Eliot Spitzer: A Response to Something Posted on Yahoo Answers

The following question was raised on Yahoo Answers:

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

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

And here's my answer.

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

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

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

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


The Law

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

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

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

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

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

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

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

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

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

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

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


Recklessness

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

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

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

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

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

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

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

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

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


Hypocrisy

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

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

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

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


Conclusions

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

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

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

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

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

Ethics

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Mocha Protocol

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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