Unintended ballot language could sink proposed amendment

By Jamey Dunn

Thousands of Illinois voters have already gone to the polls for early voting, but their choice on a proposed constitutional amendment could be set aside because of language  that lawmakers did not intend to appear on the ballot.

Last May, legislators approved House Joint Resolution Constitutional Amendment 49, which creates a higher threshold for approving increases in public employee pensions. Currently the legislature can approve such benefits with a simple majority. But if voters approve the amendment that appears on the general election ballot, then a three-fifths majority would be required to pass any pension sweeteners.

But a lawsuit that seeks to nullify the results of the vote on the amendment claims that the ballot instructions given to voters are confusing.

The language in question was approved as part of a piece of legislation that made news for another reason. Senate Bill 3277 allows contribution caps to be tossed out if outside groups spend large amounts to try to influence voters during a campaign. Gov. Pat Quinn signed the bill in July, and the provision has already been applied in a current legislative race where a political action committee spent more than $100,000. 

The new law also changed the so-called notice language, which appears on the ballot with the proposed amendment and seeks to explain to voters what their actions could mean in terms of changing the state’s Constitution. The new language says:

The failure to vote this ballot may be the equivalent of a negative vote, because a convention shall be called or the amendment shall become effective if approved by either three-fifths of those voting on the question or a majority of those voting in the election. (This is not to be construed as a direction that your vote is required to be cast either in favor of or in opposition to the proposition herein contained.) Whether you vote this ballot or not you must return it to the election judge when you leave the voting booth.

But voters are not deciding whether the state should hold a convention. Unless there is a push by the legislature for a constitutional convention, the question whether to hold one automatically appears before voters every 20 years. Voters opted not to have a convention when they were asked in 2008. “The language just makes no sense because they are two very different questions?” said John Bambenek, who filed the lawsuit to toss out the election results on the amendment question. “There is no way a convention is going to be called, no matter how you vote.” Bambenek, a Republican, is challenging Sen. Michael Frerichs, a Champaign Democrat, in the upcoming election. He said that he filed the suit, along with a dozen voters, when people started coming to him asking him about the confusing language. It is too late to get the question removed from the ballot, but Bambenek hopes to persuade a judge to set aside the results. “If you are going to ask the voters to do something, what they see on the ballot should be correct.”

“It is confusing. It is introducing right out in front of the voters the idea of a constitutional convention. I’m absolutely floored [that it was included in the ballot language],” said Ann Lousin, a law professor at the John Marshall Law School and a member of the research staff during the 1970 constitutional convention. “I think a mistake obviously occurred, and it could confuse voters.” She said the issue might have been caused by a drafting error when the legislation was written.

However, House Majority Leader Barbara Flynn Currie said lawmakers never intended for both the words “convention” and “amendment” to appear on the ballot. Instead, she said, legislators assumed that the amendment language would be used in situations such as the current one, when an amendment is up for consideration, and the convention language would be used when voters must decide whether a convention should be called. “If this is a call to convention, tell them this. If this is a proposal to amend the Constitution, put in this,” said Currie, who sponsored the bill. But instead, both scenarios made it on the ballot.

Ken Menzel, deputy general counsel for the Illinois State Board of Elections, said that the board signed off on the language sent to them by Secretary of State Jesse White's office. White spokesman David Druker said that the secretary of state's office serves as a pass through and simply takes the language approved by lawmakers and gives it to the election board. “The board of elections gets the question from us, which we get from the General Assembly," he said. Menzel noted that the language appears on the ballot exactly as it does in the new law. “It just got reproduced exactly like the statute says it shall be,” he said. “We don’t always know what [the legislators] intend.”

Currie said she has not read Bambenek’s lawsuit and would not speculate about the possible outcome of the case. However, she said lawmakers might have to revisit the ballot language in the future to avoid more confusion and potential legal challenges. She said that legislators made the changes to let voters know that if they simply skip the ballot questions, it could have the same result as voting “no.” “We thought we were clarifying it,” Currie said.

The notice language has nothing to do with the content of the underlying amendment and would have appeared on the ballot regardless of the subject matter of the amendment. Lousin, who has spoken out in opposition to the amendment itself because she said it leaves the door open to potentially unforeseen legal challenges, warns would-be conspiracy theorists not to read the problem with the notice language as anything more than a simple mistake. “You do not normally have to look for people to be venal. Just look for people to be stupid, and that usually explains things.”

Lousin said there were plenty of chances to catch the mistake. “The state of Illinois through its various agencies, the legislature, the secretary of state’s office, the State Board of Elections, has put some stuff on the ballot that the voters will be confronted with that could be confusing.” But now that it is on the ballot, she said, finger-pointing does little good. “‘Somebody should have said, ‘What convention?’” Lousin said. “It should have been caught. It should have been, but you know, what can we do now?”

Lawsuit claims Illinois' juvenile parole system is unconstitutional

By Jamey Dunn

A civil rights advocacy group filed a class action lawsuit against the state this week claiming that the parole process for juvenile offenders violates their civil rights.

According to the suit, juvenile offenders who are accused of parole violations are often persuaded to waive their rights to a preliminary hearing. “Class members sign the form believing that it will allow them to return home sooner. In reality, the signature allows the [Prisoner Review Board] to avoid conducting a preliminary hearing and ensures that the youth will remain incarcerated until the final revocation hearing, regardless of the validity of the alleged parole violation charge,” said the complaint, which was filed by the Roderick MacArthur Justice Center at Northwestern University Law School on behalf of all youth currently on parole. The center estimates the number of youth on parole as more than 1,000.

