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Blair Horner's Capitol Perspective

The Battle to Stop E-cigs Moves to the Front Page

Posted by NYPIRG on September 16, 2019 at 8:16 am
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The electronic cigarette industry has done much to make up for the decline in tobacco consumption in America by getting the public to buy into its arguments that e-cigarettes are a “safer” alternative to smoking tobacco.

Of course, the electronic cigarette industry has never proven their products’ safety, they just assert the benefits.  Now, after aggressively marketing their products – particularly their flavored products – the health damages are becoming more apparent.

Earlier this month the federal government’s Centers for Disease Control and Prevention (CDC) said the number of electronic cigarette use – or vaping – related illnesses had increased to at least 380 cases in 33 states and cautioned people about using e-cigarettes.  In addition, the CDC reported five deaths from vaping-related respiratory illness.

And the flavored vaping has had a tremendous impact on the number of minors using these products.  Five million minors, mostly in their high school years, reported that they had used e-cigarettes. About one-quarter of the nation’s high school students reported vaping within the last 30 days in this year’s annual survey, up from 20 percent last year.

This rapid increase in usage, as well as the growing number of reported illnesses and deaths, has pushed public officials to begin to act. 

At the federal level, the federal Food and Drug Administration sent a warning to the largest electronic cigarette maker – Juul – that accused it of violating federal regulations by its promoting of its vaping products as a healthier alternative than traditional tobacco cigarettes.  Next, the President has said that his Administration is considering a ban on all flavored vaping products. 

Over this past weekend Governor Cuomo announced that the state’s Public Health and Health Planning Council would take up regulations that would ban the sale of candy and fruit flavored vaping devices and pods.

One major difference between the Trump Administration’s and the Cuomo plans is that the federal regulations would include a ban on the sale of mint and menthol flavors, New York’s plan would not.

The governor’s rationale to defend his decision to allow menthol flavors to continue to be sold was his assertion that those menthol products could help people stop smoking traditional cigarettes.  The governor’s surprising assertion is not backed up by the Food and Drug Administration which has not approved e-cigarettes as smoking cessation devices. In fact, a recent study found that most people who intended to use e-cigarettes to kick the nicotine habit ended up continuing to smoke both traditional and e-cigarettes.

Menthol is a particularly deadly flavor.  When used in cigarettes, menthol poses a tremendous public health threat. A 2013 FDA report on the health impact of menthol cigarettes determined that menthol cigarettes lead to increased smoking initiation among youth and young adults, greater addiction and decreased success in quitting smoking.  Further, FDA’s Tobacco Products Scientific Advisory Committee’s concluded, “Removal of menthol cigarettes from the marketplace would benefit public health in the United States.”  When Ontario, Canada banned menthol cigarettes in early 2017, its initial evaluations suggested that the law resulted in increased attempts to quit and smoking cessation among adult menthol smokers.  As a result, the Canadian government subsequently banned menthol cigarettes nationwide later in 2017.

Menthol has particularly appealing qualities for novice smokers. Menthol is a chemical compound that cools and numbs the throat, reducing the harshness of cigarette smoke, making menthol cigarettes more appealing to young people who are beginning to use tobacco.

Allowing the continued use of menthol vaping products makes little sense.  The Trump Administration may, or may not, knock out menthol flavors.  The track record of the President delivering on his promises is not great, but if he does, it would supersede New York’s weaker approach.

But the decision of the Cuomo Administration is only final when the Public Health Council acts.  New Yorkers who care about curbing the deadly impact of vaping should hope that they go further than the governor’s statement and ban all flavored vaping products, including menthol.

Campaign Finance Overhaul Begins

Posted by NYPIRG on September 9, 2019 at 7:44 am
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Campaign finance reform, long-promised but never enacted, is starting to take shape in New York.  As part of this year’s budget agreement, Governor Cuomo and the legislative majorities agreed to establish a Commission to create a voluntary system of public financing of elections.  In and of itself, the creation of a commission was not new; there have been other blue-ribbon panels that have examined the issue.  What was new was that the Commission’s recommendations would have the force of law when approved by December 1st of this year.

This week, the Commission is holding the first of five public hearings on the issue.  Sounds promising.  But there are some early signs of trouble that could undermine the Commission’s work.  The Commission apparently has no resources – it doesn’t even have its own website for example – and has no staff.  The invitations to testify were sent from individual commissioners’ email addresses.

