Q&A: Jerry GoldfederJerry Goldfeder in The New York Law Journal, July 20, 2012
As a Kennedy-inspired product of the 1960s, Jerry Goldfeder delved naturally into political activism; as an attorney he just as naturally veered toward campaign and election law.
Goldfeder, special counsel at Stroock & Stroock & Lavan, is representing New York City Council Speaker Christine Quinn in her mayoral bid, but his lengthy career has given him a bird's eye view as well as fly-on-the-wall perspective into the intersection of law, politics and public policy on a statewide and national basis. He is the author of the treatise Goldfeder's Modern Election Law (New York Legal Publishing Corp.), now in its third edition, as well as two spin-offs, Ballot Access in New York and Money and Politics.
Goldfeder, 65, teaches Election Law at Fordham University School of Law and the University of Pennsylvania Law School, and he chairs the New York State Bar Association General Practice Section's Election Law and Government Affairs Committee. Before joining Stroock, he was special counsel to the state Senate Democratic Conference under then-minority leader (and future governor) David Paterson and special counsel to then-attorney general (and current governor) Andrew Cuomo.
Q: How did you become interested in Election Law?
A: I have always been interested in politics.
I grew up in the 1960s. I knew the name of every cabinet member in President Kennedy's administration, watched every minute of the presidential conventions, organized a march to Albany in 1966 to prevent tuition increases at CUNY, led a delegation of college students in 1967 to urge Bobby Kennedy to run for president, received an advanced degree in political science and founded a union of teaching assistants at UCLA. Following that I went to law school, enrolling in the first class of the Benjamin N. Cardozo School of Law.
In 1981, I was on a team of litigators trying to knock a candidate off the ballot. We were representing then-Assembly Member Frank Barbaro, in his long-shot challenge to Mayor Ed Koch. Barbaro wanted a one-on-one race in the Democratic primary. Invoking the "anti-raiding" provision in the Election Law, we argued that a second insurgent, Mel Klenetsky, wasn't eligible to run because he wasn't a "bona fide Democrat." The lead attorney was [Weil, Gotshal & Manges partner] Paul Asofsky, a great lawyer and a wonderful mentor.
During the trial, held at a long table in a cavernous room at the New York City Board of Elections, we inspected hundreds of "buff cards"—those now-defunct, yellow registration forms that showed party affiliation and voting history—and subpoenaed dozens of the candidate's supporters. The goal was to prove that Klenetsky and his supporters held beliefs that were antithetical to the Democratic Party—that they were raiding the party for their own, contrary agenda.
Despite an unsuccessful result in the case (and in the election, I might add), I was hooked.
I hadn't studied election law in law school; prior to Bush v. Gore the subject was rarely offered. But I started learning it from Paul [Asofsky], and it was an exhilarating and intellectually challenging experience. During the next 30 years, I have been privileged to represent candidates for Congress and the New York state Legislature, mayor, governor, U.S. senator and president of the United States. I also have represented Civil Court judges, Supreme Court justices and members of the Appellate Division.
Q: Who do you now represent?
A: Speaker Christine Quinn in her campaign for mayor of the City of New York; Judge Rita Mella, candidate for Surrogate of New York County; Council Member Dan Garodnick, running for New York City comptroller; New York state Comptroller Tom DiNapoli; and numerous members of (and candidates for) Congress, the New York Legislature and the New York City Council. I also am part of a national network of lawyers working on behalf of the president's re-election.
Q: Do you represent just elected officials and candidates?
A: No. I also represent unions, not-for-profit and for-profit corporations, PACs, independent expenditure organizations, super PACs, and individual contributors.
Q: What does your work as an election lawyer entail?
A: I spend considerable time with elected officials on what we call public integrity issues—advising them on best practices so as not to run afoul of a variety of laws and ethics rules. Especially in the age of email, iPhones, Twitter, and the like, public officials might inadvertently use government resources for campaign purposes. It is extremely important for them to establish a firewall between government and politics, and I assist them with this.
Beyond that, I of course advise elected officials and candidates on campaign finance compliance. There is a common thread among federal, state and local campaign finance laws, but each has its own contribution limits and particular prohibitions. I also have to worry about special rules that impact various classes of contributors, such as the Securities and Exchange Commission's rules pertaining to investment advisors, and the New York City Campaign Finance Law's restrictions on contributions by those "doing business" with the city.
