Lawmakers: State elections board needs independent watchdog
State Sen. Zellnor Myrie (D-Brooklyn), chairman of the Senate Elections Committee, has introduced legislation that would restore full subpoena power to the enforcement counsel for the state Board of Elections. Credit: AP / Hans Pennink
ALBANY — State legislators and good-government activists are pushing to restore the independent watchdog New York once had to probe contributions that exceed legal limits and other election law violations, arguing the current system gives campaigns “an incentive to break the law.”
New York once had an independent watchdog to enforce laws covering campaign contributions and spending. But since the independent counsel's powers were reduced in 2020, there’s been scant oversight, according to political and good-government leaders.
One example: the State Board of Elections last posted an annual report detailing its enforcement actions in 2019.
“There really is no enforcement mechanism,” said Stephanie Miner, a former mayor of Syracuse and former co-chair of the state Democratic Committee.
The lack of effective enforcement "undermines the system,” said Miner, who teaches at Colgate University. “It’s both parties …. Now there is an incentive to break the law because you won’t get caught.”
A bill pending in the State Legislature would create an independent watchdog for the BOE, which is controlled by Democratic and Republican appointees chosen by the political parties.
Under the legislation, the independent enforcement counsel would have the power to investigate and enforce violations of election law such as failure to file campaign finance disclosure reports and illegally coordinating with super PACS that can spend millions of dollars to support or oppose candidates.
Also under the measure, the chief enforcement counsel could issue subpoenas without seeking the election board's approval. Since 2021, the counsel has had to inform the board of its investigations and get board approval for subpoenas. Backers of the proposed legislation say the counsel can't be fully independent under such strictures.
A Newsday analysis of enforcement cases closed so far in 2023 found numerous instances in which campaigns violated filing deadlines but didn't impose penalties or sanctions, instead getting campaigns to update reports or fix errors. Campaigns had to submit missing disclosure reports and return improper donations, sometimes years after they were spent on a race, Newsday found.
The board did take significant action in at least one Suffolk County case.
Newsday reported last week that the Suffolk Police Benevolent Association, the county's largest police union, agreed to pay $50,000 to settle a complaint filed with the state Board of Elections alleging its political action committee improperly interfered in the 2021 reelection campaign of Suffolk Legis. Rob Trotta. Trotta (R-Fort Salonga) frequently raises alarms about the union’s political influence.
Earlier this month, one of the election board’s co-chairmen, Democrat Douglas Kellner, joined those calling for tougher enforcement and penalties for campaigns.
Kellner said the board was moving toward more strict enforcement, "but it’s like turning around a battleship, it’s very slow.”
The state Board of Elections declined to comment for this story.
Long-standing criticism of the state’s enforcement of election and campaign finance laws reached a peak in 2013.
Corruption cases involving New York politicians and their campaigns prompted creation of the Moreland Commission on Public Corruption. Its searing preliminary report accused the state BOE of “willful inaction and anti-enforcement policies.” The report found divided control of the board by Democratic and Republican commissioners appointed by their parties often produced deadlocks over big investigations and proposed reforms.
The report led to creation of a chief enforcement counsel at the Board of Elections in 2014. The counsel was independent of the Board of Elections and had full subpoena power.
Then-Gov. Andrew M. Cuomo appointed former criminal prosecutor Risa Sugarman to the new position. As enforcement counsel, Sugarman investigated political parties and big campaign donors such as the now moribund Independent Democratic Conference. IDC members formed a pivotal voting bloc in the state Senate that helped majority Republicans, who had a narrow edge in seats over mainstream Democrats, to pass legislation.
Sugarman took the Senate IDC and its political action committees to court, arguing they accepted political donations that sometimes exceeded legal limits. IDC members agreed to a settlement in 2019 and paid $275,000 in civil penalties, according to the BOE's 2020 annual report.
Sugarman also went after the politically powerful New York State United Teachers, accusing the union and its top officers of “evading contribution limits” by using political action committees to make $700,000 in illegal contributions.
Sugarman accused the union and its political committees of improperly using super PACS — independent committees that may raise unlimited sums of money but cannot contribute to or coordinate directly with parties or candidates — to make donations that exceeded legal limits.
In 2019, the union and its political committees settled Sugarman’s case for a $100,000 penalty.
