By Ciara Torres-Spelliscy – 12/11/09
A Step in the Right Direction, Illinois, But Many Miles to Go...
Politics is the art of the possible, and the Illinois legislature was only willing to go so far in reforming its political culture. A year to the day after then-Governor Rod Blagojevich’s arrest on federal corruption charges, Governor Quinn signed into law Illinois' first campaign contribution limits on December 9, 2009. It’s a start, but there is much to be improved.
Gov. Blagojevich was impeached after revelations that he allegedly tried to sell the appointment of Obama’s vacant Senate seat. He was also caught on federal wiretaps apparently shaking down businessmen for campaign contributions. Part of what made the Blagojevich scandal pop were huge dollars at issue as Illinois was one of a handful of states that lacked contribution limits; so the state was fertile ground for fundamental revamping. If any state needed to hit the “restart” button, it was Illinois.
The new Illinois contribution limits are a start, but even so, but they could be lowered significantly. Starting in 2011, individual donors are limited to giving $5,000 each for the primary and general elections. Corporations and unions are limited to $10,000 per election, and political action committees cannot donate more than $50,000 per election. As the Brennan Center’s research shows, low contribution limits ($500/person/house candidate) have positive democratic effects, such as increased electoral competition. Illinois’ contribution limits are likely to be too high to have these positive effects.
Unfortunately, on top of the high contribution limits, the new “reform” law came with loopholes big enough to accommodate a Mack truck. Legislative leaders are excused from these new limits, and will be able to guide unlimited funds to favorite legislators in contested races.
The new law does improve aspects of campaign finance in Illinois, like providing greater transparency for Illinoisian voters to see who is paying for elections, and who has flouted the law. But going forward, Illinois still has a lot of work to do to restore its good name after two governors in a row have ended up indicted for corruption. For example, Illinois could benefit from offering public financing to candidates so that they have an alternative to the dialing-for-dollars, “Blagojevich model” of privately-funded elections.
Tags: Democracy, Campaign Finance Reform, Other Reforms
By Ciara Torres-Spelliscy – 02/23/09
In response to public outcry over corruption in the halls of power in Illinois, the new Governor of Illinois Pat Quinn created the Illinois Reform Commission as one of his first official acts. The mission of the Commission includes improving the way Illinois law addresses ethics in state government.
One of the topics that the Commission is examining is revamping the state's campaign finance laws to finally include contribution limits. The Brennan Center for Justice submitted testimony to the Commission for a public hearing on Monday, February 23, 2009. The testimony notes that Illinois is among five states that lack any contribution limits. The testimony also explains the current contours of Supreme Court campaign finance jurisprudence, which holds that reasonable contribution limits are legal and that corporate and union contributions can be banned. The Brennan Center hopes that Illinois capitalizes on this moment of public embarrassment to reform its outdated laws.
Tags: Democracy, Campaign Finance Reform, Other Reforms
By Zachary Proulx – 12/17/08
Just one day before his arrest on corruption and bribery
charges, Illinois Governor Rod Blagojevich confidently remarked
at a press conference that "if anybody wants to tape my conversations, go
right ahead, feel free to do it." 
Federal
authorities had already taken Blagojevich up on his offer, and what they
uncovered caused double-takes around the country—his alleged scheme to sell
Obama's vacated Senate seat to the highest bidder was so ignominious and brazen
that, according
to federal prosecutor Patrick Fitzgerald, it "would make Lincoln roll over in his grave."
The colorful
criminal complaint details exactly how Blagojevich leveraged his Senate
appointment for political and financial gain.
But it also reveals a quid pro quo
culture in which Blagojevich skirted campaign finance and ethics laws by exchanging
government contracts and jobs for large campaign contributions. "I'm going to do $8 million for [the Children's
Memorial Hospital]. I want to get [Hospital Executive 1] for
[$50,000]," Blagojevich said.
Read the rest of this story ...
Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure, Public Financing
By Ciara Torres-Spelliscy – 03/24/08
New York lost its governor to scandal; Illinois may not be far behind. The on-going prosecution of Illinois real estate developer Antoin "Tony" Rezko, as the result of the Justice Department's Operation Board Game investigation, has been a source of much drama. But anyone who is familiar with Illinois's political contributions laws knows there's more to the scandal than meets the eye. The problem is not just what was allegedly illegal; the bigger issue is what is legal in Illinois.
All the hype aside, the Rezko scandal should bring into focus the clear failings of Illinois's campaign finance laws. As I pointed out in testimony submitted to the state legislature last year, Illinois is one of only three states that lacks any type of campaign contribution limits. This gives big donors the potential to buy an election by writing a single hefty check. Illinois also lacks pay-to-play restrictions which would curtail contributions from those seeking contracts with or permits from the state.
Reasonable contribution limits and tailored pay-to-play regulations that keep lobbyists and/or state contractors from giving large sums to state officials and candidates for state office have been found to be perfectly constitutional by our nation's courts because they curb corruption and reduce the public perception of politics as a pay-for-access enterprise. For example, 21 states have laws that regulate contributions from lobbyists and 7 states have laws that regulate contributions from state contractors. Finally, Illinois could benefit from offering candidates the option of public financing so that they would not be beholden to private donors-not unlike Senator Durbin's proposed Fair Elections Now Act which would provide public funding for Congressional candidates. The Illinois General Assembly currently has bills pending which make all three reforms reality.
As US Attorney Patrick Fitzgerald has stated, Mr. Rezko was allegedly the ringleader of a "pay-to-play scheme on steroids." According to the indictment, Rezko conspired to take control of a board that oversees Illinois's $30 billion teachers' pension. He also took control of the state board responsible for handing out the permits for hospital expansion and construction projects. Rezko now stands accused of abusing these boards to extort fees and campaign contributions from companies that wanted investments from the pension fund or permits.
In one case, Rezko is accused of requesting that a $1.5 million dollar political contribution be made to the sitting Governor of Illinois by a company seeking to manage state pension funds. This type of monstrously big contribution would be illegal in most states even without the alleged pay-to-play extortion. By means of comparison, most states and the federal government have individual contribution limits that are below $2,500 per election.
Illinois could learn from the experiences of Connecticut, which saw its previous Governor, John Rowland, sentenced to jail time for a similar pay-to-play scandal. Similar to the situation in Illinois, in Connecticut the state contractors who were convicted for giving illegal gifts to Governor Rowland had for years given him far more in legal campaign contributions. Connecticut responded to this scandal with meaningful reforms.
Now Connecticut lobbyists and state contractors can no long give or solicit contributions for legislative and statewide candidates. In addition Connecticut has public financing so that future candidates won't have to rely on private money to run for office. In recent estimates, some 80 percent of state legislators say they plan to use the public funding system in Connecticut to run for office in November. Illinois would benefit immeasurably from adopting similar reforms.
While a dishonest man will try to game any system, Illinois's legal structure for high ticket political campaigns is particularly easy to corrupt. It would be far harder for a single donor to buy influence if all donors were subject to reasonable contribution limits. And it would be far harder to extort campaign contributions from companies applying for state permits if reasonable pay-to-play restrictions were in place to protect the companies from this type of pressure. Most importantly, candidates would not feel compelled to be in arms race for private money if public financing were an option in the state.
Illinois already has a black eye from the corruption scandal that landed former Governor Ryan in jail. Let's hope that the citizens and lawmakers of Illinois will seize on this debacle as the impetus to change their campaign finance laws so that the state will no longer be synonymous with corruption and graft.
Tags: Democracy, Campaign Finance Reform
By James Sample – 03/06/06
*Cross-posted from Slate
In 1920s Chicago, it was widely known that Al Capone and his
associates had bribed so many public officials that "justice" was
available only to the highest bidder. Even when justice was genuinely
served, a perception of pervasive corruption undermined public
confidence that the rule of law prevailed. Today, a similar confidence
problem is brewing in courts around the country. And in Illinois, the
appearance of South Side Chicago "justice" did not go away. It just
moved to Springfield.
