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.
Saturday, October 10, 2009
Tuesday, September 22, 2009
Eliot Spitzer: A Response to Something Posted on Yahoo Answers
The following question was raised on Yahoo Answers:
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.
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.
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.
Wednesday, September 16, 2009
Ethics
I attended the Commission on Public Integrity's hearing on its “Staff Legislative Proposals” on September 8, 2009, at the Legislative Office Building. There's all kinds of things I could write about that oddly magnificent building, but I was unfortunately distracted by the hearing itself.
There was something important missing there that, at the time, I just couldn't quite put my finger on.
It wasn't the fact that whomever it was actually conducting the hearing (I believe this would be Commission Chair Michael G. Cherkasky) introduced the Commissioners to his right and rattled off 6 names even though there were only 5 people to his right. It wasn't the fact that I wasn't sure if I was in the right place or not, because the announcement listed “Meeting Room B” when it meant “Hearing Room B,” and because there were no placards outside the room that explicitly stated what event was being held there. Or because the witness list they handed out lacked a header saying something like “Witness List of the Hearing on the Commission on Public Integrity's Staff Legislative Proposals.” It wasn't the fact that at least half the attendees were, from what I could tell, there mostly to hear the Chair's post-hearing remarks defending the Commission's existence and railing against the Assembly's new ethics bill.
No, it wasn't all that. I didn't put my finger on what was missing until I did some reading later on, on political ethics generally, and then it hit me.
The hearing, the Commission's work in general, and the halting, half-hearted discussions that have been held about the issue of political ethics in New York State in recent years, were all being conducted in the near-total absence of any kind of theoretical idea or conception of what we want ethical politicians to be. Hardly anyone has given much thought to what these ethical politicians will “look” like, what they will do, how they will conduct themselves.
We may I suppose take as a given that ethical politicians won't openly, or even covertly, seek or take money or gifts in direct exchange for votes or influence, be that money in the form of campaign contributions or out-and-out bribes. But, as soon as we leave that clear territory, the waters get more murkier than we like to admit. Will these ethical politicians be allowed to have outside business interests at all? If so, are they to be allowed to associate with other businesses who have business before New York State? Should lawyers have some kind of privileged status, wherein it's presumed that their outside business interests don't interfere with their public role? (Because that's how it is now, you see. You can't buy Speaker Silver dinner, but you can fire his law firm.)
Perhaps, it's best to keep even the appearance of impropriety away from Albany. So let's say we decide to bar our public officials from all outside business interests. Are we then prepared to pay legislators, say, $125,000 a year plus more “lulus” in order to make up for the fact that they could likely make at least that in the private sector? Remember that many legislators are lawyers, or have Master's Degrees, or have successful private businesses. In fact I'll bet some of them could to better financially in ordinary state service than they are doing in the State Legislature. Though granted it would take many years to get to that salary level in the civil service, once they got there they would find the work steadier, the situation more rational, and the possibility of sudden employment even more remote. Though we all know that incumbents tend to get re-elected, recent events have shown us that incumbency isn't what it once was.
What was missing from the hearing, and from all discussions of the issue so far that I've heard, was any kind of consideration of the big picture issues of political ethics. Indeed, apart from brief discussions between some of the Commissioners and some of the witnesses (mostly a representative from the Business Council), there appeared to scarcely be an acknowledgement that such issues existed at all.
I didn't really notice that, though, until after I did some reading. After a bit of reading, the absence was suddenly glaring. It made me wonder how much, if any, reading on the topic the Commissioners had done.
The first book about political ethics I read this weekend was Three Men in a Room (2006), by former New York State Sneator Seymour Lachman. That book actually didn't help as much as I'd hoped. Lachman is a Political Scientist, and a former State Legislator, so I considered his book likely to provide insights both practical and theoretical.
I was wrong. In fact, reading this book made me question how good Lachman's Political Science education could possibly be. He was shocked, shocked I tell you, to see a political culture in Albany that was leadership-centric! He was shocked that what he encountered in Albany didn't match the theoretical ideal of democracy!
I'm pretty sure that there has not been a single legislative body in the history of humanity that has matched the ideal. That's why it's called an “ideal.” This includes the Athenian Assembly, which founding father James Madison described as a “mob” in Federalist Paper # 55. “Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob,” wrote Madison. I'm pretty sure that "mobs" are considered bad for democracy.
I think it's safe to say that James Madison didn't expect any lawmaking body to be ideal, including the U.S. Congress that he had basically designed in the Constitution, and the design of which he was defending in the Federalist Papers. It's unclear to me why Seymour Lachman would be shocked that the New York State Legislature wouldn't match an ideal image, when Madison didn't have that expectation of either the Athenian Assembly or the U.S. Congress. Further, Lachman's doctoral dissertation dealt with the legislative process (it was on Congressional funding of education programs). Lachman, in short, should have known better. This is not to defend Albany or its odd political culture, but I'm shocked by the fact that Lachman was shocked by it.
Thus, one reason that Lachman's book wasn't as useful for understanding political ethics as I'd hoped it'd be was its strange naivete. Lachman seems to have had expectations that no real world legislature, not even the Athenian Assembly, could meet.
Lachman also made a critical error that someone with a PhD in Political Science shouldn't have been capable of making. When most people speak of political ethics, we really don't care all that much about ethics as an independent issue. What we care about is achieving certain results and seeing certain policies enacted. A politics that fails to enact policies we favor must be corrupt. A politics that does enact policies we favor must be honest.
