Now that members of the state Legislature have had time to catch up on their sleep, they might want to revisit an ethics bill they passed in the middle of the night as they headed out for summer recess.
Last week, the foundations of the American Civil Liberties Union and the New York Civil Liberties Union joined forces to sue the state over an ethics law that requires much greater disclosure of the names of people who donate to charities that lobby the state.
The idea of the bill was to close a loophole in state law that essentially allows people to anonymously fund lobbying efforts while writing the payment off as a tax deduction.
Based on its intentions, the bill (A.10742/ S.8160) has merit. There’s too much hidden money being used to infl uence state legislators. Requiring lobbyists and their supporters to disclose their identities is a way to show the citizens who is influencing government decisions and with how much money. One way people currently get around that disclosure is by making a donation to a charity that also lobbies the state.
In the interests of making state government more transparent, the legislation seems like a good step forward. But the net, in this case, might have been cast too wide.
In their joint lawsuit, filed in federal court last Wednesday, the civil rights groups objected to two components of the legislation on constitutional grounds — that it violates citizens’ First Amendment right to free speech and their Fourth Amendment right to privacy.
One of the challenged provisions, for instance, requires lobbying nonprofi ts to disclose in a report to the state the names and addresses of anyone who makes an in-kind donation of more than $2,500 within six months.
The groups also object to a provision that requires that any nonprofi t covered by the law that spends more than $10,000 in a calendar year on “covered communications” to fi le a fi nancial disclosure report and identify donors who give $1,000 or more.
The reports would be made public unless the attorney general’s offi ce fi nds that the disclosure would cause the donor to be threatened or harassed because of his or her contribution.
But right now, the organizations claim in their suit, the attorney general’s offi ce hasn’t issued any rules for hearing an appeal, meaning any disclosure forms fi led when the law takes effect next month would be made public, regardless of whether any donors feel threatened.
If people are paying for government lobbying, then the public has a right to know who they are and how much they’re donating. But if an individual is contributing to an organization and the money is going exclusively toward that organization’s charitable activities, then why is that anyone’s business?
So the law is fl awed in that it’s too broad and it reaches too far.
These issues with the disclosure law might have been resolved had lawmakers actually taken time to review its conditions and had the public and groups like the ACLU had time to look it over and make suggestions.
In the case of this bill’s passage, those opportunities were missed.
First off, the bill was introduced with a “message of necessity” from Gov. Andrew Cuomo, which means it wasn’t subject to the usual three days of scrutiny that most bills receive.
Compound that with the way the bill was circulated and voted on in each house of the Legislature, and you have a recipe for bad legislation.
The Senate version of the bill, containing amendments not previously released to lawmakers or disclosed to the public (including the two being challenged by the litigation), was introduced at 1:45 a.m. on the last day of session, according to the suit. After only 15 minutes of discussion, it was passed at 3 a.m. The Assembly version was passed even later and with even more haste, gaining approval around 5:09 a.m. after less than 10 minutes of discussion.
Given the vital importance of this bill in bringing about more disclosure to reduce the infl uence of money in state politics, the fi nal version should have been subjected to more discussion among legislators and to more public review.
Public review was especially important in this case, since the bill involved threatening the privacy of donors to nonprofi ts.
And had there been such review review, it’s likely someone would have brought up the potential constitutional issues that are at the crux of this litigation.
When they return to Albany next month, officials should postpone the date the law goes into effect, then review the points outlined in the litigation.
After careful consideration — hopefully when they’re fully awake this time — they might then consider amending the law to alleviate the constitutional questions and protect the privacy of donors who aren’t engaged in lobbying.
If the state loses the case, they’ll have to do all that anyway. And it will have cost taxpayers the expense of going to court and defending the legal action, while potentially subjecting some donors to harassment.
Why put everyone through that? They should revisit the law, take their time, and get it right.
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