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On Ethics Reform, Loopholes, and What We Can Learn from Meds

By Sarah Laskow
Wednesday, March 9th, 2011

Eliot Spitzer

Does it matter if, in Albany, legislators receive gifts from lobbyists and how much those gifts are worth? This problem is a small knot in the vast net of ethical questions that’s snared the capital and its inhabitants. But each time a legislator or an ethics commissioner tries to untangle it, someone else with an interest in the question is pulling it tight from the other end.

Once Albany was a place where legislators could collect goodies from lobbyists without much hesitation. The gifts they received were not necessarily big ticket items: In some states, it’s legal for government officials and legislators to receive gifts with price tags running into the hundreds, even thousands of dollars, as long as they report them. In New York, up until 2006, legislators could only receive gifts from lobbyists worth less than $75. But they could receive as many as they wanted, which means that a lobbyist could fund an afternoon of golf, a significant round of drinks, a lavish dinner, and late-night round of bowling (or whatever it is people got up to after hours) without breaking any rules.

But in 2006, that changed when the Lobbying Commission, then one of three Albany institutions charged with overseeing the capital’s ethical behavior, interpreted the relevant restriction to mean that lobbyists could only give legislators $75 worth of gifts, in total, each year. The Ethics Commission, which policed the executive branch, already adhered to this interpretation of the law. The Legislative Ethics Commission stuck to the old, more permissive definition, even though legislators’ leeway to accept an infinite number of $75 gifts was moot once lobbyists were barred from that sort of gift-giving.

In 2007, former Gov. Eliot Spitzer’s ethics reform changed the system altogether. “Gifts” legally could not exceed “nominal value,” although the law included a handful of exceptions to that rule, including, notably, tickets, food, and beverages at “widely attended” events.

In most capitals, when the legislative and executive branches agree to crack down on egregious gift giving, the new status quo quickly emerges and stands. Everyone figures out the loopholes — under the federal government’s “toothpick rule,” for instance, which restricts lobbyists from giving lawmakers any nourishment other than finger food, caviar on a cracker or blini is acceptable — and life and lawmaking go on. But not in Albany.

In addition to shrinking down the legal limit for gift-giving, the Spitzer-era reforms merged two of Albany’s three ethics watchdogs. But the city still must report to the Commission on Public Integrity and the Legislative Ethics Commission.

Ethics reform in Albany has dragged on for about a decade at this point: legislators were trying to tamp down gift laws in Albany as early as 2000. This next iteration provides yet another opportunity to tinker with the gift laws, to reinterpret, perhaps, as the Daily News reported last week, “nominal value” as “ten dollars” and to re-evaluate rules that keep legislators and lobbyists from fraternizing at anything other than “widely attended events.”

To a certain extent, at this point, these definitions are just a matter of convenience for everyone involved. Nothing as exciting as tickets to the Super Bowl is at stake here; it’s just a question of what lobbyists and legislators consume when they meet, as they inevitably will.

“The amount doesn’t really matter, if you’re talking about an amount that small,” said Caitlin Ginley, a reporter (and former colleague) at the Center for Public Integrity, who covers issues of state ethics across the country. “It’s more about access than it is about the money. If a lobbyist is taking a lawmaker out for lunch, it doesn’t matter if it’s a cup of coffee or a sandwich. It’s about the face time, out of the public eye.”

Changes to the rules governing events could have a bigger impact, though. The issue here arises, as with the old, $75 rule, from conflicting interpretations of ethics laws by Albany’s ethics watchdogs. (For the record, most other states do not have this problem; although the work of ethics oversight may be split among different governmental bodies, generally only one has the power to interpret the laws that govern the behavior of the participants.) In this case, the Commission on Public Integrity has, for all intents and purposes, banned lobbyists from holding receptions, no matter how widely attended they might be. The Legislative Ethics Commission, on the other hand, thinks those sorts of events are fine.

In the new law, Blair Horner of NYPIRG explains, the legislature could “reconcile those competing interpretations of the law. It could either be not much of a big deal — or a big deal. If lobbyists are allowed to have lavish receptions in private with elected officials, I’d have a problem with that.”

If Albany lobbyists are fed up with this sort of back and forth regulating their behavior, they might want to look outside of the field for a path forward. Outside of government, there’s another industry that grappled with the ethical propriety of business-seekers giving gifts to business-givers. In the medical community, it was common for years for representatives of drug companies to take doctors out to fancy dinners and deliver gifts both of large and nominal value.

In 2008, however, under the leadership of former legislator, now lobbyist, Billy Tauzin, PhrMA, the drug companies’ trade and lobbying organization, decided with its members to unilaterally end the practice of gift-giving altogether.

