Blair Horner's Capitol Perspective

The Legislature Wraps Up the 2021 Session

Posted by NYPIRG on June 14, 2021 at 6:45 am

Lawmakers wrapped up the 2021 legislative session last week.  In some ways, the session was unlike others.  For the entire January to June session the Capitol and the Legislative Office buildings were closed to the public.  Lawmakers did not have to be in Albany in order to vote.

But in other ways, the session was more like ones the occurred pre-pandemic.  The 2021 session saw a total of 892 bills pass, just shy of the 935 bills that passed in 2019 – and dramatically unlike last year’s passage of only 414 bills.

And like sessions of the past, a huge number of bills that were approved by the Legislature came during the final week:  461 of the 892 bills were approved last week. 

That return to some version of “typical” does not mean that the session was any more substantive.  Important issues were approved, for example, there will be five constitutional amendments on the ballot this November for voters to consider.  Two of those amendments will make voting easier – one eliminates the current requirement that voters need an excuse to obtain a mail-in ballot.  If approved by a majority of New Yorkers casting votes on the proposal that amendment will change the state Constitution to allow any voter to obtain a mail-in ballot merely by asking for one.

Another constitutional change would allow for new voters to register and vote on Election Day instead of the current blackout period that prohibits voters from registering within 10 days of Election Day.  

In the area of the environment, the Legislature approved a bill to require that the state establish regulations for some persistent toxic contaminants in drinking water supplies but did little when it came to tackling climate change.

One notable issue that lawmakers punted on was a bill that would have placed a moratorium on energy-intensive “cryptomining” in New York State.

Cryptomining is a relatively new technology that provides the basis for cryptocurrency.  Cryptocurrencies such as Bitcoin are virtual currencies, which means they exist only online and there are no physical notes and coins.  Cryptocurrencies do not belong to a central bank, meaning they have no government backing.  They are international currencies and can be used to send money around the world without any identity checks, making them a popular choice for cybercriminals. 

These digital currencies require authentication to prevent fraudulent transactions.  One important way in which authentication occurs requires that the transaction be approved using a complex mathematical equation.  For the transaction to go through, crypto “miners” compete to solve the mathematical equation.  The first one to solve an equation authenticates the transaction and wins currency for their effort.

While it sounds like a science-fiction system, it is in use today.  The climate change component of this is that to solve these mathematical equations and to win the currency for their effort, these “miners” need incredible amounts of electricity to run their computers.  And the cheaper the source of power, the less overhead, and the larger the profit.

Crypotminers in New York are now considering turning on old fossil fuel energy plants to power their activities.  Firing up these old plants is cheaper yet contributes significantly to the amount of greenhouse gas emissions – at precisely the time that the world’s climate experts are arguing that we need to cut back.

The legislation would have put a hold on permitting the use of these mothballed plants until the state understood the climate (and freshwater) impacts.  The legislation was blocked in the Assembly.

While that is an example of an important bill that was waylaid by lobbyists, the number of bills passed in 2021 documents that one-party control has reversed an overall historical trend:  Since seizing control of the Senate, the Democratic majorities in both legislative houses have increased approval of legislation, reversing the previous decade’s overall decline and at the highest amounts over the past two decades (other than last year’s pandemic session).

Yet quantity is not necessarily quality.  The threat posed by the global warming resulting from the burning of oil, gas, and coal is an existential one.  It deserves attention.  No matter how seemingly productive lawmakers were, their collective failure to tackle climate threats outweighs by far the improvement in the number of bills passed.

The Senate Moves Again to Stop “Pay-to-Play”

Posted by NYPIRG on June 7, 2021 at 10:02 am

New York’s campaign financing system has been called a “disgrace” and an “embarrassment.”  One of the most brazen examples of the disgraceful nature of the state’s campaign financing system is that it allows those with business before the government to shower contributions on elected officials who control government contracting decisions.

One does not have to look far to see the consequences.  Former U.S. Attorney Preet Bharara took down a “pay-to-play” scheme in which a Buffalo-based developer funneled campaign contributions to Governor Cuomo’s re-election campaign at the direction of the governor’s aides and close allies.  Bharara also uncovered a scheme in Syracuse in which a local developer there did the same thing.

In both cases, the developers’ efforts were successful – until the U.S. Attorney’s office got involved.  As a result, the developers as well as top aides to the governor were convicted of corruption.  The governor was not charged in either case.

But the system of “pay-to-play” – in its legal forms, in which a wink and a nod are used instead of direct kickbacks to government officials – is commonplace in New York and the rest of the nation.  The nation’s campaign finance system is based – with few exceptions – on candidates’ ability to raise money from private sources.  And those private sources are usually the ones with business before the government and who are seeking favors in the form of legislation and lucrative government contracts.

