Blair Horner's Capitol Perspective

Albany’s Consequential Week

Posted by NYPIRG on February 26, 2024 at 8:08 am

Control of the next Congress may turn on what happens in Albany this week.  Lawmakers will be considering – for the second time – the political boundaries of the state’s delegation to the House of Representatives.  How those lines are drawn may well shape the future of the Republic and its role in the world.

Right now, Republicans have a razor-thin majority in the U.S. House of Representatives, the smallest in American history.  According to the Cook Political Report, New York has six incumbents that are considered vulnerable, four Republicans and two Democrats (both are in districts that “lean” Democrat). 

Five of those incumbents won their 2022 races with bare majorities.  The sixth, Tom Suozzi of Long Island, just won his old seat back in a special election earlier this month.  Thus, whichever political party dominates those New York races may well control the House in 2025.  Control of the House has obvious national implications, but it also may determine world history.  For example, the current Republican House majority has blocked U.S. support for Ukraine to defend itself from the unprovoked Russian invasion.  Democrats see that matter otherwise.  Control of the House may determine the outcome of that war. 

Even tiny majorities can have a big impact. 

The current slim Republican majority exists, to some extent, due to the Congressional boundaries drawn by the New York courts.  Instead of a significant Democratic advantage in the Congressional boundaries, Republicans received a significantly better political landscape from the court-appointed mapmaker.  Instead of as many as 22 Democrats heading to the House after the 2022 election, only 15 did.  That gave the House to the Republicans.

Those lines were subsequently challenged by Democrats in New York.  The fact that the courts established the lines, Democrats argued, should not be for the remainder of the decade.  Instead, the state’s so-called Independent Redistricting Commission (IRC) should get another crack at it.  The IRC was established in the state’s Constitution to handle redistricting.  In a Court of Appeals  decision last year, (the state’s top court) decided that the political boundaries of New York’s Congressional districts should be redrawn by the IRC.

The IRC’s structure allows for equal representation of Democrats and Republicans on its 10-member board, making it a bipartisan commission, not an independent one.  In simplest terms, the Commission develops the maps for federal and state offices and then the Legislature and the governor approve or reject them.

Under the redistricting rules, the IRC develops maps, and the Legislature then approves them with no changes or rejects them.  If rejected in the up-or-down vote, the IRC then develops a second set of maps, also subject to thumbs up or thumbs down vote by the Legislature.  If the second set of maps fails to get approval, the Legislature itself (currently controlled by Democrats in each chamber) is allowed to draft maps of its own – subject to the governor’s approval.

The lines drawn after the 2020 census were the first under this new system.  Critics had argued that the bipartisan nature of the IRC would lend itself to gridlock unless the two major political parties could come to an agreement – unlikely when faced with consequential political decisions.

In the debate over the maps for the 2022 elections, gridlock occurred.  The IRC could not agree on maps, so the Democratic and Republican members of the IRC sent separate maps to the Democrat-dominated Legislature, which rejected them.  Then the IRC could not agree on advancing a second set of maps, so the Legislature stepped in and approved one of their own.

Republicans challenged that decision and in the litigation that followed, the Court of Appeals rejected the Legislatively-drawn maps, saying that they were unconstitutional.  Instead, the court drafted maps of its own for Congress and the Legislature for the 2022 election. 

Those court-drawn maps helped Republican candidates in New York and contributed to the Republican takeover of the House of Representatives in Washington.

While the courts settled the boundary battle for 2022, after that election Democrats challenged those lines in advance of the 2024 election arguing that the court-drawn lines were only for that one election cycle and that the court should allow the IRC another chance to draw lines as required under the state Constitution. 

Last year, the court sided with the Democrats, returning the task to the IRC.  Two weeks ago, the IRC completed its work and in a 9-1 vote advanced its first plan to the Legislature.  The first vote on the IRC plan will be this week.  Whether the Legislature will agree to that plan, or kill it, may well determine next year’s House majority. 

Given the high stakes in redistricting, it should not be overlooked that the “do over” of Congressional map drawing is the result of New York’s fatally flawed redistricting system – one that relies on the two major political parties to determine political boundaries. 

