Yet Another Problem with the Criminal Enforcement of Government Ethics

In a an op-ed in the Daily Kos last Friday, Janos Marton — special counsel to New York state's recent Moreland Commission on state-level corruption — makes an excellent point about one of the problems involved in the criminal enforcement of government ethics :

The Executive Order under which the Commission operated directed us to investigate corrupt activity that was permissible under the New York's weak campaign finance and lobbying laws, not necessarily uncover crimes. ... While U.S. Attorney Bharara is in possession of the Commission's files, he is unlikely to pursue non-criminal investigations, which comprised much of our work. The Department of Justice, New York Attorney General and various District Attorneys will keep pursuing outright crimes such as bribery, but legislators convicted of such offenses are often small fish, while significant players savvily operate at the outer edges of legal corruption. This includes state legislative leaders and other power brokers, such as prominent lobbyists, who thrive under "politics as usual." As we noted in the Commission's Preliminary Report, issued in December 2013 (a second report was never published), "the real scandal is what remains legal." ...

Further feeding Albany's corruption is that most who operate in this system don't find it problematic or care. Few legislators defended our work.

Marton goes on to provide some examples of what he means by legal activity he, and the public, find unacceptable:

For example, to most lay people, contributing hundreds of thousands of dollars to a candidate through various loopholes and accounts in exchange for favorable legislation or lack of regulation ... is tantamount to bribery. This is how the real estate, telecommunications and gaming industries have operated for years.   Legislative leaders rake in huge legal fees for unspecified work. Large corporations bankroll dozens of bi-partisan lobbying firms. Anonymous political spending by both parties continues to grow.

Unfortunately, in its preliminary (and, unfortunately, its final) report, the prosecutor-heavy Moreland Commission's recommendations were too criminally oriented, a criticism I made in a blog post last December.

Robert Wechsler
Director of Research-Retired, City Ethics

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