incident, and other factors, in this article I have outlined my own case for Senator Monserrate's resignation from the Senate, but regrettably Senator Monserrate hasn't listened to me, thus forcing that institution into a peculiar dilemma.

There is a movement afoot to expel Senator Monserrate from the Senate. Senator Golden, your strong statement indicates that you are at the forefront of this movement. I am certain that your constituents are, justly, proud of your strong, inviolable moral stance in seeking to expel Senator Monserrate.

However, the closer I look at you, Senator Golden, the more I wonder about what appears to be certain nuances in your moral outlook. Perhaps your constituents will have questions too.

For example, they might have questions about allegations made in this March 2009 Village Voice article that you employed a $65,000 a year Research Assistant while he was facing assault charges. Strange. The fact that this Research Assistant was the son of your Republican colleague, Senator Owen Johnson of Long Island, is, I am sure, unrelated to his employment. (Interestingly, the SeeThroughNY.net database still shows an “Owen Johnson” employed as a “Research Assistant” by the Senate for just under $50,000 a year, as of August 2009, but it doesn't specify what office Mr. Johnson works for.)

Perhaps the difference is that Hiram Monserrate is a Senator, whereas Senator Johnson's son is, despite his family name, still just a Research Assistant? It's possible that's the distinction. If so, though, it begs the question: Why support undoing an election to take a moral stand and yet refuse to take one simply by firing your Research Assistant?

I don't know the particulars of Mr. Johnson's case, of course, other than the brief mention in the Village Voice article. He was accused, that article states, of assaulting his “roommate.” The alleged victim, thus, was likely male. Is that the distinction, Senator? If so, though the sentiment is noble, isn't it a little outmoded, even inappropriate?

As stated, I don't know the particulars of Mr. Johnson's case. It could be that those particulars are the source of the distinction. Regrettably, I can't address those.

If it turns out that Mr. Johnson wasn't convicted, whereas Senator Monserrate was, perhaps that's the distinction? No, it can't be that, because you were an early-comer to the crusade against Senator Monserrate, a fact which your recent statement proudly references. Before Senator Monserrate was convicted, you attempted to prevent him from “being seated” in the Senate. ("Being seated," basically, is technical parliamentary jargon for fulfilling the office, literally sitting in the Senate Chamber.)

Which brings me to another point I'd suggest your constituents have a right to question. After Senator Monserrate was seated after all, you, Senator Golden, actually dropped your campaign against him for awhile, and even shook his hand. The Times Union's website has a picture. It's obvious from the picture that you both knew there was a camera there. You're both smiling at it.

A few months after that, you and Senator Monserrate actually joined forces to challenge Senator Malcolm Smith's leadership of the Senate. Perhaps predictably, Senator Monserrate chickened out on the coup, after only a week, leaving the State Senate paralyzed at 31 to 31, for weeks. Eventually, of course, Senator Pedro Espada, the other Democratic partner in the coup attempt, returned to the Democratic fold as well, and life at the State Senate, such as it is, went on as “normal.”

To review, first you tried to undo Senator Monserrate's election, prior to his conviction, while employing a Research Assistant who had also faced assault charges (and who happened to be the son of a fellow Senator). Then, you appeared to change your mind, first shaking Senator Monserrate's hand publicly, and then joining him in an attempt to basically undo the results of 2008 State Senate elections in their entirety. After he chickened out of that effort, some months later, here you are again, Senator Golden, calling to undo your colleague's election.

Your position has come full circle.

There is, I might suggest, nothing wrong with a little pragmatism or flexibility, or even a lot of it. Except, of course, when you first take a strong, seemingly-inviolable moral stance that appears to exclude taking actions that you are, as a pragmatist, more than willing to take. Further, even on a practical level, what does it say about your judgment that you were willing to rely upon the political support Senator Monserrate for something as major as a floor fight in the New York State Senate?

Could it be, Senator Golden, that you simply support anything with money, prestige, and patronage attached? Could it be that you are more than willing to undo an election or work with the person whose election you wish to undo, all dependent upon your needs of the moment? Could it be that your strong moral stance is something less than it appears to be? Could it be that you are simply a pragmatist, and a relatively poor one at that?

I wonder if your constituents will consider these issues this Autumn. I have read that you have an opponent.

Perhaps he'll ask.

Sincerely,
The Albany Exile

The Field

2010-01-14T13:24:00.000-08:00

• Introduction
As of the time of writing, the late afternoon of 14 January 2010, there are 5 candidates I am aware of, some declared and some undeclared, for the New York State Governorship.

After looking at the 5 candidates I am aware of at the moment, I came to a depressing realization, that led to a single hope. I realized that all of the 5 carried negatives that were extremely significant, potentially (or in some cases almost definitely) impinging upon their ability to govern the State at this critical moment. And the hope was, simply, that someone else takes up the mantle, and does it soon.

• Name: Steve Levy
• Democrat, Suffolk County
• Current Occupation: County Executive of Suffolk County
I had hopes for Executive Levy. He came on the Statewide scene not trashing his rivals, but simply implying that he could do better than they. However, more recently I have read that he's feuded with the police in his county. If this foretells his relationship with the State Police should he become Governor, it could be a dangerous spot for him to be in. (To negotiate with police unions in a tough manner is one thing, but some of Executive Levy's critics see open hostility.) I have also read that Levy has been so anti-illegal immigrant that some have argued he is anti-Hispanic and anti-immigrant in general. (I haven't examined his immigration statements or positions personally; I'm reacting, at the moment, to the perception. In politics, perception is over half the battle.) Hispanics are found just about everyplace in New York State, they pay taxes, and they've been part of the fabric of life in New York for a very long time. I think it's fair to count it against a politician when that politician apparently goes out of his way to alienate a major demographic of the State. If he wins, he'll be representing Hispanics too, and his Departments usually are understood to have to enforce certain laws as vigorously on behalf of illegal immigrants as on behalf of others.

Levy's response to two Hispanic Assembly Members' promising to oppose him politically was to attempt to file a complaint against them with the Public Integrity Commission (PIC). The, to my mind questionable, theory was that they had threatened to use their offices to harm those who supported Levy.

I find Levy's action to feel eerily similar to the SLAPP Lawsuits that are filed by major corporations in an attempt to silence whistle-blowers and critics; basically it's seeking legal sanction upon those who criticize you. (Imagine what Levy might do as Governor.) Further, Levy also went about this stupidly; the PIC has no jurisdiction over the Legislature.

To my mind that's the kind of thing you should look up before you take such an action.

• Name: David Paterson
• Democrat, Albany County and New York County (Manhattan)
• Current Occupation: Governor of New York State
New York State's first Black and first disabled Governor is a man of many talents, many gifts, and also many flaws. The latter have been especially on display for quite awhile now. He has what The New York Observer called “a complicated relationship with the truth.” His staff often appears to be in disarray. They often present an incoherent or muddled message. (As a recent example, take the Governor's office's unclear response to the Legislature's ethics bill). Paterson's son's recent run-in with the police on its own, wouldn't necessarily mean anything, but it fits Paterson's odd pattern too well to be ignored. And finally there's the bizarre notion he's tried to put forth, that he should be judged on what he wants to do rather than what he is able to actually accomplish.

New Yorkers believe many of Paterson's central messages, but they lack confidence in his ability to actually do much. And, really, who at this point could blame them for their skepticism. Political Scientist Richard Neustadt once wrote that presidential power is the power to persuade. The Governor of New York State has institutional powers that the President would envy, but the Governor still needs that power to persuade. David Paterson has lost it, and there's no realistic way for him to get it back. Even if he somehow wins the election, which seems unlikely, he won't be able to do anything.

And I disagree with the Governor that he should be judged more by his intentions than his actions or accomplishments.

• Name: Rick Lazio
• Republican of somewhere in New York City and somewhere in Long Island (Counties unspecified)
• Current Occupation: Full-time Candidate, as far as I can tell; he has most-recently worked for J.P Morgan Chase and for some kind of advocacy group for CEOs called the Financial Service Forum
Rick Lazio is chiefly known as the man who thought he could beat Hilary Clinton for the U.S. Senate in 2000 by bullying her in a debate, a move which even he now admits was a mistake. However, that he could ever think such a move (he essentially charged across the stage to angrily shove a piece of paper in front of her) was wise speaks poorly for his judgment. Not only did he come across as a bully, but as a bully who was bad at bullying.

