The U.S. Department of the Illusion of Justice - Part I

A political campaign consultant’s actions make it possible for political campaign committee clients to break the law

U.S. Attorney Preet Bharara.  Source :  Progress Queens/Photo Illustration

U.S. Attorney Preet Bharara.  Source :  Progress Queens/Photo Illustration

Last week, the New York City Campaign Finance Board slapped the wrists of The Advance Group, a Manhattan-based lobbying firm that doubles as a campaign consulting firm and moonlights as a fictional corporation to cloak its services.

New York City Council Speaker Melissa Mark-Viverito (D-Spanish Harlem) had her name written up on the chalkboard and one check mark placed next to her name, as well.

The Advance Group agreed to pay $15,000 in fines to settle a probe by the municipal campaign finance regulatory authority into charges that the campaign consulting firm had coöordinated the actions of official campaign committees with an independent expenditure group, a violation of the Supreme Court’s decision in Citizens United v. FEC, 558 U.S. 310 (2010).

Council Speaker Mark-Viverito was assessed fines in the amount of $850 as part of a probe by the same regulatory authority for having paid money to a consultant for work performed after Election Day, a violation of municipal campaign finance rules, and for having accepted money from an unregistered political action committee.

The fines assessed on The Advance Group were in addition to fines of $26,054 assessed in December 2014 against an independent expenditure group, NY-CLASS.  Other related fines of $7,868 and $8,686 were assessed in May 2014 against the official campaign committees of Councilmember Laurie Cumbo (WFP-Prospect Heights) and Councilmember Mark Levine (WFP-Washington Heights), respectively, for having accepted contributions from prohibited sources.

The disposition of these matters, which resulted in these fines, were all related to The Advance Group performing work for official campaign committees at the same time when one of The Advance Group’s independent expenditure group clients was spending money to support the same official campaign committees.  However, the disposition of these matters only relate to one independent expenditure group, NY-CLASS, and do not involve another independent expenditure group, the United Federation of Teachers, or UFT, which was reportedly similarly situated as NY-CLASS.

In announcing the fines for The Advance Group, Mark Piazza, a commissioner with the Campaign Finance Board, stated, in part, in the regulatory authority’s press release, that, “This substantial penalty sends a clear message that the Campaign Finance Board will vigorously enforce coordination between outside groups and candidates that violates the law.  These violations strike at the very heart of our campaign finance program.  When a consultant’s actions make it impossible for their clients to comply with the law, the Board will hold the consultant accountable.”

The fines are too little, too late, since election outcomes have been fixed

Still yet undecided by the New York City Campaign Finance Board are issues related to the UFT and The Advance Group’s unpaid work for Council Speaker Mark-Viverito’s successful speakership campaign, one that controversially involved the creation of its own campaign committee account with the state’s campaign finance regulator authority, the New York State Board of Elections.

All of the fines assessed and perhaps still yet to be assessed by the New York City Campaign Finance Board ignore allegations that have been made that elections outcomes were tipped in favor of The Advance Group’s independent expenditure group clients, particularly in respect of NY-CLASS.

In addition to the fines that The Advance Group paid to the municipal campaign finance regulatory authority, The Advance Group also settled a concurrent investigation by the Office of the State Attorney General, headed by Eric Schneiderman (WFP-New York), by paying a fine of $10,800.

Last week’s fines come over two years after the September Democratic Party primaries in the 2013 New York City municipal election cycle, at which that time then, the outcomes of the November general elections were essentially decided in many races, particularly for Mayor Bill de Blasio (WFP-New York City) and Councilmembers Cumbo and Levine.

Who is probing whom ?

A few weeks after the November general election in 2013, The New York Times published a bombshell report written by Michael Powell, revealing, for the first time, that the New York City Campaign Finance Board had launched an investigation of The Advance Group.  According to revelations made public last week, State Attorney General Schneiderman’s office commenced its own investigation of The Advance Group in December 2013. 

