Daniel L. Feldman

Archive for the ‘National Politics’ Category

Gun Violence: Who Should Pay?

In Criminal Justice Policy, General, National Politics, Policy on July 2, 2013 at 5:51 pm

In April 2013, I sent the following as a proposed Op Ed piece to the New York Times:


By Daniel L. Feldman*

Hardly does the public hear about proposals to make gun manufacturers financially liable to victims of gun violence when tragedy results from the manufacturers’ careless distribution of their product. When a car manufacturer’s negligence, along with a driver’s, helps cause an accident, the victim can sue both. But right now, since most perpetrators of gun violence don’t have money, the random victim bears the cost, while businesses that profit from such sales get off scot-free.

Politicians allied with the gun lobby have successfully painted the effort to impose financial accountability on gun manufacturers as radical, and thus have kept it outside the mainstream of public discourse. As a recent illustration, Republicans blocked nomination of a candidate for the D.C. Circuit Court, claiming that she had demonstrated her “extreme” views by having worked on a lawsuit against gun manufacturers a decade earlier.

But there is nothing extreme, from a legal or policy point of view, in holding gun manufacturers financially liable for supplying their product to dealers who they know or should know consistently “leak” guns to the criminal market. Indeed, a conservative Republican judge on the New York Court of Appeals, writing a decision in 2001 denying financial relief to gun victims, noted that were gun victims actually to succeed in establishing such facts, gun manufacturers “might well” be liable.

Crime gun tracing data collected by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) showed quite clearly in 1999 that less than two percent of gun dealers leaked the majority of guns to the criminal market, and the manufacturers and distributors know or have reason to know which ones they are. But they continue to supply them with the product.

So beginning in 2003, with the Tiahrt Amendment the NRA got Congress to suppress ATF data revealing the gun industry’s negligence in supplying the criminal market. Two years later Congress enacted the Lawful Protection of Commerce in Arms Act, essentially immunizing the industry from liability for such negligence altogether. The current state of the law, then, should be seen as extreme: an extraordinary exception to deep-seated traditional common law principles that increases the damage to public health facilitated by the worst elements in the American gun industry.

Full financial liability for negligent distribution of their products would give gun manufacturers an incentive to supply only those gun dealers who sell responsibly – the vast majority, in any case. Such a change in the law would assure a substantial reduction in the number of victims.

Even if the Second Amendment had said “the right to sell arms shall not be infringed,” gun manufacturer tort liability would still be constitutional, just as liability for libel and slander remains constitutional notwithstanding the prohibition against “abridging the freedom of speech, or of the press.” The NRA, however, primarily the voice of its financial backers rather than of its members, treats threats to the profits of the industry as more “extreme” than restrictions on gun ownership. On at least one occasion, it awarded an “F” to the most visible proponent of the Brady Law, but an “F-minus” to the sponsor of state legislation to impose tort liability on gun manufacturers.

Thus, the NRA has succeeded in keeping gun manufacturer tort liability on the margins of the gun control conversation. In an honest and rational debate, even those who believe that the Second Amendment creates a general right to bear arms would have to acknowledge that no gun control initiative trespasses less on the Second Amendment than manufacturer tort liability. Rational discourse on this subject should shame Congress into repealing the Tiahrt Amendment and the Protection of Lawful Commerce in Arms Act.



*Mr. Feldman, an associate professor of public management at John Jay College, served as a member of the New York State Assembly from 1981 to 1998, and in March convened and moderated a panel discussion, “Gun Violence: Who Should Pay?,” at John Jay with U.S. Rep. Adam Schiff (D-Cal.), who recently introduced legislation to repeal the statutes mentioned above; Michael Cardozo, the New York City Corporation Counsel, who has sued gun dealers and manufacturers on behalf of the City; Jonathan Lowy, director of the Legal Action Program of the Brady Center to Prevent Gun Violence; Elizabeth Holtzman, former Member of Congress, District Attorney, and NYC Comptroller, who initiated discussion of gunmaker tort liability more than two decades ago; and David Yassky, NYC Taxi Commissioner and former City Council Member, who in his earlier capacity sponsored the New York City law intended to impose such liability.


According to my search of the New York Times archives, the last time they mentioned the Protection of Lawful Commerce in Arms Act was in 2008. However, within weeks of my submission, which they did not print, they covered the subject in an article by Jim Dwyer (May 28), an Op Ed by Robert Morgenthau (June 23), and an editorial (June 29). I am pleased that the Times is giving attention to the issue.