Given the paucity of resources, how should the Commission best achieve its goals?  Let’s start by examining why the system is needed in the first place.

According to a new report issued by the New York Public Interest Research Group (NYPIRG), currently state legislators run for office relying on private campaign contributions.  Overwhelmingly the sources of that money are typically powerful and wealthy interests.  The report found that organized interests, businesses, and individuals contributing more than $200, represented roughly 90 percent of the money raised by the winners of state Senate and Assembly elections.  The biggest category of contributors were political action committees and limited liability companies – both of which usually have business before the government.

Such a system, one in which the bulk of the money paying for the campaigns of state candidates comes from parties with a vested interest in legislative outcomes, creates an inherent conflict of interest.  Lawmakers rely on campaign funds from interest groups and then meet with their lobbyists who are asking for favors.  Sometimes those favors result in scandals and corruption.

That’s why previous commissions examining New York State’s campaign financing system have been harshly critical.  One commission in the 1980s called New York’s campaign financing system a “disgrace” and an “embarrassment.”

Thirty years ago when then-Governor Mario Cuomo and state legislators could not agree on reforms, the 1980s commission scolded state leaders for failing to act, charging that “Instead partisan, personal and vested interests have been allowed to come before larger public interests.”  That same commission, on the other hand, congratulated New York City public officials who had worked to create a voluntary system of public financing for candidates running in City elections.

A voluntary campaign financing system, that commission believed, was an important reform that could provide the resources for candidates – but without attaching the strings that all too often come when private contributions are donated by interest groups.  Thus, a public financing system could both reduce the influence of powerful interest groups and reduce the risk of political corruption.

Three decades later, the New York City system has expanded and evolved into a model for the nation.  Indeed, in the 2018 City election, voters overwhelmingly voted to approve a referendum proposal that further strengthened the system and City voters agreed to additional tax dollars being used to fund the program.

So what should the new Commission, with a mandate to establish a voluntary system of public financing for state government, do?

Since the new Commission appears to have little or no resources and the deadline for finalizing its plan is December 1st, the first step should be to embrace the successful, three-decade old program already operating in the state of New York.

The program may need some tweaks to adapt it to state elections, but it is road tested.  By advancing that program as its starting point, the debate over the next 90 days would be focused on tweaks that may be necessary in order to scale up a citywide program – in a municipality that accounts for nearly half of the state’s population – to one that covers all state offices.

With fewer than 90 days until their plan is due, it makes little sense for the Commission to waste time contemplating the universe of possible systems or focus on unnecessary election law changes.  By putting out the New York City program as its starting point, the Commission would have the benefit of 30 years of experience and could focus on details needed to scale it up to a statewide system.

The clock is ticking.  The Commission has a lot of work to do; New Yorkers must hope that they attack their responsibilities with a smart strategy based on success.

The State Finally Starts the Process to Establish a Public Campaign Financing System

Posted by NYPIRG on August 26, 2019 at 10:59 am
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There is a clear need for a new campaign financing system.  Under New York State’s current campaign financing system, a small number of big contributors dominate the system and have an outsized influence over policymaking.  As a result, seemingly endless campaign finance “pay-to-play” controversies and scandals have occurred over the decades.  Reformers, academics, blue-ribbon commissions, and others have consistently advanced plans that would shift that paradigm to a system to fund runs for state government offices that relies on a large number of small contributors, thus reducing the corruption risk and engaging more voters.

Finally, after decades of reports and hand wringing, as part of the budget earlier this year Governor Cuomo and the state Legislature agreed to create the commission to work out the final details to institute a voluntary system of public financing in New York.

Last week, nearly five months after it was established in law, that state commission held its first meeting.  The commission is charged with creating this new system by December first of this year, about three months from now.

Why did it take so long to get moving?  The governor and the legislative leaders took months to make their legally required appointments.  Months of foot-dragging by the leaders has left the commission will precious little time to meet the deadline of December 1st.

Yet, things are never as they seem in Albany.  Almost immediately, the governor and others have argued that an additional mandate of the commission is to determine whether “fusion” voting would continue to be allowed as well.