According to a recent report from Juvenile Justice Commission, 85 percent of juveniles who faced losing their parole and returning to a detention center between December 2009 and May 2010 waived their right to a preliminary hearing. Such hearings are so infrequent that commission members were unable to attend one when researching their report. Alexa Van Brunt, clinical assistant professor of law and attorney for the Roderick MacArthur Justice Center, said that many children do not understand the choice they are making and are led to believe that waiving the hearing may let them get out of incarceration sooner. However, she said that some could be released immediately if it were found in the preliminary hearing that there were no grounds to lock them up again.

Van Brunt says once juveniles make it to their final hearing before the Illinois Prisoner Review Board, most have had no legal representation, ability to gather evidence or opportunity to respond to their accusers. “Youth just totally lack the ability to adequately represent themselves,” she said. “They have no way to find evidence on their own behalf. They have no subpoena power. They have no way to track down evidence.” She said the process is treated more like an administrative decision than a legal proceeding. According to the commission report, parole officers who recommend revoking a youth’s parole often do not attend the final hearings. Instead, the review board makes a ruling based on a written statement from officers, which does not allow the youth any chance to question the accusers before the board. The commission found that there was inadequate oversight for board decisions and no system for juveniles to appeal if their paroles are  revoked.

The suit claims that the process is unconstitutional and calls for an overhaul that would allow juveniles due process and legal representation. Van Brunt said that the state’s lack of action after the commission’s scathing report is part of the reason her organization proceeding with a lawsuit. The report claimed that the juvenile justice system was “failing” youth because for seven of the last eight years, more than half of incarcerated juveniles were locked up over parole violations, such as truancy or curfew offenses. “There didn’t seem to be any reaction to that report, which was very empirically based and well founded,” she said. “I think it’s just that there hasn’t been the motivation on the state’s part to implement large scale changes, which is clearly what needs to happen.”

The Department of Juvenile Justice did not take issue with the findings of the commission's report when they were published, and officials said they planned to address some of the problems highlighted in the study. Gov. Pat Quinn’s office today declined to comment on the lawsuit because the state has yet to be served the suit.

Van Brunt said the suit seeks a freeze on any juvenile justice parole revocation hearings under the current system. The group hopes to be able to work out a plan with the state to revamp the system. One of the major overhauls being sought is allowing juveniles accused of parole violations a right to a lawyer from the beginning of the process. Van Brunt said that any agreement would also have to enable youth to gather evidence and face their accusers. “[The suit is] not seeking damage, but it is seeking a change in the way things are done.” But she said if a deal that adequately protects juvenile’s rights cannot be reached with the  state, “we’re going to go through with the litigation as planned.”

Illinois' new legislative maps face legal challenges

By Jamey Dunn

Republicans and a Republican-backed organization filed a lawsuit today claiming Illinois’ new congressional map violates the U.S. Constitution as well as the Federal Voting Rights Act. This new lawsuit means that both of the state’s Democratic-drawn maps will face a challenge in court.

The suit alleges that the map dilutes the voting rights of the state’s growing Hispanic population. The lawsuit, which names 11 current Republican Illinois House members as plaintiffs, says the map “blatantly discriminates against Republican and Latino voters.” The complaint says the new map effectively reverses the results of the 2010 congressional election, which gave Republicans control of the state’s congressional delegation.

Those opposed to the map say Democrats are seeking to achieve such political goals at the expense of Latino voters. “Despite explosive growth in the state's Hispanic population, the Democrats' map intentionally discriminates against Hispanic voters by providing for only one Hispanic-majority congressional district — the same number the state of Illinois has had since the 1992 election cycle — and further weakens their voting strength by apportioning the rest of the community's population among a number of other districts drawn to specifically protect non-Hispanic white Democratic incumbents,” said a prepared statement from The Committee for a Fair and Balanced Map, which includes Dennis Hastert, former Republican speaker of the U.S. House.

“We’ve listened to advocacy groups from various Latino communities,” Chicago Democratic state Sen. Kwame Raoul, sponsor of the map, said as it was debated earlier this year in the Illinois Senate. He said no group called for two Latino congressional districts. “We have followed traditional redistricting principles in coming up with this map.”

The suit also alleges that Democrats used their control of the state legislature and governor’s office to draw irregularly shaped districts with an eye toward winning elections. “The map as a whole and several individual districts in particular represent a flexing of Democratic political muscle in Springfield aimed at creating a Democratic majority in the Illinois congressional delegation, regardless of the actual preferences of the electorate demonstrated only nine months ago,” the lawsuit says.

Illinois Senate President John Cullerton said that the districts are more compact than the previous map, which was drawn to protect incumbents. “If there’s any odd shaped districts, it’s because of the Voting Rights Act,” Cullerton said. “It’s politically fair, and you’ll see that bear out in the next 10 years.” Some experts agree with this take. “They did use the map to their advantage in some creative ways. But it’s actually less gerrymandered than the last one,” said Chris Mooney, a political studies professor with the Institute of Government and Public Affairs at the University of Illinois.

