Category Archives: Election Law

“New York’s Last, Best Hope for Real Reform”: The Case for Convening a State Constitutional Convention

By Brian M. Kolb, New York State Assembly Republican Leader

In the lead article of the inaugural issue of the Albany Government Law Review’s New York Legislation book, Assembly Republican Leader Brian Kolb convincingly advocates for a “People’s Constitutional Convention.”   Mr. Kolb, the Assembly Minority Leader, argues that, since the last convention in 1967, the fiscal, governmental and confidence crises are reasons not to wait until 2017, the next time the question of convening a convention will automatically appear on the ballot.

Mr. Kolb created an online petition to call for a convention: Reform New York.  To date, nearly 2,500 have signed, at least virtually, the petition to support a People’s Convention to Reform New York.

The term “reform” has reached remora-like status in Albany, attached to nearly anything, and in cases that may result in only marginal improvement.  As Mr. Kolb writes, the People’s convention is needed to address far-reaching, institutional change:

State government’s dysfunction, corruption, and fiscal irresponsibility are still the ultimate trump card that can mobilize public opinion and serve as an urgent call to action. As symptoms of these “cancers” on government continue to manifest themselves in the form of chronic unemployment, late state budgets, multi-billion dollar deficits and debt, some of the nation’s highest property, business, and income taxes, the “case” for convening a constitutional convention will be self-evident, extremely powerful, and, in my opinion, open and shut. The fact that state government still lacks a statewide succession plan for state offices, an independent Legislative Redistricting Commission, term limits for legislative leaders and legislators, initiative and referendum, . . . will continue inspiring calls for reforming the broken institution of state government.

Click here to view the article by Assembly Republican Leader Kolb.

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Filed under Constitutional Law, Election Law, Government Reform, Legal History

High Court’s Recent Decision on Public Matching Funds Renders New York City’s Campaign Finance System Ripe for Constitutional Attack

By Larry Levy & Andrew Rafalaf*

            In a 5-4 decision last week, the Supreme Court found unconstitutional, once again, campaign finance laws that award public matching funds to candidates based upon the spending of personally financed opponents.  Under the challenged law in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,[1]  (“Arizona”), candidates opting to participate in Arizona’s public financing program received significantly increased public funding when an opponent, or any independent expenditure group supporting that opponent or attacking the candidate, reached a set spending threshold.  The Court determined that the statute violated the First Amendment because this “trigger” mechanism threatened to, without sufficient justification, limit the spending of opponents or independent groups seeking to avoid triggering the additional matching funds.[2] Continue reading

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New York State’s Ethical Crisis: What Is Governor Cuomo Going To Do About It?

Emma Maceko, Albany Government Law Review Member

Introduction

New York State’s newly elected Governor, Andrew Cuomo, delivered his first State of the State address on January 5, 2011, in front of over two thousand people at Albany’s Convention Center.  During this address, he bluntly stated that “[t]his is a time of crisis for our state.”[1] No one can deny that the State of New York is in dire straits, plagued by a number of serious and controversial problems in need of immediate attention.  Although issues like the State’s current ten billion dollar budget deficit[2] and its high unemployment rate dominated Governor Cuomo’s State of the State address and have also stolen much of the media spotlight, the issue of ethical reform within the state government is one of great importance that should not be overlooked.

Ethical reform is an issue that has been getting a lot of attention all over the country, especially here in New York State.  Governor Cuomo addressed this issue in his State of the State address amid his discussion about reinventing the state government.  Governor Cuomo must approach ethical reform head on, and how he handles it will likely be critical to the success of his administration.  The people of New York State have lost confidence in their government.  Over the past few years, New York State politicians at all levels of government have made headline after headline for being at the center of high-profile political scandals, scandals that have resulted in a growing sense of distrust and disillusionment toward the government and other public institutions.[3] Governor Cuomo made cleaning up Albany a key campaign pledge, but what is it that he is proposing and how can future abuses by state politicians be prevented?

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Citizens United v. Federal Election Commission: Preservation of First Amendment Freedoms, or an Invitation to Corporations to Bankroll the United States Election Process?

Melissa Ann Dizon, Government Law Review Member

The Supreme Court, in a 5-4 decision, recently held that corporate funding of political broadcasts in candidate elections cannot be limited because to do so would run afoul of the First Amendment.[1]  This ruling stemmed from the non-profit corporation Citizens United’s case before the court regarding its documentary Hilary: The Movie.[2]  The group wanted to air the documentary during the 2008 presidential primary season through a cable television video-on-demand service and to advertise for it on television.[3]  However, the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold Act (hereinafter “MFA”) prohibits certain corporate-funded television broadcasts, such as this documentary, in the sixty days before a general election (or the thirty days before a primary).[4]  The law also requires disclosure by the funders of election-related broadcast advertising, such as these ads.[5]  Citizens United argued against the prohibitions on corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or speech that expressly advocates the election or defeat of a candidate.[6] 

 In so holding, the Supreme Court overturned its prior decision in Austin v. Michigan Chamber of Commerce,[7] as well as part of the ruling in McConnell v. Federal Election Commission.[8]  The Court rejected the very idea that the government can decide who gets to speak and that the government can actually ban some from speaking at all, particularly those doing their speaking through associations of members who share their beliefs.  Austin was a case in which the Supreme Court held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and Fourteenth Amendments.[9]  The Court upheld the restriction on corporate speech based on the notion that “[c]orporate wealth can unfairly influence elections,” and also rationalized that the Michigan Act still allowed the corporation to make contributions from a “segregated fund.”[10]  Over a decade later, the Supreme Court in McConnell upheld the key provisions of the MFA: (1) the aforementioned “electioneering communication” provisions; and (2) the “soft money” ban, which prohibits federal parties, candidates, and officeholders from raising or spending funds not in compliance with contribution restrictions, and prohibited state parties from using such “soft money” in connection with federal elections.[11]  For almost twenty years, the Supreme Court has erred on the side of fairness with respect to our democratic election process, by upholding these restrictions on corporate expenditures.  The intent of these pieces of legislation has not been to block free speech; rather, it has been to block the use of large amounts of money as a means of unevenly influencing the political process.

 And now?  Bring on the corporations.

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