State legislators of both parties bristled at Sugarman's attempt to shine a light on the often opaque world of political fundraising and spending. Lawmakers argued the campaign finance system worked for the vast number of campaigns and questioned the broad authority of the chief enforcement counsel without a check by the Board of Elections.
In 2018, as Sugarman was pressing her biggest cases, the state BOE weakened her role.
The board required her to get permission from the Democratic and Republican BOE commissioners before issuing subpoenas and to reveal her investigations to the board. A year later, Sugarman sued to restore her powers and independence, but lost in state courts.
In that case, however, a state appeals court sided with the BOE on a key issue. The court panel determined the law that created the chief enforcement counsel didn't confer "unfettered and unbridled authority" to investigate and subpoena. Instead, the law intended for the enforcement counsel to work "within" the Board of Elections, the court said.
Sugarman retired in 2021.
This year, the state Senate passed a bill by Senate Elections Committee Chairman Zellnor Myrie (D-Brooklyn) that would restore full subpoena to the enforcement counsel. The bill can be considered by the Assembly beginning in the 2024 session in January.
“What we saw in the former enforcement counsel, Sugarman, was that when she started asking questions that people didn’t like, that independence was removed,” Myrie told Newsday. “That’s exactly the sequence of events we don’t want to see happen …. She was going after Democrats and people were uncomfortable about that.”
An enforcement counsel independent of the Board of Elections, perhaps chosen by law school deans rather than the governor, is needed, said John Kaehny, executive director of Reinvent Albany, a nonprofit that seeks to boost transparency in state government.
“Election enforcement is a joke in New York for a reason — the parties want it that way,” Kaehny said.
But Kellner, the BOE's Democratic co-chairman, called Sugarman’s tenure “a disaster.” He said she pursued big cases that drew headlines, but too often ignored the need to force campaigns to file disclosure reports. That has contributed to a backlog of cases involving more than 1,500 campaigns that have been delinquent in filing reports.
Kellner said the board agreed on Aug. 2 to empower Sugarman's successor, Michael L. Johnson, to seek a court order to force all campaigns that missed filing deadlines or didn't file disclosure reports to comply.
“Michael has brought many more proceedings than Risa did, but it's still just a drop in the bucket when you are looking at almost 2,000 committees that haven’t filled their reports,” Kellner said in an interview.
A direct comparison of enforcement actions by Sugarman and Johnson isn’t possible because the BOE hasn’t publicly posted annual reports containing enforcement actions since 2019. The board gave Newsday a draft of its 2020 report, the last one compiled while Sugarman was chief enforcement counsel.
In the draft, Sugarman said 47 of 79 cases opened for investigation were resolved; two cases were referred to hearing officers; and a total of $145,350 in penalties was collected.
Newsday also analyzed 48 cases that have closed so far in 2023. In each case, campaigns were told to supply missing information or comply with what were sometimes years of missed deadlines. None of the enforcement counsel's actions resulted in fines or sanctions, the analysis showed.
The board's practice of seeking compliance rather than sanctions has succeeded in getting campaigns to file their disclosure reports, Newsday's review shows.
But enforcement actions under Johnson haven't always resulted in cooperation from campaigns.
In October, Johnson asked the BOE for permission to issue subpoenas to the campaign of the GOP nominee for governor, Lee Zeldin of Shirley. A complaint by Democrats accused Zeldin's campaign of illegally coordinating the spending of millions of dollars by the super PAC Save Our State Inc., which backed Zeldin's candidacy.
The day the board was scheduled to meet to act on the complaint, the two Republican commissioners failed to show, resulting in postponement of any decision until after the election, which Zeldin lost to Democrat Kathy Hochul. The board wouldn't say if the case is closed or resolved.
Myrie said the Zeldin case reveals a disturbing fact: “One party can quash a subpoena.”
Nonetheless, Kellner sought this month to put some more bite into the BOE's enforcement efforts.
At an Aug. 2 meeting of the board, Kellner urged Johnson to start fining campaigns at least $25 when they miss deadlines.
“It is a message that we are serious, you have to comply with the rules, and it’s unfair to candidates who do comply,” Kellner said.
ALBANY — State legislators and good-government activists are pushing to restore the independent watchdog New York once had to probe contributions that exceed legal limits and other election law violations, arguing the current system gives campaigns “an incentive to break the law.”