[note that although the results below say “1-10 of about 617 Results,” examination of the results past the first 10 do not actually refer to the Protection of Commerce in Arms Act]


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1-10 of about 617 Results

  1. 1.     U.S. Appeals Court Rejects City’s Suit to Curb Guns

That law, the Protection of Lawful Commerce in Arms Act, banned all suits against the gun industry except those in which a plaintiff could prove …

May 1, 2008 – By ALAN FEUER – New York Region – Article – Print Headline: “U.S. Appeals Court Rejects City’s Suit to Curb Guns”

  1. 2.     A Law That Keeps Gun Makers Smiling

The law signed that day, the Protection of Lawful Commerce in Arms Act, has smothered lawsuits by cities around the country, including by New …

May 28, 2013 – By JIM DWYER – N.Y. / Region – Article – Print Headline: “Keeping Gun Makers Smiling”

  1. 3.     A Gun Maker Moves On

3 days ago This outrageous law, called the Protection of Lawful Commerce in Arms Act, can only be envied by other industries whose products might affect …

June 29, 2013 – By THE EDITORIAL BOARD – Opinion / Sunday Review – Article – Print Headline: “A Gun Maker Moves On”

Suing, or Taxing, the Gun Makers

20 hours ago It was necessary to put the Protection of Lawful Commerce in Arms Act into effect to prevent unwarranted and misdirected lawsuits designed to …

July 1, 2013 – The New York Times – Opinion – Article – Print Headline: “Suing, or Taxing, the Gun Makers”

  1. 5.     U.S. Court Rejects New York Gun Lawsuit

That law, the Protection of Lawful Commerce in Arms Act, banned all third-party suits against the gun industry except for those in which a …

April 30, 2008 – By ALAN FEUER – N.Y./Region

Smith & Wesson Is Fighting Its Way Back

A gun-friendly administration as well as a new law signed last fall by President Bush — the Protection of Lawful Commerce in Arms act — that …

April 11, 2006 – By LESLIE WAYNE – Business – Print Headline: “Smith & Wesson Is Fighting Its Way Back”

Let Shooting Victims Sue

They went to work and, the next year, Congress passed the Protection of Lawful Commerce in Arms Act, severely reducing the legal liability of …

June 23, 2013 – By ROBERT M. MORGENTHAU – Opinion – Article – Print Headline: “Let Shooting Victims Sue”

  1. 8.     Judge Clears Way for City to Sue Gun Companies

The judge ruled that the new law, the Protection of Lawful Commerce in Arms Act, does not apply to the city’s lawsuit because it falls under a …

December 3, 2005 – By WILLIAM K. RASHBAUM – New York Region – Print Headline: “Judge Clears Way for City to Sue Gun Companies”

  1. 9.     Lawyers, Guns and Mayors

The Protection of Lawful Commerce in Arms Act would shield irresponsible firearms manufacturers, wholesalers, dealers and trade …

February 24, 2004 – Opinion – Article

10. Votes in Congress

Protection of Lawful Commerce in Arms Act: The bill would make gun manufacturers and dealers immune to lawsuits stemming from the misuse …

April 13, 2003 – New York and Region – Article




In National Politics, NYC Politics on June 29, 2012 at 3:49 pm

A tiny group of friends – perhaps a dozen — heard my concession speech, but among them was the loyal Liz Holtzman. Somehow feeling less pain than I had the previous week, or than I would for the next several months, I pointed out that I had not actually died; I just lost an election.

Actually, I had died, in a way. I never had any other ambition than to pursue justice and seek a better world through elective office. Now I finally understood that if I could lose to a crew like Weiner, Katz, and Dear, I was truly in the wrong business. If so, I no longer knew who I was.

Over the next few weeks, I had to raise more money, because the campaign had spent some of the extra thousand dollar contributions that had come in for the general election, and those contributors had to be repaid that amount. I had always hated fundraising, but under these circumstances I detested it with infinite passion. During this period, I needed root canal work. The work itself causes far less pain than the patient suffers beforehand, as the dental nerve slowly dies. I was happy to suffer the physical pain as a distraction from my depression.

Later, a member of the staff of Joe Califano’s drug research organization, the National Center on Addiction and Substance Abuse at Columbia University, told me that what I had gone through was not significantly different from heroin withdrawal.

As an addict, irrational though it was, for a brief period I decided to run in the special election to fill what would now be Anthony Weiner’s vacant City Council seat. Peter Romeo, a friend, community activist, and owner of a local lamp store, lived at 3030 Neptune Avenue, and suggested that I start the campaign by ringing doorbells in his building. Virtually every tenant who answered the door assured me they would vote for me. When we finished the building, Peter said to me, “You really hated doing that, didn’t you.” It really wasn’t a question, although I had not realized, until he said it, that I did indeed hate doing it. After twenty-five years, I was burned out. With Anthony Weiner going to Congress, the thought of asking people to vote to send me to the City Council was just too nauseating.

My friend Howard Graubard thought he’d captured a truth with a typically witty “equation” he devised – that Chuck Schumer minus Anthony Weiner equaled Dan Feldman. He meant that Schumer had both substance and the necessary political skills, while Weiner had the political skills and I had the substance. I’m sure Howard did not mean to insult me, but I continue to believe that in certain respects, Feldman minus Schumer leaves a fairly worthwhile person. (Actually, it may occur to a mathematically inclined reader that subtracting a negative is equivalent to adding a positive, so the subtraction of Weiner from Schumer might add to Schumer in terms of character.)

