Henry J. Stern
May 31, 2007

Today being the last day of May, as well as Day 151 of the Spitzer administration, it is time to take a look at what has happened in Albany since Inauguration Day..
 
Many of us who hoped for a change in the culture of cynicism that pervades state government have been disappointed.   Some take out their annoyance on Governor Spitzer, who has been arrogant in some of his public statements and naive in some of his dealing with the wily legislature.
 
In fact the state senate and the assembly were not and are not likely to adopt most of the governor's reform agenda.  It is not in their economic self-interesst.   But the manner in which they were presented and his early aggressive remarks have made it somewhat easier for the guys to ignore his wishes.  By loose language and unsupported threats, he has weakened his hold on the high ground, which is necessary when one is dealing with people, some of whose ethical standards are quite different from yours, not that you're a saint  But most of your sustenance comes from the private sector, and the State of New York is not your piggy bank..
 
In the last months, there has been a marked retreat from the belligerence of the early days.  Hopefully, the governor will affect a more diplomatic approach to the rascals.  He does have the problem which afflicts most reformers:  If you really want things to be better, and have pretty good ideas as to what should be done, how do you persuade them to act in the public interest?.  And how can you suppress your righteous anger when they are unresponsive?
 
There are a number of ways to deal with this problem:  One is intimidation, threatening primaries against incumbents who reject your program.  That has worked only once, when Nassau County Executive Tom Suozzi ran a candidate, Chuck Lavine, a City Council member in Glen Cove, who defeated incumbent Assemblyman David Sidikman in the 2004 Democratic primary.  Predictably, that successful purge of poor old Sidikman, who hadn't done anything awful to anyone, generated distaste for Suozzi among the time-servers in Albany, who supported Spitzer in the 2006 Democratic primary partially because he was viewed as less hostile to the system than Suozzi.
 
There were negative signs before Election Day.  Spitzer is reported to have refused to give Assembly Speaker Sheldon Silver the honor of placing his name in nomination at the party convention.  That was followed by Spitzer's scorched-earth policy toward Comptroller Alan Hevesi's failings.  Silver was more considerate of his former colleague, not defending him but not denouncing him either, waiting for the process to take its course.
 
The blow-up came over the selection of a new Comptroller.  The details of that struggle need not be recounted here in detail, but it has had a lasting impact.    Spitzer's public statement that Thomas DiNapoli, a Nassau County Assemblyman for twenty years (and rival of Suozzi in the 2001 Democratic primary for county executive, was "thoroughly and totally unqualified for the job" remains on the record.  DiNapoli and Spitzer can square off again in 2010, when both men will be up for re-election.  Meanwhile, Spitzer can speculate as to whether he would have been better off with the wounded but brilliant Hevesi.
 
Again, we do not know whether Hevesi should have remained Comptroller through 2010, even though he was just re-elected in 2006.  It is possible that he and his staff made other decisions on selection of investments and underwriters which would not withstand objective scrutiny.  It is likely that some of his employees misused state assets.  But the E felony with which he was charged by the Albany County district attorney to which he pleaded guilty, was insufficient, in our judgment, to warrant his removal. His acceptance of the plea bargain, despite his spending hundreds of thousands of dollars on lawyers, suggests that facts not generally known to the public influenced his decision to abdicate.
 
The exclusion of Hevesi from campaign events, even from the acceptance of the returns on Election Night, before he had been tried or convicted, reinforced Spitzer's reputation for ruthlessness.  His unsuccessful foray into picking a successor caused a heavy loss in stature. It placed Speaker Silver in the position of defending his members from the governor, even as he was (or was not) breaking his word.  The panel itself was sadly flawed.  By approving City Finance Commissioner Martha Stark and failing to approve former City Finance Commissioner, City Councilmember and State Commissioner of Taxation and Finance Andrew Eristoff, the panel departed from standards of professional competence and wandered into the minefield of race and gender.  As luck would have it (Rule 17-A), one of the ablest Assemblymen, Pete
Grannis, known for honesty and fairness, who would have made a fine Comptroller, had already been tapped by the governor to be Commissioner of Environmental Conservation. 
 
The next area of conflict was the budget.  Here the assembly added hundreds of millions to Spitzer's budget and the Republican senate added hundreds of millions more. The exact figures are always in dispute.  Both sides claimed victory, as is often the case with compromises.  Experts like the Citizens Budget Commission agreed with business groups that  the budget was too high to begin with, rising at three times the rate of inflation.  Governor Spitzer added billions of dollars for education, bowing to a court decision which was arguably ultra vires.  He said that he had imposed standards of accountability on spending the money, but there is no reason to believe that any money will be withheld.   Accountability, like transparency, is a buzzword that can be interpreted any way its users choose.  Put simply, it is unreal. On top of that, the Senate added more hundreds of millions to prevent Long Island school districts from the possibility of losing state aid.  Reason: there are seven Republican senators from Long Island.  Without the two counties of Nassau and Suffolk, the senate would have a Democratic majority.
 