Changes are needed both in New York and in the nation.  Independent, professionally-run, competent commissions using stringent criteria should be developing the political boundaries of the nation, not those appointed by the political parties.  Until that system is put in place, we will all live with the consequences of these political deals.

Cuomo Is Back in Court to Protect His $5 Million Book Deal

Posted by NYPIRG on February 19, 2024 at 10:34 am

Former Governor Cuomo’s attorneys were back in court last week in their ongoing effort to protect the former governor’s $5 million payday for the book written during the covid pandemic.  Their tactic is innovative – destroying the legal authority of the ethics agency (the Commission on Ethics and Lobbying in Government or COELIG) that is looking into whether the former governor had received the book deal money illegally. 

COELIG had begun an investigation into whether Cuomo had violated the law in the use of his staff to research and write the book for which the former governor was so handsomely rewarded.  When Cuomo was still governor, his staff had persuaded the ethics agency at that time (then known as the Joint Commission on Public Ethics or JCOPE) to allow the former governor to write a book on his experiences in dealing with the covid pandemic.  The former governor needed that approval since as a full time employee of the state (the New York Governor has the highest salary of any governor) he was not allowed to “moonlight” without ethics approval.

The former governor was widely praised for his communication of how government and the public should handle the unprecedented threat from the virus.  At the peak of his popularity, the former governor pitched a book deal to a publisher.  At around the same time the former governor’s lawyer told the ethics agency staff that they had the authority to approve the deal based on previous decisions.  The ethics staff approved the book deal — without bringing the question to the ethics agency’s commissioners.  However, the approval stated that the governor could not use public resources in writing the book.

It was that provision that a JCOPE investigation found the governor had violated.  According to the investigation, the former governor used staff to work on the book and negotiate with the publisher and used state resources to assemble the manuscript.

JCOPE had hired an outside law firm to review the situation and that firm agreed with the agency’s previous conclusion: that Governor Cuomo “misused the power and authority of his office to create, market and promote for enormous personal profit a work that not only was derivative of his official duties but could only have been brought into existence and completed on schedule through the . . . assistance of a group of Executive Chamber and other state officials.”

JCOPE then concluded that the former governor had violated the agreement and had to again request approval or pay the money back to the state.  However, soon thereafter the entity was disbanded under legislation advanced by the current Governor Hochul.

The new ethics agency, COELIG, then decided to investigate the JCOPE conclusion that Cuomo had violated the book deal agreement.  It was that renewed investigation that the former governor is trying to block in court.  He is now, however, not seeking to challenge the investigation directly, instead he is seeking to undermine the legality of the new ethics agency itself and in doing so stymie the ethics agency’s look into the book deal.

In September, the former governor won the first round.  A state Supreme Court judge found that the ethics agency is indeed unconstitutionally constructed and blocked it from further investigating the book deal.  That decision said that the ethics agency’s independence from the governor violated the state Constitution’s separation of powers principle.  Last week, the appeal of that decision was heard

At the appellate court argument, lawyers for the state and the former governor battled it out over the authority of the governor to cede her authority to an “independent” ethics watchdog.  The law establishing the current ethics agency should be allowed, the state Attorney General’s lawyer argued, since the constitutional framing of the separation of powers should rely on flexibility and common sense.  It can’t be so inflexible a principle that a governor cannot address a public crisis in confidence in government by establishing an entity that can have some oversight over the executive branch.  After all, the state ethics agency is tasked with overseeing the ethics of the governor.  How can that happen if they are under the authority of the governor?

The lawyer representing the former governor disagreed.  His argument was that the state Constitution mandates that any agency established within the executive branch must be controlled by the governor’s authority.  Thus, since the current ethics agency contains only three of eleven appointees of the governor, it is not under her control.  As a result, it is unconstitutional (and cannot investigate the former governor’s book deal).

Whichever way the court rules, it is likely that the losing party will appeal to the state’s highest court.  If that court rules against the former governor, he could be out $5 million.  If the former governor wins, it’s back to the drawing board for ethics enforcement and Cuomo will be able to keep his covid book windfall.