State Republican leaders filed a separate suit on similar grounds against the state legislative map last week. They claim the map violates the rights of minority voters, who they say would not be allowed fair opportunity to participate in the political process under the map. “The Democrats passed a map this session that we believe is in direct violation of the Federal Voting Rights Act and some of our most basic rights under the constitution,” House Minority Leader Tom Cross, said in a prepared statement. “They should be ashamed of themselves. We are optimistic that the court will agree with us and will help give our residents a fair map that accurately reflects our population, especially our growing Latino population.”

While both lawsuits include individual Latino residents, no Latino advocacy group — many of which were vocal during the remap process — has yet signed on to either complaint.

Legislature could be back in session soon

By  Jamey Dunn

Gov. Pat Quinn wants the General Assembly back in session to address legal questions around a big economic driver for the state.

Quinn said lawmakers should return on September 13 to address changes to work rules at McCormick Place, a convention facility in Chicago that draws almost 3 million people each year. A federal court ruled that some of the changes the legislature approved in May 2010 violate collective bargaining rights. Quinn said he wants to bring stakeholders to the table and sort out a compromise.

“We’re talking to everybody. We’re not just talking only to the unions. We’re going to talk to the contractors who are involved in these conventions, as well,” Quinn said at a Chicago news conference today. “We’re not going to have a cloud of uncertainty fall over our convention, tourism, hospitality business in Illinois. I think it important that we not just have the hope of conventions dissipate because of uncertainty about the law.”

He said two things he would like to see included in new legislation are strong auditing of costs charged by the facility as well as an “exhibitors’ bill of rights” to protect customers.

Quinn urged legislators to return voluntarily — as they did for one day last month to approve construction spending — to take up the issue so the state can avoid a costlier special session. He said if lawmakers do return next month, budget issues would not be a priority. “I think [veto legislative session] is a likely time for a review of where the budget stands and where it can be improved. … I see the budget matters coming up more in late October early November.”

The next step in the ongoing fight over pay raises between Quinn and the American Federation of State County and Municipal Employees (AFSCME) Council 31 comes tomorrow when both sides meet in circuit court to hash out a schedule for moving forward. AFSCME asked the circuit court to toss out the case because it filed a lawsuit in federal court, and a judge could consider the motion tomorrow. “AFSCME members do the real work of state government, such as caring for the disabled, preventing child abuse, guarding state prisons and much more,” Henry Bayer, executive director of AFSCME Council 31 said in a written statement. “These hard-working men and women deserve to know that their employer, the governor, will keep his word and honor his commitments under the law.” According to AFSCME, almost 30,000 employees are due a pay increase.

Quinn says he cannot give state workers the scheduled pay increase, which would cost the sate approximately $75 million, because the state legislature did not include the money in its approved budget. “The legislators decided they did not want to fund pay raises for state employees in these agencies. They made that conscious decision. This is not a surprise. ... A number of the legislative members made it clear that they did not favor pay raises,” Quinn said. Union officials argue that state workers have already agreed to defer pay increases to help the state during its budget crisis, taken voluntary furlough days and sought other cost savings.

Quinn said he signed a budget that he knew was “flawed” to keep Republicans out of the budgeting process. After May 31, a three-fifths majority would have been needed to pass the budget, and Republicans could have had more leverage to push for bigger cuts. “I did not want that crowd to have an opportunity to enact that kind of budget that would have been hurtful to our state,” he said.

Quinn added that if the state were to give the pay increase, vital state operations would suffer. “We have to have the core services of government maintained throughout the year. We can’t run short of money and have four or five months where there’s no money to pay anybody their whole salary, let alone a raise. And these are important services that the people need, and so we’ll have to monitor it as we go through the year.”

An arbitrator ruled that Quinn must honor the collective bargaining contract negotiated with the union, but a judge granted the state a stay until the matter can be sorted out it court.

Meanwhile, the state is $700 million behind on payments to local school districts, according a report from the Illinois State Board of Education (ISBE) released today. Mary Fergus, an ISBE spokesperson, said the number is an improvement from a high point of nearly $1 billion dollars in late payments. However, Fergus said, “the $1 billion [backlog] was a little bit on the extreme end.”

Legislative roundup

By Lauren N. Johnson

While Illinois lawmakers did not vote on some of the large and controversial issues that are looming in the closing days of the spring legislative session, such as workers’ compensation reform and changes to retirement benefits for current public employees, they sent several other bills to Gov. Pat Quinn.

FOID cards
The names and information for at least 4 million firearm owners in Illinois would be exempt from inspection, copying, or being released by the Illinois State Police for purposes of criminal investigations, under House Bill 3500, sponsored by Rep. Richard Morthland of Cordova and Sen. Kirk Dillard of Hinsdale, both of whom are Republicans.

“Every state police director, regardless of political party, over the last couple of decades has opined that from a law enforcement perspective, it is a bad idea to release the names of firearm owners ID holders,”  Dillard said.

The measure came after an opinion by Illinois Attorney General Lisa Madigan in favor of releasing the names. “I do not understand for the life of me why would we give a map to allow criminals to systematically pick and choose and burglarize our homes and farms,” Dillard said.

Gov. Pat Quinn told reporters today that he agreed with the position of the Illinois State Police on firearm owner identification cards, stating the names should not be released, but Quinn would not comment on whether he supports this specific bill.

DNA testing
House Bill 3238, sponsored by Sen. Kwame Raoul, a Chicago Democrat, and former Rep. Susana Mendoza, a Chicago Democrat, would require DNA testing of those arrested for crimes including first degree murder, home invasion and predatory and aggravated sexual assault of a child or an adult, and would mandate that the specimens must be provided within 14 days after an indictment or sentencing.