That brings us to Governor Spitzer's other political decision, appointing Senator Michael Balboni of Nassau to the position of Deputy Secretary to the Governor for Homeland Security, was intended to, and did, reduce Senator Bruno's Republican majority, which had been three seats, (34-28 in a 62-member body).  If there is a tie in the senate it would be broken by the Democratic Lieutenant Governor, David Paterson.  To fill the Balboni vacancy, Spitzer contributed money and campaigned enthusiastically for Craig Johnson, a Democratic county legislator.  Johnson defeated the Republican, and Bruno's majority was cut to 33-29.
 
The position of Deputy Secretary to the Governor, which Balboni accepted out of frustration with his role in the senate, was further undermined by the appointment of Sean Patrick Maloney as First Deputy Secretary.  Maloney was a splinter candidate for Attorney General in the Democratic primary, raising millions of dollars from out-of-state gays.  He received nine per cent of the vote.  Maloney made a good impression in the campaign and was a reasonable appointment. But making him First Deputy, thus downgrading the other seven, is childlike, unless the seven report to him, in which case their jobs are substantially less important than the position of State Senator.
 
Balboni may have been persuaded to take the position by being told how many lives he could save by fighting terrorism on the front line as Deputy Secretary. He certainly was not told he would be under a First Deputy Secretary to the Governor.  Balboni is a decent and able person, and we assume he will do a good job if he is allowed to by his new supervisors..  We also hope that we are not attacked by terrorists, even though that would substantially lessen his role.   The question of whether Balboni had a responsibility to the party that elected him for 18 years to the state senate and the assembly is for him to contemplate, perhaps with the other young and anonymous deputy secretaries.r.  
 
DIGRESSION:  The Balboni affair reminds evokes a similar situation in 1965, when Lyndon Johnson got Arthur J. Goldberg to resign from the Supreme Court of the United States to become US Ambassador to the United Nations on the ground that only he could bring peace to the world.  In fact, LBJ's motive was to create a vacant seat (which had traditionally been known as the Jewish seat since it was occupied by Justices Benjamin N. Cardozo (1932-38) and Felix Frankfurter (1939-62) so he could nominate his buddy Abe Fortas to the court.  Frankfurter was not the literal successor to the great Justice, Louis D. Brandeis (1916-39).  When Brandeis retired, President Roosevelt appointed Justice William O. Douglas (1939-75), who served longer than any other justice who ever sat on the High Court... 
 
President Johnson tried this maneuver again in 1967 when he promoted Ramsey Clark to the position of Attorney General. In order to avoid the appearance of conflict of interest, Ramsey's father,  Justice Tom C. Clark (1949-67), retired from the court on his son's appointment.  This created another vacancy,  which LBJ sought to fill with the appointment of Homer Thornberry, a judge and former Congressman from Texas.  That was part of a deal under which Earl Warren would retire, Fortas would fill the vacancy as chief justice, and Thornberry would take Fortas' seat.  The deal collapsed when Fortas got into trouble.  Ramsey Clark, who lost a challenge to Senator Jacob Javits in 1974, wandered further and further and has since represented both Saddam Hussein and the Palestine Liberation Organization in the case of the murder of Leon Klinghoffer, who was shot and pushed into the Mediterranean Sea.  Clark lost both cases.
 
BACK FROM THE PAST:  The achievements of the first five months of the Spitzer administration should not be ignored.  A high point was the governor's executive order, issued January 1, setting standards of conducts for the executive branch of state government.  In the first blush of co-operation with the legislature, both houses passed a civil commitment bill for sex offenders, and an ethics reform bill of limited scope.  The election of Craig Johnson to the senate was a political victory, but Spitzer made an implacable enemy of Joe Bruno, who will remain majority leader unless two or more of his senators defect to the Democrats or take state jobs under Spitzer.  Although Bruno is not universally popular among Republicans, and has reached the age of 77 (fifteen years older than the speaker and thirty years older than the governor), there has been relative peace in the GOP for the last few months. In addition, once they have made their move, defectors are useless and often perceived as rats, unless there is a strong ideological reason for their change in loyalties.
 
Another Spitzer achievement was a healthcare provision in the budget which raised the maximum family income limit for state-subsidized health insurance for children (Child Health Plus, a program initiated under Governor Cuomo) from $51,630 to $82,600, the highest such limit in the United States.  The governor kept a campaign promise by supporting a bill to allow gay marriage, while recognizing that its passage by both houses is an event unlikely to occur in the near future.  