I also at this point think that anyone who worked in the financial industry during the early 2000s should be considered suspect. A lot of things that this industry did during this era violated both common sense and all analytical logic.

Also, who has heard of him? Not many. Want to bet that the first two things many voters will find out about him are that he's a bully (a poor one at that) and that he used to work for an advocacy group for CEOs?

• Name: Chris Collins
• Republican of Erie County
• Current Occupation: County Executive of Erie County
The kindest way to talk about Chris Collins's recent actions is to say that he has seriously seriously embarrassed himself. He is supposedly a Christian, but he is a peculiar sort of Christian who allows Nostradamus to enter into his religious thinking, alongside the Bible and other Christian texts. He has, for example, publicly used Nostradamus's writings to claim that Assembly Speaker Sheldon Silver is the “Third Antichrist.” The second one, you see, was Adolf Hitler. I forget who the first one was. (Other Christians of this stripe assign the honor of being the “Third Antichrist” to President Obama.) So not only does Collins compare a Jewish politician to a man known for attempting to wipe out Jews, but he resorts to calling his political opponents the “Antichrist,” and uses to bolster the argument the demented writings of a man who is more typically the subject of New Age books, the cover page of the Weekly World News, and an album by the heavy metal band Judas Priest.

And then there's the matter of the recent incident wherein he openly sexually harassed a woman, in the New York State Assembly Chamber, while waiting for Governor Paterson's State of the State speech to start. (And yes, publicly remarking that a woman who can't find a seat would get one if she offered lap dances does in my book qualify as sexual harassment.) The fact that this was done so openly makes him not only a harasser, but a stupid one.

One word: Fail.

• Name: Andrew Cuomo
• Democrat of Albany County and New York County (Manhattan)
• Current Occupation: New York State Attorney General
Andrew Cuomo is currently the most popular candidate in the field, by far. He is definitely electable, at least assuming he doesn't make any major missteps or otherwise screws up. And we know that screw-ups by New York State politicians are almost totally unknown.

However, Cuomo has several negatives as well, which will sooner or later get more publicity than they have so far. The first is his last name. Hardly anyone I have spoken to who lived through his father Mario Cuomo's 12-year reign as Governor of New York remembers it with much fondness. The business climate was considered bad (though it should be noted that “business climate” is a difficult concept at best), and Mario Cuomo was the most recent Governor to engage in layoffs of State workers. Young Andrew was deeply involved in his father's administration.

As Attorney General, Cuomo has pretty much stuck to easy targets, such as Wall Street and Senator Pedro Espada. Cuomo was also on the (legally) “wrong” side of Governor Paterson's battle with the Legislature over the appointment of a Lieutenant Governor. I have analyzed one of the policy proposals Andrew Cuomo made as Attorney General, his plan to manage the largest government employee pension fund. The article is elsewhere on this site. The proposal appeared to be poorly researched, not well thought out, and at the time the article was written there was no publicly available bill to examine, just some Press Releases.

As Governor, Andrew Coomo will not have the luxury of only taking on easy targets, and his judgments and policy proposals will have much more a direct impact on people's lives.

Finally, I must make a highly subjective judgment. I find it difficult to look at Andrew Cuomo, or read anything he or his office has produced, without somehow “feeling” a sense of entitlement oozing off of it. Others may disagree, I know. But to the degree that I'm right, New York surely doesn't need a Governor with a sense of entitlement.

• Conclusion
Quite simply, New York needs another candidate, and needs it badly. I don't ask for perfection, or even near-perfection. But the Empire State, at this juncture, badly needs someone worth having confidence in, rather than someone who is better than the rest.

Sadly, the latter may be all New York can expect.

Chasing Rats: Brief Thoughts on Eliot Spitzer and the Financial Industry

2010-01-11T14:55:00.000-08:00

Eliot Spitzer, disgraced former Governor and Attorney General of New York State, has managed to turn himself into quite the financial industry expert, if one uses the number of television appearances he has made as an indicator of his expertise. As well as television, Wall Street is also a frequent topic of Spitzer's at his Slate column.

The most recent television appearance Spitzer has made on the topic as of the time of writing was on CBS's This Morning, on 11 January 2010. Spitzer, readers will be glad to know, confirmed that the anger at seemingly excessive Wall Street bonuses was “legitimate,” because tax dollars were used to fund the bonuses. (I reacted by breathing a little easier. I had worried that my anger was not legitimate, until Eliot Spitzer confirmed that it was.)

Spitzer says this as though there's people outside of the financial industry and, to a degree, Fox News, who disagree with him. (And even with Fox News, it depends on which conservative face they are putting on that day: Ayn Rand's corporatist capitalism or Pat Buchanan's pitchfork populism.)

Even Governor David Paterson, who turned a 9 December 2009 speech at the Museum of American Finance into an odd pep talk to Wall Street, probably agrees with Spitzer about the bonuses. Paterson, however, thinks he can get more mileage out of taxing the bonuses for State revenue than he can by complaining about them.

In the same CBS interview, Spitzer also let the world know that he has caught on to the fact that the Bush Administration's financial industry bailout (referred to in policy wonk jargon as the “Trouble Asset Relief Program” or TARP), has, as implemented, effectively socialized risk, and privatized profits. In other words, we all put up the money when things go poorly, but when things are going well, suddenly Capitalism kicks in, and the individual's profits are the individual's profits. We all share in the risks together, not the profits. It's grand to know that Spitzer has caught onto something that actual financial experts were talking about awhile ago.

However, I, for one, have long suspected that Spitzer actually played a role in the troubles (for want of a better term) on Wall Street, due to actions he took as New York State Attorney General. Not that he conspired with Wall Street, not that he participated directly, but rather that his actions pushed things further underground, where they could flourish all-the-more.

My argument goes something like this.

The Bush Administration, acting within a lax regulatory framework that I have read can be traced in part to the Clinton Administration, basically allowed the financial industry to do pretty much anything it wanted. Complicit in this of course was Federal Reserve Chairman Alan Greenspan, who openly praised the overly complex financial time bombs known as derivatives. We now know that derivatives were one of the main sources of the financial industry collapse.

For more than a decade, the former Federal Reserve Chairman Alan Greenspan has fiercely objected whenever derivatives have come under scrutiny in Congress or on Wall Street. “What we have found over the years in the marketplace is that derivatives have been an extraordinarily useful vehicle to transfer risk from those who shouldn’t be taking it to those who are willing to and are capable of doing so,” Mr. Greenspan told the Senate Banking Committee in 2003. “We think it would be a mistake” to more deeply regulate the contracts, he added.

See this New York Times article, the source of that quote, for more.

At about the same time, then Attorney General Spitzer was emerging as the “Sheriff of Wall Street,” pursuing the crimes of the financial industry with a driven intensity Eliot Ness would have envied.

It is frighteningly easy to imagine that Spitzer had prophetic powers, that his pursuit of financial industry misdeeds foretold the economic crisis. And certainly I have little doubt that Spitzer, with his undeniably sharp and keen intellect, had some idea of the obvious parallels between the lead-up to the 1929 Stock Market Crash and the lead-up to the 2008 Stock Market Crash. (Then again, however, so would anyone else who cared to read John K. Galbraith's great book The Great Crash, 1929 sometime during 2005 through 2008.)

(It is, of course, likely Spitzer's embittered pursuit of Wall Street that forms the basis of the media's re-imagining of him as some kind of financial industry expert.)

Consider this analogy, however. If the exterminator's rat poison is taken away, can you effectively kill the rats by chasing them into the walls where they can breed in privacy? No, you cannot. Rather, the exterminator needs his poison back, or needs traps.

