Legislative Tyranny – Part Two

Public Campaign Funding

When it comes to tyrannous actions that are expected to be considered ‘just good government in action’, the New York State 2020-21 Budget can’t be beaten. The NYS legislature unconstitutionally used the budget process to create a huge, multi-million dollar public campaign fund. Then to preserve that fund for their use they limited the fund to just the NYS Senate and Assembly campaigns and the campaigns of the four statewide candidates (Governor, Lt Governor, Attorney General, and Comptroller). Candidates involved in local and county elections and the candidates running for US Senate and US Congress cannot participate. They also took extreme steps to restrict the ability of political 3rd parties and Independent Nominating Bodies (INBs) from participating (1).

The political races covered by this new campaign fund are the same races of interest to the political 3rd parties and the INBs. The reason is that the Board of Elections forces these groups to focus on running Gubernatorial candidates. If they don’t run a gubernatorial candidate they will have no chance of ever becoming an officially recognized political party. These groups run Assembly and Senate candidates because of the effectiveness of those campaigns to bolster their Gubernatorial candidate’s campaign. Because of that focus, the Democrats and Republicans felt it necessary to address another issue of concern. The legislation enacted to set the donation requirements set low enough to ensure most Democratic and Republican candidates will be able to easily qualify to receive matching funds. It was believed that those donation requirements could easily be reached by the 3rd party candidates and the INB candidates. That would result in a surge of new 3rd party and INB candidates, all qualifying for funding. If that was allowed to happen, the funds available for the Democratic and Republican candidates would be significantly reduced. To stop this from happening the Democratic and Republican legislators raised the bar, as described in Legislative Tyranny – Part 1.

There is more you should know about this legislation.

Let’s first discuss the proposed funding itself. The NYS 2020-21 budget Part ZZZ allocates an equal amount of campaign funds for each qualifying candidate for their Primary campaign and for their General Election campaign as shown in the following table(2).

Funding Limitations per Covered Election

There are 150 Assembly positions and 63 Senate positions in NYS. If all of the candidates max out their public campaign contribution limits, each political party, in the first year, would net $127,750,000 for their candidates. Four years later they could receive that amount again. In addition, in the third year, each political party could net another $99,750,000 for their candidates. Four years after that they could net the same amount again. If you consider the political entities involved, the two overgrown political parties, three or more political 3rd parties, and 3 or more INBs, then multiply that by the 217 separate campaigns that are covered, and we can anticipate nearly a billion dollars or more going out the door every two years!

It must have been obvious to the commission members (the two Republicans and Seven Democrats) that if they did not limit who could get the funding, the 3rd party and INBs candidates would not only benefit immensely, they would become pretty serious and perhaps overwhelming competition for the Democratic and Republican candidates. They could even cause the public campaign finance fund to become broke the first year out.

Here is how the funds would be allocated to the candidates once a candidate qualifies. The first $50 in donations received from individuals after they qualify will entitle them to receive a $600 dollar contribution from the Public Campaign Finance Fund. The next $100 dollars of such donations will entitle them to a $900 donation from the fund. After that, for every dollar donated to their campaign they will be entitled to receive $8 from the fund. The table illustrates these facts for a qualified Assembly candidate.

Example of Funds Allocated Once a Candidate Qualifies

The problem the commission had was that if they openly limited the funding to just Democratic and Republican candidates the public would clearly see this legislation for what it is – misappropriation of funds, graft, and larceny.

That is why the legislation contains an indirect path to limit the 3rd party and INB candidates participation in the fund. The bar has been raised, making it much more difficult for INBs to get on the ballot and much harder for 3rd parties to stay on the ballot. These changes were made for no other reason than to eliminate completely the impact of 3rd parties and INBs on the public campaign fund and ensure funds would be available to benefit the two major parties’ candidates.

There are three specific concerns about this legislation that need to be emphasized.

First concern: As was already mentioned, the funds are to be used only for the races for Governor, Lt Governor, Attorney General, Comptroller, the NYS Senate and the NYS Assembly. NO ONE ELSE! This restriction makes it self-serving legislation created by those who will benefit the most.

Second Concern: There is a massive misappropriation of funds. Consider where the funds are to come from. The legislation calls for:

1. All the money identified on the state’s income tax form check-off box for public funding of campaigns to be dedicated to this Public Campaign Fund. This condition ignores the fact that all the US Senate, the US Congressional, the county, the city, and all local elections are not ‘covered elections’.
2. Taking all but a token amount of the abandoned property fund.
3. Accepting money credited to and transferred from other fund accounts. It is important to note that the legislation does not specify which funds transfers are to be made from, nor any criteria for authorizing and initiating the transfers and nor any limitation on the amounts that can be transferred. (Do they plan to just take what they need from wherever it is available?)
4. Funds to be received from private sources, organizations, and other persons (which include corporations) and for deposit to be made directly into the fund. Again, no limits or conditions or requirements have been set or referenced.
5. The Comptroller to just use funds from the general fund and disburse them to the candidates when the above-designated funds run out – and to do so without any further oversight or authorization being needed(3).

