New York’s oversight of its ethics and lobbying laws was back in the news last week.  The state’s oversight entity, the Joint Commission on Public Ethics (JCOPE), closed its doors on Friday and will be replaced by a new agency: the Commission on Ethics and Lobbying (CELIG).

Among its final acts, JCOPE released a report on its secret decisions that allowed former Governor Andrew Cuomo to obtain ethics clearance for a $5.1 million book deal.  Essentially the report found that the former governor’s staff muscled JCOPE to get approval in a manner that circumvented the normal approval process.

The approval for the Cuomo book released in 2020, “American Crisis: Leadership Lessons from the COVID-19 Pandemic,” should never have been allowed.  The book was written about the public work of the former governor during the first year of the pandemic.  Essentially, he was able to cash in on his job as governor, to the tune of millions. 

The New York governor is the highest paid in the nation.  The job is supposed to be full-time, meaning no outside income.  This is the standard for the executive branch of government – full-time, no moonlighting.  Of course, there are times when top ranking officials are involved in outside income activities, but approval of those must be made by the ethics agency.

In this case, the former governor was able to obtain approval by the JCOPE staff, without full consideration by the entire Commission membership.  Moreover, the legal work done to obtain that approval was done by the governor’s public staff, not some outside attorney.  Thus, the governor’s staff working on the taxpayers’ dime were put to work to generate approval of a book deal that allowed the former governor to enrich himself to the tune of millions of dollars. 

This is not the first time the former governor had pushed for JCOPE approval of a book deal.  Ten years earlier, the governor’s staff also working at the public’s expense obtained JCOPE approval of a book deal worth roughly $700,000.  It was that approval that provided the justification for the multi-million-dollar payday in 2020.

The book deal reeks in other ways, most notably that the former governor used his public staff to be involved in writing the book, a clear no-no, and as a result JCOPE has sued Cuomo to force him to return his ill-gotten gains.

Why did this happen?  Well, JCOPE was never designed to be an independent agency.  It was designed as a political creature, one which was susceptible to pressure from Albany’s political elite.

The agency’s demise is long overdue.  Unfortunately, its replacement shares the same fundamental flaw – the Commissioners for the new agency also are chosen by the top-ranking elected officials in New York State.  There are new safeguards to limit political influence, but whether those guardrails are adequate, only time will tell.  The new agency was approved as part of April’s state budget deal and garnered no support from outside watchdog groups.

As a result, New York’s ethics and lobbying watchdog will conduct its duties based on an “honor system”: a system in which the governor and the state’s political leaders will behave honorably and leave the agency to act in the public’s interest.  We’ll see how that works as new ethical controversies bubble up.

Regrettably, the problems besetting ethics enforcement are not isolated.  The enforcer of the state’s election laws is appointed by the governor.  That government official recently allowed the former governor to keep $18 million in campaign contributions for his use, even though the former governor is not running for office.

The state’s Inspector General is also appointed by the governor and reports to her office; the same IG office that failed to adequately investigate leaks of confidential enforcement discussions by JCOPE; the one that has received notoriety for how the former governor got wind of JCOPE’s discussions on how to punish a former Cuomo aide (now in prison for corruption) and complained to the Assembly Speaker about his JCOPE appointees.  The IG did not interview the former governor to find out how he obtained that information and then stated that there was no evidence that there was a leak – even though it was publicly reported!

New York’s system of campaign financing, the awarding of government contracts, lobbying and ethics all are marred by deeply flawed oversight systems.  Real changes must occur.  Here are some steps that should be taken to boost the quality of democracy in New York:

1. New laws must be enacted to ensure that CELIG, the IG, and the election law counsel are independent of the individuals and entities that they must monitor.  A corps of civil service professionals should be responsible for ethics and democracy, not elected officials and political parties.
2. New restrictions on campaign donations from those seeking government contracts or lobbying.
3. New campaign contribution limits that do not exceed those for President of the U.S.  A system that relies on a large number of small donors is less of a corruption risk than one that relies on a small number of very large contributors – like New York has now.

Until steps like these are taken, New Yorkers will continue to have their confidence shaken by the actions of elected officials and an erosion of their confidence in democracy.

Among the flurry of U.S. Supreme Court decisions that flipped over the tables on American societal norms was a decision to reduce the power of the U.S. Environmental Protection Agency to regulate and enforce air pollution.  The Supreme Court struck down the E.P.A.’s plan to reduce carbon emissions from power plants, essentially stating that such decisions are to be left to Congress, not governmental agencies.

The Court argued that the courts should strike down regulations that raise “major questions” if Congress was not explicit enough in authorizing such actions.

