Can Cuomo convince New York’s highest court to scrap state ethics commission?

The fate of the Commission on Ethics and Lobbying in Government rests in the hands of the state Court of Appeals, and it’s not looking good for the imperiled commission. The state’s highest court heard oral arguments on Tuesday from attorneys for former Gov. Andrew Cuomo, who alleges that COELIG is unconstitutional, and from the state Attorney General’s office, which is representing the commission. Good government organizations are hoping that the independent watchdog agency survives this last-gasp appeal for the sake of government accountability, while Cuomo hopes to sink COELIG as he considers a potential mayoral run. 

The case stems from controversy over Cuomo’s pandemic-era book, “American Crisis: Leadership Lessons From the Covid-19 Pandemic,” for which the former governor received a $5.1 million publishing advance. The Joint Committee on Public Ethics, COELIG’s predecessor agency, argued that the book was improperly crafted using government staff and resources and attempted to claw back Cuomo’s advance. When COELIG was created to replace that ethics commission, it picked up the case against the governor. In turn, Cuomo’s attorneys filed suit arguing that COELIG’s creation violated the state constitution. 

Representatives from watchdog groups like Reinvent Albany, Citizens Union and the New York City Bar Association's Government Ethics Committee have kept close tabs on courtroom proceedings in the case against COELIG, seeing it as a defining moment for the future of ethics in New York politics. If the commission loses yet again, it could be dissolved or at least require new legislative action to bring it into compliance with the state constitution.

“We want independent entities that look out for the public’s best interest and if, essentially, the governor can’t cede her authority to anything independent ,then as you’ve heard, ethics enforcement is left up to the leaders,” said Blair Horner, senior policy advisor at the New York Public Interest Research Group.

Cuomo’s argument, which has thus far carried the day in the state supreme and intermediate appellate courts, is that COELIG’s existence and actions violate the state constitution’s separation of powers doctrine, since the majority of the commission’s members are not appointed by the executive branch, potential nominees are vetted by an unelected review panel of law school deans and the governor does not have the authority to remove members of the commission.

On behalf of COELIG, the state Attorney General’s office has argued that the commission’s unique structure is needed to provide insulation from New York’s political forces. 

This theory – which lower courts have deemed noble but still unconstitutional – was met with withering questions from state Court of Appeals judges who repeatedly questioned the legality of COELIG’s scope, citing the fundamentals of American civics. 

“These are principles we teach our middle schoolers from sixth grade,” Court of Appeals Judge Madeline Singas said at one point during the hearing.

Following Tuesday’s oral arguments, both sides projected confidence. Cuomo spokesperson Rich Azzopardi said in a statement, “Six judges already unanimously ruled this commission to be unconstitutional and we believe those decisions will ultimately stand,” Cuomo spokesperson Rich Azzopardi said in a statement.

COELIG’s chair Leonard Austin and executive director Sanford Berland also sounded bullish on their chances, despite repeated losses in court. “We are optimistic that the Court will rule in our favor and confident that if the Court, nonetheless, finds any shortcoming in the current statute, it will be quickly rectified by the governor and legislature,”  they said in a joint statement.

“As always,” they added, “the state’s ethics and lobbying laws remain fully in effect and unimpaired.”