New York once had an independent watchdog to enforce laws covering campaign contributions and spending. But since the independent counsel's powers were reduced in 2020, there’s been scant oversight, according to political and good-government leaders.
One example: the State Board of Elections last posted an annual report detailing its enforcement actions in 2019.
“There really is no enforcement mechanism,” said Stephanie Miner, a former mayor of Syracuse and former co-chair of the state Democratic Committee.
WHAT TO KNOW
- State lawmakers and good-government activists want to restore the independent watchdog New York once had to probe election law violations, arguing the current system gives campaigns “an incentive to break the law.”
- The State Board of Elections had an independent enforcement counsel, but since the watchdog’s powers were reduced in 2020 there’s been scant oversight, according to political and good-government leaders.
- A bill in the State Legislature would create an independent counsel's position with subpoena powers for the BOE, which is controlled by Democratic and Republican appointees chosen by the political parties.
The lack of effective enforcement "undermines the system,” said Miner, who teaches at Colgate University. “It’s both parties …. Now there is an incentive to break the law because you won’t get caught.”
A bill pending in the State Legislature would create an independent watchdog for the BOE, which is controlled by Democratic and Republican appointees chosen by the political parties.
Under the legislation, the independent enforcement counsel would have the power to investigate and enforce violations of election law such as failure to file campaign finance disclosure reports and illegally coordinating with super PACS that can spend millions of dollars to support or oppose candidates.
Also under the measure, the chief enforcement counsel could issue subpoenas without seeking the election board's approval. Since 2021, the counsel has had to inform the board of its investigations and get board approval for subpoenas. Backers of the proposed legislation say the counsel can't be fully independent under such strictures.
A Newsday analysis of enforcement cases closed so far in 2023 found numerous instances in which campaigns violated filing deadlines but didn't impose penalties or sanctions, instead getting campaigns to update reports or fix errors. Campaigns had to submit missing disclosure reports and return improper donations, sometimes years after they were spent on a race, Newsday found.
The board did take significant action in at least one Suffolk County case.
Newsday reported last week that the Suffolk Police Benevolent Association, the county's largest police union, agreed to pay $50,000 to settle a complaint filed with the state Board of Elections alleging its political action committee improperly interfered in the 2021 reelection campaign of Suffolk Legis. Rob Trotta. Trotta (R-Fort Salonga) frequently raises alarms about the union’s political influence.
Earlier this month, one of the election board’s co-chairmen, Democrat Douglas Kellner, joined those calling for tougher enforcement and penalties for campaigns.
Kellner said the board was moving toward more strict enforcement, "but it’s like turning around a battleship, it’s very slow.”
The state Board of Elections declined to comment for this story.
Long-standing history of election law violations
Long-standing criticism of the state’s enforcement of election and campaign finance laws reached a peak in 2013.
Corruption cases involving New York politicians and their campaigns prompted creation of the Moreland Commission on Public Corruption. Its searing preliminary report accused the state BOE of “willful inaction and anti-enforcement policies.” The report found divided control of the board by Democratic and Republican commissioners appointed by their parties often produced deadlocks over big investigations and proposed reforms.
The report led to creation of a chief enforcement counsel at the Board of Elections in 2014. The counsel was independent of the Board of Elections and had full subpoena power.
Then-Gov. Andrew M. Cuomo appointed former criminal prosecutor Risa Sugarman to the new position. As enforcement counsel, Sugarman investigated political parties and big campaign donors such as the now moribund Independent Democratic Conference. IDC members formed a pivotal voting bloc in the state Senate that helped majority Republicans, who had a narrow edge in seats over mainstream Democrats, to pass legislation.
Former counsel targeted powerful interests
Sugarman took the Senate IDC and its political action committees to court, arguing they accepted political donations that sometimes exceeded legal limits. IDC members agreed to a settlement in 2019 and paid $275,000 in civil penalties, according to the BOE's 2020 annual report.
Sugarman also went after the politically powerful New York State United Teachers, accusing the union and its top officers of “evading contribution limits” by using political action committees to make $700,000 in illegal contributions.
Sugarman accused the union and its political committees of improperly using super PACS — independent committees that may raise unlimited sums of money but cannot contribute to or coordinate directly with parties or candidates — to make donations that exceeded legal limits.
