Com­mis­sions make law be­hind closed doors

The Saratogian (Saratoga, NY) - - FRONT PAGE - By Marina Vil­leneuve

AL­BANY, N.Y. >> New York­ers can ex­pect more fire­works as po­lit­i­cal ap­pointees fin­ish writ­ing laws for a $100 mil­lion sys­tem to let po­lit­i­cal can­di­dates run with pub­lic funds.

Crit­ics ar­gue the nine-mem­ber Pub­lic Cam­paign Fi­nanc­ing Com­mis­sion is the lat­est ex­am­ple of law­mak­ers and the gov­er­nor fail­ing to pass laws them­selves and un­con­sti­tu­tion­ally shov­ing off re­spon­si­bil­ity to a state com­mis­sion that lacks ex­per­tise, staffing and a bud­get for le­gal bat­tles.

Law­mak­ers bud­geted $100 mil­lion for a sys­tem that would match can­di­dates’ fundrais­ing with tax­payer money in hopes of re­duc­ing the role of deep-pock­eted donors and cor­po­ra­tions that have long held sway in Al­bany. The com­mis­sion has un­til Dec. 1 to re­lease its pro­posal, which be­comes law un­less law­mak­ers re­turn to Al­bany to over­turn it.


The com­mis­sion­ers seem to agree on some big is­sues, in­clud­ing how much can­di­dates must raise to qual­ify for pub­lic match­ing funds and from how many donors. But they could al­ways change their minds, so what their fi­nal re­port will say is un­clear.

This week, com­mis­sion­ers voted for lim­its of $5,000 per donor for As­sem­bly races and $10,000 for Se­nate races, down from roughly $9,000 and

$19,000. Some com­mis­sion­ers warned against set­ting the lim­its any lower, say­ing that would hurt can­di­dates op­posed by in­de­pen­dent groups who can spend vast sums.

But Rein­vent Al­bany se­nior pol­icy ad­viser Alex Ca­marda said the pro­posed lim­its are still much too high to com­bat cor­rup­tion. Fed­eral pres­i­den­tial can­di­dates, for ex­am­ple can raise $5,600 from a sin­gle donor.

“They still per­mit can­di­dates to rely heav­ily on big money, in par­tic­u­lar in­cum­bents, which is one of the main prob­lems with cam­paign finance in New York State,” he said.

Ad­vo­cates want to limit pub­lic match­ing funds to money from small donors, pre­vent can­di­dates from rolling over war chests from pre­vi­ous elec­tions and al­low can­di­dates to seek outof-district match­ing con­tri­bu­tions.


The com­mis­sion may also make it tougher for mi­nor par­ties like the In­de­pen­dence, Con­ser­va­tive and Work­ing Fam­i­lies par­ties to get on the bal­lot in a gen­eral elec­tion.

Right now, a small party can get a bal­lot line if their can­di­dates got 50,000 votes in the last elec­tion. New York State Demo­cratic Party Chair­man Jay Ja­cobs, a com­mis­sioner, has pro­posed rais­ing that re­quire­ment to 250,000 votes. That’s a level few small par­ties now reach.

Sup­port­ers worry the com­mis­sion could weaken third par­ties in other ways. For ex­am­ple, Ja­cobs op­poses fu­sion vot­ing, where ma­jor party can­di­dates can have their names ap­pear in sev­eral places on a bal­lot if they get en­dorsed by a mi­nor party.


Cuomo lost the en­dorse­ment of the lib­eral Work­ing Fam­i­lies Party to the ac­tress and ac­tivist Cyn­thia Nixon in his last re­elec­tion cam­paign. Now, crit­ics claims Cuomo op­er­a­tives want to pun­ish the party.

Ja­cobs, one of two com­mis­sion mem­bers ap­pointed by Cuomo, has de­nied sug­ges­tions that his pro­pos­als are linked to the gov­er­nor’s own po­lit­i­cal fights and claimed some par­ties in­clud­ing the Women’s Equal­ity Party — which Cuomo cre­ated — are “shams.” Cuomo has pub­licly scoffed at sug­ges­tions that he’s tar­get­ing the Work­ing Fam­i­lies Party and claims that cut­ting down on par­ties on the bal­lot would re­duce costs for pub­lic cam­paign fi­nanc­ing.