“Fusion” voting is a system in which candidates for elective office can run on multiple political party lines and then aggregate total of votes of these lines to determine the total number of votes for a particular candidate.  Thus, for example, a candidate running on the Republican and Conservative party lines would be allowed to total the number of votes – or “fuse” them – in order to determine if they won an election.   In the vast majority of states, this practice is not allowed; in those states each party line is considered a separate vote and thus the total votes are not aggregated. 

New York is among the small number of states in which “fusion” is allowed and there has been a decades-long debate over whether this is a good idea. 

But there is nothing in the law creating the public financing commission that says they must consider fusion voting.  The word “fusion” is nowhere to be found. 

In fact, in order to ensure that it was clear that the commission’s mandate was to be narrowly focused on the issue of creating a system of public financing, no more and no less, there was a discussion on the state Senate floor while the Senators were voting on the plan to establish the commission.  During that discussion, the chair of the Senate Elections Committee unequivocally stated that the charge of the commission was limited to the specific changes needed to establish public financing – nothing more.

So why are there reports inaccurately stating that the commission must consider “fusion” voting?  It’s an effort by those wishing to end fusion voting to create enough “buzz” around the issue that their interests become a reality.  And so far, it’s working.

Media reports on the first meeting of the commission stated that it must address fusion voting even though there is no such mandate in the law and there was no debate on the issue during the group’s first meeting.

In politics, advocates can create a public perspective so strong that it can become a reality, as long as they stick with it and push their views over and over.  And as long as prominent leaders, in this case the governor, embrace that view, they can succeed.

Whether fusion voting is a good idea should be left for another day.  The commission has only three months to put together a plan for public financing – a mandate clearly articulated in state law.  Dithering over unrelated issues will only cause a major distraction of the important work at hand.

New Yorkers should expect these commissioners to do their job and not get pushed and pulled by invisible demands.  They must focus on a mountain of important decisions – staffing, setting rules for decision-making, holding public hearings, consulting with experts, and developing a voluntary system of public financing that will have the force of law by this December.

The commission has a lot to do and precious little time to do it.  The time crunch is not their fault, that failure lies with the governor and the legislative leaders.  However, New Yorkers must hope that the commission does not compound the leaders’ error by focusing valuable time on issues outside the scope of their mandate.

Decisions Loom in Advance of New York’s Presidential Primary

Posted by NYPIRG on August 19, 2019 at 11:39 am
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New York is notorious when it comes to a cornerstone of its democracy: voting.  For decades, voter turnout rates have been abysmal, typically ranking at, or near, the bottom in the nation.  An important reason for New York’s pathetic voter participation rates has been its confusing and cumbersome registration system.

New York has one of the nation’s earliest deadlines for being able to register in advance of an election: 25 days prior to Election Day.  And in a peculiar twist, the state’s registration deadline rules dramatically impact voter participation in Presidential primaries.

The Democratic and possible Republican Presidential primaries in New York will be in April 2020.    Under current New York law, the last day voters can change their party enrollment for the 2020 Presidential and state primaries is Friday, October 11, 2019.  

Voters who seek changes of political party enrollment after that date will discover the change won’t be effective until after the November 2020 elections, not in time to be able to vote in the upcoming Presidential Primaries themselves.  For example, voters who wished to change their party enrollment to vote in the 2016 New York Presidential Primary, would have had to apply for a change of enrollment by October 2015, a full 193 days before the Presidential Primary.  New York’s rules are widely considered to be the longest time period in the nation.

But that may soon change.

The first indication came last Spring, when the New York State Democratic Party voted unanimously to change the party enrollment date for the 2020 presidential primary, potentially allowing many more non-Democrats to register into the party much closer to election time.

The state party supported shifting the party switch deadline to 60 days before the primary and allowing voters unaffiliated with a party—the many so-called “independents” who make up a significant portion of the voting rolls—to register as Democrats before the April 28th, 2020 primary.

However, officials at the State Board of Elections argued that such a change cannot occur without corresponding changes in law – a view at odds with the State Democrats.

Thus, last session the Legislature acted.  Both houses approved legislation that would create a February 14th deadline for previously registered voters to change their party enrollment.  This move would allow a voter to switch parties before or on that date. If the change is filed after February 14th, then it won’t take effect until seven days after the state primary election in June and after the Presidential primary. 