As is typical of major political, campaign, or corporate corruption cases, District Attorney Cyrus Vance, Jr. (WFP-Manhattan), sat this one out.

That State Attorney General Schneiderman volunteered to become involved so early only to dispose of his probe with a fine approximately two-thirds the size imposed by the municipal campaign finance regulatory authority, raises questions, too.

As demonstrated in a flow chart prepared by Progress Queens and hosted by LittleSis, State Attorney General Scheniderman has several principal and tangential relationships with those who may have been either direct or indirect targets of his probe.

Two months after the State Attorney General’s Office reportedly began its conflicted probe of The Advance Group and timed to coïncide with the fourth year anniversary of the Citizens United decision, the allegations of the coördinated campaign work between The Advance Group and its independent expenditure group clients and the allegations of the free campaign work provided by The Advance Group to Council Speaker Mark-Viverito in respect of her speakership campaign were referred to the U.S. Attorney’s Office for New York’s southern district.  The referral was made in the form of a civilian complaint form completed and signed by Louis Flores before he became publisher of Progress Queens.

That the powerful federal prosecutors, who are on a much-heralded crackdown on political and campaign corruption, could countenance the slaps on the wrists and the writing of names up on a chalkboard as justice when election outcomes have been irrevocably tipped reveals a grave lack of understanding when it comes to how the political, campaign, and election processes are broken.

The nation’s top federal prosecutor in Manhattan, U.S. Attorney Preet Bharara, famously testified in 2013 before Governor Andrew Cuomo’s doomed Moreland Commission by saying, in part, “So, we prosecutors will keep doing our jobs—aggressively and collaboratively.  And if that means locking up more corrupt officials, so be it,” before appending a list of exceptions.

On the day before the fines were announced against The Advance Group, U.S. Bharara addressed a gathering of law school students at New York University.  U.S. Attorney Bharara said, in part, that prosecutors should be judged not just by the cases it brings, but by the cases it doesn’t bring.  Whereas the context for U.S. Attorney Bharara comments were crouched in generally aiming to determine a just outcome in his office’s cases, by passing on The Advance Group’s actions, U.S. Attorney Bharara was relegating that probe to a political framework that has proven to be incapable of applying justice in areas where lobbyists, campaign consultants, and other political operatives undermine democracy for monetary gain.

As has been numerously reported by Progress Queens, several examples exist where the local district attorneys and the State Attorney General’s Office have not investigated circumstances of possible misconduct and impropriety, even after communities have expressed concerns about such.

For starters, where were the investigations into the unaccounted budgets of the Corona-Elmhurst Center for Economic Development, the preferential and possibly mandatory use of The Parkside Group as vendor by the New York Democratic Senate Campaign Committee, and the sale of project-based, Section 8 buildings by the New York City Housing Authority to a consortium of politically-connected real estate developers in a transaction that was not subjected to the ULURP process, as required by the City Charter ?

Preet Bharara claims his office is independent, but that is not entirely true, certainly not of municipal and state prosecutors

Not long after U.S. Attorney Bharara launched his investigation of the disbanding of the Moreland Commission, The Wall Street Journal published a report describing his probe as having been charted with a “confrontational and independent course.”

Contrary to that description, many government reform activists were aware of policies at the U.S. Department of Justice which require U.S. Attorneys to seek approval from agency heads in Washington, DC, before commencing investigations involving complex crimes or major political figures, a process that was hypothetically reported about in a column written last month by Fredric Dicker and published in The New York Post.

Notwithstanding the politics of federal prosecutors needing to request permission from Washington before launching complex investigations into significant government officials, these same federal prosecutors know that local district attorneys and state attorneys general are not capable of adequately investigating significant government officials.

Some of the U.S. Department of Justice’s guidelines, notably in the U.S. Attorney’s Manual, a handbook for federal prosecutors, require that federal prosecutors take up investigations and prosecutions of significant government officials, which may pose special problems for lower-level prosecutors, as is the case, for example, for probes launched under the organized crime and racketeering guidelines for federal prosecutors.