“It’s very easy to be a can­di­date,” said Cuomo’s ad­viser Richard Az­zopardi.


In re­cent years, New York law­mak­ers and Demo­cratic Gov. An­drew Cuomo have thrown con­tentious is­sues — from hik­ing leg­is­la­tor pay to tax­ing mo­torists who en­ter con­gested New York City ar­eas — to sim­i­lar com­mis­sions, giv­ing them broad au­thor­ity over sweep­ing changes.

“Com­mis­sions are a way of el­e­vat­ing the vis­i­bil­ity of is­sues and some­times po­lit­i­cally post­pon­ing ac­tion so you can gather a ma­jor­ity,” said Ger­ald Ben­jamin, di­rec­tor of the Ben­jamin Cen­ter at SUNY New Paltz.

He said com­mis­sions can pro­vide ex­pert rec­om­men­da­tions on com­plex poli­cies.

But law­mak­ers are now giv­ing com­mis­sions the power to essen­tially make laws them­selves, ac­cord­ing to Ben­jamin.

“The Leg­is­la­ture can’t del­e­gate a leg­isla­tive func­tion,” Ben­jamin said. “When you say some­thing will be­come law, ab­sent a leg­isla­tive veto, it’s the same as pass­ing a law.”

Az­zopardi, the Cuomo ad­viser, said state courts have up­held the con­sti­tu­tion­al­ity of state com­mis­sions whose rec­om­men­da­tions can be­come law.

As law­mak­ers cede some of their power to com­mis­sions, po­lit­i­cally con­tentious is­sues are in­creas­ingly be­ing set­tled in court: A state judge struck down a com­mis­sion’s 2018 move to hike law­maker pay and ban out­side in­come, for in­stance.


Com­mis­sions lack staffing and bud­gets, which crit­ics say fuel con­cerns about pub­lic ac­count­abil­ity and trans­parency.

For in­stance, com­mis­sion­ers have yet to name an of­fi­cer re­spon­si­ble for han­dling re­quests for pub­lic records — a key tool for un­der­stand­ing how tax­payer money is be­ing spent and gov­ern­ment agen­cies are op­er­at­ing.

“The in­abil­ity to re­spond ad­e­quately to FOILs is un­for­tu­nately a symp­tom of how this com­mis­sion has be­haved since day one, with too lit­tle trans­parency and ac­count­abil­ity and ac­tions that sug­gest in­stead of fol­low­ing data and ex­pert ad­vice, peo­ple at a higher level with po­lit­i­cal mo­ti­va­tions are pulling the strings,” said Dave Palmer, cam­paign man­ager for Fair Elec­tions NY, ref­er­enc­ing New York’s Free­dom of In­for­ma­tion Law.

A lawyer rep­re­sent­ing the com­mis­sion in lit­i­ga­tion told The As­so­ci­ated Press that the com­mis­sion would grant or deny its own pub­lic records re­quest for doc­u­ments that would shed light on the com­mis­sion’s de­ci­sion-mak­ing process by the day after Thanks­giv­ing.

Mean­while, it’s un­clear how much the com­mis­sion’s le­gal bat­tles are cost­ing tax­pay­ers: Demo­cratic state At­tor­ney Gen­eral Leti­cia James ap­proved out­side coun­sel for the Pub­lic Cam­paign Fi­nanc­ing Com­mis­sion, but the comptrolle­r’s of­fice didn’t say Fri­day how much money has been spent on le­gal bills.


Cuomo says law­mak­ers can sim­ply re­turn to Al­bany if com­mis­sion­ers ap­pointed by leg­isla­tive lead­ers don’t act as ex­pected.

But Gov­ern­ment Jus­tice Cen­ter lawyer Cameron Macdon­ald notes a minority of law­mak­ers could refuse to show up and sab­o­tage such a vote.

The com­mis­sion could also be dis­banded.

Mean­while, a state judge is set to hear oral ar­gu­ments Dec. 12 about mi­nor par­ties’ claim that the com­mis­sion and its con­sid­er­a­tion of fu­sion vot­ing is un­con­sti­tu­tional.

Work­ing Fam­i­lies Party lawyer Richard Brod­sky said the judge re­cently said he wouldn’t grant a mo­tion to toss the law­suit.

“You can­not undo a con­sti­tu­tion through a com­mis­sion,” Brod­sky said.

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