“In certain extraordinary cases,” Chief Justice John G. Roberts Jr. wrote, the court needed “something more than a merely plausible textual basis” to convince it that an agency has the legal ability to issue specific regulations.  “The agency,” he wrote, “instead must point to ‘clear congressional authorization’ for the power it claims.

Last week’s decision involved the E.P.A.’s primary mission: to curb pollution of harmful substances, which the court previously ruled included carbon dioxide emissions.  Under the text of the Clean Air Act, the E.P.A. is empowered to devise the “best system of emission reduction.” Yet, the Court struck down the Clean Power Plan to curb greenhouse gas emissions.

Under the Court’s logic, members of Congress would have to enact a law explicitly declaring that the E.P.A. is authorized to curb air pollution under the Clean Air Act and tracked what the agency’s regulations had proposed. 

The reality is that Congress is incapable of making such a decision.  The thin majorities in each House of Congress are too fragile to ram through such a change.  Thus, the nation has to turn its hopes to states to attack the threat posed by climate change. 

Also last week, the New York State Climate Action Council’s plan to reduce greenhouse gas emissions was up for final public comment.  The Council was established under state law to determine how New York should meet its aggressive climate goals. 

New York has recognized that the world is at an unprecedented crossroad, and failure to act could lead to catastrophic consequences for all living things.  The United Nations’ Intergovernmental Panel on Climate Change October 2018 report made clear the world needs to limit global warming to no more than 1.5 degrees Celsius above pre-industrial times if catastrophic results are to be avoided. 

Limiting global warming to 1.5ºC requires rapid, far-reaching and unprecedented changes in all aspects of society.  Three years ago, New York established climate goals: mandates to achieve net-zero greenhouse gas emissions (GHG) by 2050 with the interim goal of emitting no more than 60% of 1990 GHG by 2030.  New York’s Climate Act required the state to power its electric grid through at least 70% renewable energy by 2030, and achieve electricity generated by 100% renewable energy by 2040.  The Act also established the Climate Action Council to develop a blueprint for state energy and climate policy to follow in order to meet its goals.

Action was – and is – needed.  According to a federal database, from 2000 to 2021, New York State experienced 53 climate disasters each totaling $1 billion in damages or more: 28 severe storms, 11 tropical cyclones, 7 winter storms, 4 droughts, and 3 flooding events.  The cost of these disasters is up to $100 billion over the last 21 years, and in 2021 alone, up to $20 billion.  Communities in New York City, and along the shores of Long Island, Lake Ontario, Lake Erie, the Hudson River and other water bodies are especially at risk from storm surges and flooding.

The world is witnessing unprecedented fires, floods, intensifying storms, famines, and heat waves resulting from the burning of oil, gas, and coal.  Despite the ideological views of six individuals who happen to be on the Supreme Court, the world is facing an existential crisis and it must respond.

While we can all wring our hands and complain about the ideological push by the Court, now is a time for action.  New York State has one of the biggest economies on the planet.  Coupled with other large states, such as California, state actions can drive the nation’s public policy.

The science is crystal clear, and the debate is long over; climate change is real and in a crisis state, and human activities are at the heart of the problem.  New York must lead.

“There are two things that are important in politics”, Ohio Senator Mark Hanna said a century ago. “The first is money, and I can’t remember what the second one is.”

Money has been called the “mother’s milk of politics.”  The reality is that for most races without money, there can be no campaign.  Money is needed to buy advertising, rent halls for rallies, pay campaign staff, print materials, pay pollsters and consultants, and fly or drive candidates from one event to the next.

But who foots the bills for most campaigns?  Most of the money comes from the wealthy: lobbyists, government contractors, trade associations, unions, and others who have something other than “good government” on their minds when they write their checks.  Usually, they’re not feeling charitable, usually they want those favors returned.

That system is at its most brazen during the state legislative session.  Pre-pandemic, state elected officials would host campaign fundraisers during the legislative session, sometimes hold more than 200 fundraisers during the 60 days of session.  And who would come to these events?  Lobbyists and others seeking legislative favors.  The 2022 session – in addition to opening up its legislative proceedings – also cranked up the money machine, seeing over 100 fundraisers held while lawmakers considered the pleas of lobbyists, including asks related to the state’s $220 billion budget.

The most successful example of campaign fundraising has to be the current governor.  Governor Hochul, who had already collected roughly $34 million, has – according to reporting in The New York Times – set a target of raising a total of $50 to $70 million by Election Day.  A mind-boggling amount of money in just one year of being governor.

Also according to the Times, many of her campaign contributions came from those with business before the government.  The Times reported Hochul raised over $200,000 from the gambling industry, which is waiting for three new licenses to be issued by the state for casinos in and around New York City.

