Ethics "reform" - What won’t work, and what might

When the chattering class, the editorial class and the reform movement are in lockstep, a timeout is warranted. They're all fine people, but there's been a disconnect between the loud and insistent calls for new ethics laws and figuring out which "reforms" might actually reduce law-breaking and immoral behavior, and which won't.

There are reasons that new "reform" laws are hard to come by. Part of this is a misplaced fear by elected officials that the changes will be personally and politically damaging. It would be nice if the governor and the Legislature could get by that part. Part of it is the ferocious and contemptuous tone directed at electeds. Most people don't respond well to blanket descriptions of themselves as corrupt sheep, and pols are no different. But the biggest problem is that many of the most frequently cited remedies won't work, aren't really reforms and require a thoughtful dissection.

Here goes.

What won’t work

Ban Outside Income

This doesn't work for numerous reasons, the main one being that it doesn't mean what you think it means. What the goo-goos have proposed is a ban on "employment income" only – meaning you can't work as an engineer or a funeral director, but you can still own and be compensated by the company that employs them. The money causes the conflict of interest, and it remains a conflict whether it is in the form of dividends or distributions (allowed) or salary (not allowed). This favors wealthy, coupon-clipping folks and disfavors people with actual jobs. Additionally, as we saw in the Dean Skelos case, a corrupt member will direct employment and money to family members, and circumvent the direct ban. And it is actually helpful to have public officials who have practical work experience in government. The problem here, if any, is when outside income earned or unearned conflicts with an official’s duty to serve the public. That’s where the focus should be.

Term Limits

All this does is strengthen executive power. Criminality aside, the deepest Albany dysfunction comes from the unchecked power of the executive branch. It now can make laws without the approval of the Legislature, and effectively controls independent agencies like the MTA, the Port Authority and the Empire State Development Corporation with no oversight. Contempt for the Legislature is at an all-time high, much of it deserved, but that's no reason to enshrine a weak Legislature through term limits. A tough, experienced and politically secure Legislature is a bulwark against all kinds of executive overreach.

Pension Forfeiture

Public corruption needs to be punished. It also requires proportionality, as much as severity. The length of jail time, fines, and community service are matters left to a judge. Pension forfeiture should, sometimes, be part of that decision, even if it impoverishes the surviving families of wrongdoers. Automatic forfeiture suffers, in a small way, from the same defects that we've now learned affect punishment of minor offenses. Corruption isn't a minor offense. But proportionality and judicial discretion make sense, even for public officials.

The confusion between ethical problems and process changes like budget reform, reapportionment and leadership powers also requires clear-headed thought. All are important, but are separate from ethical reforms dealing with honest performance by public people.

What might work

Fiduciary Oath

We rightly expect public officials to do the right thing. Self-dealing, political or personal, is more than illegal, it's immoral. Instead of thinking up new ways to punish wrongdoers, let's spend a little energy on reinforcing the ethical basis of public service. Adding a "fiduciary" responsibility to existing law would regularly remind officials that public service is an elevated, ethical calling, and not an invitation to enrich oneself. We spend too little time thinking about reforms that are aspirational and make ethical behavior more likely because it's the right thing to do. In the end, reviving the notion of civic virtue will do more than punishing individual thieves.

Campaign Finance

This remains at the heart of the corrosive consequence of money in government. It's mostly legal, often properly so. Corrupt bargains with special interests are the problem. But it's perfectly acceptable to give campaign money to someone because you support their positions on marriage or gender equality, or closing or opening nuclear plants. A system of public finance of elections will eventually reduce the big-donor corrupt deal, and democratize small-donor contributions.

LLC Loophole

It's the single most obvious and effective way to reduce big donor corrupt deals, pending campaign finance reform. The only reason it's survived is because it’s a pathway for evading sensible restrictions on corporate donations. Closing the loophole is easy and the right thing to do, but bumps into the self-interest of the governor and the Senate, particularly.

Slush Funds

The governor and the Legislature (particularly Senate and Assembly leadership) have control of large amounts of cash. The purposes are usually fine: health care, capital projects, education etc. But the secrecy surrounding who gets what has been a breeding ground for corruption. If these funds are going to remain, make the recipients names public as well as who decided to fund them.

The reform movement has done the state a service by pursuing changes in ethical requirements. It's done the state a disservice by using a sneering tone of condemnation when, above all, thoughtfulness and respect for disagreement are needed. The overwhelming majority of members of the executive chamber and the Legislature are honest and want an end to the corrosive effect of money on government. We should be able to improve the moral climate, enhance the notion of civic virtue, and punish wrongdoers, if intelligence and civility are reintroduced into the debate.

Richard Brodsky is a former assemblyman who is in the private practice of law and serves as a senior fellow at both Demos and NYU's Wagner School. He is a regular columnist for the Albany Times Union and The Huffington Post.