“We are also concerned that our interactions with healthcare professionals not be perceived as inappropriate by patients or the public at large,” the group’s Code of Ethics states. It still permits “modest, occasional meals” but  prohibits gifts items of even “minimal value,” which includes the branded “pens, note pads, mugs,” and so forth that used to pepper doctors’ offices. This code may give the drug reps fewer opportunities to schmooze with their customers, but at least they’re the ones who control its terms.

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Can Andrew Cuomo Clean Up Albany?

By Sarah Laskow
Tuesday, December 21st, 2010

Andrew Cuomo

Like so many reform-minded governors before him, Andrew Cuomo has pledged to eradicate the tangle of ethical problems eating his state’s government from the inside out. And although it’s quite possible that he will “clean up Albany,” as he promised, it will require more than just passing ethics reform laws.

It’s become a trope for governors to sweep into office and push forward ethics reform, either on their own or in partnership with a legislature. Charlie Crist’s first act as governor in 2007 was to create an Office of Open Government, and, in Louisiana, in 2008, Bobby Jindal made it a priority to call a special session in which legislators agreed to begin disclosing more information about their income, outside employment and clients. And here in New York, just four years ago, Eliot Spitzer promised a squeaky clean slate.

Since then, Albany has so often been rocked by scandal that misdeeds signaling dramatic wrongdoing elsewhere feel like barely a tremor. Good government advocates, voters, and even elected officials of questionable moral character agree that something has to change. (Pedro Espada, now former-Senate Majority Leader, disgraced, indicted, touted in a report released last week his championship of ethics reform in Albany.)

Can the new governor really hope to reorient the government on a path towards good?

As a candidate, Cuomo proposed a slate of improvements to Albany’s ethics infrastructure that are more or less standard practice around the country: an independent ethics oversight body, lower limits on political contributions and increased transparency for both lawmakers and lobbyists.

“The chronic dysfunction of Albany metastasized into the corruption of Albany. And it was a bipartisan affliction,” he said on the day he announced his candidacy for governor. “Job 1 is going to be clean up Albany….We need strict ethics laws, we need full disclosure of all income….We need independent monitors, because self-policing is an oxy-moron.”

Independent monitors — in Cuomo’s more detailed policy proposals, he argues for independent ethics commission — might be the most important of those reforms. “At the heart of what has gone wrong in Albany is the failure of the ethics watchdogs to be aggressive,” said Blair Horner, the legislative director of NYPIRG, the government watchdog group. Currently, New York has two main ethics oversight bodies: the Commission on Public Integrity, which oversees lobbying and executive ethics, and the Legislative Ethics Commission, which has power over the state senate and assembly.

Neither has a strong record of providing independent oversight. In the case of the legislative commission, four of the nine commission members are themselves legislators, and the commission was untouched during the most recent round of ethics reforms, during the first year of Spitzer’s tenure. But the Commission on Public Integrity was one of the products of that reform package, which merged the state’s executive ethics and lobbying commissions.

Over the past three years, the public integrity commission has shown that not all ethics reform is guaranteed to improve Albany’s ethical climate. One (likely intentional) result of the merger was that it put the head of the lobbying commission, David Grandeau, who was widely regarded as one of the more effective watchdogs in Albany, out of the job. The first executive director of the new commission, Herbert Teitelbaum, resigned from his position last year after a state inspector general’s office reported that he had leaked information about an investigation into the Spitzer administration to a Spitzer aide. When the chairman of the public integrity commission, Michael Cherkasky, left his position this month, he said in a statement that the commission was too large, was selected in too partisan a process, and had too few resources to do its work.

Cuomo’s plan would create just one ethics oversight body, and, ideally, give it the resources it needs to perform the enforcement he’s promised. But, as NYPIRG’s Horner admits, “I don’t think an independent ethics body is going to mean things will be all sweetness and light here.”

It’s not clear, ultimately, that changing the structure of ethics oversight and improving transparency will stymie the flood of scandals that has poured out of Albany in recent years. Ethics laws and ethics enforcement can promote transparency and encourage officials to avoid conflicts of interest, but are not strong enough to keep determined scoundrels out of trouble.

Of all the reform-hungry leaders that have taken over statehouses in the past few years, Gov. Jindal was probably the most honest about what he hoped to accomplish. His administration’s purpose was not to clean up Louisiana’s government so much as to improve the national perception of the state as an ethical backwater. “If we want to change our reputation, we have to make aggressive reforms to truly clean up our state government,” Jindal wrote. The ultimate goal, a Jindal advisor told me at the time, was to convince the business community that Louisiana was not the corrupt place outsiders imagined.

Albany, on the other hand, more or less is. In 2006, before Eliot Spitzer took office, New York had 24 registered lobbyists for every legislator, the highest ratio in the entire country, according to an analysis by the Center for Public Integrity. (Full disclosure: I am a former employee of the Center.) The nationwide average was 5. Legislative sessions are shot through with fundraisers, where lobbyists hand over checks. And in the past four years, two governors and two now-former State Senate Majority Leaders were investigated for ethical issues, along with a slew of other policymakers.