Lawmakers and state officers, including Attorney General Lisa Madigan, say requiring all registered sex offenders to provide a DNA specimen in cases of violent crimes would strengthen the state’s DNA database and further help clear those who were wrongfully convicted.

The bill would also require automatic disposal of the DNA – taken during the case – if the arresting charges were dismissed or if the individual was acquitted.

The bill passed the Senate with little opposition. It passed the House in April.

Financial advisory panel
Senate Bill 2149, sponsored by Sen. John Sullivan, a Rushville Democrat, and Rep. Roger Eddy, a Hutsonville Republican, would allow financially struggling school districts – except Chicago Public Schools – to petition the State Board of Education to request a financial oversight panel step in to help with their budgets. “It takes several parts of the school code dealing with financial oversight and existing panels and kind of puts them all in one place and gives them some additional authority,” said Eddy, who also is a school superintendent in Hutsonville.

Racial and ethnic impact
Chicago Democrats Sen. Mattie Hunter and Rep. La Shawn Ford sponsored Senate Bill 2271, which would create a racial and ethnic impact research task force to determine ways to measure the potential impact of proposed legislation on minority groups. The group would also would propose a system to collect data on the racial and ethnic identity of individuals arrested by state and local law enforcement.

Disparities commission
House Bill 1547, sponsored by Chicago Democrats Rep. Monique Davis and Sen. Mattie Hunter, would creates a panel called the Commission to End the Disparities Facing the African-American Community to study and recommend ways to address racial inequality in the state.

The bipartisan commission would consist of 24 lawmakers and advocates for African-American rights involving education, health care services and employment. It would submit a report to the legislature and governor by December 31, 2013. Commission members would not be paid.

The bill passed both chambers, but some Republicans such as Sen. Kyle McCarter of Lebanon had a problem with the number of commission members, . “This is my project, not your project,” said Hunter, who took offense to Senate Republicans’ demands that she cut the number of unpaid commission members. The bill returns to the House to wait for a concurrence vote.

Good Samaritan
House Bill 1549, sponsored by Rep. Jil Tracy, a Mount Sterling Republican, and Sen. A.J. Wilhelmi, a Joliet Democrat, states that anyone with CPR training in accordance with the standards of the American Red Cross or the American Heart Association who in good faith provides emergency care to someone in need of resuscitation would not liable for civil damages. The Senate must concur with the legislation before it can head to the governor’s desk.

Unpaid tax refunds
Senate Bill 1741, sponsored by Rep. Carol Sente, a Vernon Hills Democrat, and Sen. David Luechtefeld, an Okawville Republican, would require the Illinois Department of Revenue to allow individual taxpayers or corporations that are owed unpaid taxes refunds from the state to credit the money the state owes them against future tax bills.

Lawmakers in favor of the bill say it is  overdue  and clarifies confusion among businesses and schools in the state of whether they will be paid on time.

Rep. Jil Tracy, a Mount Sterling Republican, said she had a similar bill, HB 2914, which addressed the same problem. “We had so many people call my district office and complain that the state was not allowing them to use an offset for taxes overpayment; instead they would have to pay their taxes on time, even though the state of Illinois owed them quite a refund,” said Tracy.

The Senate must vote to agree to changes made in the House before the bill can be sent to Quinn.

Out with a bang

Illinois is closing out July in style and gearing up for more politics in August. The same day Gov. Rod Blagojevich unveiled a “compromise” capital plan to fund road and school construction projects throughout the state, his office was sued along with Senate President Emil Jones Jr.’s office for not releasing budget-related details. And the governor’s idea to transfer nearly 150 positions from Springfield three hours south to Harrisburg is the subject of hours of testimony opposing the idea, although southern Illinois folks like the idea of an economic boost. (More on that in the next post.) And after all that in one day, the condition of state government is unlikely to change any time soon.

I write “compromise” in quotes because there’s no deal on the capital plan without all parties on board. Although the governor’s office made a gesture to compromise by getting rid of the revenue source that House Speaker Michael Madigan ruled out — expanded gaming — it’s clear that the governor’s revised proposal still lacks support from House Democrats. The new version reduces the spending amount from $34 billion to $25 billion. So, yes, the casino-less proposal satisfies three of four caucuses, but those three caucuses were on board in the first place.

House Democrats’ concerns about the first plan still stand. Most prominently, they still don’t trust the governor to fairly distribute the capital funds. House Majority Leader Barbara Flynn Currie, a Chicago Democrat who represented the speaker in today’s meeting and in previous leaders’ meetings, reiterated Madigan’s stance: House Democrats won’t get on board unless the spending side of the capital plan is crystal clear. Steve Brown, Madigan’s spokesman, said specific line items are an “absolute requirement.” In an e-mail after the meeting, Currie echoed: “Assuming we could reach agreement on the revenue side — a big assumption — we would definitely want line-item allocations and some way to guarantee that dollars allocated are actually spent.”

Her kicker: “So I think we continue to be on a very steep uphill climb.”

The governor’s revised revenue ideas still lack consensus. House Democrats repeatedly have questioned the wisdom of the first revenue source: selling off all or part of the Illinois Lottery to the private sector. The state asset generates money for public education and has been estimated to be worth more than $10 billion, leading some to question why the state would sell it rather than revamp it and maximize its value. Proponents say the private sector could be more efficient and aggressive in managing the lottery’s potential.