This is not to say that I blame Schumer for my defeat. For the most part, I blame myself. Don Mazzullo, an Albany lobbyist with political views far to the right of mine, nonetheless shares a friendship with me. Don pointed out, a year or so after the race, that I would not have needed to “sell out” in order to win. He argued that, over the course of my eighteen years in office, had I merely shifted my priorities ten percent in the direction of personal publicity and political advancement, rather than focusing so single-mindedly on legislative accomplishment, I would have garnered the support necessary to win the congressional campaign.

Also, I had misread the demographics. Much of my voting base in the 45th Assembly district, and even more so, my old voting base in Rockaway, had died or retired to Florida. Too few of them still voted to give me the margins I needed. Katz did not do particularly well outside the 28th, in Forest Hills, but the voting population in Forest Hills had exploded, and with the support of her mentor Alan Hevesi, who had represented that community for 22 years and was phenomenally popular there, she almost won the race on that basis.

Further, as noted earlier, I lacked the appropriate attitude. I never could give voters the short and simple-minded sound bites that inspire confidence, but at the beginning of my career at least I sincerely radiated the “please please please vote for me” attitude that helps to endear voters to candidates. I had proven my worth, but it was irrational of me to expect the voters to know that. “Examine the record and make a rational choice” reflected the wrong attitude.

My wrong attitude was probably inevitable. I was brought up to believe that it is ungentlemanly to blow your own horn. I was also brought up to believe that the most important audience was oneself: you must know that you have performed with integrity, on every level. These are probably not the lessons most conducive to political success.

This is not to say that I did not seek adulation. In the early 1980s Arlene McKay and I heard me say, on a taped radio interview, “I’m not the sort of person who really seeks the limelight.” I responded to the skeptical look she gave me by saying “yeah, but I’d rather be saying it on television.” I don’t exactly seek the limelight, but I sure am happy when it comes. But I did find it demeaning to chase after it – a significant handicap in politics.

Nonetheless, I still would have won the race under a system urged for many years by my friend Professor Steven Brams, of the NYU Government Department. Brams proselytizes for “approval voting,” a system that reflects voter preferences more accurately than our usual system does in a multi-candidate race. There, voters check off each candidate on the ballot of whom they approve. Under that system, the candidate with the highest approval rate, as I was, wins the race.

Finally, even under our system, I might still have won with a different split. Without Katz in the race, I would have done far better in Queens. Without Weiner in the race, I would have swept non-Orthodox Brooklyn. Without Dear in the race, I would have won the Orthodox vote, although I could not have turned out nearly as many as voted for him. With any of the three out of the race, I probably would have won.

But the public protected me against that fate.

The End (but not the final post)

In National Politics, NYC Politics on June 22, 2012 at 6:34 pm

I had selected as campaign manager a woman who had been recommended by Steve Solarz and who had run the Assembly campaign of my friend Jules Polonetsky to succeed Howard Lasher in the 46th Assembly district, just to my east. At the end of the campaign, when she claimed I owed her additional funds, my wife demanded the financial records of the campaign. In reviewing those records, she found that the campaign manager had directed substantial and unjustified sums to her husband for unclear “services” rendered to the campaign, along with other questionable expenditures. When the campaign manager returned the campaign computer to us, it had been wiped clean of records. My campaign had virtually no Election Day operation, on which I had been so heavily counting to bring in an extra percentage point or two. The campaign manager had kept me out of the headquarters, insisting that my time must be spent only on raising money and on subway, street, and door-to-door campaigning. Now I saw why: she had not wanted me to see what had been going on at headquarters.

In retrospect, I imagine that the early Global Strategies poll had encouraged her to believe that she was getting in on the ground floor with a winner. Once the Penn & Schoen results appeared, she cut her losses by grabbing as much money as possible and, perhaps, traded our campaign files to Schumer or other politicians for favors paid or owed to her.

I did not admit defeat to myself after the Penn & Schoen poll. The Post endorsement of Noach Dear did not crush my hopes either. The News never did make an endorsement. But when the Times endorsed Melinda Katz, I knew it was over. Surprisingly, the Times did not support Schumer’s candidate, although it called both Weiner and Katz “the strongest candidates” in terms of “fresh energy,” of which it said New York’s congressional delegation was “desperately in need.”  This time, it called me “a respected member of the Assembly” who had “spent nine terms working hard on issues of criminal justice and corrections.” But its endorsement of Katz was ludicrous, claiming that she had “distinguished herself as an advocate of health and women’s issues.”

Katz may have earned the second part of the Times’s praise for her: “and for her constituent services,” but I had no way of knowing whether her constituent work was in any way especially distinguished, and neither did the Times. More likely, since the Times Editorial Board felt that it could not endorse Catherine Abate for Attorney General, it thought it needed to endorse a woman in another high-profile race, and made up a rationale for so doing. Clearly, though, had it not endorsed Katz, it would have endorsed Weiner.

I had an unusually difficult job to do over the remaining five days before the primary results came in. Now I knew I would lose, but out of fairness to my supporters, volunteers, and campaign staff, I had to maintain an attitude of optimism and enthusiasm. In that I have no talent at pretending to emotions I do not feel or hiding those I do feel, I was able to do so only at the cost of tremendous effort and pain.