World Cancer Day and New York’s Failure

Posted by NYPIRG on February 12, 2024 at 10:23 am

The world focused its attention on cancer last week.  World Cancer Day was a way to educate the public about the threats posed by cancer and create pressure on policymakers to adopt science-based approaches to reducing the incidence of the diseases and to cut deaths from cancer.

The Union for International Cancer Control (UICC), the organizer of World Cancer Day, laid out its mission, that it hoped that the Day “encourages everyone to ask their governments to improve health equity, to make it easier for all populations to enjoy affordable and accessible cancer services, and to reduce disparities in cancer incidence and mortality.”

While there are hundreds of different kinds of cancers, including many that are the result of environmental exposures or genetics, there is one that far and away is the biggest killer: lung cancer.  Last week, the World Health Organization’s International Agency for Research on Cancer released its worldwide data on the incidence and deaths caused by cancer.  While there is a lot to be learned from the IARC, what is crystal clear is that lung cancer is the single biggest killer worldwide. 

According to its report, “Lung cancer was the leading cause of cancer death (1.8 million deaths, 18.7% of the total cancer deaths) followed by colorectal cancer (9.3%), liver cancer (7.8%), breast cancer (6.9%) and stomach cancer (6.8%). Lung cancer’s re-emergence as the most common cancer is likely related to persistent tobacco use in Asia.”

The situation in the U.S. is consistent with the world.  The U.S. Centers for Disease Control and Prevention (CDC) says that cancer is the second leading cause of death in America.  Here in New York, the most recent cancer statistics from the American Cancer Society estimated that the top five cancer killers account for half of all the estimated cancer deaths in New York, with lung cancer far and away the biggest killer.  According to the group, over 6,000 New Yorkers will die from lung cancer – which is more than the combined deaths from colon and breast cancers.

Lung cancer is most often caused by tobacco use.  But lung cancer is not the only cancer that can be caused by tobacco use.  According to the CDC, tobacco use results in cancers of the mouth and throat, voice box, esophagus, stomach, kidney, pancreas, liver, bladder, cervix, colon and rectum, and a type of leukemia.  And tobacco users aren’t the only ones at risk, exposure to tobacco smoke by those who are non-smokers raises their risk of cancer. 

Of course, while the statistics may be new, the devastation resulting from tobacco use and its impacts on cancer go back a very long way in America.  It has been well-studied and the policies that should be implemented are also well-researched. 

The CDC offers the states the scientifically-based best practices for reducing tobacco use.  The CDC recommends that New York State spend between $142 million and $203 million annually on its tobacco control efforts.

Governor Hochul’s budget rejects that expert recommendation.

Governor Hochul has consistently failed to advance tobacco control funding that comes anywhere near what the CDC recommends.  According to an independent review of the state’s tobacco control funding, New York’s budget is “only 17% of the Centers for Disease Control and Prevention’s (CDC’s) recommended level for the state, even as New York faces ongoing health and economic effects from tobacco use. The low funding levels in recent years have posed challenges for the Program to make progress across its areas of focus.”

Why does Governor Hochul fail to follow the expert advice of the CDC?  It can’t be from a lack of money.  Her proposed state budget this year totals more than $233 billion.  It also can’t be that the state doesn’t collect enough from tobacco users – through taxes and other revenues – to fund efforts to help them quit and to keep kids from starting.  Last year, the state increased its cigarette tax by $1, making it the highest in the nation. 

New York annually collects nearly one billion dollars in tobacco taxes and received last year another $740 million as the result of a litigation settlement (the Master Settlement Agreement) with Big Tobacco.

New York State has the money to adequately fund its tobacco control efforts, but it chooses not to.

State lawmakers are wrapping up their budget hearings this week.  New Yorkers should hope that the final budget agreement follows science and invests an adequate portion of the hundreds of millions of dollars it gets from smokers into programs that will help them kick the addiction and keep kids from starting.  Rejecting science and starving the program will result in the needless misery and early deaths of far too many of lawmakers’ constituents.