An independent commission looking into New York’s campaign finance system stated three decades ago, “When running for public office requires enormous expenditures of privately raised funds, challenges to incumbents are all but limited to the most wealthy and well-connected.  Moreover, huge campaign costs pressure candidates to maintain political views that do not offend big money.”

It doesn’t have to be this way.  Some states have taken steps to curb this pay-to-play culture.  Our neighbor across the Hudson, New Jersey, has had a robust program to curb contributions from those with business before the government. 

Under New Jersey’s pay-to-play law, for-profit business entities that “have or are seeking” government contracts are prohibited from making campaign contributions prior to receiving contracts.  Moreover, businesses are forbidden from making “certain contributions during the term of a contract.”  These pay-to-play restrictions apply at state, county, and municipal levels of government.   NJ law requires contributions over $300 to be reported, and the contributor’s name, address, and occupation to be identified.  A government entity is prohibited from awarding a contract worth more than $17,500 to a business entity that made a campaign contribution of more than $300 “to the official’s candidate committee or to certain party committees,” specifically to committees that are responsible for awarding the specific contracts. 

The notion that those receiving government contracts can be restricted is not a new concept.  The federal government’s Securities and Exchange Commission, for example, has enacted a pay-to-play rule.  The rule, under the Investment Advisers Act of 1940, prohibits an investment adviser from providing services, directly or indirectly, to a government entity in exchange for a compensation, for two years after the adviser or an employee or an executive makes contributions to political campaigns of a candidate or an elected official, above a certain threshold.  Moreover, the rule prohibits an investment adviser or an employee or an executive from providing or agreeing to provide payments to a third party, on behalf of the adviser, in order to seek business from a government entity, unless the third party is a registered broker dealer or a registered investment adviser, in which case the party will be subjected to the pay-to-play restrictions.   

New York’s State Senate is advancing legislation that would take steps to curb pay-to-play.  State Senator Zellnor Myrie has moved a bill to the Senate floor that restricts campaign contributions from vendors to “any officeholder of or with authority over the state governmental entity or entities responsible for issuing such procurement.” 

Governor Cuomo has said that he supports such limits but has not put his muscle behind reform legislation.  If the Senate approves the Myrie measure, the attention will turn to the Assembly.  In that chamber Assemblywoman Sandy Galef has a bill that matches Myrie’s legislation, but there has been no movement this session – at least not yet.

As Albany hurtles toward wrapping up its legislative session later this week, lawmakers should remember that their work to repair New York’s democracy is still unfinished.  Banning pay-to-play is an important step for them to take.

This Week Marks a Critical Anniversary in New York – Its Decision to Allow Young Adults the Right to Vote

Posted by NYPIRG on May 31, 2021 at 11:11 am

This year marks the 50th anniversary of a landmark reform in American democracy.  In 1971, the nation approved the 26th Amendment – a change that allowed 18-, 19- and 20-year-olds the right to vote.  The change went into effect after 3/4 of the states approved the measure.  The amendment was first approved by the Congress in March 1971 and New York State approved the change on June 2, 1971 – 50 years ago this week.

The change came after decades of debate.  The idea to lower the voting age started after President Franklin Roosevelt lowered the draft age to 18 as part of the World War II effort.  The slogan “Old enough to fight, old enough to vote” was first used in 1941 and the proposal was supported by then-First Lady Eleanor Roosevelt but failed to pass the Congress. 

States began to take up the measure: In 1943 and 1955 respectively, the Georgia and Kentucky legislatures passed measures to lower the voting age to 18.  President Eisenhower, in his 1954 State of the Union address, became the first president to publicly support prohibiting age-based denials of suffrage for those 18 and older.  But again, no action. 

During the 1960s both Congress and the state legislatures came under increasing pressure to lower the minimum voting age from 21 to 18.  The intensity level to support lowering the voting age grew as young adults clamored to obtain their full rights as adults.  

College students’ activism came after their involvement in the campus Free Speech movement, as Freedom Riders and advocates for Civil Rights, and in reaction to the Vietnam War.  It was the War that tipped the balance, a war in which many young men who were ineligible to vote were conscripted to fight yet lacked any means to influence the people sending them off to risk their lives.

Passage by Congress of an expansion of the Voting Rights Act in 1970, lowered the voting age to be 18 in all federal, state, and local elections.  Subsequently, Oregon and Texas challenged the law in court, and the case came before the Supreme Court in 1970.  By this time, four states had a minimum voting age below 21: Georgia, Kentucky, Alaska and Hawaii.

In its 1970 decision, the Supreme Court struck down the provisions that established 18 as the voting age in state and local elections.  However, the Court upheld the provision establishing the voting age as 18 in federal elections.