Bush and Greenspan took away the poison. Spitzer, I would suggest, chased the rats into the walls. At the very least, I find it doubtful that Spitzer's sheriff act helped matters. Even Thomas Friedman in his book The World is Flat (at least in the edition of that book that I happened to read), admitted that Spitzer's actions had driven certain Wall Street analytical jobs overseas. Traps are slow going, and aren't as much fun as the chase. Same for poison. But you can kill a lot more rats than you can by chasing them.

The financial industry is a noble and necessary one. As long as there has been money, there has been a financial industry.

But, unregulated, it just becomes a rat breeding colony. And when you pursue the bad actions in that industry, of which I'm sure there are many more than we know about, using legal tools designed to chase common street criminals, all that happens is you chase the rats into the wall, where they are safer, and can breed in the dark.

The truth is that the financial sector doesn't need an exterminator, or a sheriff. It is telling that the most prominent current book about Spitzer was entitled Spoiling for a Fight. This was not the approach America needed on Wall Street. Rather, America needed "adult supervision" of the financial industry.

I find it telling that one potential for such an adult, U.S. Treasury Secretary Timothy Geithner, is one of many current objects of Spitzer's ire.

Spitzer thinks that Geithner, who then was at the New York Federal Reserve, either had a role in the troubles at AIG, or at least did not help. And Spitzer may well prove correct. But is anything Geithner might or might not have done at the New York Fed really the source of Spitzer's ire? Or is it the fact that Geithner is an adult, and the intelligent, spoiled child can always see the adult's faults more clearly than he can his own?

I don't know exactly how to test my theory that Spitzer's rat-chasing games hurt more than helped. I will leave it to Historians, I suppose. Perhaps one day it will make a fine exhibit at the Museum of American Finance.

-The Albany Exile

Hollow

2009-12-23T13:18:00.000-08:00

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

2009-12-02T12:12:00.000-08:00

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

2009-11-22T23:24:00.000-08:00

• 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

2009-11-12T08:49:00.000-08:00

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

2009-11-03T07:05:00.000-08:00

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

2009-10-10T08:17:00.000-07:00

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

2009-09-22T11:10:00.001-07:00

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

2009-09-16T11:43:00.000-07:00

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

2009-09-04T07:31:00.000-07:00

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.

Recent Senate Staffing Issues

2009-08-12T20:31:00.000-07:00

NOTE: This entry was written before the younger Pedro Espada officially resigned his position with the State Senate Office of Intergovernmental Relations. Technical issues prevented me from posting before now. The younger Espada's decision to resign is the right one. However, his being hired wasn't the only concern, it was just the headline-grabber. The concerns I have go a lot deeper than that. I've decided therefore to post anyway.

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For those of you who don't know, various post-coup Senate hires and pre- and post-coup Senate pay raises are raising the ire of the press. (No links...I'm feeling off-the-cuff today.) The hire most emblematic of the issue is said to be that of Senator Pedro Espada's son (also named Pedro Espada) by the Senate's Intergovernmental Relations office, a hire which at least one Democratic Senator seems uncomfortable with, to say the least. (I'm pretty sure it's the same Senator, “leaking” his or her opinions anonymously to several news organizations, intending to create the impression that it's just one.)

Underlying a lot of these criticisms in part is a kind of prejudice against legislative staff. Years ago, I read a poll...People, it seems, thought Congress had too much staff. Of course, they had no idea how much staff Congress had, just that it was "too much." Too many people think, wrongly, that legislative staff are a net loss for the State, that they are unnecessary, that they are all patronage, that none of them are qualified for what they are supposed to do, that there are too many of them, that they are a drain. The reality is that a carefully-chosen, hard-working legislative staff is absolutely necessary if you want a legislature to properly function and enact good public policy. The world is a complex place, and legislating responsibly requires research, analysis, number-crunching, legal advice, knowledge of political strategies, and a bunch of other things. Without staff, the Senators' only source of information and assistance would be lobbyists, and the Internet (for those of them who know how to use it). (And I'm not getting into administrative staff...People who open the envelopes you send your elected officials, or who read the E-Mails you send to your elected officials.)

So I don't begrudge the Senate Democratic conference for hiring staff. In fact, I think they probably need to do some more hiring....Just the right kind.

The Democrats are going about their hiring in a questionable manner, both on the substance and on the perception. The perception problems are obvious. A lot of these people are being hired at six figures, in the middle of a fiscal crisis, to perform jobs that seem to lack clear descriptions. The hiring of Senator Espada's son is an extreme example. It smacks of both nepotism and featherbedding. Nepotism is defined by Merriam-Webster as “favoritism (as in appointment to a job) based on kinship.” Some nepotism is inevitable in legislatures, because the politicians tend to want to hire people they feel they can trust, and who can you trust more than your own family or the family of a colleague and political ally. Featherbedding is defined by Merriam-Webster as “the requiring of an employer usually under a union rule or safety statute to hire more employees than are needed or to limit production.” In the private sector, featherbedding in a union contract is illegal. Some of it, however, is inevitable, because there are going to be disputes about how many people it takes to perform a given job.

The hiring of Senator Espada's son, however, appears to be both of these in the extreme. He may well be qualified for a position in intergovernmental relations, but there's no reason to believe that his legitimate qualifications were what got him the job, Which, I must point out again, is newly created and is six-figures, for a guy in his 30s. Right now we don't even know what the job is, let alone what other qualifications the younger Pedro Espada has.

And on the substance....They are hiring the wrong people, for the wrong positions, and paying too much money to too many people. What they NEED are mid-level researchers, analysts, and number-crunchers. Guys who know how to research issues and write position papers, guys who can write down bullet points that press people can turn into press releases, and that lawyers can turn into legislation.

Based on what we know now, from the press (always accurate, right?) the staff structure that's emerging at the Democratic Party-controlled State Senate is very top-heavy, with a lot of people authorized to give orders and seemingly not as many authorized to follow them. The staff structure is mirroring the leadership structure. I can't quite tell who's going to be doing the substantive “heavy lifting.” A $150,000 a year general counsel might be necessary, but not everyone can have the six-figure job. There has to be enough left over to hire the $65,000 or $75,000 analysts who are capable of cutting through the lobbyists' noise and discerning the truth, which can then be presented to Senators in a coherent format so that decisions can be made. $120,000 a year inter-governmental relations people do you little good when what you need is a $65,000 policy wonk to write a compelling, effective grant request to submit to a federal agency, or a long letter to a local government to explain in detail how the Senate will help it accomplish its policy goals despite the fact that state aid cuts are only going to get worse, not better.

The one high-level hire they have made lately that they definitely needed was Ahmed Diomande as their “interim” Senate Finance Secretary. That office needed a “chief” but hasn't had one until now. Want to bet he's making less money than Senator Espada's son? And why is he “interim?” The Senate Finance Committee needs a qualified person (which he appears on the surface to be) to run it permanently and full-time.

I'm not saying the other hires weren't necessary. I am however saying that it doesn't look good.

I would say the Democrats are headed toward disaster unless they change course. However, the Republicans are behaving so disgracefully and incompetently that they are almost helping the Democrats more than themselves. As far as I can tell, their staff is similarly top-heavy, and seems to consist mostly of attack dogs. They are taking an approach kinda like that taken by Assemblymen Tedisco when he was the Assembly Minority Leader. And we all know how successful he was at adding seats! (That is to say, he was not successful.)

Thus, the Democrats need not fear too much, at least at the ballot box, despite their seemingly-bad staff decisions. Based on what I know, the voters could reasonably conclude that the alternative is worse.

Average New Yorkers, however, do have a lot to fear. The Democrats' obsession with a top-heavy staff structure isn't going to help them make policy when what's needed is middle-level types.

I hope I'm wrong, and that there's plenty of quiet, competent, qualified people employed by the Senate Majority, and that they just don't get press attention. (The press focusing on the negative? Heaven forbid!!!)

And if I'm not wrong, I hope they find some of those staffers soon. Not everyone can be the six-figure, high-powered guy yelling into the Blackberry. Someone has to mind the store as well.

Oh, and New York: When they get around to hiring those people (if they do), don't whine about their salaries....Stick to whining about the top guys, if you must.