New York’s Environment Gets a Legislative Hearing

Posted by NYPIRG on February 5, 2024 at 10:02 am

State lawmakers have been moving along through the legislative budget hearings process and are expected to wrap them up next week.  This week, one of the big hearings focuses on Governor Hochul’s proposed budget plans for the environment.

Like in any proposed Executive Budget, the governor’s plan contained good news and bad.  Her proposal included ending the so-called “100 foot rule.”  The 100 foot rule, which dates back to 1981, requires energy utility companies to hook up any new customer to its gas line if the transmission line is within 100 feet of the structure and the customer wants the hookup.  The connection is provided at no charge to the new customer and the hookup cost gets spread among all gas ratepayers.  Advocates for scrapping the rule argue that it incurs costs of $1 billion over five years, distributed among gas ratepayers.

The governor proposed that the state’s Environmental Protection Fund maintain its funding at $400 million, although she does shift some costs within the program.  The governor also proposed to spend $250 million of the state’s recently approved Environmental Bond Act for a voluntary buyout of properties threatened by climate change and spending $47 million to plant over 25 million trees by 2033.

Her budget did draw jeers from environmentalists for some of the plans – in particular her plan to cut in half the state’s investments in upgrading water infrastructure.  The Cuomo Administration had pledged in 2019 to spend $2.5 billion investing in upgrading water supplies, with that spending phased in over five years.  The five years are up.  Governor Hochul has proposed in her budget that the state spend $500 million over two years ($250 million per year) on water infrastructure upgrades, cutting in half the amount spent over the previous five years. 

For many, one area that the governor did not address got the most negative reaction.  The governor did not meaningfully tackle the looming costs from damages caused by a rapidly heating planet.  The governor did propose a comprehensive resiliency plan to “protect New Yorkers from extreme weather as part of her 2024 State of the State and included $435 million in the Executive Budget proposal to help implement the initiatives.” 

But as proposed by the governor, those costs would be borne by the taxpayer.  And the amount she recommended is woefully inadequate to meet the worsening task.

New York’s climate costs are expected to skyrocket.  It has been estimated that Long Island alone faces up to $100 billion in climate costs.  A study from NYS Comptroller DiNapoli found that over a ten-year period (the last five and next five years), more than half of New York localities’ municipal spending outside of NYC was, or will be, related to climate change.  New York City estimates as much as $100 billion will be needed to upgrade its sewers for more intense storms.  And those costs are on top of the $52 billion that the U.S. Army Corps of Engineers has estimated is needed to protect New York Harbor from rising sea levels.  Those costs – like the temperature of the planet – are expected to keep increasing.

New Yorkers could see those costs rise to as much as $10 billion annually.  New York taxpayers shouldn’t have to bear that burden alone.

Yet, the governor’s budget did not highlight the necessary funding for tackling this problem.  According to my colleagues at NYPIRG, New York spent over $2 billion last year to address climate damages and resiliency costs.

Unless something changes, the costs of addressing the damages from a worsening climate – repairing roads and bridges, protecting low-lying areas, adding air conditioning to schools and much more – will be borne by taxpayers.  Those most responsible for the mess that we’re in – the biggest oil companies – are off-the-financial-hook. 

Big Oil has known for decades that the burning of fossil fuels would trigger a heating planet and possible devastation.  The most recent revelation is that the industry knew as early as 1954 of the possible dangers.  That’s not the only evidence, but despite knowing, the industry did all it could to undermine efforts to address the climate crisis they caused and knew was coming.

Meanwhile, while the bills pile up for taxpayers, the industry responsible for this mess is raking in cash.  The top Big Oil companies in the U.S. are on track for a second consecutive year of record profits, and the industry globally is performing much better than expected.  Those record profits allowed them to deliver unprecedented returns to shareholders.

Unless something changes, Big Oil will continue to enrich itself, block needed actions, and New York taxpayers will be stuck with the tab.

As New York’s budget process plays out, making Big Oil accountable for the mess that they made, must be central to the state’s environmental budget.