Today, the U.S. Supreme Court declined to hear the case of Avery v. State Farm Automobile Ins. Co., an appeal out of the Illinois Supreme Court. Avery
is the fallout from the most expensive state judicial campaign in U.S.
history: the 2004 race for a seat on the Illinois Supreme Court. In
that race, Illinois Appellate Judge Gordon Maag and his opponent,
then-Circuit Judge Lloyd Karmeier, combined to raise $9.3 million in political contributions—nearly double the previous national record for any state judicial election.
The
context of that campaign, and the events that followed the election,
demonstrate the tension between expensive judicial elections and public
confidence in our courts. Longtime Supreme Court analyst Lyle Denniston
neatly summarized the ethics component of Avery
as follows: "Should an elected judge, who accepts large campaign
donations, sit on a case that directly affects the financial or
business interests of the donors and their associates? Put as an
ethical question, the answer would seem to be obvious: No." Sometimes,
however, ethics alone do not suffice to protect constitutional rights.
By passing on Avery, the Supreme Court missed a
golden opportunity to clarify the protections required when politics
and constitutional rights collide in the courtroom.
In May 2003, the Supreme Court of Illinois heard oral arguments in Avery.
The dispute involved a class action against State Farm on behalf of 4.7
million policyholders in 48 states. The appeal was not decided until
after the November 2004 election. In other words, the appeal was pending before the Supreme Court of Illinois, and had been for over a year, by the time of the 2004 campaign. The stakes in Avery
were hardly trivial. State Farm's appeal sought to overturn a $1
billion lower-court verdict, including $456 million in contractual
damages.
Illinois lacks campaign contribution limits. As a
result, the $9.3 million raised by Karmeier and Maag did not represent
hundreds of thousands of $20 checks from Aunt Gladys and Uncle Merle.
Rather, the sum largely represented contributions from frequent
litigants in the Illinois courts. And State Farm more than lived up to
its slogan. "Like a good neighbor" the company was indeed "there" for
Judge Karmeier, who received more than $350,000 in direct contributions
from its employees, lawyers, and others directly involved with the
company and/or the case. Karmeier got an additional $1 million from
larger groups of which State Farm was a member or to which it
contributed. As is often the case, he won both the fund-raising battle
and the election.
Although Karmeier himself described the fund
raising as "obscene," his concern for appearances waned almost
immediately upon election. Once seated on the Illinois high court, he
refused to recuse himself from the Avery appeal. He then cast
the deciding vote on the breach of contract claims, overturning that
verdict against State Farm. The public, not to mention the opposing
litigants, could be forgiven for questioning whether justice was truly
served.
Was Justice Karmeier's decision legitimate,
well-reasoned, unbiased? Very possibly yes, but we will never know.
Overshadowing the merits of his decision is a single stark fact:
Without Karmeier's vote, State Farm would have faced further
proceedings on claims valued at up to $456 million. That's either a
coincidence or an impressive rate of return on State Farm's investment.
Which of the two it was is almost irrelevant—especially where a
correlation between a contributor and a decision can't be known. In
either case, the cost to the courts themselves is immeasurable.
Thirty-eight states, including Illinois, elect their supreme courts. Recent studies
of judicial elections indicate that the trend toward high levels of
judicial-campaign fund raising in the states began in the late 1990s.
During the 1999–2000 cycle, state supreme court candidates raised $45.6 million—61
percent more than just two years earlier, and more than double the
amount raised in 1994. Nine states broke aggregate candidate
fund-raising records in the 2003–04 election cycle. This explosion in
fund raising is not a coincidence. In 2003-04, 35 of 43 high court
races were won by the candidate who raised the most funds; that's a
success rate of 81 percent.