The Lt. Governor Issue: An Analysis of Some Documents

2009-07-30T12:53:00.000-07:00

As is now well known, on July 8, 2009, Governor David Paterson appointed Richard Ravitch, who has long been an important figure on New York State's political stage, to the office of Lt. Governor. The Governor's legal right to make this move is not well established. Indeed, the conventional wisdom has for a very long time been that the Governor was specifically NOT allowed to do this. The Temporary President of the Senate is, according to the conventional view, “acting” Lt. Governor until the next gubernatorial inauguration, which follows the next scheduled gubernatorial election. Conventional, not “special” or otherwise out-of-cycle elections take place when there is a vacancy in the office of Lt. Governor alone, and no one is appointed to that position. (This is unlike at the federal level, wherein the President is allowed to appoint a Vice President in the event of a vacancy.)

The political reasons Governor Paterson made the appointment should be obvious. At the time there had been a power struggle for control of the State Senate, and hence it was unclear who the Temporary President of the Senate was. Also, Ravitch seems to have a reputation as a problem solver, a kind of governmental project manager, and Governor Paterson probably thought Ravitch would be useful in solving the various problems currently facing New York State.

And there are many.

The Governor's appointment is currently being litigated. In an effort to try and predict the outcome of the controversy, and to have some means of assessing the worth of the outcome when it happens (I do not, you see, entirely trust New York's courts), I've been looking into the issue somewhat.

There are better ways to spend my time, but I kind of didn't realize how long it would take to come to so few actual conclusions. I was kind of hoping I'd find something definitive more or less, some kind of "smoking gun," but I guess I should have known better. I was hoping to find some obscure academic paper that already dealt with the issue, or maybe some obscure statement at a Constitutional Convention (any of the several that we've had in New York State would do) that at least showed the issue had been dealt with, studied, or considered, before recent events. I found nothing anywhere close to that definitive.

From what I can tell, a Governor's lack of authority to make such a move was assumed, but the issue hadn't been considered, dealt with, deliberated over, and studied until now. If nothing else, the Governor's move may well settle the issue once and for all....Or until New York State's next Constitution, which hopefully won't contain such an obvious hole.

We can only hope that the lawyers and judges involved in this matter have gone over these materials as well.

Based upon my research, I have (surprise!) been unable to come to firm conclusions.

As near as I can tell, the settlement of the issue will come down in very large part to judicial orientation and philosophy. If the deciding judges (presumably it'll be eventually the Justices of the State Court of Appeals, New York's highest court) generally think that a public official can do that which is not specifically forbidden, then the Governor has a better chance. If the deciding judges generally think that a public official can do only that which is specifically allowed, then the Governor loses by a mile.

Governor Paterson and his lawyers, however, do seem to have the further distance to travel.

Anyway.....Let's look at some relevant documents. I am not breaking any new ground here, with one exception (kinda): The 1967 Constitutional Convention contained some useful stuff. I haven't seen anyone citing this yet but I might've just missed it I guess.

The Governor's Documents

At the time of the appointment, Governor Paterson's office issued two documents, posted to the official Governor's website as pdf files. One was referred to as the “legal background” of the issue. It was a single page. In brief, it stated that the Temporary President of the Senate's fulfilling the role of the Lt. Governor did not actually fulfill the vacancy in the Lt. Governor's spot, that the law and the Constitution still implied that vacancies needed to be filled, and that therefore the procedure outlined in Public Officers Law Section 43 (gubernatorial appointment) must apply. The Governor also issued a 2-page letter to the people of the State (it was addressed, “Dear Fellow New Yorker”) that articulated the same arguments, and went into Richard Ravitch's history and qualifications for the office of Lt. Governor.

The letter document mentioned conversations with lawyers and scholars, but no actual conversations were cited. The letter mostly cited the fiscal and economic crises, couching the need for an Lt. Governor more in the situation faced by the state than in any institutional need. This makes sense, as the voters are more likely to care if Ravitch helps to fix things than they will if an important precedent is set.

The State Constitution

New York State's current Constitution is known as “The Constitution of 1938.”

The most relevant part of the State Constitution seems to be Article 4, Section 6. (Another part of the Constitution also might be relevant, but we'll talk about it later.) As is well-known, the Temporary President of the Senate is to serve as acting Lt. Governor in the event of a vacancy in the office of Lt. Governor alone. If for some reason the Temporary President of the Senate can't fulfill the duties, or if there isn't a Temporary President, we next go down to the Speaker of the Assembly. (In other words, chaos wouldn't necessarily have reigned if Governor Paterson had died before the controversy in the Senate was settled. We just might have had Governor Sheldon Silver. Which may, when you think about it, be almost as bad as chaos, especially for Upstate.)

The Governor is not specifically allowed to appoint an Lt. Governor, and the separate election of a Lt. Governor is specifically excluded.

Though these provisions are officially from the Constitution of 1938, they seem to go pretty far back, to about the 1890s and they were either clarified or recodified or both around 1963.

The Public Officers Law

Section 43 of the Public Officers Law provides for the appointment by the Governor of elective officers until the next election. Section 43 neither specifically includes nor specifically excludes the Lt. Governor.

This is the section that the “good government” groups that support the Governor's move construct their case around. (Mostly, we're talking about Common Cause and Citizens' Action. Together with Assembly Member Michael Gianaris, they authored a letter, addressed to Governor Paterson and dated July 6, 2009, wherein they suggested that the Governor had the legal authority to appoint an Lt. Governor under these conditions. Given how soon afterwards the appointment was made, it's safe to say that Governor Paterson was persuaded.)

New York Jurisprudence

This is a legal encyclopedia. Lawyers use it as a reference guide. Several “articles” in the “encyclopedia” look they might be of use in sorting this issue out. However, appearances are deceiving, and there is little or nothing relevant here. There is actually a good reason for this. Like most encyclopedias, this one is dedicated to describing currently-known and currently-agreed-upon information, not on breaking new ground. It's not the purpose of encyclopedias to add to knowledge, but rather to compile it. Until June of 2009, when Senator Skelos' power grab and Senator Smith's incompetence put us here, the issue didn't even really so much as come up. So New York Jurisprudence doesn't really address the issue.

Want to bet future editions will?

Ward V. Curran

Ward v. Curran (CITE AS: 266 A.D. 524, 44 N.Y.S.2d 240) is a 1943 Court case involving Lt. Governor succession. If memory serves, this case inspired amendments to the State Constitution clarifying that the Lt. Governor should only be elected at the same time as the Governor. The case is used by the good government groups supporting Governor Paterson's actions (identified earlier) to bolster their case. However, that use is really weak. First of all, the Constitution has been changed since then. Secondly, the decision mostly seems based on a general principle that elective offices should be filled by elections. And we're not talking election here, we're talking appointment. An out-of-cycle election for this office is already forbidden by the State Constitution.

While the general legal prejudice that elective offices should be filled by elections probably still holds true, the State Constitution no longer allows out-of-cycle Lt. Governor elections. So elections are no longer the issue, and somehow I doubt the same principle would apply to gubernatorial appointment.

So......We quickly move on from Ward v. Curran.

Wisconsin v. Ekern

This is a State of Wisconsin case, from 1938 (CITE AS: 228 Wis. 645, 280 N.W. 393). Like Ward v. Curran, this case is used as a precedent by good government groups (identified above) who support the Governor's move. The use of a cross-state precedent is not unknown. While I don't have the impression States are typically bound by cross-state precedents, I have seen them used, in situations where laws are similar across States. This is part of how lawyers are trained and educated, it helps to maintain stability and consistency across jurisdictions.

Lo and behold, the “legal landscape” (I borrow the term from the Common Cause, Citizens' Action, Assembly Member Gianaris memorandum cited earlier) in the Wisconsin case does seem very similar to our current landscape here in New York State. And given that landscape, the Wisconsin courts (71 years ago) ruled that the (Wisconsin) Governor could indeed appoint a Lt. Governor (in Wisconsin).

What I have no way of knowing, however, is how many other States' courts, given similar “legal landscapes,” came to opposite conclusions. I bet there's been some.