The Commonwealth of Massachusetts is now the only jurisdiction in the United States where full gay marriages are performed, although a few other states, primarily in New England, recognize civil unions. A few more states recognize domestic partnerships.    However, in today's Sun, p4.c5 in a story about legislative public hearings, Speaker Silver, in response to a question as to whether he would hold such hearings on gay marriage, said, "There are only so many public hearings that we're going to do."   In other words, don't hold your breath.
 
The governor's setbacks primarily consist of things not done by the legislature, in part because of his manner, in much larger part because the legislators receive substantial contributions from those who oppose reform for their own economic reasons.  One thing that seems to have been learned is that serious matters cannot be negotiated in public, despite the demands of reform purists.  It is hard enough to negotiate to resolve differences on a complex issue without being required to hold the negotiations in the Colosseum, a spectacular locale to which every place today which has full electronic media access is comparable. Open meetings laws notwithstanding, open negotiation is an oxymoron.
 
The first five months have been inconclusive.  We expect higher standards from a reform governor who was an editor of the Harvard Law Review than we do from some of the rascals with whom he must deal.  But whereas we can condescend to officials because we are outsiders, his game plan must be different.  He must at least simulate respect for his colleagues, even if that makes him appear insincere to us.  Rule 28-A is "Always tell the truth when you can."  The hard part is knowing when you can or can't.

Politics is inherently a hypocritical business, in some part because it requires frequent co-operation between people who compete with each other, do not respect each other, and are often aware of each other's personal and professional ethical lapses. They also have to appeal to a variety of groups in their own constituency, some of whose demands are contradictory to the needs of other local groups.  And they must compete with people who have more money than they do, whether earned, inherited, married or stolen.
 
For a first semester  report card, we would give the governor an "S" satisfactory grade for good intentions and sincere effort.  The problem comes in the issue: "works and plays well with others" There one would have to give an N "needs improvement", which is somewhere between S and U "unsatisfactory".  Well, how do you work and play with others whose game plan relates to the content of their pockets, or to their continuance in office, rather than the public good..

 There are New Yorkers whorespect the electric chair, and those that decry it, some people believe life begins at conception, others say at birth, while still others think the fetal heartbeat is the start of viability.  Many are of the opinion that  people should marry someone of the opposite gender, while many others believe in total gender choice.  Elected officials who may have to cast votes on these and other controversial issues desire to insulate themselves from the strain of primaries and the fear of competitive elections.  To do this, they pass complex election laws with burdensome requirements and draw district lines like city walls to exclude challengers.  Self-preservation is said to be the first law of nature.  It is the one law that state legislators most faithfully observe.
 
ne suggestion, though, is not to call a person who is being selected as your CFO  "thoroughly and totally unqualified" for the office he is about to hold.   We certainly wouldn't say that about an IRS agent even if we believed it to be so.

You were quoted as telling Michael Goodwin of the News: "I'm the governor of the state.  I'll be Lyndon Johnson.  I'll craft the deals and I'll get the job done.  You will write and I will do.  That's why you're there and I'm here."

We are certain that Mr. Goodwin was put in his place.  If only everyone understood their place,, the governor's job would be easier.  But so far, the only comparison to be made with Lyndon Johnson is in the governor's use of what the New York Times calls "earthy language."
 
Johnson had the gift of persuasion as well as intimidation.  When he said, "I don't trust a man unless I have his pecker in my pocket," he didn't say he could get the man's pecker in his pocket without his even noticing it. You could call him a pickpecker. LBJ learned some of that at Southwest Texas State Teachers College?  Did Spitzer pick it up at Princeton?
 
Yes, I know reverse snobbery is just as bad as snobbery, and I don't really dislike any of these characters.  There is a saying, not one of my rules "If you can't beat them, join them".  I don't recommend that, remember the smiling young lady of Niger. To win, you must operate at a so much higher level than your opponents that the force of public opinion will be with you, may it be so, and the media will torment them until they come around, more or less. Don't publicly argue with people of lesser rank, it demeans you and enhances their importance.  The people of New York State elected you, by a wide majority, to run the executive branch, which is most of the government.  Concentrate on that responsibility.  See what the dysfunctionals can do on their own.
 
Five months completed, 43 to go. Your term is a bit more than 10% over.  And don't be too certain about re-election, especially if Mr. B (for Big) runs.  He could do it if he wanted to.  Among the governors who failed to win a second term r were Bill Clinton, Averell Harriman and Alfred E. Smith (although Clinton and Smith came back after their losses).
 
You are doing all right as governor, you are by no means failing, and you are better than your adversaries.You want to be a first-rate governor, maybe you want to be President some day.   To be considered for that, you must be statesmanlike.  That is a quality that money and intellect alone cannot buy.  But it can be achieved from within..

In the New York vernacular, be a mensch.

 
#378  5.31.07  2923wds