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.
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.