Government Corruption and the Politics-As-Usual Defense

Experts Discuss a Variety of Corruption Cases, "the Criminalization of Politics," and What Ails Albany, at an Event Hosted by the Center for the Advancement of Public Integrity at Columbia Law School

New York, November 17, 2015—With 14 legislators forced from office since 2012, New York leads the nation in the number of lawmakers pushed out of state government for ethical or criminal misconduct. A wide-ranging discussion of various corruption cases was sponsored last week by Columbia Law School’s Center for the Advancement of Public Integrity (CAPI). Special emphasis was given to the current trials of former New York State Assembly Speaker Sheldon Silver, former New York State Senate Majority Leader Dean Skelos, and New Jersey’s United States Senator, Bob Menendez. 

“There’s no shortage of scandal in the New York area right now,” said CAPI Executive Director Jennifer G. Rodgers, a former federal prosecutor who led the conversation with Pulitzer Prize-winning New York Times reporter William K. Rashbaum and Richard Briffault, the Law School’s Joseph P. Chamberlain Professor of Legislation. Briffault, an authority on government ethics and corruption, had been among the 25 members of New York State’s Moreland Commission to Investigate Public Corruption, which Gov. Andrew Cuomo convened in 2013 and abruptly ended in 2014.
A key part of New York’s problem is that legislators work part-time, said Rashbaum, so they rely on outside income. Before its demise, the Moreland Commission had subpoenaed records from private law firms employing many legislators, including Silver and Skelos, to determine what the legislators did to earn their salaries. Rashbaum said these documents have been valuable to Preet Bharara ’93, the U.S. Attorney for the Southern District of New York, who is now prosecuting both Silver and Skelos, once the state’s most powerful legislative leaders.
“The cases are in many ways similar,” Rashbaum said. “In fact, one powerful real estate developer is a central player in both cases. I don’t think that’s a coincidence. It’s just the way the system is set up: It makes certain kinds of conduct easy and available. Right now, Mr. Silver’s lawyer is arguing down in court a few miles away that this kind of conduct is not a crime. From my perspective, it’s at the heart of what goes on in Albany.”
“That's why the Silver case, for me, is more interesting,” than the Skelos case, said Briffault, who labeled Skelos’ taped phone calls with his son “so obviously very inappropriate.”
The government charged Silver for personally profiting by more than $3 million from an illegal scheme in which he directed $500,000 in state grants to a medical research center headed by Dr. Robert N. Taub, an oncologist treating people with mesothelioma, a cancer linked to asbestos exposure. Taub sent patients with possible asbestos-related claims to a law firm that then shared its fees with Silver. The former Speaker has pleaded not guilty to fraud, extortion and money laundering.
“State legislators are paid $79,000 a year, which doesn’t sound like a lot,” Briffault explained, “so there’s no limit on outside income. There’s now a disclosure requirement, and that’s one of the things that tripped up Silver.” He didn't disclose his sources of income. “In Congress, the salary is almost $200,000. If the state Legislature were to go full-time, there would need to be a significant increase in salaries. I don't think the public has the stomach for that, but you get what you pay for.”
At the start of Silver's trial, Rashbaum said, he was struck by one statement from a defense attorney: “He essentially said it's now impossible to be a state legislator without a conflict-of-interest.”
In the name of reform, Congress has effectively eliminated earmarks, or “the targeted benefits for individual firms, or individual places, that legislators tuck into the tax code or in very direct budget appropriations,” said Briffault. But the practice remains in Albany, where Silver allegedly still took pains to “hide” budget beneficiaries, according to recent testimony by the Assembly’s deputy budget director.  “One of the key pieces of the Silver case is the use of an earmark for a legitimate purpose that is arguably attached to another purpose,” Briffault said.
“Running through all of these cases is the allegation that we’re talking about the ‘criminalization of politics,’ and that some of the stuff is just ordinary political behavior—politicians trade favors, they log roll, they make deals. You need a certain amount of deal-making to get stuff done. At what point do we say it’s improper? We’re more comfortable doing that when the deal’s benefit goes directly into officials’ pockets.”
Briffault, Rashbaum, and Rodgers discussed the opinion of the Seventh Circuit U.S. Court of Appeals in the corruption trial of former Illinois Governor Rod Blagojevich. Blagojevich “did so many improper things he's serving a multiyear sentence,” Briffault explained, but he couldn't be prosecuted for the most controversial charge against him: Trying to sell the Senate seat vacated in 2008 by Barack Obama in return for a spot on the president-elect’s cabinet. “Judge [Frank] Easterbrook said that arranging for a private-sector job was illegal. But log rolling for a cabinet appointment is politics, and we don’t want to criminalize that,” said Briffault.
“You’re now seeing an ongoing effort in a lot of states to figure out what’s vote trading, what’s deal making, either within the government or between public officials and interest groups looking for something from government. Sometimes the biggest problems come up in places where there are inadequate ethics rules.”
With so many corruption scandals shaking New York’s political establishment, Rodgers wondered whether Albany was finally ready for reform. Rashbaum replied that probably depended on the outcomes of the current trials.
More than two dozen elected officials in New York have been arrested or convicted since 2008.Five of New York’s recent Senate leaders have been indicted or convicted, and Rashbaum noted that the next official in line for Skelos’s job, former Senate Deputy Leader Thomas Libous, was just convicted of lying to federal agents. Instead of occupying a position of prominence in Albany, Libous will be under house arrest in Binghamton, where he’s dying of cancer.