The attitude of New York’s elected officials seems to be, at this point, to grab as much as they can for themselves and get out. To a certain extent, the ethics proposals that Cuomo has floated could change that mode of thinking. Requiring lawmakers to disclose more about details about their personal finances and forbidding campaign funds from being applied personal expenses sends a signal that politics must be separated from personal gain. Limiting Albany fundraisers during legislative sessions staunches the flow of money and puts a damper on the free-for-all atmosphere. And an ethics commission with real teeth signals that someone is watching.

But there’s a limit to how much laws can restrict people intent on breaking them. (Even with laws requiring greater disclosure of outside income, it’s unlikely that Pedro Espada would have listed the funds he’s accused of embezzling, for instance.) In Florida, since Crist’s initial push on ethics, lawmakers have been chipping away at open government provisions: In March, the St. Petersburg Times reported that Crist stepped aside as the legislature passed bills closing off public access to 911 calls, for instance. And as Louisiana’s example shows, even ethics reform that seems strong on the surface can betray weakness when put to the test. One Louisiana legislator, who helped write the ethics laws, was later able to navigate the system well enough to have seven ethics charges dismissed on procedural grounds. The president of the state’s Public Affairs Research Council has said that the 2008 reforms were “a step backwards” and that they decreased the state’s ability to enforce ethics provisions. Or, as the Times-Picayune’s James Gill wrote in 2009, “The only question left hanging is whether our new ethics laws are useless by accident or design.”

Ultimately, what matters is the decisions of individual officials, and no amount of ethics reform or moralizing about ethics reform can change that.  New York voters sent 35 new legislators to Albany this year, the largest freshman class in years. If they chose wisely — if they chose politicians committed to public good over personal gain — the news out of Albany might be less salacious in the coming session. But if not, Cuomo’s ethics proposals will only be a partial solution.

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The Theater of Charlie Rangel: Indignation As Political Stagecraft

By Sarah Laskow
Wednesday, November 17th, 2010

Rep. Charlie Rangel

Charlie Rangel sounded almost sad yesterday, as he lamented the miscarriage of justice in the ethics case against him. “How can anyone have confidence in the decision of the ethics subcommittee when I was deprived of due process rights, right to counsel and was not even in the room?” he said in a statement.

That the ethics committee would find him guilty of something was never really in doubt. But it’s part of Rangel’s infuriating charm that he managed to distract attention from his question ethics with his theatrical behavior.

On Monday, he walked out of the hearing room, after pleading penury and asking for more time to hire himself a lawyer. Inevitably, Monday’s media coverage was taken up with reaction and analysis to that bit of stagecraft. And now that his colleagues have, in his absence, found him guilty of 11 counts of ethics violations, Rangel’s indignation is overshadowing the news of his actual misdeeds.

On the scale of Congressional misbehavior, the Harlem rep’s offenses are relatively minor. He has misused his congressional mail privileges, broken House rules about reporting income and assets, failed to pay taxes on a vacation villa, and flouted New York City rules by using a rent-stabilized apartment as a campaign office. In other words, he cut corners and eschewed full transparency. Perhaps his actions even, as the ethics committee decided, reflected “discredibility on the House.”

The problem with Rangel’s behavior, officially, is not just that he broke the rules, but that he used his public office for personal benefit. While Rangel was running his campaign out of his rent-stabilized apartment, for instance, other tenants in the building faced eviction for similar violations. It’s easy to jump to the conclusion that Rangel got away with it because of the power he wields in Harlem.

The one count that the ethics committee was split on, however, honed in on the question of whether Rangel personally benefited when he raised money for the Charles B. Rangel Center for Public Service at City College of New York. Although donations to the center clearly contribute in some way to Rangel’s legacy, the ethics committee wouldn’t go so far as to say they constituted a gift to the congressman himself.

None of this looks good, of course, and that’s part of the problem. Ethics rules are premised on the idea that lawmakers should work to avoid even the appearance of a conflict of interest. And when a lawmaker solicits donations for a pet project (one named after himself to boot!) from people with business before his committee, he’s definitely crossing that line.

But ultimately, no one has been able to show these sorts of transactions affected Rangel’s official behavior. Rather than contributing to the political fortunes of the donors, the donations contributed only to the greater glory of Charlie Rangel.

The same flair and apparent self-regard that drove Rangel to desert his own trial act as a ethical buffer of sorts. It’s hard to imagine him crossing over into a more sordid realm of quid pro quos or of the types of ethics violations that the FBI, as opposed to a toothless House subcommittee, tends to uncover. To promise a legislative favor in exchange for a measly donation of $100,000 or so would mean Rangel would have to accommodate his actions to another’s will and desires. And as he’s made abundantly clear, that’s just not what Charlie Rangel does.

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