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RaviBatraOnJCOPE Powered By Docstoc
					"Yesterday, I voted in favor of the Reportable Business Relationships guidelines, and voted
against the JCOPE-proposed Source Funding Regulations based upon law and principle. I did
the latter, after I tried, by motion, to amend the JCOPE-proposed Source Funding Regulations
to cure its perceived illegality and to honor the core objective of an honest government through
unprecedented disclosure and ethics reform. Let me explain.

Last December, I was touched and deeply honored by Governor Andrew Cuomo's
announcement to be a member of NYS Joint Commission on Public Ethics (JCOPE), having
been appointed, after vetting, by the Senate Democrats to bring integrity back to Albany.
The passage and enactment of Public Integrity Reform Act of 2011 (PIRA) is a crowning
acheivement by Governor Cuomo and our legislative leaders, as it is unique in American
constitutional jurisprudence. I accepted the great burden, and along the way learned the
need to be purer than Caesar’s wife. Of course, co-shouldering such burden and assisting
my comprehension of incrementally elusive nuances, are 13 other illustrious commissioners,
including, a legal scholar: Professor Ellen Yaroshefsky.

Given the separation of powers regime, along with the hallowed Declaration of Independence,
a core basis for American exceptionalism in human history, JCOPE straddle the separation
of powers divide between two co-equal branches of government. Accordingly, PIRA grants
a necessary veto-power to each commissioner, as a safeguard against a political attempt to
subjugate a co-branch of government in violation of the Constitution. Hence, PIRA is a gem of a
law that every New Yorker can be proud of, even, as it needs some obvious fine tuning.

That I am a fan of Gov. Cuomo and wish him every success to make New York the proud
Empire state compels me to effectuate, to the best of my ability and despite fatigue, the core
covenant of PIRA to all New Yorkers: that an uncontrolled and independent JCOPE will honestly
effectuate PIRA and thereby restore public confidence in government. There is no better way
to achieve that than with greater disclosure, or greater disinfectant sunshine, as Justice Louis
Brandeis would say. Indeed, the enabling legislation was all about more disclosure, not less, or
worse, none at all. Yet, yesterday, JCOPE acted, with authority unknown to the law, to cloak a
period of time that PIRA required to be disclosed!

PIRA was approved and became effective August 15, 2011. However, two components
were delayed to fairly allow everyone adequate time to adjust to the new ethics disclosure
requirements, perhaps, the most stringent in the nation: Source Funding disclosure was made
effective June 1, 2012, a 9 1/2 month delay, and Reportable Business Relationships in financial
disclosure statements was delayed to 2013, with FDS filed by the May 2013 deadline.

Yesterday, informed by the June 7th public hearing, even though every self-labeled "goo-goo"
is subject to JCOPE jurisdiction, I followed the law, as written, and opposed the motion to adopt
proposed-Source Funding Regulations that alter the effective disclosure-date set by PIRA, as
I don't have the right or power, merely because I am a JCOPE Commissioner, to overrule the
collective wisdom of the Governor and the legislature lawfully expressed in law.

Legislative Law Article 1-h(c)(4) states that the source funding’s greater disclosure provisions,
contained therein, are effective June 1, 2012 . That is the law. Therefore, I opposed the ultra
vires, aka extra-legal, alteration of the effective date established by law, from June 1, 2012
to July 1, 2012, with a net effect of a delayed 6-month stealthy cloaking worthy of a Klingon
warship in Star Trek.
Respectfully, such JCOPE act is a nullity, ab initio, unless a court grants JCOPE the authority
to overrule the law, as JCOPE, deems most beneficial for New Yorkers. The client-reporting
periods are January-June and July-December, with the filing of the reports due on July 15 and
January 15, respectively. The law required that the July 15, 2012 report include the period
January 1 - June 30, 2012, which includes the June 1, 2012 "effective date" for source funding.
The lobbyist's bimonthly reporting period of May 1 - June 30, 2012 would include the June 1,
2012 "effective date," with a report due on July 15, 2012. See Legislative Law Section 1-h(a).
The all-important "lookback" period, as required by PIRA, would go back 12 months. However,
the ex post facto Constitutional considerations make August 15, 2011, a "safe" start date for
the "lookback" period, all the way to June 30, 2012, and be free of any improper "retroactivity"
concerns, as everyone was on notice since PIRA’s enactment on August 15, 2011. Of course,
a court may well opine that the PIRA-required 12-month lookback period mandates source
funding disclosure to start from July 1, 2011 to June 30, 2012, and reportable on July 15, 2012.

PIRA’s legal mandate of greater disclosure, to earn greater public confidence in government
is not met by thwarting disclosure, or worse, by preventing it. American politics can ill-afford
undisclosed foreign money to effect American elections. Moreover, Citizens United approved,
under First Amendment considerations, a 527 entity to have the loudest possible issue-voice
money can buy, without donor disclosure, so long as there is zero coordination between the 527
entity and the candidate or campaign. Otherwise, with coordination between a 527 entity and
the candidate, it would be "political-voice" which is regulated by mortal limits, donor disclosure,
and, inter alia, a clear bar of foreign money. 501c4s, however, with candidate-coordination and
IRS-approved income tax deductibility for donors could confuse unlimited issues-speech with
election law-limited political-speech, and remove a level political playing field . But, that is for the
legislature and governor to address as and when they see best fit.

Finally, given my un-seconded motion to cure JCOPE’s Source Funding Regulations, followed
by my lonely vote against the July 30th 8:27pm version of the amended draft Source Funding
Regulations that were voted up during the July 31st meeting, I am uncertain that my efforts
at JCOPE to support Gov. Cuomo’s prized law is at all welcome. In any event, my continued
service on JCOPE is conditioned upon its necessary independence and willingness to lawfully
effectuate the law, otherwise, consistent with my twin Becket and Burke moral imperatives, I will
tender my resignation and create a vacancy, which can then be filled by one more worthy to join
the already serving honorable commissioners."

Dated: 8/1/12
Ravi Batra

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