As the 2016 legislative winds down with little follow-through on ethics reform, Gov. Andrew Cuomo on Wednesday announced a two-pronged effort to tighten enforcement on campaign contributions.
Cuomo said he would introduce legislation to increase disclosure requirements for independent expenditure committees. Additionally, Cuomo’s counsel, Alphonso David, issued a guidance opinion to enforcement entities to help determine whether there is any illegal cooperation between independent expenditure committees and political candidates.
Despite the recent corruption convictions of former state Senate Majority Leader Dean Skelos and former Assembly Speaker Sheldon Silver and ongoing investigations involving New York City Mayor Bill de Blasio as well as the Cuomo administration, the governor’s struck a national tone in making the case for changes in New York. Speaking at a press conference at Fordham University, Cuomo spoke at length about the negative impact of the U.S. Supreme Court decision in the Citizens United case.
Cuomo said the decision allowed the use of independent expenditure committees or advocacy organizations to bypass campaign contribution limits. The “Governor’s Counsel’s Opinion” issued by David offers guidance to enforcement entities on “existing state law and whether coordination exists between independent expenditure campaigns and the candidates they support,” Cuomo said.
“The Supreme Court’s case of Citizens United did more to damage political participation than any Supreme Court decision in history. Indeed, the Citizens United decision ranks with the Court’s worst,” the governor said. “Quite unlike these decisions, Citizens United devalues an individual’s right to participate in the political system.”
Though he did not expressly mention it, this practice has come under scrutiny by federal authorities, who are looking to whether de Blasio and his associates funneled money to state Senate Democratic candidates in 2014 in an attempt to regain the majority through a nonprofit, Campaign for One New York.
Cuomo said he has also been in talks with legislative leaders to introduce and pass legislation that will enforce increased disclosure requirements on the state’s current campaign finance laws in regards to independent expenditure groups before session ends on June 16.
“The Legislature has a choice – lead on reform or perpetuate the status quo,” Cuomo said. “Before the Legislature departs next week, I urge them in the strongest possible terms to pass real ethics reform that sends a clear message: In New York democracy rules and, the voice of the people matters.”
Cuomo unveiled a long list of proposed ethics reforms in January, and in late May he introduced eight bills to close the so-called LLC loophole.
State Senate Majority Leader John Flanagan has come out against closing the LLC loophole. But shortly after the press conference on Wednesday, Flanagan released a statement in support of the governor’s latest proposals.
“Buoyed by the ‘Citizens United’ ruling, Independent Expenditure groups have enjoyed an outsized influence on our politics in recent years,” Flanagan said in a statement. “While we cannot stop the flood of money, I agree there is more we must do to increase transparency and disclosure surrounding the activities of these outside groups.”
Below are the guidelines Cuomo has proposed be considered to determine whether independent expenditure committees and advocacy organizations are truly independent:
• A candidate’s personal interaction with the entity including whether a candidate attends the entity’s functions or participates in conversations with members of the entity. Candidate attendance at fundraising functions evidences coordination. A candidate’s participation in policy or strategic discussions likewise evidences coordination.
• Personnel employed by the entity and their relationship, if any, to a candidate bears examination. Former employees or staff members suggest coordination. And obviously participation by family members of a candidate evidences a lack of independence.
• The vendors and contractors of the entity must be reviewed for connections to the candidate. If the entity and the candidate knowingly employ the same consultants such as media, polling, or mailing experts, these relationships evidence coordination.
• Sharing of office space and sharing of nonpublic information evidences a lack of independence.
• If the entity is disseminating material provided by the candidate or very similar to material disseminated by the candidate it can evidence coordination.
• Overlapping donor bases may also evidence a lack of independence. We would recommend a strict scrutiny test be applied with major or dominant donors to the IE who are also donors to the candidate’s political committee. So if a donor is a major contributor to the candidate’s committee, and to other political committees supporting the candidate then that donor is then a major donor to a purported independent entity and strict scrutiny should be applied. In these cases there is a likelihood that an IE was created to circumvent the legal limits of the candidate’s political committee.
• Likewise if there is significant overlapping donor bases strict scrutiny should be applied as the likelihood of dozens of people coincidentally contributing to both entities on an independent basis is very low.