The decision resulted in states being able to maintain 21 as the voting age in state and local elections, but being required to establish separate voter rolls so that voters between 18 and 21 years old could vote in federal elections.

It was that split decision that triggered the constitutional amendment. 

In March of 1971, the Congress approved a constitutional amendment to guarantee the minimum voting age could not be higher than 18 anywhere in the nation.  Having been passed, the proposed 26th Amendment was sent to the state legislatures for their consideration.  Ratification was completed on July 1, 1971, after the amendment had been ratified by the required thirty-eight states.  New York’s legislature approved the amendment 50 years ago this week, on June 2, 1971.  Having been ratified by three-fourths of the states, the 26th Amendment became part of the Constitution.

Although the 26th Amendment passed faster than any other constitutional amendment, other barriers to young adults’ voting continued.  New York’s state and federal courts overruled local elections officials’ actions that prohibited college students from voting from their campus addresses.  But barriers continue to this day.

The most notable is to place polling sites off campus to make it harder for college students to vote.  For example, in this past Presidential election, just 14 of the 238 colleges and universities had early voting polling places.  There are over 1.2 million college students in New York (although not all are registered or are New York residents).  Fourteen early voting polling sites is far too few.

Legislation currently under consideration in the state Legislature would require that all colleges and universities have at least one polling place if they have at least 300 college students registered to vote living on-campus. 

Young adults are the least likely to vote.  Part of solving that problem is education, in order to ensure that college students and other young adults better understand the system.  Another solution is to make it easier for them to vote when they are registered.  Requiring polling places on campuses is one way to make voting easier.  A fitting way to commemorate New York’s 50th anniversary of ratifying the youth vote is to make it easier for college students to vote on their campuses.

It’s Time to Wind Down the Fossil Fuel Industry

Posted by NYPIRG on May 24, 2021 at 8:19 am

It is well established that the oil companies knew for decades that the burning of fossil fuels would result in a hotter planet.  They knew it and yet did all they could to keep the public disinformed.  Like the tobacco industry, the fossil fuel companies spent big time on public relations efforts, political consultants, hot-wired lobbyists, campaign contributions and funded fake groups to advocate against the science that they knew to be true.

And they succeeded.  Despite the mounting evidence that the burning of oil, coal and gas was accelerating the world’s pace toward a climate catastrophe, nothing of consequence was achieved.  The industry’s political muscle, its front groups and fake experts were in 2016 joined by a compliant White House and Congress that reversed what modest steps had been taken.

But facts are facts and the scientific evidence keeps piling up.  It is now widely viewed that unless the world takes immediate and aggressive steps to slash greenhouse gas emissions, the growing climate changes that we are all experiencing may reach a point of no return – and result in mass extinctions and the end of civilization as we know it.

Last week, the International Energy Agency added its views.  In its net zero roadmap report, the IEA found that to keep the world from catastrophic overheating, a new clean energy revolution must take place.  The IEA concluded that the world’s consumption of oil must drop by one-quarter by the end of this decade.  And then be down to one quarter of the total consumed today by the year 2050.

The IEA concluded that starting now, the world cannot allow new fossil fuel projects: no more new oil fields, no new gas extraction, no new coal mines.

Public investors funding new fossil fuel projects should back out now.  Consumers will have to change too – the IEA found that half of greenhouse gas emissions will require “consumer choices,” like buying electric cars and driving slower (the IEA called for a ban on the sale of gas-powered cars by the year 2035); installing electricity-powered heat pumps and solar panels; traveling more on trains and less on planes; changing heating temperatures.  Governments and companies will have to dramatically increase funding for solar, wind, and geothermal projects; the IEA stated that the pace of the installation of solar panels and wind turbines will have to quadruple by the year 2030.  Aggressive energy efficiency measures will have to be implemented.

According to the IEA, “Global electricity networks that took over 130 years to build need to more than double in total length by 2040 and increase by another 25% by 2050.”

The IEA concluded that limiting global warming to 1.5 degrees Celsius remains technically and economically feasible, but there is little margin for error or delay. “Making net-zero emissions a reality,” the report concluded, “hinges on a singular, unwavering focus from all governments – working together with one another, and with businesses, investors and citizens.”

In a nation that cannot agree on the value of vaccines in a pandemic, meeting the IEA’s recommendations is a tall order.  Even today – despite the overwhelming scientific consensus – the oil industry and its media and political toadies are attacking the Biden Administration’s efforts to curb the use of fossil fuels.

Like it was for the tobacco industry, the oil, coal, and gas companies are using their deep pockets to fight science to the bitter end.  Unlike tobacco, however, the world needs energy to eat, travel and flourish.  Thus, the world must quickly move into a new non-fossil-fuel-powered future, and the oil, coal, and gas companies need to develop plans to “wind down” their activities as their products are too dangerous to keep using.

