ALBANY – If officials in Albany the last several years have lost sleep over Preet Bharara, the federal prosecutor’s two latest political corruption convictions should have this town quaking.
The felony convictions of both former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos within less than two weeks will only further empower the U.S. attorney from the Southern District of Manhattan in his self-stated cause to clean up Albany, according to people in and outside government who have been watching the cases play out.
“I think any time a prosecutor wins a conviction in an important case, his credibility goes up,” said Salvatore Martoche, a former U.S. Attorney of the Western District of New York and former state appellate court judge.
“He’s got to feel that this is a mandate, and the public is going to give him every benefit of the doubt,” Martoche added.
The Bharara impact comes from his high batting average prosecuting Albany corruption cases. Since becoming U.S. attorney in 2009, Bharara has gotten convictions or guilty pleas from 11 individuals who were current or former members of the State Legislature. In the one case he lost – the 2011 corruption trial involving former Assemblyman William Boyland Jr., a Brooklyn Democrat – the lawmaker was rearrested and successfully prosecuted on new charges several years later.
While Bharara also has put terrorists and Wall Street cheats in prison, the biggest trophies in his Albany corruption chase come in just the past 14 days with the Silver and Skelos convictions.
But is the Bharara clock ticking?
Like other lead federal prosecutors in 94 federal judicial districts, Bharara serves at the discretion of the president. That means Bharara could find himself out of his job after next year when a new president moves into the White House in early 2017. There are many precedents for presidents letting U.S. attorneys stay on, as Jimmy Carter did with Gerald Ford’s choice of Robert Fiske Jr. to head the same Manhattan office that Bharara leads today.
Given the corruption-busting headlines Bharara has gotten against both Democratic and Republican officials, people with knowledge of the appointment process say Obama’s successor would not try to replace Bharara, assuming he wants to remain.
Still, there are no certainties, and his possible departure in just over a year is not lost on Albany watchdog groups.
“If it wasn’t for Preet, none of this would have happened,” Blair Horner, of the New York Public Interest Research Group, said of the focus on prosecuting corruption cases in recent years. “But to me, the main constraint is his term of office. He’s out a few months after the president is out, so if there are major cases in the pipeline, he’s going to have to bring them because he won’t have time to do them.”
This has been a busy year for corruption cases in Albany: With the convictions of Silver and Skelos, a total of six state lawmakers were convicted or entered guilty pleas in 2015. Besides the two former legislative leaders, the convicted include Republican Tom Libous, who was the powerful deputy Senate majority leader, former top Senate Democratic leaders Malcolm Smith and John Sampson, and longtime Democratic Assemblyman Bill Scarborough. All but the corruption cases against Scarborough and Sampson were handled by Bharara’s office.
Real change or baby steps?
In the days after Silver’s seven-count conviction and Skelos’ eight-count guilty verdict, the calls for improving New York’s ethics and campaign finance laws have predictably grown.
Gov. Andrew M. Cuomo and lawmakers say they have made strides in recent years to try to get at some of the root causes of ethics problems. Earlier this year, they agreed on additional disclosure of legislators’ outside income and refinements to existing laws that ban use of campaign funds for personal expenses.
“We have proceeded in leaps and bounds,” Cuomo said in February of changes he has sought to ethics laws.
The governor’s administration also has been the subject of an investigation by Bharara’s office since Cuomo last year shut down a special panel looking into possible corruption in Albany. Bharara’s office issued subpoenas last summer looking into a separate matter: the Cuomo administration’s Buffalo Billion economic development program. Bharara has made no accusations of wrongdoing by Cuomo or members of his administration.
On Friday, Cuomo placed the burden on lawmakers, who he has accused of standing in the way of changes to ethics-related law.
Senate Majority Leader John Flanagan, who took over for Skelos this year, vowed to work with his colleagues to “swiftly and completely restore the public trust.” Neither Cuomo nor Flanagan elaborated on their specific plans.
