It’s political science 101: The executive proposes and the legislative branch disposes. Last week, Governor Hochul proposed her $216 billion state budget. Her plans include not only spending proposals, but policy changes as well.
This week the Legislature begins its review of the governor’s plans. In its first hearing, lawmakers will examine the governor’s proposed spending on public protection and general government. Among the hundreds of pages of bill language, lawmakers will examine the governor’s plans to reform New York.
The proposal that is likely to draw the most attention is the governor’s proposal to replace the state’s ethics watchdog, the Joint Commission on Public Ethics (JCOPE). The Joint Commission has been plagued by allegations of its failures to enforce the law, being too secretive, and for too often bending to the will of the state’s political leaders.
Why? The agency was not created to be independent. Albany’s political elite wanted an agency that would be accountable to them, not free to enforce the ethics laws without political fear or favor. And that’s what they got and that’s why it failed.
Now Governor Hochul wants to strengthen ethics. She’s reported to have remarked that she wants to “blow up JCOPE.” And in her reform proposal, she’s done that, sort of.
While leaving much of the existing law in place, the governor’s plan focuses on eliminating the existing Commission’s membership and replacing them. She changes the name to the “Independent Commission on Ethics and Lobbying” and requires it to operate more openly.
How does she make the new entity “independent”? Here’s where the governor’s plan starts to go astray. The key problem has always been about who chooses the leadership of the ethics agency. In the previous incarnations, the governor and the other political leaders of the state chose the ethics agency leadership. In effect, the regulated were choosing their regulators.
Governor Hochul has come up with a different approach. Instead of the new commissioners being chosen by Albany’s political leadership, her plan empowers New York’s law school deans to do it.
Relying on “trusted outside” decisionmakers is one way to solve the independence problem. Yet law school deans are not – as a group – free of political pressure. All report to institutions, either larger universities or boards, which can be pressured. Moreover, these institutions and boards are not – first and foremost – accountable to the public.
Furthermore, all law schools are involved in lobbying of state and local governments and the new ethics agency will be regulating state and local lobbying. Thus, reliance on a “trusted source” model must have its own protections from political influences if it is to be viewed – and actually be – politically independent.
Here the governor’s plan falls short. Simply by dint of being a law school dean, these individuals are selecting the new ethics commission membership. There are no conflict-of-interest provisions, no swearing of an oath to ensure that their decisions are for the public’s best interests, no restriction on their conversations with political players. Even law school deans need ethics guardrails.
Whether lawmakers are interested in strengthening the governor’s plan or using its weaknesses to simply keep the status quo remains to be seen. Given the scandals that have plagued the state, New Yorkers deserve action. The governor attempts to solve the ethics oversight problem by creating an ethics commission selection committee of the state’s law school deans. These deans would make the decisions on who would serve on the new ethics commission. It is clear that the governor is correct to replace the current Commission.
Yet, the plan is flawed and should be strengthened by the Legislature. What the Legislature should not do is use criticism of the governor plan’s flaw as an excuse for inaction. Inaction or tinkering around the edges is simply unacceptable.
New Yorkers should applaud the first step taken by the governor, but demand that her plan be improved upon. Failure to strengthen New York’s democracy should be unacceptable. Lawmakers are elected to solve problems, to the greatest extent possible, and New York’s democracy is in desperate need of reform.
New York’s democracy has been badly damaged by a steady drumbeat of scandals and corruption. The governor and lawmakers must act to restore integrity and public trust in government.
Blair Horner is executive director of the New York Public Interest Research Group.
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