Currie said, however, that privatization also could negate the original intent and appeal. “The lottery was originally sold as a way to help education, so buying a losing lottery ticket still helped the kids. Take away education, and people may feel they’ve been bamboozled.”

The governor’s proposal does include a “lockbox” for capital investments and lottery proceeds for education. And supporters of the lottery lease say the upfront cash and the ongoing state share of the profits would ensure that public schools would receive at least the same amount under the public-private partnership.

The other funding idea includes transferring higher-than-expected revenues from two state taxes, the motor fuel tax that goes into a dedicated Road Fund and the sales tax on gasoline that goes into the general revenue fund. Currie said her caucus could consider using “excess” revenues from the motor fuel tax (a.k.a. Road Fund) if the administration proves that the money would go directly to capital construction projects. Transferring excess revenues from the state sales tax on gasoline (a.k.a. general revenue fund) is a different story. “Diversions from GRF — which, essentially, is what taking gasoline sales taxes really is — could be a very tough sell,” Currie said. Without support from House Democrats, a capital plan is unlikely to advance.

Another lawsuit
Two nonprofit groups supporting limited government are suing Gov. Rod Blagojevich and Senate President Emil Jones Jr. for denying access to budget-related documents.

The Illinois Chapter of Americans for Prosperity based in Chicago and Judicial Watch Inc. based in Washington, D.C., filed suit in Sangamon County. They allege that both offices repeatedly denied requests under the Freedom of Information Act to release information about how a lump sum of $1.7 billion was spent in fiscal year 2008. In a Statehouse news conference Thursday, the two groups justified their suit by citing newspaper reports about questionable grants doled out by individual legislators. They’re asking the court to require Blagojevich and Jones to release information about specific uses of the money.

They’re targeting so-called member initiatives that distribute state grants to local nonprofits or units of local government, and so on, and the grants aren’t subject to competitive bidding processes or to legislative debates. Projects often are lumped together in a single dollar amount and lack specific descriptions of how that money would be used.

Jones’ office says its attorneys are reviewing the suit and don’t have a comment. I’m still waiting for a response from the governor’s office.

Joe Calomino, director of the Illinois Chapter of Americans for Prosperity, said the group did not sue House Democrats or Republicans because they released detailed information about money issued for member initiatives.

The group, which publishes an online blog called Pork Report, also is behind legislation that would create a Web site to track all money spent on all districts, all state contracts, all state employees and all tax credits to improve government transparency. It was intended to serve as a one-stop shop for taxpayers. The measure was unanimously approved by the House but stalled in the Senate.

Check on executive power

By Bethany Jaeger
On the same day Gov. Rod Blagojevich issued a massive executive order to combine more state agency functions, a Cook County judge ordered that Blagojevich’s administration has to stop expanding a state health program to middle-income adults. But that’s not going to stop Blagojevich from trying. In the meantime, residents who already started receiving state-sponsored health care under the governor’s expansions are left in limbo over whether they’ll continue to receive those benefits. We'll have more on the governor's move to consolidate state agency functions tomorrow. It’s a mess.

The governor’s office already issued a statement that said it would address the judge’s concern about his health care expansions and continue to expand the FamilyCare program to more families. (The administration also announced a statewide tour about health care, seen here.) Legislators, in the meantime, continue to say they support health care but oppose the way the governor goes about expanding it without a way to pay for it.

Tuesday’s court order is only one of two lawsuits involving the governor’s authority to expand health care through executive power rather than through the legislative process. The governor also sued Secretary of State Jesse White for not publishing rules to implement the expansions, preventing the administration from acting. White’s legal team has until May 2 to respond to the governor’s lawsuit.

On Tuesday, Cook County Judge James Epstein technically didn’t rule on whether the governor could expand health care programs without legislative approval. On one hand, he decided that the administration was within its rights to extend an existing program for breast and cervical cancer screenings to women age 65 and older. He said the legislature approved $6 million for the program without imposing limits, allowing the department to expand the benefits as long as it was within that $6 million appropriation.

On the other hand, Epstein denied the governor’s ability to expand FamilyCare, which would offer state-sponsored health insurance to 147,000 adults from middle-income families for about $43 million in the first year. Because the FamilyCare program would offer state and federal Medicaid benefits to adults making up to 400 percent of the federal poverty level, the program would have to abide by federal income limits and work requirements. This is technical, but the judge ruled that because the FamilyCare expansion as written doesn’t require the adults to be “employed or engaged in a job search,” the expansion fails to meet federal requirements and wouldn’t be reimbursed.

That means the administration is prohibited from expanding FamilyCare until a full trial decision or until the department changes or cancels the expansions. Epstein’s ruling also said that complaint filed by Richard Caro, a Riverside attorney, and by Republican businessman Ron Gidwitz and Greg Baise, president and chief executive officer of the Illinois Manufacturer’s Association, on behalf of the Illinois Coalition for Jobs, Growth, and Prosperity, likely would succeed in a full trial.

Caro, who maintains a Web site dedicated to the lawsuit, said in a phone conversation last week that he actually supports universal health care, but he objects to the governor’s use of executive power to spend state dollars without legislative approval. “I filed to stop an unconstitutional, illegal expenditure,” he said. “Once the legislature approves the expansions, all well and good. It’s for the executive to work out with the legislature in the normal democratic process how best to proceed.”