Governor Hochul’s Budget Plans for Democracy in NY

Posted by NYPIRG on January 29, 2024 at 8:35 am

Buried deep in Governor Hochul’s budget plans are measures that can have a big impact on democracy in New York.  While virtually anything in a budget can impact democracy, the governor’s budget plans offer measures to reduce the influence of special interests and impact public oversight.

Reducing the influence of big money donors in state elections will bolster democracy in New York.  In her budget, the governor proposed $100 million to provide money for the state’s new voluntary system of public financing for candidates running for state office.

Allowing a voluntary system of public financing – a system that rewards candidates who collect a large number of small contributions – has been long advocated by reformers in New York.  An early call came from a commission established by Governor Mario Cuomo in the 1980s.  That commission – known as the Feerick Commission after its chairman law school dean John Feerick – reviewed the state’s campaign financing system, ethics laws, and public accountability measures.  Their reviews, based on research and public hearings, led to the publication of over 20 reports released through the end of the Cuomo era in 1994. 

The Feerick Commission was more formally known as the Commission on Government Integrity and was established through the state’s Moreland Act, which grants the governor the authority to establish such an entity in order to root out corruption. 

The Feerick Commission’s judgment on New York’s campaign financing system was devastating:  The state system, it concluded, was a “disgrace” and an “embarrassment.”  The Commission then scolded state leaders for failing to act, “Instead partisan, personal and vested interests have been allowed to come before larger public interests.”

The Feerick Commission called for a voluntary system of public financing and that call had been echoed over the thirty-five years since.  In 2020, a new law was approved that instituted many (but not all) of the Feerick Commission recommendations.  No longer would New York have the highest campaign contribution limits of any state with limits.  Instead, lower contribution limits were approved (although still much higher than the national average) and a voluntary system of public financing was established.  The new law went into effect for the next state election cycle, right after the 2022 election.  So far, well over 100 candidates have joined the program.

At its core, the new program matches small donor contributions (up to $250) to candidates in state government races (governor, attorney general, comptroller, state legislature) with public resources.  For the legislative candidates, the smaller the contribution, the bigger the match. Thus, for the first $50 of a contribution, there is a $12 in public resources-to-$1 in contribution match.  Then it’s a ratio of $9-to-$1 for next $100, and finally $8-to-$1 match for the final $100.  As a result, a $250 contribution gets $2,300 public matching funds for a total of $2,550. 

The governor proposes that the state spend $100 million to provide the matching funds, which experts believe will be adequate for the upcoming legislative elections, if the Legislature agrees.

The governor’s budget plan also proposes spending boosts for the Board of Elections and the state’s new ethics watchdog, the Commission on Ethics and Lobbying in Government. 

Unfortunately, the governor did not propose to close the lobbying loophole that allows special interests to secretly spend money to impact the state Senate’s decisions on gubernatorial appointees.  Under New York law, for example, spending money to influence the Public Service Commission’s decision on utility rates is considered lobbying, but spending money to influence who is chosen to head the Public Service Commission is not.  Such a distinction makes no sense, but it’s the law.  Legislation that would have closed that loophole was vetoed by Governor Hochul last year and it is expected that lawmakers will make another run at closing it again.

In one area, the governor’s budget plan cuts a funding request made by a state watchdog.  The state Commission on Judicial Conduct is the agency responsible for investigating complaints made against judges.  Facing an increasing workload, the Commission had requested $770,000 in additional funding.  Yet in her budget plan, the governor cut that request and instead proposed a $184,000 increase.

Similar reductions in the increase in state aid are found throughout the governor’s budget.  The Hochul Administration presented a budget that proposes to close a multi-billion-dollar budget gap without raising taxes.  Yet, given the world we live in, a world in which democracy is under constant attack, preserving the ability of agency watchdogs to do their jobs should be at – or near – the top of any budget plan.  Lawmakers will soon get their chance to finalize the state’s budget plan.  Keeping the good proposals, while rejecting the bad, will be a real test of their commitment to protecting New York’s democracy.