On primary night, I learned that I had come in last. Weiner ended up with 28 percent, Katz with 27 percent, and Dear and I with 22 percent each, but Dear having won slightly more votes.   However, as Weiner’s staff told me that night when I visited to congratulate him, I had the best favorable-to-unfavorable ratio of the candidates throughout the race, and consistently outpolled Dear (but his Election Day pulling operation must have provided his final winning margin).  Also, in the area that knew us both best – that part of the congressional district where Weiner’s Council district overlapped my Assembly district – I beat Weiner fairly handily. Those constituents did not need to base their decisions on our campaign ability, where Weiner clearly outdid me, but on our performance in office.


In National Politics, New York State Politics, NYC Politics on June 15, 2012 at 10:35 am

Alan Hevesi, as Comptroller of the City of New York, served as the most influential trustee of the pension fund for New York City police officers. When the Police Benevolent Association “withdrew” their endorsement of my candidacy for Congress, they claimed that having provided it so early, they had not realized it was for Congress. They then made no endorsement in the race. Their behavior was difficult to explain, other than by hypothesizing that Hevesi engineered it.  I did not blame Hevesi for supporting Katz over me, notwithstanding my obviously superior credentials, in that I had supported Mel Miller for Speaker of the Assembly against Hevesi, and Liz Holtzman for New York City Comptroller – twice – against Hevesi. But I was convinced that Hevesi had stolen my PBA endorsement. That was dirty, and for that I did blame him.

While the New York City branch of the National Organization of Women stuck by their endorsement despite Katz’s entry into the race, based on the length and quality of my record, the State organization endorsed Katz. Whether they did so purely as a matter of gender, or whether Hevesi had some role there as well, I do not know.

Tony Genovesi had warned me, many years earlier, to make peace with Schumer. As far as I was concerned, Schumer had wronged me. In 1998, I did endorse Schumer for Senate in his primary against Mark Green and Geraldine Ferraro, because his immense popularity in his own congressional district, in which I was running, gave me no choice. But I was not and am not a person to truckle, and I would not knuckle under or pledge fealty to him when Tony suggested it, back around 1990, or thereafter. Tony owed me for supporting him against Silver, but he endorsed Weiner, no doubt at Schumer’s insistence. This meant that the thuggish Bernie Catcher and Carl Kruger, Genovesi’s lieutenants, by then respectively a political operative in Trump Towers and the successor to Don Halperin’s State Senate seat, also worked for Weiner.

Then, in July, came the really bad news. Jeff Plaut, of Global Strategies, called me. He had discovered a classic weakness in our polling data. His pollsters had infected their communications with respondents by their support for their client – me. This “infection” skewed the responses heavily in my favor, invalidating the results. Plaut offered to refund the $11,000 or so our campaign had paid him, and I accepted.  We then engaged Penn & Schoen, Doug Schoen’s highly-regarded firm. In a few weeks they had results. Dear and I were polling at about twenty percent, with Katz and Weiner polling at about twenty-five percent.  Schoen did not think it was possible for me to win the race.

At this point, I truly disagreed. With the endorsement of the New York Times and perhaps the other dailies, and with a fine Election Day operation, I thought I could still win. I expected Schumer to endorse Weiner. Schumer had called me early in the year to thank me for endorsing him and to tell me that he would not make an endorsement until late in the race – by implication, out of gratitude for my endorsement. I understood that he would ultimately endorse Weiner, and given his relationship with Weiner, this did not upset me. I knew the Schumer endorsement would help Weiner and hurt me, but I still thought I would win.

Meanwhile, Dear was spending tremendous amounts of money, actually sending CDs (which were more expensive in those days) to each likely primary voter, touting his accomplishments, such as they were. Most of his mailings, though, simply attacked each of us, although his criticisms of Weiner and Katz, perceived as more liberal than myself, were much harsher. On primary day, the Dear campaign would use its superior financial resources to send cars and buses to pick up identified Dear supporters and drive them to their polling places.

Debates, street campaigning, door-to-door

In National Politics, NYC Politics on June 1, 2012 at 10:56 am

Some of the Democratic clubs hosted debates among the candidates. Some civic groups did as well. I remember a debate in the gym at St. Francis de Sales Roman Catholic church, on 129th  Street in Belle Harbor, down the block and across Neponsit Avenue from where I lived until I was nine years old. Pauline Emanuel, my fourth-grade teacher at P.S. 114 on Beach 135th Street, showed up to cheer me on. An old regular Democratic clubhouse in Woodhaven hosted another debate; as did Rockaway Independent Democrats, the reform club my mother helped to found in the 1950s and that had supported me in my 1970s City Council races; and a few reform Democratic clubs in Brooklyn hosted others. Usually, the moderator would ask questions, and the three of us would take turns answering, rather than debating each other directly. I don’t remember whether Noach Dear ever participated. I don’t think he did, and if he did, it could not have been more than once.

I noticed something about the way the audiences responded to Katz and Weiner. Of course, I thought I responded with far more intelligence and substance than either, but Katz clearly gave much more relevant and substantive answers than Weiner. However, the audiences responded much more enthusiastically to Weiner, whose comments were “cute” in the attractive sense of that word, or self-deprecating, or funny. I persuaded myself that I got a good audience response too – probably wishful thinking. In retrospect, my responses must have been substantially more substantive, and substantially less effective, than Katz’s.

