Although voters in November ultimately approved a state constitutional amendment allowing off-reservation casino gambling, it was far from certain beforehand that they would. But there can be little doubt about the outcome if another amendment, this one proposed by Sen. Neil Breslin, were on the ballot. Approval of a referendum to strip corrupt politicians of their pensions would be as close to a sure thing as you can get.
The trouble is bringing such a worthwhile measure to a vote. Like all amendments, it would require passage by two consecutive legislatures, which for practical purposes means two years at a minimum. But that’s just logistics. The bigger problem is getting legislators to vote for something that could conceivably cost them their own pensions, or at least cost their colleagues theirs. Possible, but quite unlikely.
The constitutional route would be necessary to take away pensions because state law protects them against any legal action and the constitution against any diminishment.
Fortunately, there’s another approach that could work and is going to be tried by the U.S. attorney in Manhattan, Preet Bharara, who has promised to go after the pensions of those who commit crimes connected to their office. He would do it by using civil fines that take into account how much the corrupt official will receive from his pension, and by using federal civil forfeiture provisions to attach pensions to satisfy unpaid criminal judgments or to claw back the amount of pension that accrued during the time of the criminal behavior. It would be up to judges to determine whether civil forfeiture penalties were appropriate in a particular case and to assess them.
The justification for Bharara’s approach can also be found in the words of Breslin’s legislation: “When an elected official is sworn into office, he or she must sign a solemn oath stating that they will uphold the laws and the constitution that govern New York state. This oath sets the highest standard for integrity — the public’s trust. A violation of that trust, while in office, demands pecuniary as well as criminal penalty.” Amen.