Molinaro Has a Plan

At bottom, New York's problem is political. Local representatives have too little real power, and therefore behave like the extraneous baggage they are. In a system in which "three men in a room" -- the governor, the Senate Majority Leader and the Speaker of the Assembly -- effectively pull all the strings, there is too little incentive for the rest of the elected government to act.

In contrast to Senator Saland's inertia -- and in tension with his flippant-sounding remarks to me when I visited the assembly -- Assemblyman Marcus Molinaro has taken a much clearer and more active position in the mess. I'm not sure I fully understand the nuance of the state's deficit problems, but I am working on it -- and will post my progress here.

But here's what I like about Assemblyman Molinaro:

1) His statement (from his website) on the special session of the legislature to be called on the 28th. It says

It is surprising to me that the governor needs to tell legislative leaders to do their jobs. People throughout the state have suffered long enough because of the inability of neglectful politicians to come together and finalize the state’s budget.

That's exactly right. At very least, these people need to take their jobs seriously. I know that the New York State government does not pay these people a full-time salary, but that's beside the point. This is public service, and it's important.

2) His emphasis on reforming the system rather than putting band-aids on specific wounds. In contrast to Senator Saland, who posts a serpentine statement on school funding on his website (which, by the way, blames "Dems" for the problem in the clip's title), Assemblyman Molinaro lists ways in which he would like to see the entire legislative system changed. In an e-mail to me, he said,

I support a constitutional spending cap, use of general government accounting principles, a change to the fiscal year, multi-year budgeting and even some sort of advisory panel with expert financial experience (I would not support turning over legislative responsibilities for budget adoption and management to an unelected, unaccountable board, however)

These positions represent a long view about government, not a partisan negotiating stance.

3) His very quick, detailed and respectful response to my e-mail. I never got anything like that from Senator Saland.

I think Mr. Molinaro's resistance to borrowing comes from a good impulse, but may be short-sighted. Coupled with all the requirements of long-term reform, short-term borrowing -- actual, pay-it-back-on-time borrowing, not the book-keeping fudges that the legislature has used before -- might be necessary in a pinch, and should not be thrown out with the proverbial bath water.

In sum, I think Assemblyman Molinaro represents the kind of thinking we need in the assembly.

Saland Must Go

No one doubts that New York state government is in serious trouble. The Brennan Center named New York as the least effective state government in the country – that’s right, not even relatively poor and traditionally corrupt states like Louisiana and Mississippi can match us. Our current governor has never been elected, and took office only because his predecessor was run out on a rail for using the services of a prostitute while in office (and while hounding Wall Street for its ethical problems.) The legislature has not passed a budget on time in years. Last year, the entire system came to a halt because the two parties were evenly split and took advantage of the lack of a lieutenant governor who could break a tie by engaging in open bidding for one or two senate members who were willing to join any party who promised the most. There were instances in which they actually locked each other out of the senate chamber.

When I took a Millbrook School intersession group to visit the Assembly in March, the folly was in full view. The senate spent its entire session voting on praise for local high school football teams and awarding various citizens for being nice people. The assembly rolled through a number of bills that our assemblyman, Marc Molinaro voted for while we were there despite his open admission that he had no idea what they were about. Frankly, he said, these bills were mostly meaningless because the senate had no intention of passing them, and so everybody just voted for the bills for something to do. Meanwhile … no budget, and no work on it.

You can’t make this stuff up.

Through it all, Stephen Saland, the state senator representing Dutchess County, has done nothing to demonstrate any character or competence at all. When I called his office last year to complain about the whole sordid mess, I spoke to an aid who could only try to blame the Democrats and fret how there was nothing her boss could do to make a difference. She actually called him powerless, and said that only the senate majority leader had any influence, and the Democrats were making it impossible for the Republicans to elect the right senate majority leader. No one returned my e-mails.

This is exactly why New York government fails, and why Saland should be removed from office. Saland does not even pretend that he has a serious job to do. During the crisis last summer, his website included no mention of the problem or his position on it, and as far as I can tell he has never publically addressed it in any substantive way. He can join in partisan nonsense with the best of them, and he can give a terrifically vapid speech at the opening of school events, but he can do nothing about the fact that the government of New York is the worst in the western hemisphere.

Saland must go.

Roberts Whines

In March, Chief Justice Roberts complained that he did not enjoy his experience at the State of the Union address. In that speech, President Obama specifically criticized the Court’s recent decision in Citizens United v. Federal Elections Commission, which all-but-eliminated most regulations on election campaign contributions and financing. The president’s remarks resulted in a rousing ovation from the Democrats in the chamber, and Roberts said he did not appreciate having to withstand the embarrassment of having one of the Court’s decisions so publically condemned when all the justices could do was sit impassively.