Knowing what the nation later learned about Weiner’s personal behavior, it may seem odd for me to attribute his success to “emotional intelligence.” Some might prefer to characterize his behavior as reflective of emotional idiocy. But the ability to charm, persuade, and mislead requires empathy, a close relative, if not the equivalent, of emotional intelligence. Studies have found that fraud perpetrators not only score higher on empathy than do other property offenders, they even score higher than a comparison group of college students. So Weiner’s odd personal proclivities could very easily coexist with an empathic understanding that underlay his ability to win over voters.

Democratic politics in the Rockaways had so deteriorated that an unstable and generally bizarre person from the reform club, Lou Simon, had defeated Sy Sheldon after the latter’s long and unimpressive tenure as male district leader (and Simon remains the district leader there). But I won the endorsements of the other reform Democratic clubs after debates at the forums they provided. Wishful thinking notwithstanding, the more intellectual audiences clearly gave me better responses than they gave Katz or Weiner. Of course, when told that he had “the support of all thinking Americans,” Adlai Stevenson quite correctly noted “That’s not enough. I’m going to need a majority.” It wasn’t enough for me either.

If Weiner out-campaigned me in debates, he did even better on the street. He gave short, brief, confident answers to questions. He joked and charmed and endeared himself. Preternaturally thin, his appearance and appeal regularly impelled older women – the largest voting bloc – to pinch his cheeks and urge him to eat more. His poise and charm coexisted with his patently urgent plea for voters’ support.

In contrast, while I did not actually say “if you want to be an idiot, vote for someone else,” I probably made it clear enough that that’s what I thought. On countless occasions I urged voters to “look at the record and make a rational choice.” Voters do not ordinarily do that, and my campaign was no exception.

While Weiner raised about as much money as I did, I believed he needed less time to do so, since Schumer was not actively opposing his fund-raising efforts, as he opposed mine, and may have helped him. Therefore, Weiner had more door-to-door time than I did. I think I rang all the doorbells in Trump Towers, a huge set of middle-income housing projects in Coney Island (built by Donald Trump’s father), and in the Dayton Towers apartment buildings along Shorefront Parkway in Rockaway, another such rich mine of middle-income voters. But Weiner rang them all several times, according to reports I received. Whatever Katz was doing, it did not win her a large percentage of the vote outside her own district. But as the final tally would ultimately reveal, that was almost enough for her to win.


The “Go” Game

In National Politics on May 25, 2012 at 11:00 am

In 1982, a scholarly journal called Political Methodology had published an article of mine, “Games of Skill: Wei-ch’i and a Democratic Primary in Brooklyn,” in which I explained the political strategy with which I won my 1980 Assembly race in terms of the game called “go” in Japan and “wei-ch’i” in China. In go, unlike chess, players best dominate by building strength at the various corners and edges of the board. In the article, I applied the theory literally, showing my techniques of building support in the various geographical reaches of the district.

As noted in a previous post, I contemplated the theory more metaphorically in the congressional race, thinking that my accomplishments for drivers, subway riders, tenants and homeowners would build support in those demographic cohorts of the district. Even in ideological terms, I thought I had put down the right “markers”: in late 1997, as I was gearing up for the race, I asked for and received a letter of endorsement from the New York City Police Benevolent Association, a generally conservative group; and based on my work with women’s groups combating domestic violence, I expected and received the endorsement of the New York City chapter of the National Organization of Women, a generally liberal group.

However, I thought I could apply the theory geographically as well. After all, historically the big Democratic votes in the 9th congressional district came from my own 45th Assembly district, where I would surely do well, and the 39th and 41st, respectively Tony Genovesi’s, based in Canarsie and Mill Basin, and Helene Weinstein’s, based in the half of Sheepshead Bay east of my half, where I thought I also had reason to do fairly well, all in Brooklyn. Since I had supported Genovesi in his brief and abortive effort to depose Silver as Assembly Speaker, I thought I would have Genovesi’s support. On a personal basis, I had pestered the very overweight Genovesi into joining Artie Malkin and myself for racketball games, thinking it would benefit his health. In fact, for his size, Tony gave us a decent game, since he used to be a good handball player and still had some moves. On the Queens side, the 22nd covered most of Rockaway, where I grew up, and Howard Beach, where I had lost my City Council races to Walter Ward, but where I thought I still had friends, like Betty Braton, the district manager who had supported me in those races. Of course, Melinda Katz would be strong in the 28th, the Forest Hills district she represented, but otherwise, I thought I could be the Queens candidate as well as the Brooklyn candidate.  

Beyond such calculations, I simply did not think I could lose to any of these opponents. Indeed, early on in the race, probably in March, 1998, my pollster, Global Strategies, called me and Louis in for a celebratory meeting. Their polls had me beating my opponents by comfortable margins. Jeff Plaut, one of the principals of the group, offered me a congratulatory cigar. This made perfect sense to me. My work, over all those years, benefitting so many key constituencies, I thought, had brought me widespread support.