In the past, lawmakers have been leery of passing any laws that could threaten incumbents: a raft of new primary voters presents an element of unpredictability for those holding office.  Some elected officials and third parties also were concerned about “party raiding,” the practice of voters ideologically unaligned with a particular political party simply enrolling to make mischief in a primary. 

Yet, New York’s practice has created the longest wait time in the nation and the approved legislation would make a significant change.

As mentioned earlier, New York’s election calendar has been criticized, especially before and after the 2016 presidential primary.  Many unaffiliated voters didn’t learn until days or weeks before the primary election that the deadline to change their enrollment had passed months before.  The approved legislation changes that from a 190-plus day period to roughly 70-plus days for the Presidential primaries.  

With the state Legislature’s approval, the bill will eventually be sent to the governor’s office for approval.  New Yorkers should hope that the governor acts to reduce New York’s longest-in-the-nation barrier to participation by interested voters.

If the governor vetoes the legislation – or if it doesn’t make it to his desk soon – voters and would-be voters should stick to the existing elections timetable and register in the party whose primary they want to vote in no later than October 11, 2019.  In this way, you can be sure to have your voice heard in the elections of 2020.

Will Albany Strengthen Independent Oversight of Government Contracting?

Posted by NYPIRG on August 12, 2019 at 11:03 am
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Over the last two years, top aides to Governor Cuomo, a political ally, and big campaign contributors were convicted of bid-rigging and other offenses stemming from state contracts tied to New York State’s economic development projects.  While the governor was never accused of wrongdoing, it was clear that better oversight was needed in the way state contracts are awarded.

Thus, reformers cheered when in this year’s State of the State address, the governor surprisingly announced that he had an agreement with State Comptroller DiNapoli to implement a new process to strengthen oversight of the government’s contact award process.

The governor stated back in January, “Comptroller DiNapoli and I have agreed on a new process to implement procurement reforms.  I want to publicly thank, the Comptroller for his good work and his cooperation.”

The agreement hinged on legislation.  With the legislative session having come and gone by late June, that legislation was never approved.

When the governor was asked last week about the lack of action, he stated that an agreement was, in fact, reached – not legislatively, but administratively.  The Comptroller’s office had a different view, “The details of our agreement were included in the budget proposals of the Senate and the Assembly but did not make it into the final budget and was not resolved before the end of session.”

Why does this matter? 

Under the state Constitution, New Yorkers elect a state Comptroller.  While many states do not have Comptrollers to oversee governmental finances, of those that do, voters in only nine directly elect them.  In other states they are either appointed by the governor or the Legislature.  The rationale for this unusual arrangement is that New Yorkers decided that they needed to have an independent watchdog monitoring the state’s finances. 

In 2011, the governor argued that he needed fewer restrictions on his economic development efforts and lawmakers backed his plan to rein in the Comptroller’s oversight – limitations that included diluting oversight of economic development efforts.

Of course, there is no way to know for sure if that decision led to the corruption scandals that hit the Administration, but it’s fair to say that it might have made the now-disgraced former aides to the governor a bit more cautious had they known that the Comptroller was watching.

At the heart of the scandals were two non-profit entities set up by state government to act on its behalf and that were central to advancing programs around the governor’s so-called “Buffalo Billion” economic development plan. 

The corruption cases brought by the U.S. Attorney that led to the convictions of the governor’s top aides as well as the leader of New York’s hi-tech economic development efforts highlighted that the secrecy surrounding their deal making contributed mightily to a culture in which the risk of corruption grew. 

And that risk led to the misuse of taxpayers’ dollars through sweetheart deal-making between government officials and lobbyists, “pay-to-play” campaign practices that hinged on big campaign contributions from those receiving lucrative government contracts, and a web of shadowy corporate entities created by the government through which billions of taxpayer dollars were spent outside of the normal transparency measures required of traditional government entities.

Waste, fraud and abuse not only waste tax dollars, they erode the public’s confidence in its government.  The state Constitution established a Comptroller’s office to be an independent bean counter and help bolster public confidence in governmental finances. 

It’s clear that those powers should now be restored and strengthened.

The governor was correct in his State of the State address that steps should be taken to enhance the powers of the Comptroller.  But actions speak louder than words.  The governor must make good on his pledge.