By James Coll – Adjunct Professor of American and Constitutional history at Hofstra University.
October 2, 2018.
New York State voters thought that they had passed a constitutional amendment punishing corrupt politicians – but they didn’t, read the fine print.
Sheldon Silver was due to begin his seven-year sentence this week for violating the law, the public trust, and the responsibilities of his office as assembly speaker—a position he occupied for 21 years. Though a federal judge has stayed his entry date while Silver appeals his conviction, many New Yorkers are justifiably pleased to see Silver heading off to jail, viewing his conviction as a long-overdue draining of the Albany swamp. With recent convictions of other top players in state politics, it appears that New York may have begun to clean itself up.
But while Silver is eventually going to prison, he won’t lose a single taxpayer-funded pension paycheck of $6,602 per month, even while serving his time behind bars. And in spite of his own federal conviction, former New York Senate Majority Leader Dean Skelos also continues to receive a $95,831 annual pension, courtesy of New York taxpayers. If this makes you angry—as it should—it might further upset you that these ill-gotten pensions could have been eliminated if our elected lawmakers had done their job properly during the most recent legislative session.
Last November, New York voters passed by a nearly two-to-one margin a state constitutional amendment known as Proposal #2. The common reading of the proposal, and the one most people thought that they were voting for, was that it would punish legislators convicted of felonies by stripping away their pensions. In reality, lawmakers wrote an amendment with enough poison pills to ensure that even when they lose, they win.
For instance, the new law mandates that New York’s representatives “shall enact legislation to implement this amendment.” Unsurprisingly, leaving ethics reform up to the members of the state legislature resulted in another year of inaction. Neither the state assembly nor the senate fulfilled its responsibility to implement the pension-stripping provision. The new law also authorizes “a court to reduce or revoke the pension of a public officer.” Thus, judges—elected in the same political system as the politicians—reserve discretion over the removal of pensions. The penalty should be automatic: you get convicted by a jury of your peers of a felony related to your role as a public servant, you lose your pension, period.
Moreover, the law requires the court to consider “whether forfeiture . . . would result in undue hardship . . . upon any dependent children, spouse or other dependents.” Consideration of the corrupt politician’s family should not be a judge’s responsibility. One would hope that legislators would take into account their families’ welfare before breaking their solemn oath, the public trust, and the law. Finally, the new law “shall only apply to crimes committed on or after the first of January next succeeding the date upon which the people shall approve and ratify the amendment.” Silver and Skelos get a free pass on this basis, as will any officials have arrested for crimes that they committed before this year.
New York elected officials’ celebration of this no-impact half measure proves that they’re not serious about any reform that might cause a change in the behavior that has become a national embarrassment. Real reform of pension benefits is essential. The first step is recognizing that what was sold to us last year as a remedy for rogue politicians was only an illusion.
New York State voters thought that they had passed a constitutional amendment punishing corrupt politicians—but they didn’t read the fine print, they did’t read the fine print. .