Last week was a big one for Democrats in New York. The contested primaries for Governor and Attorney General hit a peak as the candidates for those offices slugged it out in televised debates two weeks before the state primaries on Thursday September 13th. In both debates, the issue of corruption in state government was a major topic.
In both debates there were accusations and pledges to be tough, but it was in the Attorney General’s debate that the issue of what to do about corruption received the most air time.
Even the most casual observer of New York State government knows that corruption has been a persistent problem. The evidence is overwhelming: A former governor was forced to resign, another had to pay a fine for lying under oath, a Comptroller was sent to prison, top aides to the governor have recently been convicted, the two former leaders of the legislature are facing prison time, and scores of additional lawmakers have gotten into hot water for unethical acts.
In most cases, it was a federal prosecutor, not a state watchdog, that investigated and brought action. Yet, on paper New York has quite a few ethics enforcers – for campaign finance, for agency misdeeds, for monitoring quasi-governmental public authorities, and for the ethics of public officials and lobbyists.
But in most cases, those watchdogs have ignored or overlooked the high profile cases brought by the feds.
In the Attorney General debate, it was the state’s leading ethics watchdog – the Joint Commission on Public Ethics – that was the candidates’ primary punching bag. All candidates claimed support for eliminating the JCOPE and replacing it with something independent.
You see JCOPE is a creature of political compromise. It has a board of 14 members (by the way the largest such Commission in the nation) who are direct appointees of the governor and the legislative leaders. All of the leaders are subject to oversight by JCOPE.
During the negotiations over cobbling JCOPE together back in 2011, all of the leaders were likely afraid that one individual would come to dominate the Commission and that they could face a threat from such an entity. As a result, the Commission is designed to give the governor or each of the leaders enough votes on the Commission to stop certain investigations.
Essentially, JCOPE was designed as a political entity, not an independent one.
At the Attorney General debate, there was considerable agreement among all the candidates that JCOPE had to go and be replaced with an entity that was independent of political influence.
But what should an independent state ethics watchdog look like and how can it be designed to be independent?
Reformers have been hard at work trying how to do just that. After all, someone has to appoint Commission members, how can the entity be independent?
One model is the state’s Commission on Judicial Conduct, a body that oversees judges and yet is made up of a majority of non-judicial appointees – all with required standards of independence. The Commission was established in the state Constitution, another benefit to its independence.
Using the Commission on Judicial Conduct as a model, reformers advanced a plan that would replace JCOPE (and some other state watchdogs) with a new ethics commission, in which the majority of the appointments would be made by the courts, not the governor and the Legislature. In that way, the new ethics commission would be sufficiently independent of those that they monitor. In addition, the members and staff of this new entity would be prohibited from communications with their appointing authorities. Finally, the proposal protects the budget of the new ethics watchdog, which offers insulation from another way in which political pressure can be brought.
Of course, nothing will change without the public clamoring for change and a real debate. And even the best of laws are not effective unless they are adequately overseen by independent, well-resourced, watchdogs. The good news is that the statewide candidates in both parties are talking about reforms. It remains to be seen if that rhetoric leads to real changes next year.