NY Law Journal  | December 3, 2019 |  Dan Clark

New York state’s newly proposed public campaign finance system has a flaw that could prove fatal if challenged in court, attorneys said Tuesday, provided that members of the state Legislature don’t first act to repeal the new elections scheme.

The lack of a severability clause—a provision that would allow parts of the new system to be severed and upheld in a legal challenge, while others are struck down—could leave the measure vulnerable to being overturned wholesale if a court finds one constitutional lapse.

A panel of officials appointed by Gov. Andrew Cuomo and members of the state Legislature to create the new system failed to include such a clause in its final report published Sunday. The report is equivalent to a new law unless lawmakers move to veto it. 

Lawrence Norden, director of election reform at the Brennan Center for Justice at the New York University School of Law, said the lapse could make the panel’s last five months of work moot.

“That omission is irresponsible at best. A severability clause protects a law from being struck down as a whole in a court challenge to one of its parts,” Norden said. “But now this historical achievement could potentially be obliterated by a successful court challenge on a technicality.”

The panel, called the Public Finance Reform Commission, is already the subject of two lawsuits in Niagara County Supreme Court brought by two minor political parties in New York state: the Working Families Party and the Conservative Party. 

That litigation is focused on whether the commission itself was lawfully created by the Legislature earlier this year when it delegated its lawmaking powers to the panel, and whether fusion voting—candidates running on more than on party line—is constitutional.

Attorneys for both parties will be in court next week to argue on each of those subjects, as will Cameron Macdonald, a lawyer who’s also the executive director of the Government Justice Center, a nonprofit organization that’s often involved in litigation against the state.

The Government Justice Center got involved in the lawsuits in late October as an amicus curiae, or nonparty with an interest in the litigation.

Macdonald said he’s planning to focus his arguments on whether the Legislature lawfully ceded its lawmaking power to the commission, but said he agreed with Norden’s analysis of the severability clause.

There actually is a severability clause, Macdonald said, but it was included in the initial law approved by the Legislature that created the commission in late March. That clause wouldn’t carry over to the commission’s report, he said.

“I don’t know that it would apply to the recommendations,” Macdonald said.

The commission itself had actually voted in August to leave out a severability clause, arguing that the new public financing system wouldn’t work if one part of it was invalidated in court. Macdonald said that decision should have been left to the Legislature. 

“They’re completely making policy. They’re making their own law,” Macdonald said. “If the Legislature wanted a non-severable bundle of recommendations, they could have written that into the law.”

He’s more familiar than most with this kind of litigation. The Government Justice Center, represented by Macdonald, successfully challenged a different panel created by the Legislature last year that was tasked with evaluating the salaries of elected officials.

In that lawsuit, Macdonald used the same argument that the Legislature wasn’t allowed to hand over its lawmaking authority to an independent panel. The judge in that case largely struck down the panel’s recommendations in a decision early last year. 

Macdonald said he’s planning to make the same argument against the public finance commission in Niagara County next week.

“This is essentially a piece of legislation that was never on the legislator’s desks,” Macdonald said.

It’s unclear if the pair of lawsuits will touch the actual report of the commission, since that wasn’t its initial target, but it’s not unlikely given new arguments filed in both cases late Monday.

While Senate Republican Leader John Flanagan, R-Suffolk; Assembly Republican Leader Brian Kolb, R-Ontario; and two members of the commission were initially targets of the lawsuit, they’ve since taken a stance against the panel itself, both publicly and in court filings.

Their latest filings, submitted late Monday, were the first to take aim at the commission’s report since it was published Sunday. The filing claimed that the commission, in its report, had exceeded the power given to it by the Legislature through its final recommendations.

“Not only was the Commission not filling out a statutory scheme created by the Legislature, the Commission used its authority to repeal and override existing statutes,” the filing said.

They’re represented by Cornelius Murray, a shareholder at O’Connell and Aronowitz in Albany.

On one occasion, for example, the commission approved—and later reversed—a measure to restrict matching funds to donations from within a candidate’s district rather than allowing matching statewide. That topic wasn’t in the Legislature’s enacting statute, they argued.

All of that could eventually prove to be moot if the Legislature decides to repeal or change the commission’s report in the coming weeks, or months. The commission is scheduled to sunset at the end of December, so its report will essentially be powerless if that happens.

Assembly Speaker Carl Heastie, D-Bronx, said Tuesday that Democrats who hold the majority in the Assembly haven’t yet decided if they want to act on the report. He also said he could see why the panel chose to omit a severability clause, given the complexities of the proposal.

“We’ll just see what happens,” Heastie said. “I think there’s reasoning as to why it all has to stick together.”

Norden said the Legislature should, instead, act to modify the commission’s report to insert a severability clause. That way, the work of the panel could be preserved if parts of it are struck down in court.

“The legislature must intervene and correct the recommendations’ potentially fatal flaw,” Norden said. “New York State wants and needs a public financing program to curb the undue influence of wealth in state politics. Albany shouldn’t just stand by and watch it self-destruct.”

Original Article