Lachman made this error in his book. As a Political Scientist, he shouldn't have.
For example, Lachman bemoans the loss of the New York City “commuter tax” (pages 15-17), and cites it as an example of bad ethics in Albany. (As I understand it, the commuter tax was a special tax on people who lived outside of New York City but worked in it. The argument for it was that, while they were in the City, those people took advantage of the city's taxpayer-funded amenities, took up space and resources like everyone else, etc. The argument against it was that it primarily funded services and amenities that the payers couldn't possibly have benefited from.)
The commuter tax, Lachman suggests, was a victim of the desire of Assembly Democrats to elect a Democrat in a largely Republican, suburban Senate District. While this may be true, I've never looked into this nor am I ever likely to (I don't care that much, frankly), is it really bad legislative ethics? No one with a PhD in Political Science should be surprised that politics plays a role in legislative outcomes. Anyone who thinks that politics shouldn't play such a role is extremely naive, and doesn't get the whole “politics” thing. Lachman also speaks badly of public employee pension “sweeteners” (I didn't write down the page numbers for that one) and of David Paterson's coup against then-Minority Leader Martin Connor (pages 105-107).
Is it really bad ethics when a policy you disapprove of is enacted, whether it's pension sweeteners or ending the commuter tax? Can't it be that you just lost the debate? Is it bad ethics for a legislator to execute a successful coup against ones his or her leader? Or is that just a case of deciding that the current leader should no longer have a job, and then seizing an opportunity.
Robert Roberts (no that name is not a joke) and Maria Dasi wrote a book called From Watergate to Whitewater: The Public Integrity War (1997), wherein they argued that recent fights over ethics have by and large been extensions of pre-existing ideological and partisan conflicts. Progressives (their term, others use the term Liberal to mean the same thing) see “corruption” as a bi-product of “big money” in politics, and tend to seek ethics reforms that reduce big money's presence. Conservatives tend to see “corruption” as an inevitable bi-product of the increasing size of government, and tend to seek smaller government both as a policy end and as ethics reform. Both sides end up spending most of their time trying to develop new ethical systems and mechanisms (special prosecutors and the like), rather than asking the truly fundamental questions.
Upon reading this book my mind recalled a book I had read long ago, called Politics by Other Means by Ginsberg and Shefter (the most recent edition of this book seems to date to 2002, but the edition I read was older than that). This book had a very similar thesis to Roberts' and Dasi's, that the machinery and language of ethics had become just another means of partisan conflict. If you can't beat your opponent at election, investigate him. Bill Clinton in particular was a victim of the politics of investigation.
I also picked up philosopher David Wood's The Step Back: Ethics and Politics After Deconstruction (2005). This book is insightful and potentially important to the ethics debate, and it helped me put into words certain thoughts I'd been having that I had, hitherto, been unable to articulate. However, the problem is that David Wood is a philosopher, writing in the way that modern philosophers write, and writing mostly to his colleagues in philosophy. This is to say that his work is nearly-incomprehensible to a non-philosopher like me. His chapter titles are hard to understand, let alone his main text.
However, in between the excessive use of the jargon of academic philosophy, David Wood gives us some remarkable insights. He begins his book with this:
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.
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.
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.
Friday, September 4, 2009
The Mocha Protocol
Here is Advisory Opinion 08-1 of the New York State Commission on Public Integrity (commonly abbreviated to PIC).
Advisory Opinion 08-1, dated March 25, 2008, is a 36-page, barely coherent document wherein the PIC outlines its interpretation of provisions of the New York State Public Officers Law and Legislative Law that deal with gifts lobbyists and others with business before public officials, can give to public officials.
I take note of the fact that the computer file of Advisory Opinion 08-1 lacks a basic amenity common to most PDF files these days: character recognition. This means that you can't copy/paste from it easily, nor can you easily electronically search the document for specific words. I also note that as the document proceeds the pages tilt more and more, giving the general impression of laziness and lack of care in their work product.
At any rate....Per the Spitzer ethics law that PIC enforces, lobbyists are allowed to give legislators (and other officials before whom they have business) gifts “of a nominal value,” in acknowledgment of the fact that relationships and friendships build up over time. (Before the Spitzer ethics reform the standard was gifts of $75.) Food, drink, refreshments, etc., all count as gifts under the law. The PIC claims that the “nominal value” language occurs in the laws of other States, and the rules of the U.S. House of Representatives. I am not about to run around confirming this claim, so I'll just accept it for now.
The PIC's definition of “nominal value” begins on page 12, and continues on through page 16. Their interpretation is noticeably stricter than those of the other entities whose interpretations of similar or identical language they cite. Those other entities use as standards such tangible items as t-shirts, baseball caps, etc. But, that's just not ethical enough for New York State.
What follows is an exact quote from PIC Advisory Opinion 08-1. I had to type this by hand, rather than copy/paste, because, as I mentioned above, the PIC has neglected to include character recognition in their PDF document. So typos are a possibility, but I have proofread it a few times.
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:
(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:
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:
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:
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.
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.
Wednesday, August 12, 2009
Recent Senate Staffing Issues
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.
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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.
Thursday, July 30, 2009
The Lt. Governor Issue: An Analysis of Some Documents
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.
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.
Tuesday, July 28, 2009
Roger's Revelations
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.
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.
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.
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