What changes have been made have not satisfied watchdog groups. They say the Silver and Skelos convictions should drive Cuomo and lawmakers into a special session this month to take up improvements to loophole-riddled laws.
The watchdogs want several changes they have advocated for years. Those include limits on legislators’ outside incomes and ending the ability of individuals and corporations to skirt campaign donation limits by creating multiple limited liability corporations as contribution-funneling vehicles.
“The governor has all the leverage. It’s up to him to make it happen. What he chooses to do will determine whether major reforms occur,” said Horner of NYPIRG. “So far, it’s been disappointing because it’s been a reaction similar to what (former Gov. George) Pataki did: keep an arm’s length from Albany and not be tainted by guilt through association.”
These groups are not sounding optimistic, and they warn the odds are decreasing for significant changes in laws with every day that passes after the Silver and Skelos convictions.
“It’s going to be the scandal session,” Horner said. “Whether it’s going to be the reform session is another matter.”
Enforcement and democracy
But the notion that more laws will solve the ethical black eye at the Capitol should be dismissed, said David Grandeau, the state’s former top lobbying regulator who had a reputation for investigating improprieties in Albany.
He believes the state has suffered by lack of aggressive enforcement of existing ethics laws, and he blames Cuomo and the Legislature for that. The tools are already in place, Grandeau said.
“Preet proves my point: That when it comes to ethics reforms, it’s all about people,” he said. “It’s not about laws or ethics reforms. It takes a person willing to creatively use the tools they have to effect change and scare the bejesus out of everyone. That’s what (Bharara) has done.”
Bill Parment has his own ideas. He served in the Assembly from 1983 through 2010, a Democrat representing the Jamestown area. From his outside view today, Parment believes there are a number of internal changes that would go a long way to improving the stranglehold leaders can have in the Assembly and Senate. But he is not talking about changes in law.
Parment talks of “democratizing” the Legislature, which could be accomplished by ending the system that allows the Assembly Speaker to dole out stipends for committee slots and leadership titles. That power gives the speaker the ability to directly control the personal finances of rank-and-file legislators.
“I doubt that will change because lawmakers don’t believe it is a corrupt system,” Parment said. “But it is corrupt,”
Committee chairs should be rotated and not, in some cases, held for decades by lawmakers.
And the speaker should not have the power to hire staff for the committees that do critical work on legislation and policy matters, Parment said.
“The notion that the speaker hires all the staff that does critical work on legislation and keeps control of the legislative process is a coercive sort of system that makes members less than full legislators,” he said. “Over time, it encourages them to get into the system of accepting the speaker’s handouts and things that go with it.”
And there should be an end to the discretionary spending powers that allow the governor or the legislative leaders – with a wink and a nod through a memorandum of understanding process – to personally direct tens or hundreds of millions of dollars a year, Parment said.
Had that power been removed, it would have at least lessened the chance that Silver could have steered $500,000 in legislative pork barrel money to a research group led by a physician who then directed patients to Silver’s trial law firm, Parment said.
Or, perhaps it could have wiped the thought from the head of former Senate Democratic Leader Malcolm Smith that he could promise $500,000 in state transportation funds to people he thought could help him with a crooked plan to get on the New York City mayoral ballot. Smith last month reported to a federal prison in Pennsylvania to begin serving a seven-year sentence following his February bribery conviction in one of the corruption cases Bharara brought.
“My axiom is, when you provide discretion, you have to realize that lurking around the corner is indiscretion,” Parment said.
The cases brought by Bharara and other prosecutors in recent years have changed the behavior of some lawmakers, Parment said. He believes they are now more careful about their outside business activities and about mixing state government with their personal affairs.
But Parment sees a more fundamental problem in Albany.
“Legislators don’t know they are part of a corrupt institution,” he said. “They come into the Legislature in small groups of 10 or 15 new lawmakers after an election, and they are kind of swallowed up by what they find. They get awarded some discretionary funding to make them look good in their district, and they then think it’s a normal part of the process. But it isn’t. It’s a corruption of the process,” he said.