The Public Campaign Financing Commission’s work could be more of a legal issue than a political one

The state created Public Campaign Financing Commission is heading toward decisions and a report on how the state will run a program for the use of public money in statewide and state legislative races. And maybe an end to fusion voting. The report will be out on November 27th.

The Commission held a public hearing in Buffalo on October 29th, attended by about 200 people and seven of the nine members of the Commission. The majority of the speakers supported public financing of campaigns and also opposed the end of fusion voting. At this point, however, except for a handful of stories about what the Commission might decide, what they may do is mostly speculation. Since the Commission’s planned actions are not very transparent, it will be time to get into what they come up when they come up with it.

At the Buffalo hearing, the last of four held around the state, Buffalo Mayor Byron Brown strongly supported public financing but did not comment on fusion voting. Erie County Democratic Chairman Jeremy Zellner recommended the end of fusion voting but did not comment on public financing.

Republican State Assemblymen Angelo Morinello, Michael Norris, and Andrew Goodell, along with Republican State Chairman Nick Langworthy, all questioned the whole purpose of public financing of campaigns, suggesting that the money (up to $100 million) could be better spent on other things. Langworthy strongly attacked Governor Andrew Cuomo’s behind-the-scenes role in the work of the Commission.

Much of the reporting that has occurred thus far has focused on the fusion voting issue, with speculation about whether the Commission will end the system. Many suggest that Governor Cuomo is behind the effort as a means of settling scores with the Working Families Party, which endorsed him in 2014 and 2018, but nonetheless maintains a dicey relationship with the Governor. The Governor and his team deny any such effort.

The state Conservative Party and the Working Families Party have the most to lose if fusion voting is ended. Their clout, which includes support for various public policy issues but also results in patronage opportunities, would probably evaporate if they could only run members of their own party for office, rather than be an important extra line on the ballot for Democratic and Republican candidates.

No Republican has ever been elected to statewide office without the Conservative line since the Party was established in 1962. In Erie County the Conservative line has been largely responsible for the success of Republican countywide candidates for office for many years.

While the politics of the Commission’s activities and even its existence has absorbed most of the dialogue so far, it seems very likely that legal issues concerning the Commission’s work will ultimately take precedence.

For openers, there is a baseline legal question that was raised by Erie County Conservative Party Chairman Ralph Lorigo, who spoke at the Buffalo hearing. Lorigo raised this issue: the members of the Commission are “public officers” covered by terms of the Public Officers Law. The law defines a public officer as “every officer appointed by one or more state officers, or the legislature.” That would include members of the Commission.

The law, among other things, requires all public officers to file with the appropriate government office an “Oath of Office” card, certifying that they accept their responsibilities under the law. The law requires that the cards be filed within 30 days of the public officer’s appointment, and must precede any official action by the officer. Failure to file the oath card within 30 days vacates the appointment.

The thing is, Lorigo says that members of the Commission failed to file their oath cards within 30 days of their appointments as Commission members, which occurred several months ago. I have no reason to question what Lorigo is saying since he is skilled at such things, and he would wind up with egg on his face if in fact it turned out that he was not correct.

If oath cards for the members have not been filed on a timely basis then that could make whatever actions the Commission has taken thus far invalid. The cure for this problem would be for the appointments to be made again and then have the oath cards appropriately filed. That takes a little time. Under the law that created it, the Commission has less than a month to complete its work.

This is a substantive issue. There have been examples of offices becoming vacant upon the failure to file the Oath of Office.

And then there is the matter of whether a non-elected state commission can be given the power by the State Legislature to, in effect, legislate. The same issue was raised in regards to the state Commission that was appointed in 2018 to establish pay raises for statewide officeholders, legislators and state departmental leadership. That Commission went on to say that there would be limits on outside income of legislators, starting in January 2020. The issue has been challenged in two court cases but has not yet been definitively decided.

So the question remains for the Public Financing Commission, how much power does the Commission actually have to create a public financing system and possibly to end fusion voting?   Law suits have already been filed, although it would seem that there needs to be a Commission policy in place before such a challenge could go forward.

The State Legislature will have between December 1 and December 22 to convene and turn down the Commission’s recommendations if it chooses to do so. Whatever is decided might not in any case actually go into effect until 2022.

If the State Legislature defers on action concerning the policies on public financing and fusion voting the Commission puts forth, then the Commission plans will go into effect, subject to court action that will likely land in the hands of the State Court of Appeals. Stay tuned for the next exciting episode.

For Election Night analysis on November 5th, tune in to WBFO-FM, 88.7. I will be joining News Director Dave Debo and Warren Galloway to discuss the results. I will post an article about the results on this blog on Wednesday.

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