Secret Lobbying Still Possible

Posted by NYPIRG on March 25, 2024 at 8:27 am

New York’s legislative leaders and the governor are busy in a frantic effort to get the final state budget finished on time, due this weekend.  The state Constitution establishes that the new fiscal year begins on April 1st. Despite that requirement, it is often late – last year’s was approved at the end of April.

So last week and this week are busy ones, but legislative activity will not be all about the budget.  During the budget season, non-budget bills are considered, and appointments are made.  Appointees often are charged with setting policy and running the day-to-day operations of government and can have big impacts on the lives of New Yorkers.

For example, earlier this year the governor appointed a new Superintendent to run the State Police.  In the middle of this month, the governor appointed a new head to the Division of Human Rights.  Generally, gubernatorial appointees face review and final approval from the New York State Senate.  This week the Senate will take up a number of such appointments, including to the Public Service Commission – the entity that sets the utility rates that we all pay. 

While the bulk of state governmental appointments are approved by a state Senate vote, this isn’t the case for all top-level appointments.  The Assembly gets involved too, when the Legislature jointly approves membership to New York’s Board of Regents, which oversees education in the state.  Earlier this month, they jointly approved three new members to the Regents. 

All of this to say that the budget is not the only topic in Albany and that the governor’s power over the executive branch is somewhat limited in that her major appointments are subject to scrutiny and legislative confirmation.

Yet, what happens when outside interests seek to influence that process?  As New Yorkers saw in the messy nomination – and ultimate rejection – of Governor Hochul’s first choice for chief judge of the state’s highest court, big bucks can get spent

Despite the costly public fight over the LaSalle nomination, thanks to Governor Hochul, current lobbying to influence her appointments – if in fact there is any – is still hidden from public view.  Last year, legislation was approved to require disclosure of lobby spending to influence voting on government appointments.  Unlike many bills that pass along party lines, the bill was passed with overwhelming bipartisan majorities in both houses, with all members of the Assembly voting in support of the bill.

Despite this bipartisan and widespread support – and no public opposition – Governor Hochul vetoed the legislation, arguing that “This bill would impose significant new reporting requirements on people who might not already be reporters, retroactive to January 1, 2023.  Additionally, this would impose implementation costs not already accounted for in the State financial plan.” 

Ironically, the justification for the veto was framed as a way to protect those who were spending the money to influence gubernatorial appointments at the same time the governor stated her commitment to transparency. 

Of course, the point of the legislation was to find out those who had spent big bucks fighting over the Chief Judge nomination, as well as any others that had fallen below the radar screen in 2023.  Both houses of the Legislature, despite the overwhelming majorities, have chosen not to override the governor’s veto, instead advancing legislation this year that goes into effect (if approved) prospectively.  The Senate has advanced the legislation to its floor; so far, no action in the Assembly.

Leaving the loophole in place deprives the public of information on who is seeking to influence gubernatorial appointments.  In the state’s cockamamie lobbying disclosure requirements, lobbying to influence utility rates is considered lobbying, but influencing who sits on the board that determines those rates is not.

And attempting to influence some nominations is considered lobbying.  As mentioned earlier, the Legislature jointly approved nominations to the state’s Board of Regents.  Since those nominations are approved through a joint legislative resolution, lobbying to influence them triggers a disclosure obligation.  However, nominations to the Senate do not require a legislative resolution, thus spending to influence those choices does not!

Governor Hochul’s thoughts on the issue are certainly not clear, despite her veto message.  In her proposed budget, she made no proposal to close the loophole.  Obviously, her inaction keeps the public uninformed about current gubernatorial nominations, and so any advocacy to impact the most recent nominations are outside the scope of lobbying disclosures.

The Legislature has time to close the lobbying loophole.  Assuming they again do so and stick to their guns that it must be approved, the loophole will be closed.  But even under the best of circumstances, that action will not shed light on this year’s gubernatorial appointments.  New Yorkers deserve to know who is trying to influence the selection of top appointees whose decisions affect their lives.  Albany is to blame for the information blackout in this area.  Here’s hoping the blame game ends this session.