So not only are the New York State courts not bound by the Wisconsin case (they'll take it as instructive, probably, but are not bound by it), but I'll wager the other side will find similar cases from other States that had the opposite result.

The Attorney General's Opinion

The title of this section is sarcastic. Because, you see, I could find no Attorney General's opinion on this issue. But you all ready about this in the press, didn't you? No, what you read were stories about an Attorney General's Press Release. It was issued on July 6, 2009, it's 3 paragraphs long, it contains no significant analysis. I'm not sure under what circumstances the Attorney General's office is authorized to issue formal or informal opinions, but for my part I would have at least expected an informal report of some kind, given the importance of this issue.

No. There is, instead, a 3-paragraph Press Release. The Press Release goes over ground that's well known. And the Courts may well come to agree. One would hope, however, that they will take more than 3 paragraphs to do it.

Skelos and Espada v. Paterson

As is now well known, Senators Dean Skelos and Pedro Espada filed court documents in Nassau County seeking to overturn the Governor's appointment. On July 9, 2009, the court down on Long Island issued.....I'm not sure it's really a “ruling” per se. An injunction? A restraining order? I'm not sure what to call it; one of the frustrating things about this matter is the way lawyers and courts keep trying to cram political things into legal categories. I don't even know how to cite this...opinion, or order, or ruling, or whatever it is.

But anyway....The courts down in Nassau County issued some kind of written material related to this case, and issued some kind of ruling (whatever the legal designation is) that legally prevented Richard Ravitch from acting as Lt. Governor. Most of the court's 22 pages is devoted to issues of jurisdiction, standing, which Article of the Civil Practice Law and Rules dictates the procedure to be used, and whether or not the matter is “justiciable” at all.

These are issues of enormous importance to the courts and to lawyers. If the court rules that the litigants have no right to sue on the matter, or that this isn't an issue for the courts at all, or that the court filings were done under the wrong statutes, the case can be won and lost right then and there, long before any issues of substance are arrived at.

We're in luck in this instance, however. Of the 22 pages, 2 or 3 pages are devoted to the actual substantive question of if the Governor has the legal authority to appoint a Lt. Governor. The Court concludes no, and the case they make is pretty convincing. They agree with me, that Ward v. Curran is a very weak case to try to cite as a precedent. Indeed, they say Ward "may be considered legislatively overruled" by changes made to the State Constitution since then.

The court also rules that Section 43 of the Public Officers Law was enacted to fulfill Article XIII, Section 3 of the State Constitution. This Section does not apply to the Lt. Governor, because vacancies in that office are provided for separately, in other parts of the Constitution. (Specifically, the ones reviewed above.) Therefore, Public Officers Law Section 43, providing for the Governor's appointment of elective officers in case of vacancy, by definition also does not apply to the Lt. Governor.

Pretty convincing, eh?

But of course not yet definitive; a higher court ruled against the court in Nassau County, and the case will eventually, in all likelihood, wind its way to the State Court of Appeals. In fact, I read there was a hearing this morning in a court in Brooklyn.

Proceedings of the New York State Constitutional Convention, 1967

In 1967, New York State had a Constitutional Convention. It produced a new Constitution for our State. Did you know that? I, for one, didn't. This is probably because the new Constitution went down to spectacular defeat at the ballot box, and to this day we still live under the Constitution of 1938.

Several “Propositions” were introduced at the Convention that dealt with the powers of the Governor. (“Proposition” is to Constitutional Convention as bill is to Legislature.) With one exception, as will be noted, none of these Propositions were “adopted” (passed) by the Convention. I've noted the sponsors of each Proposition, but I have no idea who any of them were, with one exception who will be briefly discussed a bit later. Many of the Conventioners were legislators or judges, so good odds are these sponsors were one or the other.

Proposition 540 (introduced by “Mr. McCurn”) granted to the Governor the power to nominate a Lt. Governor in the event of a vacancy in that office, by “majority vote of both houses of the Legislature.”

Proposition 562 (introduced by “Mr. Sobel”) retained the present ambiguity.

Proposition 919 (introduced by “Mr. Kane”) retained the present ambiguity.

Proposition 923 (introduced by “Mr. Kuhnen”) specifically provided for the appointment by the Governor, with the “advice and consent” of the State Senate, of a Lt. Governor, “in the case of a vacancy in the office of lieutenant governor alone.”

Proposition 1237 (introduced by “Mr. Reidy”) retained the present ambiguity.

Propositions 1354, 1354-A, and 1354-B (introduced by “the Committee on Rules, at the request of the Committee on the Executive Branch”) retained the present ambiguity. This “B print” of this Proposition was debated by the Convention on August 1, 1967, and passed. The present ambiguity did not come up directly.

However, “Mr. Sobel,” though he supported the Proposition, did point out it was ambiguous in some places, which he did not specify. This didn't worry him, though. The situations in which these ambiguities would arise were “unlikely to occur in our lifetime.” I almost fell over laughing as I read that, especially given the next Proposition we will consider.

Proposition 1366 (introduced by “the Committee on Rules, at the request of Mr. Sobel”) called for the Temporary President of the Senate to fulfill the duties of the Lt. Governor “until the end of the term,” thus neatly removing the present ambiguity without actually changing how things work. I find it very significant that this measure appears to have originated with Sobel. It was also introduced on August 1, 1967, the very day that Proposition 1354-B was debated and adopted.

Taken together, I think it is difficult to escape the conclusion that the 1967 Conventioners didn't think the Governor had the power to appoint a Lt. Governor. Probably some were OK with this, and some weren't, but I see no direct evidence that any of them thought otherwise.

And kudos to you “Mr. Sobel.” Given that you introduced a Proposition removing the ambiguity on the very day a Proposition that retained the ambiguity passed, I think it's safe to say that you saw it coming.

From the reading I've done, I believe you are Nathan R. Sobel, former judge, former advisor to many politicians, and a delegate not just to the Convention of 1967 but also to the Convention of 1938. Further, you worked for the State Assembly, for the U.S. House of Representatives, you were a Judge in Brooklyn, and you played a key role in the advent of Workers' Compensation in New York State. You were a constitutional scholar, who authored books on the Miranda Warning (which was then new), “legal and practical problems” of eyewitness identification (this one is still updated and re-published periodically), and on the law of search and seizure.

Sadly, we cannot benefit from your wisdom in this matter. You died in 1997.

http://www.nytimes.com/1997/05/21/nyregion/nathan-r-sobel-91-judge-and-an-adviser-to-politicians.html

Rest in peace and try to not piss yourself while you're laughing at us. Oh, and while you're laughing, consider this.....If you had been more specific about what ambiguities you saw, back on August 1, 1967, maybe we wouldn't be here.

Conclusions

As stated above, it's impossible to come to firm conclusions. There is enough ambiguity that it'll all come down to judicial philosophy. And I would not presume to probe the minds of the justices of the State Court of Appeals, as I value what remains of my mental health.

From these documents, however, I don't think things look good for Governor Paterson's appointment. That's too bad, really. Substantively, I agree with him that he should be able to make the appointment. I just don't see how he's able to.

I'll keep looking for a smoking gun, time permitting....Maybe the 1938 Convention notes will have more specific insights. Somehow, though, I doubt it.

Sometimes, ambiguities in the law exist because courts create them.

But, more often, especially when dealing with big issues like the powers of the Governor, ambiguities exist just because no one talks about them.

Roger's Revelations

2009-07-28T16:49:00.000-07:00

It was, I felt, a report that deserved more attention that it got. There's a lot of possible reasons why the Press didn't agree with me. The source of the story, Roger Stone, is one of them. Another possibility is that the report cast Senator Pedro Espada as something other than the villain of the Senate Stalemate. The Press seems to think that Senator Espada makes a convenient villain, and let's face it, his own conduct often doesn't help his case. Another possibility is that the report was just too difficult to confirm.

