Monday, August 25, 2008

The devil is in the details with ethics reforms - UPDATED

Gov. Rod Blagojevich could have signed significant campaign contribution limits into law, targeting “pay to play politics” starting January 1 (CORRECTION: Both the legislation and the executive order would not have taken effect until January 1. I regret the error originally published in this post). Instead, he used his executive authority to change the plan, but advocates of the ethics reforms say it's questionable whether his actions have legal teeth that could punish those who break the rules.

But it’s hard to tell either way because the governor’s office has not filed the exact language on public record, yet. (UPDATE: One day later, the governor's veto message is now available here.) Some legislators believe the governor’s actions are controversial and intended to kill, or simply delay, implementation of the underlying bill, HB 824.

Through press release and a Chicago news conference, Blagojevich said he issued an executive order to enact ethics reforms that the legislature unanimously approved in May. (Listen here.) But he also used his amendatory veto power to change the legislation, sparking questions about the constitutionality of his use of executive powers. (Read background about the scope of the amendatory veto here.)

The ethics reforms originally were designed to target contractors who try to influence state business by donating to the political campaigns of elected officials. The idea is to prohibit businesses holding state contracts worth more than $50,000 from donating to political campaigns of constitutional officers who dole out those contracts. According to his news release, Blagojevich also wants to extend the ban to apply to individual legislators, political candidates and statewide political parties, as well.

At the same time, the governor used his amendatory veto powers to add new provisions to the ethics law. Some legislators, including Democratic Sen. Susan Garrett of Lake Forest, said his changes could have merit and should be considered. But some legislators also believe that the way in which he proposes the changes poses a potential constitutional problem. His changes through an amendatory veto would:
  • Clarify the process of adopting legislative pay raises by requiring lawmakers to vote “yes” to accept a raise, which targets a confusing system subject to headlines this year;
  • Stop legislators from “double dipping” by working in another unit of government at the same time they’re serving in the General Assembly. But he would make exceptions for legislators who are teachers, school counselors, university instructors, police officers, firefighters or “elected officials.” Sen. Mike Jacobs, an East Moline Democrat, said the provision aims directly at Chicago legislators;
  • And require more detailed disclosure of lobbying work done by legislators or their spouses.

The General Assembly can accept or reject the governor’s amendatory vetoes, but either way, the reforms included in the governor’s executive order will apply to all state agencies January 1.

Cindy Canary said she met with the governor’s office this morning and that while she’s pleased that Blagojevich enacted the provisions within HB 824, she’s also concerned that the executive order lacks teeth and fails to pass constitutional muster. She is director of the Illinois Campaign for Political Reform in Chicago and helped draft the legislation. Her concern, she said, is that “the legislature doesn’t police how the governor or anybody else implements their executive orders. Those are kind of in-house rules. And they don’t have penalties.”

She also called the amendatory veto an “interesting maneuver” because it would enact brand new policies without allowing the legislature to debate or change the proposals. For instance, she questions the effect of expanding the contributions ban to state political parties. “State parties don’t make contracts using public money. So I’m not sure that it’s a remedy that fits the problem.”

(UPDATE: The governor's veto message, now available, says:
Given that all constitutional officers and members of the General Assembly participate in creating, funding, directing, and overseeing state contracts, this ethics law must bar political contributions to each uniformly in order to achieve the desired goal of a fair and open procurement process, stripped of any conflicts of interest. In addition to the failure to include governmental actors critical to the procurement process, House Bill 824 leaves a gaping loophole, permitting covered state contractors to contribute to political committees of state parties, which are not barred from funneling the contributions back to the government officials in question. Only by strengthening the contribution ban will the citizens of the state gain greater assurance that government contractors will not endeavor to unduly influence the system ... A more comprehensive approach, therefore, not only serves the public interest in eliminating potential undue influence and the appearance of such influence, but also strengthens the state’s interest that is needed to override the business entities’ First Amendment interest in contributing to political candidates.)

Canary added that the so-called double dipping provision seems inconsistent that legislators could work as firefighters or township officials but not sanitation workers. She named many constitutional questions, which could be problematic because legislators can either accept or reject his changes. Because they can’t modify the changes, Canary said, “I really think this is the kind of policy that is better done in a public hearing with a lot of input and thoughtful consideration and very serious scrutiny to avoid the constitutional pitfalls and unintended consequences.”

The timing also is curious, said Rep. Lou Lang, a Skokie Democrat who is in Denver for the Democratic National Convention. “I find it curious that he’s chosen the first day of the Democratic Convention to do this with most of the Springfield reporters out of town, with most of the legislators and other advocates for different policy considerations in Denver,” Lang said from his cell phone. “He may say it’s a coincidence, but I don’t think anybody’s going to buy that.”

His perception of today's announcement? “The timing is all about trying to make something happen that he thinks will have some repercussions and doing it at a time when he can minimize those repercussions.”

The legislative process also is at play, here. The governor’s office had to act by August 29, or else the bill would have become law without his signature. Brian Williamsen, Blagojevich's spokesman, also said the governor "has been looking forward to taking this positive action for some time."

Senate Republicans perceive the governor’s actions as a potential poison pill, regardless of whether they believe the changes could have merit. “I can’t comment on something I haven’t seen other than it’s controversial,” said Patty Schuh, spokeswoman for Senate Minority Leader Frank Watson. “And what it’s done is jeopardize the whole thing instead of just doing the right thing and signing the bill that the General Assembly put on his desk — and then bringing forth any other ideas he might have.”

The governor, in a news release, said he waited more than three years for the General Assembly to send him a vehicle that he could act on. But one more question remains: Why did he have to wait for the legislature to send him legislation when he could have issued an executive order to prevent pay-to-play with or without legislation on his desk? All other constitutional officers already had used their in-house rules to prevent such campaign contributions.

The one sure thing, Canary said, is, now that Blagojevich publicly stated that he’s enacting a ban on pay-to-play politics, “everybody’s watching.”

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