And whether a candidate is a long-time incumbent or first-time insurgent, most offices require petitioning to secure a place on the primary or general election ballot. While ballot access rules have been liberalized over the years, there are still many requirements that have to be met.
After the 2000 election, I developed a sub-specialty relating to "election protection" to train campaigns how to ensure that eligible voters may cast ballots without interference.
Every candidate also has general contractual issues with vendors and consultants; tax and employment issues with staff and independent contractors; and lease issues. Very often legal issues arise as to what a candidate may say in literature or TV or radio ads, and I now have to monitor their Facebook and Twitter accounts.
These on-going issues require my being in constant contact with the New York City Campaign Finance Board, the Board of Elections, the Federal Elections Commission, the New York City Conflicts of Interest Board, the IRS, J-COPE [New York State Joint Commission on Public Ethics] and other federal, state and city agencies.
In my work for unions, corporations, Super PACs, and independent expenditure organizations, I often establish and register the entity, and make certain that their contributions and expenditures are lawful and fully disclosed. Their activity must of course comply with the relevant election laws, but I must also be mindful of tax, corporate and labor law.
I also represent groups that wish to put issues up for a vote. Although we don't have "direct democracy" in New York for voters to weigh in on policy questions, they can petition to place City Charter amendments on the ballot. New York's hundreds of towns and villages often have referendum questions as well.
Finally, I am increasingly called upon to represent public officials or candidates in various public integrity or criminal investigations or prosecutions by the U.S., the Office of Congressional Ethics, the attorney general or district attorney.
Q: It sounds like your practice includes more than just the Election Law.
A: That's right. Although I have mastered many substantive areas of law in my 30 years of practice, the beauty of being at Stroock is that I have great colleagues. We have a whole group of partners and associates specializing in tax, white-collar criminal defense, corporate law, intellectual property, and not-for-profit law. In Washington D.C., groups such as ours are organized into what they call "political law" departments. As far as I know, Stroock is the only firm in New York that has a group providing this kind of comprehensive expertise to clients.
Q: How is it that you got to Stroock?
A: Several years ago I was working on a referendum campaign on behalf of the United Federation of Teachers. The UFT wanted to place on the ballot a City Charter amendment to require smaller class size. Stroock had represented the union for many years; in fact Randi Weingarten [former UFT president and now president of the American Federation of Teachers] had been an associate at the firm. So, when the city sued to keep the issue off the ballot, Stroock lawyers worked with me on the litigation.
After I was at the Attorney General's Office for a few years, I had some conversations with Stroock. Bob Abrams, the former attorney general, had been at the firm since he left office in 1993, and was chairing a new government relations practice. I have known Bob for many years, and have always been a great admirer. We discussed the possibility of my joining the firm, and the rest, as we say, is history.
Q: Before you went to Stroock you were special counsel to Attorney General Cuomo. What did you do there?
A: I have known the governor for over 30 years. We first worked together when I was the New York state deputy campaign manager in Walter Mondale's 1984 presidential campaign, and we kept in touch over the years.
In 2002, I was the campaign lawyer for then-state comptroller Carl McCall's bid for governor. Andrew mounted a primary challenge against us, but ultimately dropped out. In 2006, I was Mark Green's campaign lawyer for New York attorney general; in that race, Andrew won.
A few days after Andrew took office, I went to see him to suggest some projects that he might pursue as A.G. After five minutes, he said to me, "No, wait. I want you to come to work for me as my special counsel for public integrity."
I was a bit startled and flatly turned him down. I reminded him that I had represented his opponent in the last two races he had run (as if he needed reminding!). He spoke about our long-time relationship, what his plans were, and how he wanted me to be part of his team to investigate and, where warranted, prosecute corruption. He even drew a make-shift organization chart and showed me what role I would play on his new team. I remember him saying, "We won't pull any punches. We will let the facts dictate what we do."
I told him I would think about it. I went back two weeks later and told him no. We spoke for another hour. In case you don't know, he is a very persuasive guy. He obviously made a great case. And I never regretted joining the Attorney General's Office. I worked on some fascinating cases, and to this day I feel a deep personal and professional bond with the governor and the lawyers with whom I worked.