I refer to Roger Stone's story, “Skelos Plot Against Espada Topples Coalition,” posted on his website on July 14, 2009. It's been two full weeks, yet I still can't quite get this story out of my mind. The story is still on Stone's front page, stonezone.com, so there's no dedicated link for the story itself yet. Based on how Stone's site has worked in the past, after it moves off the front page it will have its own, dedicated URL. Either way, I've copied and pasted the entire story as “Appendix One” of this commentary.

In brief, Roger Stone tells us that sources tell him (got to love Roger Stone's sources!) that Senator Pedro Espada went back to the Democrats after Senator Skelos attempted to sell out Senator Espada by trying to put together a different coalition, with Senator Klein (who represents northern Bronx and southern Westchester counties) as Temporary President of the Senate, and himself (Skelos) as Majority Leader. When Senator Klein couldn't produce any other Democrats to join the new coalition, Senator Skelos went to the “Gang of Four,” which included Senator Espada, and sought yet another deal. They, according to Stone and whoever his sources are, offered Senator Skelos a deal wherein Skelos remained Minority Leader, but acquired a fair amount of power. Senator Skelos rejected that deal. Senator Klein then informed Senator Espada of Senator Skelos' approaching him, and Senator Espada went back to the Democrats. The terms of his return are by this point well known; the new Senate Rules are likely to be the topic of a commentary in the near future. As may Senator Espada himself, who is a very interesting person to research and write about.

Stone's report astounds me because, no matter how you look at it, if the report is true, Senator Skelos comes off rather badly.

First, he tries to deal with with Senators Espada and Monserrate, both of whom are under different kinds of ethical or legal clouds, and one of which (Monserrate) a member of Senator Skelos' conference (Senator Golden) tried very hard to keep out of the Senate entirely.

(For a writeup on the ethical issues of Senators Monserrate and Espada, check this link. There's actually been a lot written about this but that link has an amusing quote from Tom Golisano in it; he refers to Senators Monserrate's and Espada's ethical and legal problems as “personal issues.” For some reason that gets a laugh out of me.)

Then, Senator Skelos effectively betrays one of his co-conspirators, the one of the two who had stuck by him (Senator Espada). Senator Espada, by contrast, had endured a smear campaign and vicious insults from his fellow Democrats, and protests from Citizen Action. This is a fact. Whether you like Senator Espada or hate him, it is a fact that he endured a lot of mud-slinging in his direction.

For more on what Senator Espada endured, deservedly or not, check here, here, here, here, and here.

In there, Senator Espada is compared to Evita Peron (not even Juan Peron, but Evita Peron) by Senator Liz Krueger, it's said that he left the Democrats over questions being raised about his member items, and his residency is questioned, among other things.

There's been lots written about Senator Espada's ethical issues. Maybe some accusations are true, maybe all of them are. Some, that he's had a troubled history with campaign finance filings for example, are pretty much beyond dispute! Either way, this was a lot of mud-slinging for one man, guilty or innocent, to endure, and Senator Espada endured it to stick by Senator Skelos.

So, first Senator Skelos arguably looks bad by dealing with Senators Espada and Monserrate at all, then he looks bad yet again by betraying the one of the two who stuck by him.

Then, Senator Skelos tries to put together yet another deal, this time with a group that contains Senator Espada (who, Stone implies, didn't yet know about Senator Skelos approaching Senator Klein). The deal Senator Skelos is offered grants him power, but not a title. He refuses. Roger Stone quotes Senator Carl Kruger as asking Senator Skelos if he wanted the "title or the power?" Ah, dreaded vanity. Frankly I'd have been happy with the power.

Basically Senator Skelos, if Stone's account is accurate, did the “wrong” thing at every turn. Executing a coup in the last days of Session that he couldn't possibly win (whether or not the Senate rules changes are worth the month stalemate remains to be seen, if they are I'll happily eat my own words); doing it with people at his side who were both under ethical clouds; then turning his back on one of them; then turning down a deal that gave him the substance he wanted, but not the title he wanted.

Let's now be fair to Dean Skelos. Let's talk about some matters lawyers might call “exculpatory,” meaning in this case stuff that might make him look less bad than I've painted him to be. I am nothing if not fair.

Firstly, Roger Stone could be flat-out factually wrong. There are plenty of reasons to not trust Roger Stone; some of them are outlined in “Appendix Two” of this commentary.

Secondly, I have to recall Senator Espada's early promises to bring more Democrats into the coalition, promises he failed to deliver on. So even if Roger Stone's account is 100% correct on the raw facts, it's possible that Senator Skelos turned his back on Senator Espada only after the latter's promises weren't fulfilled. If this is correct, then Senator Skelos' actions are less a betrayal than a combination of understandable retribution and political common sense.

Thirdly, perhaps the Senate rules changes will be worth it all. I'll be trying to study them more intensively soon.

I'm sure there's other ways to see it that don't make Senator Skelos look bad....But none of them come to mind right now. If I were a Senator in Skelos' Republican conference, I'd confront him about this.

The frustrating thing is we'll never find out if the revelations are true. Large chunks of the month-long stalemate will forever be blank spots.

But that's life in Albany.

Appendix One

Here is Roger Stone's story, copied and pasted directly from his website, stonezone.com. I think that once this story moves off the front page, it will have its own dedicated, archival link on the stonezone. Any spelling errors (who is Senator “Maziars?”) are Stone's, not mine.

“Skelos Plot Against Espada Topples Coalition: Republican Treachery Costs Them Power”

Republican State Senate leader Dean Skelos and his Press Secretary and Chief Political Advisor John McArdle attempted to stage a coup that would cast Senator Pedro Espada aside and make Senator Jeffrey Klein (D) the new Senate President. Klein was to bring a handful of other Democrats to the 'new' coalition with Skelos delivering all the Republicans. The plot brought the so-called bi-partisan coalition down and cost Skelos the Majority Leader's position.

When Klein was unable to deliver any other support, Skelos and McArdle opened negotiations with Senator Carl Kruger and the so-called 'Amigos' including Senators Rueben Diaz, Sr., Senator Hiram Monserrate offering to make Kruger Senator President if the Amigos would back a new coup. Kruger demanded both positions be filled by Democrats asking Skelos if he wanted the "title or the power?"

Despite Skelos effort to dump Espada with Klein, Espada tried to facilitate an arrangement with the Amigos to get a working majority in the Senate that was truly bipartisan. When Skelos insisted on retaining his title any chance collapsed.

The plots back-fired when Klein informed Espada of the treachery of his new Republican allies and the Bronx Democrat rejoined the Democrats with the inducement of the Senate Majority Leader's position. Democrats who were denouncing Espada and vowing never to recognize him as Senate President in that morning's New York Post, were electing him Majority Leader by lunchtime.

Espada extracted commitments that the reforms in the Senate passed to make the Senate more open and divide resources more fairly would stand and Upstate billionaire Tom Golisano extracted similar reform commitments from the new leadership. It was made clear that Smith will leave in January to make way for Sampson.

Skelos and McCardle conducted the secret talks that brought their rule down behind the backs of Senator Tom Libous and Senator George Maziars, the two senators most instrumental in staging the stunning and legal Senate take-over and without the knowledge of Upstate reformer Tom Golisano who was also key to getting Espada to join a coup and commit to a rapid reform agenda for the rotting Albany process.

Gov David Paterson was right when he said the perks being proffered to the turn-coats including those offered to Klein by Skelos to jump ship bordered on the illegal. Senate Republicans upset about being out of the majority again can blame Skelos and his clueless sidekick McArdle for ending their brief return to power.

Appendix Two

Reasons to not trust Roger Stone. Yes, I am debunking my own “source” for this commentary. Why would I do that? Because I believe in fairness and completeness, and in this case the “source” is part of the story.

Roger Stone is, I feel, not really as bad as his critics often say he is. He has his virtues. He's smart enough to know that politics is mean and physical, and a lot of very smart people tend to miss that. (The Senate Democrats, interestingly, have NOT missed Roger's lessons, as their conduct during the stalemate reflects.) Stone sometimes, but not always, has a degree of honesty about and perspective on himself that I find admirable. He, along with his then-employer, then-New York State Senate Majority Leader Joseph L. Bruno, stood up to Eliot Spitzer when so many others were....Doing something other than standing up. He recognized Spitzer as a bully, and he knew how to fight a bully. He is a very pro-Civil Rights Republican, and opposes the Bush-era trampling of Civil Rights, which is exactly where the Republicans need to be, especially in New York State. He's anti-Rockefeller Drug Laws. He trashes Republicans when he thinks they deserve it, and praises Democrats when he thinks they deserve it.