The high price of winning, however,
falls hard on the public. Evidence shows a steady decline in public
confidence in fair courts. Polls
show that 76 percent of Americans believe that campaign contributions
have at least some impact on judges' decisions in the courtroom. Far
more worrisome? The fact that nationally, judges now share this view:
According to a 2002 written survey of 2,428 state lower, appellate, and supreme court judges, nearly half the judges surveyed themselves believe that campaign contributions influence judicial decisions. Not even the judges believe their colleagues consist only of "Untouchables."
The
statistics illustrate that the public intuitively knows what
constitutional theorists strive to prove—that judicial independence
matters. Elected legislators are expected to serve
interest-group constituencies. They are expected to build coalitions;
to promise outcomes; and to be held accountable for those promises. The
representative branches function best when officials are lobbied by
contributors and non-contributors alike. But judges—including elected
judges—are different. They function best when "lobbied" not at all, or
only within the adversarial process and on the basis of law. Judges are
accountable for the fundamental American promise of fair trials before
impartial arbiters. Therein lies the tragic consequence of money's
increasing influence in judicial elections. In the long term, we all suffer—including interest groups—when any decision reinforces suspicions that the biggest donor, and not the best case, wins.
The
system cannot be left to police itself. First, it's unreasonable to
expect lawyers to police judges: Recusal motions are risky propositions
for litigants who can ill-afford to antagonize judges before whom they
will appear. Second, it's wrong to expect judges to fully police
themselves: According to the ABA's Model Code of Judicial Conduct,
a "judge shall disqualify himself or herself in a proceeding in which
the judge's impartiality might reasonably be questioned." The Illinois
Supreme Court has the same rule. Is it a stretch to assert that Justice Karmeier's impartiality "might reasonably" have been questioned in Avery?
Of course not. But Karmeier got to make that decision in his own case,
as is the standard practice. In most instances it's effective.
Litigants deserve due process more than "most" of the time.
In a 2002 concurrence in Republican Party of Minnesota v. White,
Justice Anthony Kennedy wrote that maintaining the integrity of the
judiciary and respect for its judgments is a vital "state interest of
the highest order." States with judicial elections employ various
mechanisms to reduce or sever the link between contributors and judges.
States attempt to reduce the influence of money through publicly
financed judicial campaigns, and through campaign-contribution limits
that prevent large donations from individuals and organizations. In
varying degrees, states have adopted canons of judicial conduct
intended to place a buffer between judges and traditional interest
group politics. No measures are panaceas, however, and as the role of
money increases in judicial elections, the backup safeguard of
mandatory recusal in any case involving a real or perceived conflict of
interest may soon be necessary to preserve the respect to which Justice
Kennedy refers.
Today, the Supreme Court passed on the chance
to give states guidance as to when judicial recusal might be
constitutionally required. States do not have the corresponding luxury
of ignoring that question. The precise contours of the optimal recusal
system are subject to honest debate and careful consideration. Still, Avery
demonstrates that objective, peer-enforced standards, applied in
extreme circumstances, should at least be part of the discussion.
Thirty states will hold supreme court elections in 2006. Although they will now lack the guidance that Supreme Court review in Avery
could have provided, they are nonetheless in a position to thwart the
corrosive influence of big money in their courtrooms. In that respect,
they have much to learn from another Illinois case from 75 years ago.
In
his 1931 trial on income tax evasion, Al Capone initially pleaded
guilty, believing he would be able to plea-bargain. When U.S. District
Court Judge James H. Wilkerson refused to cut a deal, Capone changed
his plea, and his associates attempted to bribe the jury. But, in an
extraordinary measure designed to ensure impartial justice, Wilkerson
switched juries at the last moment. Wilkerson stated:
"It is time for somebody to impress upon the defendant that it is
utterly impossible to bargain with a federal court." States around the
country must work to ensure that bargaining with elected state judges
is—and appears to be—equally impossible. More modest means of doing so
will suffice. But the appearance problem is just as real.
Tags: Democracy, Fair Courts, Independence & Accountability, State Judicial Elections
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