State Rep. Lou Lang, a Skokie Democrat, is a member of the Joint Committee on Administrative Rules that repeatedly rejects the governor’s executive power in trying to expand health care. He’s also sponsoring legislation that would do the same thing the governor is trying to do through his administrative powers. It hasn’t gone anywhere, but Lang said lawmakers would be more likely to help him accomplish his health care goals if the governor would sit down and negotiate.

Rep. Brad Bursynzki, a Clare Republican and JCAR member, said to expect lawsuits filed by the adults who were promised health care benefits under the governor’s expansion. “I have to tell you, I had a smile on my face when I heard about the injunction this morning,” he said. “But having said that, I really feel very deeply for the people that were enrolled in this program who now are going to be — I don’t think they’re going to be held harmless.”

NOTE: A House committee is considering a proposal to establish a form of universal health care right now. The so-called Healthy Illinois plan has been dormant for two years, so watch for an update about why it’s being considered now. It’s expected to advance out of committee tonight. (Four Democrats already voted in support of the plan and walked out of committee.)

Immigration rights
By Patrick O’Brien
More than 100 new American citizens rallied at the Statehouse today to lobby lawmakers on behalf of legal and undocumented immigrants.

They included Korean, Polish, Mexican, African and Arab immigrants who recently became citizens through the state’s New Americans Initiative, a program designed to help immigrants navigate the citizenship process.

The Illinois Coalition for Immigrant and Refugee Rights sponsored the day, in part to voice opposition to a House proposal that directs the state to report undocumented immigrants convicted of crimes to the federal government for deportation.

The measure’s sponsor, Carol Stream Republican Rep. Harry Ramey, says it’s just a matter of making convicted criminals leave the country, not of targeting innocent immigrants. “We’re talking about the bad guys.”

Fred Tsao, the coalition’s policy director, says the state’s Department of Corrections opposes the bill and says it’s “an attempt to score political points on the backs of undocumented immigrants.”

The coalition also wants lawmakers to provide an additional $500,000 in funding for the state’s citizenship program to address the growing number of applicants in Illinois. Applications in Illinois have doubled during the national debate over immigration policy by some estimates.

The coalition also wants to push a proposal that would allow undocumented detainees to have greater access to clergy and other religious counsel while in jail. A House committee is scheduled to hear the plan tomorrow.

Yuridia Carbajal of Waukegan recently became a citizen after 12 years in the United States. She says the opposition to undocumented immigrants is driven by fear of their potential political power. “They want us to be afraid of them, but I think they’re afraid of us.”

Do-overs

By Bethany Jaeger
Thursday’s House rejection of a new state income tax structure isn’t a done deal. We knew it could come back in some form, but Rep. Gary Hannig, a Litchfield Democrat and deputy majority leader, filed a “motion to reconsider” after yesterday’s vote. (Scroll to the bottom of this page to see record of Hannig’s motion.) The maneuver allows the chamber to take another whack at the same legislation, maybe with some changes.

Twice last year legislators used the motion to block legislation from advancing even though it received enough votes to pass. Senate Democratic leadership halted an electricity rate deal from advancing to accommodate a particular utility (scroll down to "procedural maneuvering"). Downstate House members stopped a budget deal from advancing to gain leverage for electricity rate relief.

Hannig’s move was the opposite. The income tax measure failed, and Hannig was one voting against it. He said in a phone conversation Friday that he told the sponsor, Rep. Mike Smith, a Canton Democrat involved in education matters and passionate about education funding reform, that he agreed with him philosophically but didn’t think the constitutional amendment was ready to go on the ballot. So Hannig voted against the measure, but he filed a motion to reconsider so that Smith would have an opportunity to bring the measure back with some changes that potentially could change some Democratic and Republican “no” votes to “yes” votes.

So, yes, you can bet on Smith’s measure coming back sooner rather than later. Constitutional amendments must be approved by both chambers before May 4, and given that the measure still needs to be revised, approved by the House, read three different times and approved in the Senate, with a week off April 21-25, Hannig said the House would need to reconsider the measure rather quickly.

Rewriting the rules
By Bethany Jaeger
House Speaker Michael Madigan sent a letter to lawmakers today to describe implications of Gov. Rod Blagojevich’s lawsuit against Secretary of State Jesse White. White’s office refused to publish administrative rules to the governor’s desired health care expansions because the rules never received approval from the legislative Joint Committee on Administrative Rules. Because the two offices disagree on the authority of JCAR and, therefore, the ability to publish the rules so the administration can enact the expansions, they want direction from the court, as one agency spokeswoman said this morning. “Both parties in this case recognize that the lawsuit is part of a process intended to clarify the laws surrounding healthcare expansions and JCAR’s constitutional standing,” said Ruth Igoe, spokeswoman for the Illinois Department of Healthcare and Family Services, which filed the suit and runs the programs. “We consider this an amicable process.”

Madigan disagrees and described the lawsuit in the letter as a “back-door effort to implement the governor’s policies.”

“The lawsuit, filed at the governor’s direction, is an explicit statement that he does not want executive agencies to work in a cooperative manner with the legislature,” he wrote.

The governor’s office did not return a phone call.

Watch Illinois Issues magazine for more about the implications of the lawsuit.

Redrawing the map
By Patrick O’Brien
The battle that ensues every 10 years to draw the map for legislative districts could be solved by more than names drawn from hat if a new measure becomes law.

The proposed constitutional amendment has the support of House Speaker Michael Madigan, according to Mike Lawrence, director of the Paul Simon Public Policy Institute at Southern Illinois University Carbondale.