Those are his virtues. However, I don't like the man and find many reasons to mistrust him. Here are some of them. I'll try and document everything, even though most of this isn't in dispute, and Roger Stone would acknowledge most of it. In fact I'm pretty sure he'd admit to everything I'm saying here. I'm leaving off the sex stuff that's often discussed when his name comes up, and I'm also leaving off the threatenning phone call he's alleged to have made to Eliot Spitzer's father. (He denies it....I figure I'll stick to stuff that isn't denied.)

Roger Stone is friends with Al Sharpton. Because I personally don't like the Reverend Al, I find this to be a negative. (If you like Al Sharpton, you are likely to disagree.) See this article in the Village Voice. Stone even had a role in Sharpton's Presidential campaign.

If you thought President Bush 2 was bad, imagine President Sharpton. Probably not much worse, actually. But, as we'll see later, Stone was partly responsible for Bush 2. Al and Roger are said to share an admiration for Adam Clayton Powell, and to agree on Civil Rights issues (but nothing else).

Roger Stone has also worked for Tom Golisano, the Rochester (now Florida) billionaire who first helped to flip the Senate to Democratic hands, then was a driving force behind the June Senate coup. Note this New York Times article from 2002, referring to stone as Golisano's “Campign Advisor.”

As is the case with Sharpton, I have a personal dislike of Golisano, and thus find Stone's association with him to be a negative. Golisano needs to stay in Florida. He's already “helped” enough by helping to give the State Senate to the people he later felt the need to wrest it from.

Now, those who like Sharpton or Golisano of course see these as reasons to like Stone, not dislike him. That's fine. But let's go on.

Roger Stone has a tattoo of Richard Nixon across his own back. Never trust a man who has Richard Nixon permanently guarding his back. Do a Google image search if, for some reason, you want to see this.

Perhaps the most damning thing, since Stone's association with Richard Nixon, to my mind, occurred during the 2008 Presidential election. Watch this video, from Fox News, especially second 20 to second 55. Roger Stone stated he's heard a “buzz” that some “indelible record” exists of Michelle Obama “allegedly” (he uses the term “allegedly” twice!!!) making remarks that “could be termed racist.” Have you ever heard a more qualified statement than that? Oh, and by the way, the tape never surfaced.

Finally, Roger Stone had a substantial role in the events of Florida in 2000, resulting in the Presidency of George W. Bush....And thus all of the Civil Rights violations that Roger Stone later came to disapprove of. Note the mention of these events in this New Yorker article, and this article on Stone's own website.

Stone has, in that last link, repudiated his involvement and has trashed the Bush legacy. Great for him. That's to his credit. However, he's in part to blame for that legacy existing to begin with.

So anyway....Those are some of the reasons to doubt Roger Stone's credibility.

So why do I believe his story about Dean Skelos and the coup? It just feels right (same with a lot of his anti-Spitzer stuff, it felt right and it was later mostly confirmed by other sources anyway), and it explains things more fully than do more conventional accounts of the coup.

But like I said above, sadly we'll just never know for sure.

David Paterson and the Union Endorsement

2009-07-22T06:20:00.000-07:00

I read this article on the New York Times Internet site this morning:

http://www.nytimes.com/2009/07/22/nyregion/22unions.html?_r=2

In brief, the article states Governor Paterson appears weak enough that the unions are considering withdrawing their support of him, in favor of Democratic candidate. Andrew Cuomo comes to mind.

One possibility is that the unions are incredibly concerned that a Republican Governor will be elected in 2010, and they will take extreme steps to prevent that, even turning their back on an incumbent Democrat with deep labor ties.

Another possibility, however, is that this is some kind of revenge for David Paterson threatening State employee layoffs, pushing for a "Tier 5" public sector retirement package, and trying to reduce the size of the State workforce.

If that is an element here? I would urge the unions to think carefully.

Speaking in support of public sector layoffs, a public official in New York State once said:

''If you did it [reduce the size of the State workforce] purely by attrition, you couldn't manage the system because you couldn't control it. You might have a psychiatric facility that you couldn't run anymore. So if you want to control it and do it intelligently, you have to go to layoffs.''

This official? Former Governor Mario Cuomo.
Source: Michael Oreskes, "Cuomo's Personal Touch." New York Times Magazine (Sunday). January 29, 1984. I downloaded it (I don't keep hard copies of the Times Magazine from 25 years ago) so I don't have a page number for you.

One of Governor Cuomo's chief aides at the time was Andrew Cuomo, then a 26 year old young man.

Now, granted, as HUD Secretary, Andrew Cuomo sought to reduce the workforce without layoffs. However, according to this article:

http://www.govexec.com/dailyfed/0698/061598t1.htm

it didn't go all that well.

(Keep in mind that this seems to be from the National Journal, a publication not known for its objectivity especially when it comes to Democratic officials.)

My point here is that, if the unions are looking to find a new friend by opposing David Paterson, they should tread carefully. You can't always tell who your friends are.

Not to mention the fact that if Andrew Cuomo doesn't run, then the unions will be stuck dealing with David Paterson (a man whose back they were poised to stab) until at least the end of 2010.

Senate Pay Raises

2009-07-14T11:55:00.000-07:00

The Albany Times Union has reported big pay raises for Senate staffers. They took place in the midst of the lost month due to the coup, and they were retroactive...Meaning that all the beneficiaries got a nice one-time lump-sum payment reflecting retroactive pay going back some months. I don't know the time interval involved.

Normally I'm a big supporter of paying people in government well. This includes Senators. Until June 8 I'd probably have supported a Legislative pay raise, not this year but in another year when we could absorb it better. Same for Senate staff.

However.....This raise is wildly inappropriate. A lot of the reasons for deeming it so have been covered elsewhere, but here's another one, something I learned yesterday.

The Public Management Internship (PMI) program has been "suspended":

http://www.cs.state.ny.us/pmi/

The PMI is basically a graduate school-level internship program for the State workforce. It is, literally, the future of the State workforce, the State's chance to recruit people out of graduate school before they get seduced by lucrative consulting positions. So far as I know, the Senate's version of the PMI, called the Senate Fellowship program, is still on for 2009-2010.

So, the fiscal crisis squeezed out the future of the State workforce (literally)....except for the future of the Senate's own workforce. And, oh by the way, it didn't squeeze out pay raises for the top Senate staffers. The mid-level and low-level staffers are often underpaid. But these top-level types? They were not underpaid by any standard, unless you're using Wall Street standards. And that's just....I mean come on now. Wall Street types are so often overpaid that comparing anyone to them is just asking for trouble.

Anyone remember the big pay raises for Governor Paterson's staffers some months back? Also inappropriate, for the same reason.

Under many circumstances I'd support pay raises for legislative staffers, and indeed for the legislators themselves. Some legislative staffers are underpaid, especially relative to the executive branch workforce, and to the private sector. (Despite publicity to the contrary, if you actually look at labor statistics, on average the private sector pays MORE than the public sector at least in terms of straight salary. When you think about it, though, the Senate staffers who got the raises weren't exactly underpaid to start, now were they.) Maybe even for the Executive Chamber. (Though it's hard to say that they are underpaid relative to ANYONE.)

But not in the middle of a fiscal crisis that has squeezed out the PMI program, and has caused the Governor to institute a hiring freeze and threaten layoffs and ask the unions to forego 3% pay raises and ask the Legislature to pass a Tier 5. In some cases, the total salary for people hired through the PMI was similar to the raises received by the Senate staffers!

And especially (with regard to the Senate staff raises) not when the Senate has proven itself to be dysfunctional in a way that it had until June 8 been only in the wildest dreams of "reformers."

Some depressing, disconcerting stuff.

