Gov. Cuomo during his 2016 State of the State (via The Governor's Office)
After nearly two months, Governor Andrew Cuomo requested on Friday that the Legislature send him an ethics reform package he personally designed and pushed the Legislature to pass in June with the assistance of a message of necessity he issued to speed the process. The governor now has 10 days to sign it, which he is expected to do.
Announced by Cuomo late in the legislative session, the actual bill was then a mystery for days before being introduced in the wee hours of the morning on the final day of the session. Thanks to the governor’s message, the bill was not required to age the otherwise-mandatory three days and legislators passed it within hours despite mostly not being familiar with it.
The legislation deals with putting more scrutiny and regulations on independent expenditure campaigns and non-profit advocacy groups, known at times as 501(c)(4)s (for their tax classification) and Super PACs, which can support or oppose candidates for office, but not coordinate with them. The legislation requires greater disclosure of donors and donations, and gives stricter guidelines of who can work for the groups and what constitutes coordination between a group and a candidate.
“For the first time, independent expenditure groups and PACs will be required to adhere to unprecedented disclosure requirements, and New York will have the nation’s strongest rules defining and governing coordination and independence,” Cuomo said in a statement announcing an agreement on the legislation in June.
Cuomo has already received hundreds of bills from the Legislature since session ended in June and it has not been clear why he took weeks to request one of his own signature bills. Just before Cuomo asked the Legislature for the bill, spokesperson Dani Lever told Gotham Gazette, “We plan to call the bill down and sign it in the coming weeks.”
The matter of prioritization for the bill-signing also underscores questions about the bill being necessary in the first place, but also issue that many took with Cuomo’s abandonment of other, more pressing government ethics and campaign finance reform proposals, many of which he had previously claimed to champion.
Many legislators and advocates disagreed with Cuomo’s assessment that the new bill required emergency action, saying that super PACs were not an issue in the major corruption convictions of former Assembly Speaker Sheldon Silver, former Senate Majority Leader Dean Skelos, and other recently disgraced legislators. It was a distraction, critics say, from the real issues facing Albany like closing the LLC loophole, eliminating current and potential conflicts of interest, and more. Some say the bill seeks to stifle contributions to issue advocacy groups that campaign for changes to environmental, education, criminal justice, government ethics, and other policies.
Discussing the legislation, Robert Perry, legislative director of the New York Civil Liberties Union (NYCLU) said, "This is a complex regulatory scheme that requires nonprofits to report not only the donations they make but that they receive, as well as their communications on issues that are important to the public. This should be of grave concern to the public as it reaches out to groups that do not engage in lobbying or campaigns but work on issues that impact us all. The lobbying law is not a place to insert reporting requirements and restrictions. They are running headlong into constitutionally protected activities."
Cuomo put the bill on the table late in the legislative session after it had become clear that the majority of the ethics reforms he proposed in his State of the State address would not pass in the Legislature, especially the Republican-controlled Senate. Many have questioned Cuomo’s commitment to his reform agenda, which he held no events to promote. When announcing the new bill June 8, Cuomo gave a booming speech about money in politics at Fordham Law School, decrying the Supreme Court’s Citizens United decision and calling his proposal a national model.
Before Cuomo even called the legislation to his desk, the Joint Commission on Public Ethics (JCOPE) passed a series of emergency regulations prompted by the bill that will go into effect 30 days after the governor does sign it. Observers see JCOPE moving at an unprecedented pace.
JCOPE regulations would change the donor disclosure limits that currently require groups spending more than $50,000 in a year on an issue or on behalf of a candidate for office disclose their donors of more than $5,000. Under the new law, groups that spend more than $15,000 would have to disclose donors of more than $2,500.
Even more irksome to many lobbyists and nonprofits is the fact that the regulations are set to be retroactive for five months before the bill was actually introduced, going back to the beginning of the year.
“I am mystified at how an agency can push through regulations that are retroactive for a bill that hasn't even become law,” said Blair Horner of The New York Public Interest Research Group. “I’m not sure why it matters so much right now as [Albany] lobbyists won’t be at work until January and the Legislature is not in session right now.”
Seth Agata, executive director of JCOPE, responded to concerns raised by Horner and others in a statement:
“The timetable in the emergency regulations the Joint Commission on Public Ethics has begun promulgating was set by the Governor and Legislature in the bill that was passed near-unanimously. The regulations only become effective 30 days after the Governor signs the legislation which is when the law becomes effective – there is no retroactive application. By acting now, JCOPE has released these emergency regulations for extended public comment before they become effective, and indeed, before they even become permanent. The Legislature and Governor have clearly spoken and enacted a law that expands the disclosure of sources of funding, and imposes those new disclosure requirements as soon as the law becomes effective, regardless of when contributions were made. JCOPE must effectuate that mandate. ”
Issues of speed and timing are at play for other portions of the bill. As Politico NY reported on Thursday, 11 sections of the bill go into effect 30 days after it is signed. One of those includes language detailing what kind of interaction is forbidden between a candidate campaign and a Super PAC. Since the bill was not signed by Sunday, the rules will not be in effect for the September primaries, when all 213 seats in the Legislature are on the ballot. Some Super PACS have been spending in city races already.
Senate Majority Leader John Flanagan embraced Cuomo’s push, introducing the bill himself in the Senate. Both Flanagan and Assembly Speaker Carl Heastie, a Democrat, appeared behind Cuomo’s use of a message of necessity to rush the bill through. Such messages are supposed to only be used in the case of emergency as the three-day aging period is designed to give the public and legislators a chance to review a measure before it comes to a vote.
by David King, Albany editor, Gotham Gazette
Note: this article has been updated to reflect the fact that Gov. Cuomo called the bill from the Legislature.