Lawrence, long-time journalist and former spokesman for then-Gov. Jim Edgar, says the proposal would take the element of chance out of the controversial task of updating district boundaries every 10 years. And it would be designed to make it easier for the two chambers to compromise. Currently, both chambers must agree on the same map. Under this proposal, the House and Senate would draw and approve separate maps, essentially controlling their own destinies.

If the two parties can’t agree on how to compose the map, two Illinois Supreme Court justices would appoint a so-called special master to redraw the map. The special master usually is a lawyer, Lawrence says.

Since 1981, lawmakers have come to a standstill three times. So they randomly drew from a hat to pick the winning party that would redraw the map.

Control of the process typically benefits that party, often because districts are oddly designed to produce certain results.

For the state’s Republican Party, the next redistricting in 2010 may be especially important because of the changing demographics of Illinois, particularly in the Chicago suburbs.

The Pew Research Center, a nonpartisan think tank in Washington, D.C., reported last month that self-identified Republicans account for only 25 percent of Illinoisans. Democrats account for 35 percent, and independents 40 percent.

As more people leave Chicago and Cook County for the suburbs, Democrats gain strength in the suburban counties.

Lawrence says the plan would take some of the political venom out of the process and restore geographical sense to the map.

A House committee will hold a public hearing on the measure next week.

"My way"

I have Frank Sinatra’s “My Way” stuck in my head. It’s a reoccurring theme in the Statehouse, especially on days like today. Two House Democrats are trying to take a different route than the governor to expand state-sponsored health insurance to 147,000 adults. They’re using legislation, something Gov. Rod Blagojevich tried to do last year but got nowhere. When that didn’t work, he tried using his administrative authority. He repeatedly got blocked there, too. It happened again this morning, but the administration is moving ahead, anyway, stating that it can afford the expansions and that it expects federal approval and matching funds to come through.

This morning, the Joint Committee on Administrative Rules, a bipartisan legislative panel that reviews executive rules, again rejected and suspended the Department of Healthcare and Family Service’s effort to expand a health insurance program to two groups of people: 1) up to 20,000 individuals making up to 185 percent of the federal poverty level who were covered under the State Children’s Health Care Program; and 2) a new group of 147,000 adults who make up to 400 percent of the federal poverty level.

Background resources: See the administration’s original proposal in the November 26, 2007, Illinois Register, and scroll down to No. 15854. You can read more about the governor’s attempt to expand health care in my February column of Illinois Issues magazine and in a November blog.

Rep. Lou Lang, a Skokie Democrat and JCAR member, summed up his constitutional concerns and frustrations during the hearing. “Under what chutzpah do you come to this body and ask us to approve a rule that we already rejected when you had the unmitigated gall to put 3,300 people on a program that you ask us to approve that we did not approve? Why are we here?”

“To have an open forum, to hear comment, to participate, to try to make sure that we’re implementing, to listen to concerns,” replied Tamara Hoffman, chief of staff for the Department of Healthcare and Family Services.

The legislation proposed by the two House Democrats would do exactly the same thing to cover 147,000 more adults. The difference is that it would require the full General Assembly to approve the money allocated to the program every single year, allowing them to adjust for budget shortfalls.

“If it’s going to happen, this is how it should happen,” said Rep. John Fritchey, a Chicago Democrat sponsoring the measure with fellow Democratic Rep. David Miller of Lynwood, in a Statehouse news conference.

Both said they hope legislative hearings would be more successful in getting answers from the administration. Hearings could vet out the details so the full General Assembly, rather than a 12-member panel, could decide whom to cover, at what level to cover them and how to pay for it in the long run. “Going through the legislative process I think empowers the voters,” Miller said. He added that maybe 400 percent of the federal poverty level isn’t the threshold. Maybe it’s less, but that’s what the hearings would aim to figure out.

Fritchey added that the legislation could buffer 3,300 new enrollees, a number given by the administration today. Those people potentially could lose FamilyCare benefits if a judge rules that the governor violated his constitutional authority to expand a health care program without legislative approval. Read background of the lawsuit filed against the administration here. If a judge did rule against the administration, however, Rep. Rosemary Mulligan, a Des Plaines Republican and JCAR member, said it’s more likely that the Department of Healthcare and Family Services wouldn’t kick anyone off of the health insurance program; it simply would eat the cost and make up for it elsewhere. Hoffman said the department won't speculate about what would happen if the lawsuit overturns the administration’s authority to expand the program.

Department officials also said it has the money in its current budget to cover the expansions, but they didn’t specify. The General Assembly never approved spending authority specifically to cover the expanded health care programs. Department heads left without answering questions after the vote.

Eight JCAR members rejected the administration’s rule. Two Republican members went against the grain. Mulligan and Rep. Brent Hassert of Romeoville said they’re not happy with the administration’s lack of answers and don’t believe it has the money to cover the expansions, but they do believe the department has the authority to do expand FamilyCare. That’s because, Mulligan said, the General Assembly approved that authority in 2006. Hassert added that the JCAR hearings on the governor’s health care plans are symptomatic of the ongoing game of politics between the governor and House Speaker Michael Madigan.