At least wait until a better year, people. They were making high-5 or low-6 figures. They could afford to wait. The Senate's Democratic Majority is only going to expand from here, you have plenty of time to build a patronage mill. When you get started this early, people tend to take it the wrong way.

So....The Governor might try to appoint an Lt. Governor.

2009-07-08T12:48:00.000-07:00

This symposium is potentially valuable reading.

http://www.rockinst.org/pdf/public_policy_forums/2008-05-29-public_policy_forum_gubernatorial_succession_and_the_powers_of_the_lieutenant_governor.pdf

The Times Union's political blog has a different link to the same conference.

I am not yet prepared to address the appointment issue in a legal sense; I have to do a lot more reading before I come to a reasonable assessment. Maybe I'll bother, maybe I won't.

Speaking politically, however, it is my position that, even if Paterson makes such an appointment, and even if it sticks Constitutionally, it will not settle the Senate stalemate. At least not by itself.

1. Firstly, the mere fact that this is an ambiguous constitutional question means such a move will be litigated, and that litigation potentially will far outlast the stalemate.

2. Secondly, let us assume no one feels like contesting Governor Paterson's authority to make such an appointment. I bet someone will contest the new Lt. Governor's authority to cast a tie-breaking vote (this is known in political and legal circles as the "Casting Vote") when it comes to matters of Senate leadership. Maybe that dispute wouldn't delay voting on actual bills. Maybe it would. Either way, there's enough litigation in there to ensure the stalemate continues despite the appointment.

3. Thirdly, let us assume no one feels like contesting Governor Paterson's authority to make such an appointment, or that the appointee can cast a Casting Vote on matters of leadership. This brings us to the issue of whether or not any Lt. Governor can cast a Casting Vote when it comes to legislation, or if it's limited to resolutions. Many have argued this issue. I, by the way, am not one of them. I am inclined to think the Lt. Governor's Casting Vote DOES apply to legislation. But my word isn't going to be enough for any court. The point is that the issue is a disputed one. Someone would litigate it, and this litigation would outlive the Senate stalemate.

I'm not saying I oppose this move. There are some good reasons to support it. Some VERY good reasons, actually.

One of them is that the Senate might settle their dispute faster for fear of having the matter taken out of their own hands. (In other words, the move might help settle the stalemate indirectly.)

Another is that the last time I looked, the State Budget still had a line for the Lt. Governor's staff. This information may be out-of-date, though. But if it's not, if we're going to have an Lt. Governor's staff, we might as well have a Lt. Governor to go with it.

Finally, this move, if it sticks, would mean that New York State wouldn't be dependent upon the State Senate to have a Governor if the current Governor died or left the State. Imagine the chaos if David Paterson were to die, right now. Close your eyes and imagine it. Now tell me you oppose this move anyway.

All I'm saying is that the Senate STILL, at the end of the day, will have to settle its own internal problems, regardless of what the Governor does, or does not, do.

Go David Paterson. But please don't tell me you expect this, by itself, to settle the Senate's dispute.

You're not that stupid, I know....Sorry for asking.

Heimbach v. State of New York

2009-07-01T19:23:00.000-07:00

Heimbach v. State is the name of a court decision being invoked by the State Senate Democrats to justify their claim that Senator Padavan's (R-Queens) brief appearance in the Senate Chamber means they had a quorum in the chamber, thus making legal the votes taken.

The State Senate, like most legislative bodies, cannot legally act without the presence of a quorum. This is to prevent a small number of the Senators from gathering and passing bills in the name of the entire body. Without a quorum requirement of some kind, the 3 Senators whose districts are in the Albany Area could get together whenever they wished and run the Senate between them.

The date of all this was June 30, 2009, and the key memorandum outlining the Senate Democrats' argument was authored by Senate Democratic Counsel Gregory M. Krakower.

The Krakower memorandum is located here:

http://www.scribd.com/doc/17004596/Talking-Points-Passage-of-Bills-F2

The citations for the court case are:

89 A.D.2d 138 (2nd Dept. 1982) (this was a State appeals court);

59 N.Y.2d 891 (1983) (this was the State Court of Appeals, New York State's highest court, affirming the decision of the appeals court);

464 U.S. 956 (1983) (this was the United States Supreme Court; the Krakower memo identifies the year of this decision as 1984, but the database I'm using says 1983, so that's the date I'm going with).

Using databases, I was able to review these cases for myself. I don't know if interpretation of this case will prove to be important or not. If a power-sharing deal is reached, and/or if one side or the other manages to gain power without a deal in some way, it won't matter in the slightest, because it'll be the deal that's controlling. However, if there is no deal reached, this court case and how it is interpreted could have a major impact on whether or not bills passed by the Senate on June 30, 2009 were legal or not.

Assuming I am reading this case correctly , I'd be very surprised if the court accepted it as a precedent for the Padavan matter, as the circumstances were A LOT different.

The Senator at issue back then, Senator Nolan, was in the hospital undergoing elective surgery during the final hours of the Legislative Session, and specifically had filed his presence with the journal clerk before slipping out to have the surgery. (Unlike Senator Padavan who appears to have randomly wandered into Session on his way to a side room to obtain either coffee or a V-8 or a sandwich, or all 3. Accounts of what he was after have differed, and honestly I find the press's focus on that [non-]issue a little disconcerting.) Senator Nolan understood that in slipping out when he did, he was assenting to vote "aye" on all slow roll call votes, and, in response to the Heimbach v. New York case, he signed legal paper stating that in response to this suit.

The issue arose when, out of a 60-member Senate, on a particular bill 31 votes were cast "aye" (including his), 26 votes were "nay," and 3 Senators were "absent." The suit wasn't filed by members of the Senate, but by come county governments who didn't want to enforce the Chapter of Law the disputed vote enacted. (I have no idea what the subject of the legislation was. In theory it shouldn't matter for these issues, though.)

The facts of the case and the legal reasoning used were gleaned from the appeals court's decision. The State Court of Appeals merely affirmed the appeals court, and the U.S. Supreme Court case decided there was no federal question. (In other words, "upon reflection, this is strictly a state matter, so why did you bother us?")

No I am not a lawyer. Further, I fully accept that, sometimes, courts disagree with me, and probably would even if I were a lawyer. Further, this article isn't commenting on the legality of Padavan's presence in the Chamber per se. There may be all kinds of reasons why the courts could rule that his presence in the Senate Chamber did indeed constitute a quorum. However, upon reading the actual Heimbach case, I'd be hard-pressed to think the courts would consider it a precedent, because the sitautions were vastly different.

Courts have surprised me before, however, so we'll see.

Having said all that? Were I Senator Padavan, and making sure the Senate had quorum as infrequently as possible was highly important to my side of this dispute? I wouldn't have been anywhere near the chamber and it begs the question....What was he thinking? He could have slipped out and gotten his coffee, V-8, or sandwich, or whatever it was at any number of other places in easy walking distance of the capital.

What was he thinking? Please don't tell me he didn't want to pay for the items. Cynicism about politics is fine but come on now, to think he'd endanger his side of the fight to avoid paying less than $10 for some food items is a bit much!!??

EDIT: A few hours later, being the kind of person who strives for thoroughness, I went back and read the decision yet again.

First of all, I wanted to note that the bill at issue dealt with taxes in the MTA District, something of a perennial issue.

Secondly and more importantly, however, I got an important (but I'd argue not critical) detail wrong in my initial entry: The Senator at issue had told his leader (the Minority Leader of the State Senate) he was going to be absent, and the Minority Leader "forgot" to inform the Clerk.

To me, as a non-lawyer, the cases still seem really different.

But as I said in the un-edited, initial article: The court may still rule against the Republicans, I just can't see them using this particular case to do it, as the circumstances were very different. "Senator passing through the chamber," versus, "Senator wasn't going to be around all day, but absence never noted."

The underlying principle, I think, is, "the Senator doesn't have to be physically present."

In more recent years, though, the State Senate has had quorum calls in the middle of sessions before, I've seen it. So the rules regarding when they need to be in the chamber are clearly nowhere near as lax as they once were, some decades ago.

I'm just rambling now....We'll see what happens.