In 2019, the union and its political committees settled Sugarman’s case for a $100,000 penalty.
State legislators of both parties bristled at Sugarman's attempt to shine a light on the often opaque world of political fundraising and spending. Lawmakers argued the campaign finance system worked for the vast number of campaigns and questioned the broad authority of the chief enforcement counsel without a check by the Board of Elections.
In 2018, as Sugarman was pressing her biggest cases, the state BOE weakened her role.
The board required her to get permission from the Democratic and Republican BOE commissioners before issuing subpoenas and to reveal her investigations to the board. A year later, Sugarman sued to restore her powers and independence, but lost in state courts.
In that case, however, a state appeals court sided with the BOE on a key issue. The court panel determined the law that created the chief enforcement counsel didn't confer "unfettered and unbridled authority" to investigate and subpoena. Instead, the law intended for the enforcement counsel to work "within" the Board of Elections, the court said.
Sugarman retired in 2021.
New moves to toughen enforcement
This year, the state Senate passed a bill by Senate Elections Committee Chairman Zellnor Myrie (D-Brooklyn) that would restore full subpoena to the enforcement counsel. The bill can be considered by the Assembly beginning in the 2024 session in January.
“What we saw in the former enforcement counsel, Sugarman, was that when she started asking questions that people didn’t like, that independence was removed,” Myrie told Newsday. “That’s exactly the sequence of events we don’t want to see happen …. She was going after Democrats and people were uncomfortable about that.”
An enforcement counsel independent of the Board of Elections, perhaps chosen by law school deans rather than the governor, is needed, said John Kaehny, executive director of Reinvent Albany, a nonprofit that seeks to boost transparency in state government.
“Election enforcement is a joke in New York for a reason — the parties want it that way,” Kaehny said.
But Kellner, the BOE's Democratic co-chairman, called Sugarman’s tenure “a disaster.” He said she pursued big cases that drew headlines, but too often ignored the need to force campaigns to file disclosure reports. That has contributed to a backlog of cases involving more than 1,500 campaigns that have been delinquent in filing reports.
Kellner said the board agreed on Aug. 2 to empower Sugarman's successor, Michael L. Johnson, to seek a court order to force all campaigns that missed filing deadlines or didn't file disclosure reports to comply.
“Michael has brought many more proceedings than Risa did, but it's still just a drop in the bucket when you are looking at almost 2,000 committees that haven’t filled their reports,” Kellner said in an interview.
A direct comparison of enforcement actions by Sugarman and Johnson isn’t possible because the BOE hasn’t publicly posted annual reports containing enforcement actions since 2019. The board gave Newsday a draft of its 2020 report, the last one compiled while Sugarman was chief enforcement counsel.
In the draft, Sugarman said 47 of 79 cases opened for investigation were resolved; two cases were referred to hearing officers; and a total of $145,350 in penalties was collected.
Newsday also analyzed 48 cases that have closed so far in 2023. In each case, campaigns were told to supply missing information or comply with what were sometimes years of missed deadlines. None of the enforcement counsel's actions resulted in fines or sanctions, the analysis showed.
The board's practice of seeking compliance rather than sanctions has succeeded in getting campaigns to file their disclosure reports, Newsday's review shows.
But enforcement actions under Johnson haven't always resulted in cooperation from campaigns.
In October, Johnson asked the BOE for permission to issue subpoenas to the campaign of the GOP nominee for governor, Lee Zeldin of Shirley. A complaint by Democrats accused Zeldin's campaign of illegally coordinating the spending of millions of dollars by the super PAC Save Our State Inc., which backed Zeldin's candidacy.
The day the board was scheduled to meet to act on the complaint, the two Republican commissioners failed to show, resulting in postponement of any decision until after the election, which Zeldin lost to Democrat Kathy Hochul. The board wouldn't say if the case is closed or resolved.
Myrie said the Zeldin case reveals a disturbing fact: “One party can quash a subpoena.”
Nonetheless, Kellner sought this month to put some more bite into the BOE's enforcement efforts.
At an Aug. 2 meeting of the board, Kellner urged Johnson to start fining campaigns at least $25 when they miss deadlines.
“It is a message that we are serious, you have to comply with the rules, and it’s unfair to candidates who do comply,” Kellner said.
Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.
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