I really didn’t think I could lose to my opponents, all of whom I considered lightweights. Somehow, after all my years in politics, I still had the notion that substance and merit would prevail. Congressman Jerry Nadler half-joked, at one point, that I had written more books than my opponents had read. My qualifications so clearly outclassed theirs that I could not imagine, for example, that the New York Times would fail to endorse me, even with Schumer’s Luca Brasi on the editorial board (see post #73). I even imagined that the Post and News would feel compelled to endorse me.  I should have taken more of a lesson from the Saturday Night Live skit when Jon Lovitz, playing Michael Dukakis in his debate with Dana Carvey’s George H.W. Bush, finally said what every Democratic intellectual must have thought the real Michael Dukakis was thinking that year: “I can’t believe I’m losing to this guy!”

My “bundlers”

In National Politics on May 15, 2012 at 11:21 pm

I had a few “bundlers,” or people who raised money from their friends for me. Greg Milmoe, a partner at the Skadden Arps law firm, raised about thirty thousand dollars from some wealthy clients and friends. Lenny Cecere, a real estate man, Adam Rowen, a physician and pneumo-thoracic specialist, and the late Wilbur “Bill” Levin, former president of Independence Bank and then Kings County Clerk, each raised about five thousand dollars from business associates and friends with whom they were close. None of them had any vested interest in my election. They raised money because they were my friends, believed in me personally, and thought my election would serve the public interest.

Jerry Nadler and Eliot Engel, two members of Congress, each raised a few thousand dollars for me – Jerry from business people involved in the effort to revitalize shipping in New York, an effort which I had tried to assist; and Eliot from Kosovo Albanians, since Engel’s efforts on their behalf, strenuous at that time, eventually made him the member of Congress most responsible for the American intervention that helped protect them from further genocidal efforts in the former Yugoslavia. Like the four mentioned previously, their personal relationships with me motivated their efforts, although I’m also sure they knew that I would happily have joined in pursuit of the policies they wanted to advance.

One last bundler may have had less pure ambitions. Rabbi Milton Balkany had asked me, in the late 1980s or early 1990s, to intervene with the Department of Correction on behalf inmates he claimed had been unfairly penalized in one way or another. Before I did so, I carefully researched each case. His claims, the first few times, proved accurate. His claims on behalf of another inmate did not. I confronted him with his errors, and he immediately apologized and withdrew his request. After a year or so had passed since my last intervention at his request, he sent me a sizeable contribution to my Assembly campaign account; it might have been as much as a thousand dollars.

He had me as his lunch guest at the Bais Yaakov girls yeshiva he ran in Borough Park, and once for dinner at his elegant home a few blocks away. A Hassidic rabbi with a flowing white beard, Balkany exuded warmth and graciousness, along with extremely sophisticated and articulate presentations.  His political sympathies and campaign contributions generally flowed toward Republicans, including raising over $300,000 for Senator Robert Dole in the 1980s, a $25,000 check for George Pataki’s first gubernatorial campaign in 1994, and a $19,000 check for Rudy Giuliani’s reelection campaign in 1997. He gave the invocations opening both the U.S. Senate and the House of Representatives in 2003.

What I did not know was the Balkany got paid for his interventions on behalf of these inmates. Such donations to his non-profit school would find their way back to him, by way of salary or other means. In 2004, as part of an agreement to defer prosecution on an unrelated matter, federal prosecutors required Balkany to stop lobbying federal prison officials. In 2011, federal judge Denise Cole sentenced Balkany to four years in prison for still another unrelated matter, this time a shakedown scheme.

Balkany raised about $30,000 for me. I did not doubt his integrity until well after the congressional race, and indeed stayed in touch with him until about 2002, when I began to learn about his record of less-than-pure activities.

Fund-raising for Congress

In National Politics on May 4, 2012 at 12:36 pm

Raising money, as always, tormented me. To this day I feel bad about old friends I hadn’t spoken with in years who responded generously when I called to beg for money, and with whom I quickly lost touch again thereafter. For example, Nathan Abramowitz played chess with me on our high school chess team, went to Fordham, served as a platoon leader in the Vietnam War, and became a partner at the Mudge, Rose law firm. Some of my fellow members of Columbia’s heavyweight freshman crew team are in that category too. Another is Ira McCown, a couple of years ahead of me in college and my squash partner at Harvard Law School. Holly Hendrix, a fellow member of Columbia’s Van Am service society who became president of Union Theological Seminary, similarly responded with his characteristic warmth and generosity. These very good people, and others like them, probably feel that like a typical politician, I only reached out to use them. I suppose I did, but without personal wealth or substantial vested interests committed to my success, I had no choice but to beg everyone I ever knew. Now, having reverted to being a normal person, i.e. not a politician, I cannot keep in touch with the hundreds of wonderful people who contributed.

Federal law limits contributions to congressional campaigns to one thousand dollars per person. Someone could contribute a thousand dollars each for a candidate’s primary and general election campaigns, but in my case, since I had lost the primary and had no general election, I had to return the money contributed for the latter campaign. Since I had to raise several hundred thousand dollars, and most contribute less than a thousand, this would require a lot of telephone calls even if everyone said yes, and most people say no.

