Written by William M Erlbaum   

NOTWITHSTANDING the recent federal corruption convictions of Sheldon Silver, the powerful former Speaker of the New York State Assembly, and that of the former leader of the New York State Senate, Dean G. Skelos and of his son, Adam. B. Skelos, and other defendants around the nation, corruption fighting both in government and in the business community, is largely built upon a blizzard of lies. The biggest lie is that increasing potential penalties, hiring more investigators, initiating greater numbers of prosecutions, and meting out longer sentences, purportedly will bring about a significant reduction in the scale of corruption. Those who champion that approach are diverting us from the vastly more promising route to cleaner institutions: STRUCTURAL CHANGE. For the most part, they know that very well.

For example, consider the Surrogates Courts within New York City. When a person dies without leaving a will ("dying intestate", is the technical phrase), the Public Administrator, appointed by the County Surrogate, takes over the administration of the deceased's estate, and a lawyer, also appointed by the Surrogate, handles the legal work and is awarded a fee based upon a percentage of the value of the estate. Conceptually, the Public Administrator is a City Commissioner like any other Commissioner such as the Police, Fire, and Health and Hospitals Commissioner, with a salary paid by the City and included in the City's annual budget. One may profitably ask then, why is the Public Administrator appointed by the Surrogate and not by the New York City Mayor? The Mayor appoints each of the other City Commissioners. If the Mayor were to make that appointment instead of the Surrogate, the needed legal work would ordinarily be performed by the salaried attorneys in the office of the New York City Corporation Counsel, who do the legal work for all of the other City departments, instead of being shunted to lawyers who are rewarded with financial slices of the estates of the dead. This mode of structuring the process ensures that the Surrogates Court, whatever other functions it may serve, will continue, in effect, to be the piggy bank for political firms and connected lawyers. For two illustrative cases - two among many - one need only turn to the proceedings before the New York State Commission on Judicial Conduct involving the censure of Bronx County Surrogate Lee L. Holzman in December, 2012 and to the removal of Kings County Surrogate Michael H. Feinberg in June, 2005, each of whom was penalized for opening an estate money-spigot for a favored lawyer. Under the present structure, millions of dollars annually continue to line the pockets of the greedy. Yet, to this day, efforts to meaningfully effect structural reform of this odoriferous system have been thwarted.

The courts of New York also serve as the piggy bank for extensive patronage operations. In New York City, the modus operandi has been that the judge who needs to fill a staff position, such as a law clerk or a secretary, generally turns - it is just about obligatory - to the patronage-dispenser, often a member of the key political party law firm in each county. Then a job-seeker from among the Party faithful, one who has made periodic financial contributions by attending political fundraisers and dinners and has learned to "work the room" on such occasions - in short, someone who has "paid her dues" - gets referred to the judge to fill the vacancy and usually gets the job. For many years and beyond a reasonable doubt, our Governors, legislators, and top judges, informed by decades of prior hands-on experience in the customs and usages of politics or of the courts or of both, have been well aware of this system and have looked the other way. All the while, they have made righteous pronouncements and have been endlessly honored, garnering award after award from "good government" groups which, naively, did not know - or did not want to know - the score. Almost none of these eminences have been willing to take on the likes of a Sheldon Silver, who has been perceived as indispensable to their careers and to the careers of those whom they favored, particularly those whom they wanted to have chosen by the political establishment as their successors.

The available examples are endless. Preet Bharara, the United States Attorney for the Southern District of New York whose office successfully prosecuted Mr. Silver and Mr. Skelos and his son, appears to be keenly aware of the existence of embedded, widespread corrupt activities in both government and business. The activities embrace what sociologist Edwin Sutherland, many years ago, quaintly dubbed "white-collar crimes" which, in the blunter modern lexicon, are "racketeering enterprises". Certainly, rooting out from the worlds of business and government those who engage in rapacious plundering, by whatever name known, is an important and praiseworthy service to the community. However, in light of the sheer magnitude and geographic reach of corrupt behavior, the diverse forms that it takes, its ability to morph especially in our global economy in the age of the internet, and the fact that it operates well beneath the radar, it is not to be denied that the exclusive pursuit of individual defendants, in the absence of significant institutional reforms, at best, only begins to scratch the surface. In the larger scheme of things, without structural reform and exponentially increased transparency, society will neither prevent, let alone conquer, the Goliath that is entrenched economic marauding, activity calculated to defraud an honorable citizenry and business community. Strident speeches about getting tough on corruption, without sincere enthusiastic pursuit of institutional changes, essentially camouflage predatory behavior, intentionally or otherwise.

With the objective of substantive structural reform in mind, close investigations of certain types of business and government practices, could indeed be worth their weight in gold. By way of illustration, one might examine our major public building projects, federal, state, and local - which become ever more costly with each passing year - and learn in each construction enterprise the identity of the brokerage selected to write the required insurance and that of the law firm chosen to do the needed legal work. Each of the designated firms is enriched by millions of taxpayer dollars, and, rarely if ever, is a bidding process required. Why is this brokerage or that law firm picked and not another? These are shrouded decisions, taken backstage. They involve the exercise of virtually unreviewable discretion However, if all that results from such investigative energy and treasure is the hoopla accompanying a few high profile Potemkin trials and sentencings, rather than institutional change, we will have been led down yet another primrose path

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*William M. Erlbaum
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