Federal prosecutors know that Manhattan District Attorney Vance and State Attorney General Schneiderman are not sufficiently independent enough from the political process to be able to independently investigate officials with top political connections.

As noted in the flow chart published by Progress Queens, an operative employed by The Advance Group, Michael Gaspard, is the brother of former White House political director Patrick Gaspard, the latter who is now the U.S. Ambassador to South Africa.  How can prosecutors, who run for office with the support of the Democratic Party, be able to investigate a lobbying firm with high-reaching Democratic Party connections ?

Preet Bharara has the ratings, but does he have the courage to address systemic corruption ?

As reported by Progress Queens, U.S. Attorney Bharara enjoys high approval ratings from the public for executing his crackdown on political and campaign corruption.  There is no doubt U.S. Attorney Bharara has the gumption to tackle controversial cases, like filing criminal charges against New York State Assemblymember Sheldon Silver (D-Lower East Side) and New York State Senator Dean Skelos (R-Rockville Centre).  Yet, the public knows two very prominent prosecutions are not enough.  The public has communicated a need to wholly purge government of corruption.  A majority of a recent poll’s respondents, 56 per cent., stated that they believed that elected officials were unable to end government corruption and needed to be voted out of office so that "new officials can start with a clean slate."

That need for a “clean slate” isn’t going to be accomplished when top federal prosecutors countenance as justice the itty-bitty fines that are treated nowadays as the cost of doing business as usual in the New York world of transactional politics.

The $25,800 in fines assessed on The Advance Group will not deter future independent expenditure groups from gaming New York City’s municipal campaign finance laws through the actions of a campaign consulting firm.  Indeed, in a statement made to The New York Post, The Advance Group spokesperson Frank Baraff said, in part, “We recognize the press attention given this matter resulted from the impact the Advance Group’s work had on New York City’s 2013 election.”

Essentially, the official response by The Advance Group was not conciliatory.  Instead, Mr. Baraff brazenly thumbed his nose at the press by asserting bragging rights for having influenced the election outcomes in 2013.

U.S. Attorney Bharara can continue to deliver talks to business groups, law schools, and in other civic settings about how the prosecutors in his office will resort to arresting public officials, if necessary, but unless he actually takes steps to end the disenfranchisement of voters, his prosecutions will not alter the corrupt political landscape one bit.

At his talk on Wednesday at New York University, U.S. Attorney Bharara again repeated the familiar anecdotal advice he gives the prosecutors in his office :  If a prosecutor successful tries and convicts one narcotics dealer, removing him from the streets, only to have him replaced by multiple narcotics dealers, the conditions in that neighborhood will not have changed from the perspective of the people living in that community.

Given that awareness, U.S. Attorney Bharara can, at times, enunciate gross dysfunction in some parts of government.  In remarks made at New York University on Wednesday, U.S. Attorney Bharara welcomed a discussion on mass incarceration and, later, alluded, in part, to possible systemic problems with the New York State Department of Correctional Services.  At other times, U.S. Attorney Bharara will address the need for prevention and deterrence as a desired outcome that can lead to justice or reform. 

In spite of that awareness, at still yet other times, U.S. Attorney Bharara will inexplicably countenance the negligible fines on The Advance Group as justice.

For so long as U.S. Attorney Bharara can speak to the citizenry disaffected by political and campaign corruption and the citizenry still eat up his talk, U.S. Attorney Bharara will enjoy high ratings.  However, once the citizenry come to a realisation that the U.S. Attorney’s Office is accepting of inferior outcomes of lesser prosecutors and regulators, the public will begin to feel disappointment with U.S. Attorney Bharara.

As U.S. Attorney Bharara himself at New York University on Wednesday said, in part, “If you hold people accountable, great.  But if you haven’t done something to make the problem better, then that’s not a great situation.”

  --  Progress Queens