Joe McLean, from the McLain Clark political group, somehow found me. His organization would take a percentage of the money they helped me raise. Joe seemed like an honest guy, and I think he is. He placed a young woman named Tammy Shake in my campaign. She did, essentially, what Louis Bochette did in the District Attorney race, but with computer-assisted lists. After exhausting my personal lists, Tammy made me call unending lists of donors identified as sympathetic to Democratic candidates. I don’t remember the real percentage, but distant memory tells me something like one out of a hundred would actually contribute. That seems wrong, because out of a hundred calls, which might take an hour, I would only reach ten or fifteen people – most of whom, again, would decline. Yet, under Tammy’s direction I raised perhaps three hundred thousand dollars. Combined with the contributions from my personal lists, about $75,000 from my “bundlers” (see below) and about the same from unions, I raised a total of about $600,000 – the same as Katz and Weiner. Dear raised as much as the three of us put together.

I had compiled a strong pro-labor record in Albany, and a number of unions each contributed at the five thousand dollar maximum they were permitted by federal law. I assume they were counting on me to continue to support the labor movement, and indeed I would have. However, I lost an important range of support from labor because at the urging of certain respectable clergy members, I had publicly asked the FBI to investigate allegations of correction officer misbehavior at a prison in western New York. Council 82, the union then representing New York State correction officers, which had strongly supported me in the past, regarded this as a betrayal. They told the leadership of AFSCME District Council 37, the powerful umbrella group for New York public employee union locals, that if DC 37 supported me, Council 82 would leave DC 37. This made it impossible AFSCME’s national to support me, which in turn prevented me from presenting myself as the “labor” candidate. (Ironically, a year later, in 1999, Council 82 lost the right to represent New York State’s correction officers.)

Other than from labor, I did not raise much money from Washington-based “PACs” – political action committees, created for the purpose of collecting donations from people or entities with common political interests and then contributing to candidates.  I had been the New York State Legislature’s leading proponent of gun control, earning an F-minus from the National Rifle Association for my efforts. Anthony Weiner had actually opposed the major gun control effort to come before the New York City Council, and Katz and Dear played no significant role on the issue. But the gun control PACs refused to support me.  I suspected, and later confirmed, that Schumer had actively discouraged individuals and organizations from supporting me. Since he played a leading role in gun control efforts in Congress (although the NRA gave him a slightly higher grade – a plain F – than the F-minus it gave me) the gun control PACs, I suppose, must have been especially responsive to his influence. Still, this experience helped me share the general skepticism of politicians toward “holier-than-thou” civic groups.

Thinking About Congress

In National Politics on March 30, 2012 at 10:12 am

Sometime in late 1993 or early 1994, Schumer included a lunch meeting with me in his schedule for an Albany visit. At that time it seemed quite possible that Mario Cuomo would not run for reelection, given his weak poll numbers. More New Yorkers thought Cuomo should not run for reelection than thought he should, according to an April 1993 Marist poll.

Only five years after my primary run for Brooklyn District Attorney, voters would likely remember my name in large swaths of Brooklyn. If Schumer ran for Governor, I would run to fill the congressional seat he would have to abandon. Noach Dear, an Orthodox Jewish member of the New York City Council, seemed to be the most logical threat to my candidacy, should such a campaign come to pass. The burgeoning religious community in Brooklyn’s Borough Park included many of rapidly expanding wealth; Dear could raise tremendous sums of money from that group. Indeed, the New York Times noted his role as one of a small group of key fundraisers for Vice President Al Gore.  But Schumer assured me that despite his “fund-raising prowess,” in the Times’s words, Dear’s appeal was too limited for him to pose a serious threat to my candidacy; Dear could not get more than a fifth or a quarter of a Democratic primary vote in that congressional district.

Schumer’s interest in running for governor surprised me. I told him that I doubted that Moynihan, who had served as New York’s Senator since 1977, would run again in 2000, and that I thought Schumer would be the clear front-runner for that seat. Furthermore, Schumer had built a national reputation and power base in Washington. Why would he want to come back to Albany? He had a clear answer: “I don’t want to be one of 100 Senators shouting up. I would rather be the one in charge,” or words to that effect.

But when Cuomo decided to run, Schumer declined to fight him in a primary for the Democratic nomination. However, he did not wait for Moynihan to retire; he took on an uphill fight against Al D’Amato in 1998, thus opening his congressional seat to a successor that year.  Not only did Schumer win that fight, he did not become merely “one of 100 Senators shouting up.” He quickly rose to leadership, and within his second term became the second or third most powerful member of the Senate.

In some ways, Schumer’s decision not to run in 1994 gave me a sense of relief. Still-fresh memories of my 1989 campaign for District Attorney still pained me, so I had some reluctance to jump into another battle. But I did not want to end my days as the 80-year-old Assemblyman from Sheepshead Bay. Congress would offer fascinating new vistas. I salivated at the prospect of learning foreign affairs and the politics of Washington D.C. from that vantage point. When Schumer announce his candidacy in 1998, I had to run, or be forced to torture myself with “what if?s” forever after.