The IEA identified the immediate steps – ban the expansion of the plans to drill for more oil and gas, invest in renewables, and move efficiency measures up to scale.  In addition, the world needs to make plans to gradually shutter the oil, coal, and gas companies – at least as far as their reliance on the exploitation of fossil fuels as their core business.  In addition, that “wind down” measures should include requiring the industries to pay their fair share of the necessary investments and clean up needed to close down that industry.

As the IEA plainly stated, success “hinges on a singular, unwavering focus.”  All levels of government must start actions now, before it is too late.

Should New Yorkers Have the Right to Repair Their Own Devices?

Posted by NYPIRG on May 17, 2021 at 9:03 am

We’ve all had some version of this happen: Your cellphone refuses to boot up.  You take it to your favorite repair shop, and they tell you that they can’t get the parts to fix it.  Your choices now are either to go to an authorized repair shop and pay a lot more to get your cellphone fixed or just bite the bullet and get a new one.

This problem is not unique to cellphones; almost every product has some digital core components these days.  Other devices can have problems, refrigerators go on the blink, washing machines go down, computers fail to perform, yet it’s nearly impossible to get a fix without going to the manufacturer.  Manufacturers have made it difficult to repair things, for instance by limiting availability of parts, by designing their products to make them difficult to fix, or by putting prohibitions on who gets to repair them.  It affects not only cars, kitchen devices and computers, but even hospital ventilators, which were critical for treating patients severely ill with COVID-19.

Why?  Electronics manufacturers increasingly design and build their products to force consumers to return to them or to authorized repair shops for service by refusing to share basic product information and access to replacement parts.  Some will void the warranty if Original Equipment Manufacturer (OEM) parts are not used or if the repair is done by an independent party—even if the repair caused no additional damage.

Generally, OEMs cite concerns over divulging proprietary information or the difficulty of formatting technical information for general usage.  Some companies go so far as to design products with sealants so internal repairs require cracking the outer casing, potentially damaging the device, and voiding the warranty in the process.  And of course, they make money by charging you for parts and repairs and getting you to upgrade instead of fixing your old device. 

In some cases, wait times for repairs as simple as a battery change are so long that customers will forgo a replacement and buy a new phone.  You will also pay more for manufacturer or authorized dealer servicing.  And remember they have an incentive to sell you something new, not fix your phone (unless it’s under warranty).

Manufacturers, on the other hand, argue that their products are repairable, and that they are protecting consumers’ safety, privacy, and security by restricting who does the repairs.  Apple, for example, has argued that they believe the safest and most reliable repair is one handled by a trained technician using genuine parts that have been properly engineered and rigorously tested.

Why does this problem exist and why are manufacturers able to limit independent repair of purchased products?  Doesn’t owning the device you paid for give you rights to fix it yourself or bring it to the repair shop of your choice?

That’s the issue the Federal Trade Commission recently examined.  In a report to Congress released last week, titled “Nixing the Fix,” the FTC detailed that manufacturers in the auto industry, and other industries, that are making repairs more difficult and expensive than necessary for independent shops.

The report found “there is scant evidence” to support manufacturer justifications for repair restrictions and stated that the FTC “stands ready to work with lawmakers, either at the state or federal level, to ensure that consumers have choices when they need to repair products that they purchase and own.”

If lawmakers in New York have their way, the FTC may soon be engaged in a legislative fight over enacting a “Right To Repair” law.  Senate Consumer Chair Kevin Thomas and Capital District Assemblywoman Pat Fahy have introduced legislation to force manufacturers to make their parts, tools, and technical information available to consumers and repair shops to keep devices from ending up in the scrap heap.  The New York legislation would allow independent repair shops to get diagnostic equipment and parts from OEMs so they can fix your digital equipment locally, quickly, and typically for significantly less money. 

Advocates argue that product makers’ rules restricting repairs interfere with the rights of consumers and businesses to use devices that they own and encourage a throwaway culture by making repairs too difficult.  If enacted, the legislation would grant consumers the right to repair their own electronic equipment—like smartphones, computers, and even farm equipment.

These advocates also argue that the underlying rationale for limiting consumers’ ability to fix their own products is that it’s part of a culture of planned obsolescence—the idea that products are designed to be short-lived to encourage people to buy more stuff.  In other words, if you buy something and it stops working, you toss it in the garbage and go out and buy something new.

It would be a lot cheaper and generate a lot less e-waste if people could repair their own devices, but that would cut into the profits of the big manufacturers.

The back-and-forth is what triggered the FTC investigation and its report.  With the FTC’s conclusions coming down on the side of right-to-repair supporters, there is new life in the New York legislation.