According to the Times, in her recent filings, the governor received an average donation of about $10,000.  Since taking office, at least 10 percent of her cash has come from donors giving the maximum amount of $69,700.

Real estate interests are also donating heavily to the governor’s campaign.

It’s easy to understand why the governor wants a huge campaign warchest – it will pay for an expensive campaign and ensure that donors think twice about funding her opponents.

It does, however, raise the question:  What do campaign donors want?

That question is not an academic one.  New York has seen more than its share of campaign finance scandals.  During the most recent Cuomo Administration, top aides were sentenced to prison for shaking down campaign contributors who were interested in state government contracts.  Scandals have plagued former state Comptrollers too, leading one to resign.

It’s not just members of the executive branch.  Members of the Legislature have themselves been caught up in corruption investigations in which they were doing the bidding of campaign contributors as part of their “pay-to-play” arrangements.  Most recently, the former Lt. Governor was charged by federal prosecutors in a scheme to pay back a campaign contributor by directing state monies to his organization. 

The typical pay-to-play scheme occurs when private actors “pay” public officials in exchange – sometimes explicitly – for help with various government processes, particularly in gaining favoritism when doing business with the government.  Many states have enacted laws to deter “pay-to-play” schemes.  The City of New York has laws that do so, too. 

But New York State has not. 

New York’s pay-to-play problems have long been in plain view.  Nearly four decades ago, a state commission commented “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 was Jesse “Big Daddy” Unruh, speaker of the California Assembly from 1961 to 1968, who is credited with coining the phrase, “Money is the mother’s milk of politics.” 

Every candidate for elected office in every state knows that Unruh’s observation is true, nowhere more so than in New York.  As the election season heats up, ending Albany’s “pay-to-play” system should be a top pledge made by every candidate for state office.

Last week, New York’s ethics oversight system was once again in the spotlight, but not for something that it failed to do.  Instead, it may have – and I emphasize may – taken a step toward improvement.

First some background.  New York’s state ethics watchdog – the Joint Commission on Public Ethics – is on its way to the dustbin of history.  JCOPE was the brainchild of former Governor Cuomo and former legislative leaders (and corrupt politicians) Dean Skelos and Sheldon Silver.  JCOPE was not designed to be independent, in fact it was specifically set up to be under the thumbs of the governor and the legislative leaders.

This wasn’t the first time the governor and the legislative leaders set up ethics agencies that were under their direct control.  However, like its predecessors, JCOPE failed and will close up shop in a few weeks and be replaced by a new agency, an 11-member Commission on Ethics and Lobbying in Government (CELIG).

The 11-member Commission will have its membership chosen by the governor and other members of Albany’s political leadership.  But there is a twist.

Under the new law the new commissioners to CELIG must be vetted by the state’s fifteen law school deans.  Under the new law establishing this process, the deans are responsible for reviewing the nominees of the governor, the attorney general, the comptroller and the four legislative leaders and can reject someone not found to have “undisputed honesty, integrity and character.”

Of course, those standards are vague and last week the deans released their interpretation of how they will define “honesty, integrity and character.”  Their plan includes a background check for nominees — similar to those conducted by the State Police for high-level executive branch appointees — to ensure their “past personal and professional conduct reflects adherence to the highest ethical standards, and that their lived experience allows them to understand the range of perspectives needed to effectively serve as a member of an ethics commission that has broad oversight of a large and diverse public workforce.”

The deans’ vetting also is intended to ensure the nominees have demonstrated an ability to be impartial, independent, fair and able to “decide matters based solely on the law and facts presented.”  The nominating process will include a seven-day public comment period for the elected officials’ proposed nominees.

The deans’ process has been applauded by advocates.  If implemented consistently over time, this new process may enhance the independence of new commissioners to CELIG and make it harder for appointing authorities to manipulate the ethics oversight system. 

Yet in politics those looking to advance their own interests are looking for “leverage.”  Leverage is when a politician can identify a weakness in some institution or individual that can be used as a threat.  A threat that can only be avoided if the “target” does what the politician wants.

In this case, the law school deans can be exploited.  They all work for institutions that receive some form of public support – indeed two of them are government-run law schools – and all of them are involved in lobbying the government.

New York’s ethics watchdog not only monitors the behavior of the state workforce, it also monitors the lobbying industry.  Thus, the law school deans represent institutions that rely on government for support and are subject to scrutiny by the state.  In the hands of a power-crazed statewide elected official, for example, that leverage is obvious.

Right now, the deans have taken an important first step, but they do not control the outcome.  The governor and the state’s political leadership still do.  Previously, ethics commissioners were individuals of stature, but some viewed their responsibilities as looking out for the interests of the elected official who appointed them.

