Wednesday, June 6, 2012

The inmates are running the asylum

Eight Ball Corner Pocket

As has been heavily covered by the media, JCOPE has a hearing scheduled Thursday to receive comments about the source of funding law that went into effect June 1st and also the requirements to disclose business relationships which went into effect January 1st.

Where to begin?

Let’s start with process.

I think it’s wonderful that a New York State disclosure agency is offering the opportunity for the public’s comments.  But what is the public supposed to be commenting about?

For better or worse, the law has already been passed.  Unfortunately, JCOPE has not yet issued their rules and regulations.  Had they done so in a timely fashion, public input about those rules and regulations would have some merit.

Does JCOPE already have draft rules and regulations that the public can review?

If yes, then they should have already been issued.

This is the single largest change in New York disclosure laws in a generation and I see no evidence that JCOPE has thought about how to implement the change.  It makes one wonder what has actually been going on there these last few months.  It certainly wasn’t a surprise that the source of funding disclosures were to go into effect June 1st.

Now as to the policy implications, any thoughts that JCOPE has about implementing their tardy rules and regulations retroactively should be immediately quashed.

James Madison in the Federalist papers wrote that ex post facto laws . . . “are contrary to the first principles of the social compact, and to every principle of sound legislation” and that laws should “give a regular course to the business of society.”

JCOPE must seriously consider the effect imposing a disclosure requirement retroactively will have on the lobbying community.

What effect could it realistically have?

People made donations (source of funding) with an expectation of privacy, to now “out” those donations is in a word unfair.

Going forward, if, after their highly anticipated hearing, JCOPE issues clear rules and regulations, donors will be able to weigh the pros and cons of a donation against the disclosure of that donation.

There are lots of legitimate reasons folks might not want their donations disclosed including not ending up on some organization’s fundraising list in the future.

Get the point?

And that’s before we ever get to the debate about definitions, a debate we cannot have until terms are defined by JCOPE.

Clearly the impact that this change would have on the lobbying community has not been a priority to JCOPE.

Since the hearing has already been set and I didn’t RSVP by May 18th, all I can do now is offer the following advice to JCOPE.

Step 1 – Issue draft regulations so we have some idea what you are considering.

Step 2 – Provide an opportunity for comment regarding those draft regulations.

Step 3 – Issue regulations that go into effect prospectively.

I have to agree with what Common Causes Susan Lerner said in the Times Union, “Because of the way the body was constituted, they’ve been behind the eight ball since they got started.”

This hearing could be a golden opportunity for JCOPE to turn things around and start pocketing some balls.

Rack ‘em up, JCOPE.

Disclaimer – this is a heavily edited version of my original piece.  I have tried to be dispassionate in my analysis and critique so as to avoid my normally snarky personal attacks.  For those that enjoy the old style stay tuned it will be back.  I am sure J-JOKE will provide more material for the old style blog.

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