I have so sympathy for this position. Not only did the Court’s decision overturn decades of American jurisprudence, substitute the Court’s factual findings for those of the other branches of government (both Republican and Democratic), leave lower courts without any useful standard for interpreting such laws in the future and anger four members of the Courts itself, but it may very well have reshaped the way elections on all levels are conducted in this country for years to come. For a court and a Chief Justice so fond of defending stare decisis and close reading of the constitution, this was quite a dramatic act. Finding campaign spending in the First Amendment requires at least one pretty big logical leap, and Justice Kennedy and the four “conservatives” seemed awfully comfortable making the jump. Judges are rightly insulated from the vicissitudes of elections, but they cannot be and should not be protected from public outrage at their irresponsibility. If the Chief Justice would like to maintain the dignity of his robes, he ought to do so from the bench. Once he is out on the streets – or on the Hill – he is on his own.

Why Skilling (the Sleaze-bag) Had to Win

Last week, the US Supreme Court announced its decision in Skilling v. United States, an appeal by Enron conman Andrew Skilling of his conviction for fraud. Skilling won, in the most important aspect of his appeal. As both New York Times and Washington Post editorials noted, this was a victory not so much for the sleaze-bags like Skilling and New York senator Joe Bruno who have been convicted under the law, as for the rule of law itself. Ruth Bader Ginsburg’s majority opinion found that the statute in question was improperly applied to Skilling’s case, and that if Congress or the states wanted to convict people of being sleaze-bags, they were going to have to define the term more carefully. The majority did not strike the law in its entirety, however, over the objections of Antonin Scalia, his sidekick Clarence Thomas and Andrew Kennedy.

Although the immediate result would have been the same, this is an instance in which I tend to agree with Scalia more than Ginsburg. Scalia is at his best when he cleaves closely to his long-held principles of “textualism,” which insist that courts read all words – in the constitution and in statutes – as narrowly as makes sense to read them rather than finding new possible meanings in order to fit new circumstances. This is a seriously laudable principle, in part because, if courts followed it, legislatures would have to pay much closer attention to their job. As Scalia frequently notes, when courts let the legislatures off the hook by imbuing their words with useful meanings post hoc, we get bad behavior from both judges and legislators. Judges read the law to mean whatever they want to say (as Scalia did in Bush v. Gore) rather than what it actually says, and lawmakers slap together statutes without ever reading them carefully, if at all.

According to the summary of the majority opinion, the “honest services doctrine” under which Skilling was convicted originated in a 1940’s mail fraud law which prohibited “any scheme to defraud” someone else. Under this theory, an employee who took bribes from a third party could be convicted for defrauding his employer or a public servant who took bribes in the course of his duties. As these convictions increased in number, however, courts began to broaden the interpretation of the law, to the point that no one really knew what it meant. One could be “defrauded” of the right to proper representation, to diligent effort, to loyalty. This was not the sort of thing that “fraud” usually meant.

To remedy this problem, in 1987 the US Supreme Court ruled in McNally v. US that under the law as written, one could only be defrauded of property rights. In other words, if no one lost actual stuff, the government could not convict. Standing would be much more easily understood. “If Congress desires to go further,” the Court stated, “it must speak more clearly.”

So, in 1988, Congress wrote §1346 of the penal code, which stated that “For the purposes of th[e] chapter [of the U. S. Code that prohibits, inter alia, mail fraud, §1341, and wire fraud, §1343], the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” But this attempted remedy was no help. Just as Scalia has warned for years, the thing was written so vaguely and sloppily that it only offered support for a broad concept developed by the courts rather than defining the rule more carefully. What would “honest services” mean, and where does one get the “intangible right” to have them?
The majority opinion here says that the answer can be found in the legislative history. Congress intended, says Ginsburg, to outlaw “kickbacks and bribes” that then lead to sleaze-bag behavior. Where there is no kickback or bribe from a third part, says the Court, there is no violation of the law.

But why should the Court have to look at legislative history to find such an answer? If the legislature meant to limit the law to these instances, it should have said so. Because Congress was lazy or sloppy, they wrote a law nobody could figure out, and it should have been chucked and re-written. What the Court did here was write the law for Congress. That’s not what courts are for. And considering how little I like most of the current members, and how untouchable they are under the constitution, I don’t want them to have that power.