That’s how the former governor got a multi-million-dollar book deal approved and that’s how confidential investigations were leaked.

The deans’ first moves are good ones.  The “rubber hits the road” when they choose to reject someone appointed by an elected official.  Right now, the system relies on the honorable intent of those electeds.  Whether that “honor system” holds up over time is anyone’s guess.

Honor systems tend to fail when leverage gets used by a malignant force.  A better system is one that doesn’t rely on honor, but instead relies on an independent commission.  Until that system is created, all New Yorkers can do is hope that a program based on good intentions can hold up.

Sometimes one can only marvel at America’s system of health care.  It’s almost as if a bunch of people got together and decided to make a system that defies logic – a system that costs more than that of any other nation, one that produces mediocre life spans, and is so complex that the public simply cannot fathom how to navigate it.

The inefficiencies and illogic of this system manifest themselves in bizarre ways.  For example, hospitals are supposed to treat the sick and injured, no matter whether they have insurance coverage or not.  Obviously, as medical costs increase and coverage weakens, hospitals are forced to try to figure out ways to cover their costs.  It’s difficult to pass the costs of the uninsured – or underinsured – onto the bills of those with more robust coverage, because those prices are usually negotiated between the health care institutions and insurance companies. 

As a result, hospitals look to do what they can to directly squeeze patients to pay for the charges for their hospital stays.  One tool used by hospitals is to go after patients with outstanding bills through a debt collection process.  There have been reports of hospitals getting the courts to place liens on the homes of patients, or getting wages garnished, as a way to collect outstanding medical debts.

This is the way that businesses attempt to collect outstanding debts on cars, credit cards, or homes, in cases where the owner is claimed to have not paid their bills.  But what makes the health care arena different is that patients are not choosing to buy the care – they have to go due to illness or injury.

The American system does not provide universal coverage for those hospital patients, unless they are 65 years old or older (and that system is also complex, but the coverage is there).

So, patients who must get hospital care to recover from their illness can find themselves up against a forceful debt collection machinery when they have outstanding bills.  This adds mental anguish to the physical ones that they experienced.

Who are these patients?  Typically, they are the working poor – those with just enough income to make health coverage unaffordable – or those with inadequate coverage.  Exactly the people who face other forms of financial stress. 

New York’s system of health care – much like the rest of the nation’s – allows for hundreds of thousands to go without health coverage and hundreds of thousands more with inadequate coverage.  This reliance on a hodgepodge health coverage system can put the finances of millions of Americans at risk.

The consequences of inadequate coverage impacts the nation.  According to Forbes, “Fully half of Americans now carry medical debt, up from 46% in 2020” and that “More than half (57%) of Americans with medical debt owe at least $1,000.”  Those debts can often leave needy patients facing legal actions by hospitals and other providers, with judgments often enforced through liens on property or wage garnishments.  And the not surprising result is that medical expenses are the leading cause of bankruptcy in America. 

The most obvious solution is for the nation to offer coverage to everyone, similar to what seniors have now.  But that’s not in the political cards.

Another is for states to step into the breach and place financial band-aids to eliminate the worst practices.

Buried among the 1,000 bills that passed the Legislature this past session are two that attempt to provide such protection.

One bill simply outlaws the practice of hospitals dunning patients with debts.  This legislation would prohibit a lien being placed on a person’s primary residence for medical debt judgments as well as prohibit wage garnishment for medical debt judgments.

Another bill outlaws a sneaky fee that hospitals add to patients’ bills.  This legislation requires that patients be notified that a hospital will be charging a “facility fee” and whether such fee is covered by the patient’s health insurance.

Facility fees are expenses charged by hospitals to cover their overhead.  People who receive outpatient care at hospital-owned buildings can be charged a facility fee, in addition to treatment costs.  Since hospitals do not have to disclose the costs of facility fees beforehand, patients are often shocked when they receive a bill that is much higher than they expected.  The two main ways patients face facility fees are through outpatient treatment at an emergency room and at a hospital-owned doctor’s office.

Patients needing urgent treatment, requiring greater use of the facility, results in the patient being billed a bigger facility fee. That’s the rationale hospitals use to justify facility fees; but unfortunately those fees can too often be excessive. 

A case could be made to ban such fees, but this legislation does not do so.  It merely requires providers to inform patients of such fees and whether the patient’s insurance covers such fees prior to providing the medical care.  Surely a very reasonable approach and one that will help consumers to avoid those charges. 

Of course, approval of these two bills by the Legislature does not make them law.  Those bills must be approved by Governor Hochul.  But given the financial woes facing New Yorkers, easing those pressures when a patient must go to the hospital would seem like a no-brainer.  The governor must act.