A very successful congressional campaign

In National Politics, NYC Politics on May 20, 2011 at 5:09 pm

George McGovern won the Wisconsin primary with thirty percent of the vote, beginning the momentum that would lead to his nomination as the Democratic candidate for president in 1972. Lindsay got seven percent, and dropped out of the race.

Back at law school, I got two telephone calls asking for my help in Brooklyn Democratic congressional primaries to be decided that June 20th. Al Lowenstein called to ask for my help in his race in the downtown Brooklyn/ Brooklyn Heights district against John Rooney, a conservative pro-Vietnam War hawk who had served since 1944 and was friends with J. Edgar Hoover.   Liz Holtzman called to ask me to help her run in the Flatbush-Midwood-Sheepshead Bay district against Emanuel Celler, the “dean” of the House, chair of the House Judiciary Committee, a liberal icon instrumental in enacting the Civil Rights Act of 1964, who had served since 1922. I calculated thusly: Al would get volunteers and financial support from all over the country. Further, he was running against an outright conservative Democratic in a year when anti-war votes were propelling the McGovern forces to victory in Democratic primaries, so he would surely defeat Rooney. Poor Liz, running against the legendary Emanuel Celler, would definitely face massive defeat. At least if I helped her, she might get twenty percent of the vote, and avoid some degree of humiliation. So I went with Liz.

Liz assigned me the 43rd Assembly District, covering the Flatbush section, north of Brooklyn College, in the heart of Brooklyn. I had to recruit the volunteers to canvass the buildings, persuading voters first to sign designating petitions to get her on the ballot, and then persuading them to commit to voting for her. Telephone canvassers would call those voters the “foot” canvassers missed, working to get as complete a list of possible of those voters likely to support Liz. On primary day, volunteers would “pull” those favorable voters, again in person if possible and otherwise by vote, to get them out to vote. Other volunteers would stand outside the polling places leafleting approaching voters. Still others would drive to the polls favorable voters who were elderly or disabled.

Liz herself campaigned tirelessly, meeting voters at every subway stop, movie theatre line, supermarket, and bingo hall. Soon I saw that Liz would do better than I had expected, although (I thought) still nowhere near well enough to win. Celler had fought against the Equal Rights Amendment, and Liz, an obviously brilliant and hard-working woman, perfectly embodied the argument for the ERA. Also, Celler was 88 years old.  One of the telephone canvassers in the campaign office on Flatbush Avenue, after telling the voter on the other end of the line that Celler was 84, swallowed hard when the voter said, “I’m 84 years old!” The canvasser felt much better when the voter continued, “and if Celler feels like I do, he shouldn’t be in Congress.” We all felt much better after hearing the story.

The race included a third candidate, Bob O’Donnell. Led by Mike Churchill, Liz’s campaign manager, we undertook the massive effort necessary to try to knock him off the ballot, by showing that too many of his petition signatures failed to meet the legal requirements. If we succeeded, we thought, Liz would get the anti-Celler votes that O’Donnell would otherwise draw.  We failed. Post-election analysis showed that O’Donnell’s few thousand votes, had he been off the ballot, would have gone to Celler, not Holtzman. Holtzman beat Celler by about six hundred votes.

With all of Holtzman’s talent and drive, three factors beyond her control or our control enabled her to win. Our failure in the O’Donnell effort was one. Another was the Lowenstein campaign: the Democratic machine figured the odds just as I had. Assuming Holtzman had no chance, they put all their effort into Rooney’s campaign. Any support they could provide, such as “volunteers” from the Brooklyn Local 1814 of the International Longshoremen’s Association, all helped Rooney.  Celler himself called Holtzman “a toothpick trying to topple the Washington Monument,” so neither he nor the Brooklyn machine headed by Meade Esposito thought he needed any help.

Third, with Ed Muskie’s weakness, the regular organization knew better than to have him head up their slate, because voters rejecting Muskie might reject the organization candidates listed on the same palm cards (brief “cheat sheets” the local captains would hand their usually loyal voters) or other pieces of campaign literature jointly issued by the presidential and local candidates. But the regulars could not stomach McGovern, because his political support came from all the people usually opposed to the regulars. Also, at this point they still had hopes of defeating McGovern at the Democratic national convention. So their candidates running to be delegates to the convention listed themselves as “uncommitted.” The top of Holtzman’s slate of candidates, the delegate candidates associated with the reform movement, listed their choice for president as George McGovern. The record shows that while McGovern lost overwhelmingly to Richard Nixon in November 1972, he did quite well in the Democratic primaries.

I am proud to say that although Celler beat Holtzman in all the other Assembly districts in her congressional race, she won by a big enough margin in the 43rd – my responsibility – to overcome the deficits elsewhere. I had been working every day for Liz in Brooklyn, but many nights back in my own Queens neighborhood for McGovern (about which more later). Late at night on June 20th, driving back from polling places in Queens, I heard the radio announcement that Liz had beaten Celler. I almost jumped through the roof of my car in joy and amazement. I still could hardly believe it.

[PS — Thank you, Howard Graubard, for a factual correction from an earlier version.]