Q: You also teach and write. Where do you find the time?
A: As many lawyers and other professionals, I am happiest when I am busy. So I make time.
I love teaching. Before I was an attorney, I taught political science. Right now I teach at Fordham University School of Law and the University of Pennsylvania Law School; I alternate every semester.
I teach either Election Law or, during presidential years, Election Law and the Presidency. The first course is an overview, covering ballot access, campaign finance, redistricting, initiative and referendum, voting rights and the like. The presidency course is geared to the nomination and election of a president. In this course we look at a variety of historical and jurisprudential issues generated by the Tilden-Hayes dispute in 1876, the Bush-Gore election, the Electoral College, succession issues and impeachment. I believe I am the only law professor in the country giving such a course.
I also write about election law. My treatise is used by practitioners and judges. In fact, every now and again, a court will cite to the book. The most frustrating experience with this was a candidate residency case I tried two years ago in which the judge quoted extensively from my book, and then ruled against me! To this day, I think he took my observations out of context.
I also give many CLEs and other lectures on ballot access and campaign finance compliance. I have been teaching for several years at the Appellate Division, Second Department, on How to Decide an Election Case and have increasingly been lecturing before a variety of groups with an eye toward increasing the diversity of the election law bar. There really are only a handful of lawyers in New York with my practice. And we are getting older. I am very focused on recruiting younger lawyers from different backgrounds to learn election law. It is very important.
Q: How often do you get to court?
A: Pretty often. When I tell people I am an election lawyer, many people think I am busy just around election time. Of course I am busy at that time—setting up voter protection programs, making sure the polls are monitored, facilitating get-out-the-vote operations. But there are primary elections and general elections, there are special elections and party caucuses. There are federal elections and state elections, and those for city, county, town and village offices. There are petition challenges, residency disputes, campaign finance audits and investigations, and ethics inquiries. And then there are ongoing compliance issues for unions, PACs, not-for-profits and political parties.
A great feature of election law litigation is that they are highly truncated affairs. I am in Supreme Court one day, the Appellate Division the very next week, and in the New York Court of Appeals a few days later. It is very intensive work, but I am able to use all my trial and appellate skills in a short period of time. And in that I have represented so many candidates and organizations over the years, I have been in state and federal courts throughout the state.
Q: An interview of an election lawyer would not be complete without touching on the U.S. Supreme Court case of Citizens United and the role of Super PACs. What do you think?
A: Money has always been an issue in American politics. When George Washington ran for the House of Burgesses in Virginia in the 1750s, he was accused of buying votes. In the 1890s, U.S. Senator Mark Hanna, the chair of the Republican Party, famously said that, "There are two things that are important in politics. The first is money and I can't remember what the second one is." And in the 21st century we have literally $1 billion being spent in a presidential campaign. It is obscene.
The Supreme Court's decision in Citizens United is usually blamed for unleashing much of the spending by 501(c)(4)s and Super PACs, but actually several cases and Federal Election Commission rulings have given rise to it. The rationale for allowing unlimited expenditures by independent organizations is that, by definition, they are independent of candidates. Therefore, the logic goes, the contributions to these organizations will not lead to corruption or an appearance of corruption.
The logic is faulty, however, because the reality is that, very often, there is hardly any separation between these so-called independent entities and the campaigns they are supporting or assisting. My view, then, is that reform advocates should aggressively file complaints with the IRS, FEC and the Department of Justice when such groups are really "stand-ins" for a candidate. This tack might actually diminish the activity and influence.
One other point about Citizens United. Aside from making it a lot easier for unlimited spending by not-for-profits and Super PACs, it also affirmed the legitimacy and importance of campaign finance disclosure. On this point, the case is a welcome addition to campaign finance jurisprudence.
Q: What would you tell a young lawyer who is interested in the field?
A: Join your bar association's election law committee. I now chair the Election Law and Government Affairs Committee of the New York State Bar Association's General Practice Section. We actively recruit all lawyers with an interest in election law issues, and I particularly try to focus on increasing our diversity. I also want younger lawyers. The New York City Bar and New York County Lawyers' Association also have active election law committees. Participating in these exposes lawyers to a variety of issues, and are great networking opportunities.
Finally, I would tell young lawyers to become active in a political campaign. It is a great way of seeing how election law works.