[A version of the column appeared in CityandStateNY.com]
In the Olympics and pro cycling, athletes suspected of cheating, i.e., using performance enhancing drugs, are investigated and, if found guilty, are stripped of their medals and championship titles. In New York, however, convicted corrupt lawmakers keep their pensions and the laws they enacted, while the public is left holding the bag.
This year’s stunning arrests of former top two legislative leaders Sheldon Silver and Dean Skelos seem to indicate something insidious and corrosive was afoot. The scope of the indictments have caused me to seriously question allowing the laws they championed, negotiated and steered into enactment to remain legally binding on the people of New York.
In June, Mickey Carroll, assistant director of the Quinnipiac University Poll said, “Four out of five voters think the leadership domination helps lead to corruption.” In the same Q-poll, more than two-thirds of respondents faulted Three Men in a Room as a cause of corruption in Albany.
As it stands, polls indicate that overwhelming numbers of New Yorkers say government corruption is a serious problem. But pollsters don’t ask voters if they should be governed by laws emerging from a corrupt process.
One published report noted that the criminal charges against former Speaker Sheldon Silver contain “vague references to how he sold out tenants the last time the protections expired in 2011 as part of a corrupt deal with a developer.”
When asked about the renewal of rent laws every few years, former Majority Leader Dean Skelos responded that “[sunsets] add excitement.” In other words, opponents and proponents spend money and make donations to political campaigns to gain access and to be heard. Extortion or corruption, some might say.
Disgraced former Assemblyman Eric Stevenson was convicted of taking $20,000 to sponsor legislation giving his confederates a monopoly in adult day care services. He effectively rented his lawmaking ability to Russian criminals. Stevenson’s bill never saw the light of day.
Whether or not Stevenson could have gotten his adult day care moratorium enacted is debatable. One Albany veteran pointed out that even if the moratorium were enacted, it required the vote of Legislature and therefore it could not be invalidated because the entire Legislature wasn’t bribed.
It’s strikingly that there has been no talk of reviewing the legislation, tax breaks and funds negotiated and allocated by the two indicted leaders. Perhaps, even the most ardent of reformers are reluctant to embrace this idea because it would create a crisis of governance.
When I posed this question to Zephyr Teachout, whose book, Corruption In Americalooks at the history of legislative and judicial responses to corruption in government, I realized it created a conundrum. In her book Professor Teachout discusses U.S. Supreme Court Chief Justice John Marshall’s decision to enforce the Yazoo land grant which was passed by a bribed legislature. She concludes that Marshall “had no clear way to tell the difference between a bribed legislature and an unbribed one.” Apparently, the same conclusion would pertain in Albany, today.
Professor Gerald Benjamin says that narrowly defined parameters must be established in order to allocate identifiable behavior or outcome due to the influence of a particular legislator, corrupt or not. Otherwise, like many others with whom I have spoken, Professor Benjamin believes every bill would be subject to the threat of invalidation.
Hunter College professor emeritus Kenneth Sherrill suggests that the Legislature must hold robust public hearing on matters of substance and controversy. Important matters determined by the give and take of the closed door budget negotiations carries with it the taint of something underhanded. The confluence of money, backdoor dealing and secret behind closed door deals allows the abuse of power which harms our civic and legislative culture.
Brian Kolb, minority leader in the Assembly agrees with Prof. Sherrill’s call for robust public hearings and debates on important and controversial matters, such as changing rent laws, 421a, the SAFE Act, and education tax credits. Kolb also wants to democratize the legislative process and for leaders to quit hiding behind closed doors.
In my five years out of office, the scales have fallen from my eyes. I now believe that chambers must democratize, hold more public hearings on major legislation and use joint conference committees to hammer out agreed upon legislation, instead of relying upon closed door meetings between their leaders and the governor.
And lastly, laws found to be the product of corrupt conspiracies should be reviewed by a joint legislative panel for repeal or amendment. If victories and milestones achieved by athletes who cheat are investigated and then stripped why should we be bound by laws forged by corruption?
Perhaps, Professor Sherrill is right when he told me that “severe punishment may be the only way to cure the [Legislature].”