Third concern: The bill is blatantly self-serving. in a way that underscores the prejudicial and discriminatory intent of the Democrats and Republicans when crafting this legislation.

Election Law states that if a party’s candidate is not being challenged there is no primary. In the past, nearly all of the primaries were Democratic or Republican primaries. Historically, official 3rd parties rarely had primaries, and the INBs, to my knowledge, never had a primary(4). There is, therefore, already built in a preferential benefit for allocated Primary election funds to be given to Democratic and Republican candidates. But this was apparently not sufficient slush for the designers of this legislation. They wanted to give those Democratic and Republican candidates who are not being primaried the benefit of Primary funding too. So, as part of this bill, those candidates not being primaried may receive funding at Primary time if the political party of the non-primaried candidate had at least one candidate that was being primaried and the political party involved is “one of the two political parties with the highest and second-highest number of enrolled members”(5) i.e., Democrats and Republicans.

NO OTHER NON-PRIMARIED CANDIDATES NEED APPLY!

The whole section ZZZ of the NYS 2020-21 budget was not only unconstitutionally legislated, it was rightfully referred to as larceny by the Judicial Watch(6).

There are no redeeming legislative matters in Part ZZZ. In my opinion, the Governor has signed a budget bill, with the approval of both the Senate and the Assembly, that makes this act of tyranny the law of the land.

This unconstitutional budget legislative practice is not new. It has been going on for decades. The Republicans have had commissions enact legislation before, and so have Democrats. Their agencies, commissions, and three men in a room budget activities have been around for most, if not all, of my lifetime. It is not a secret to anyone except, perhaps, most of the public.

Because of the recent publicity concerning this matter, we will be hearing campaign rhetoric from Republican and possibly Democratic candidates claiming they will stop these unconstitutional legislative processes. But that is all their bluster will be – campaign rhetoric. Grandstanding for re-election sake. From my perspective, there is not one current Assemblyman or Senator in NYS who has truly and consistently stood against these tyrannous and unconstitutional legislative processes.

Here is the problem we now face: The current Senators and Assemblymen have been compromised, and if the NYS 2020-21 Budget Part ZZZ is left to stand, so will be every legislative candidate that participates in the public campaign fund. If a candidate wishes to be placed on a financially equal par with their opponents they will have to voluntarily give their consent to this legislative tyranny by applying for the funds. Every candidate that does so will be giving their tacit consent to misappropriation of funds. Every candidate will be giving their tacit consent to the tyrannous way this legislation was enacted. And, every candidate will be giving their tacit consent to the larcenous acts related to the confiscation of state money to fill the campaign fund. If they refuse to voluntarily participate their campaign will be severely financially disadvantaged. This is how legislative tyranny works. Once the roots are established, everyone is compelled into accepting the tyranny or run the risk of not having the resources needed to defend themself.

The practice of placing legislation into budgets, with no accountability on the part of the legislators, is legislative tyranny. This bill authorizing the misappropriation of funds for the benefit of the select group that created the legislation is legislative financial tyranny.

If this part of the budget bill is not declared unconstitutional law, you may never see another new political party in New York State and, I believe, you will soon witness the disappearance of the current 3rd parties.

It is my hope this legislation is declared unconstitutional and overturned. If elected, as your candidate, I will oppose all unconstitutional legislative tactics and all tyrannous legislation. And, if as your Assemblyman I am unable to succeed in stopping tyrannous, unconstitutional bills or practices, I assure you, I will not remain silent about my failure. My opponent and most of the Senators and Members of the Assembly have been, and remain, silent about this atrocious bill. This silence and this legislative tyranny should not be rewarded by reelecting these unprincipled individuals.

This November, take the one positive step you can take to end this type of Legislative Tyranny. Vote Libertarian.

Mark Glogowski

Libertarian Candidate for Assembly District 139

(1) Legislative Tyranny – Part 1/ See NYS 2020-2021 Budget, Part ZZZ, § 9 and §10, pg 259

(2) See Subsection §14-204 on page 249.

(3) §5 See §92-t New York state campaign finance fund.Paragraphs 1-9 page 257-258, and §6 Section 87 of state finance law, 5(a)

(4) The first candidate to submit a sufficient number of petition signatures to the BoE becomes the INB’s candidate in the general election.

(5) 3. No participating candidate for nomination for an office who is not opposed by a candidate on the ballot in a primary election shall be entitled to payment of public matching funds, except that, where there is a contest in such primary election for the nomination of at least one of the two political parties with the highest and second-highest number of enrolled members for such office, a participating candidate who is unopposed in the primary election may receive public funds before the primary election, for expenses incurred on or before the date of such primary election, in an amount equal to up to half the sum set forth in paragraph one of this section.

(6) http://www.judgewatch.org/web-pages/searching-nys/2020-legislative/2020-session-menu.htm