Update on Blagojevich's health care lawsuit

Don’t expect to find out whether Gov. Rod Blagojevich’s health care expansion plans are ruled unconstitutional until at least next month. After a hearing in Chicago Friday, each party in the lawsuit needs to spell out its arguments in briefs for the judge to review. A status hearing isn’t scheduled until February 19, which happens to be the day before the governor’s annual and much-anticipated — or dreaded, depending on who you are — budget address. That’s when he maps out his agenda for the year.

Background: Attorney Richard Caro of Riverside sued the administration alleging the governor’s actions to expand state-sponsored health care were unconstitutional because he would have extended coverage to 147,000 more people for $42 million in the first year — all without legislative approval. The lawsuit includes similar allegations by the Illinois Coalition for Jobs, Growth, and Prosperity, represented by businessman Ron Gidwitz, a Republican who ran for governor, and Greg Baise, president and CEO of the Illinois Manufacturer’s Association.

History: The governor first couldn’t get his health care plans through the Illinois General Assembly last year, mostly because he proposed paying for it with a huge tax on businesses. Then he tried to use his executive authority and advance the plan through the Joint Committee on Administrative Rules, made up of six Democrats and six Republicans. That didn’t work, either. The committee rejected the emergency plan in November.

Future: Jim Duffett, executive director of the Illinois Campaign for Better Health Care that’s supporting the governor’s efforts, said he hopes the court case doesn’t have a chilling effect on lawmakers who actually want to expand health care. He advises against using the lawsuit as a diversion to the evidence that a majority of Illinois voters are concerned about health care and want guaranteed affordable health care for all. See a summary of the statewide survey here.

Watch for more about the health care lawsuit against the governor in the next edition of Illinois Issues magazine, due out in early February.

The art of compromise

Gov. Rod Blagojevich attempted to execute another power play to make House Speaker Michael Madigan seem like the problem in state government. The governor charges the speaker and his staff with violating the state constitution for delaying action on the governor’s budget cuts. The good news is that one separate compromise allowed the state to distribute overdue payments to hospitals. The bad news is who knows whether the political maneuvering will ever stop long enough for the four legislative leaders and the governor to compromise on a capital budget and mass transit subsidies.

The governor sues again
Blagojevich sued Madigan two weeks ago in hopes that the courts would rule that the speaker has to call special sessions at the date and time specified by the governor. Blagojevich is now suing Madigan’s House clerk, Mark Mahoney. The lawsuit, filed in Sangamon County court September 11, charges that the clerk should have entered the governor’s budget vetoes into public record as soon as the House met for session September 4.

Part of the reason the vetoes weren’t recorded then is because Madigan scheduled 19 budget hearings across the state to discuss “Blagojevich’s budget savagery.” The hearings also are designed to build support for overriding those vetoes. Steve Brown, the speaker’s spokesman, said the same about this lawsuit as he said about the suit against Madigan. “This is just a waste of resources and really no merit to the case at all. And the hearings will continue.”

The administration tried to defend the governor’s budget cuts before they were ripped to shreds by angry constituents. Agency directors held press conferences yesterday in Decatur, Marion and Kankakee, the first three sites of Madigan’s budget hearings. “They were in the same areas the House hearings are in because we feel it’s important to make sure these areas have the facts,” said Rebecca Rausch, the governor’s spokeswoman, in an e-mail.

The location of the hearings relate to the budget cuts that canned projects sought by House Democrats who have at some point bucked the administration’s priorities. For instance, Kankakee is represented by Democratic Rep. Lisa Dugan of Bradley. She requested grants for local fire and police departments to buy and update equipment, for sexual assault centers in Iroquois and Kankakee counties and for a domestic violence shelter. “He cut all of mine and considered it nonessential,” she said this morning. Why? “The Democratic House members lost everything that they requested, and I’m assuming that it’s for the reason that most of us believe, that is because unfortunately, the governor doesn’t like our stand on wanting to compromise on his health care plan.”

Dugan laughed out loud when asked about the governor suing the House clerk. “This is a sad state of affairs in the state of Illinois, and the governor seems to just want to continue to make it worse.”

So the governor is punishing people who don’t want to compromise on his health care plan, but lawmakers rejected his health care plan because the governor wouldn’t compromise on the funding source. We're running in circles following these disagreements. Brown, Madigan’s spokesman, blames the governor for not compromising. “He fails to persuade anybody to accept his point of view and refuses to accept a more reality-based proposal. Not a whole lot you can do about that.”

I know the feeling. There’s not a lot we can do about the sideshows going on around the state with little action in Springfield. And when action does return to the Capitol October 2 for the fall veto session, we’ll witness a series of shows about the budget overrides, a capital budget and transportation subsidies. The House is expected to have enough votes to override at least some of the governor's budget cuts, but who knows whether they'll have a chance in the Senate. And who knows whether the four caucuses will be able to compromise on a funding source — four new casinos, one new casino, no new casinos — to finance road and school construction projects. And who knows whether lawmakers are willing to stick their necks out by voting for a mass transit plan that raises taxes while knowing the governor will veto it. That would require the four caucuses, again, to compromise and agree to override his veto.

Hynes: Compromise minimizes damage for hospitals
Hospitals around the state have been waiting for reimbursements for the cost of caring for poor and uninsured patients. The reimbursements come through a hospital assessment program, where hospitals pay a tax and then get back $3.6 billion from the federal government over three years. A series of missteps and political infighting delayed the payments due to hospitals in March. In a rare act of teamwork, Illinois’ constitutional offices recently agreed to get an immediate infusion of cash through short-term borrowing. That cash will allow the state to disburse half of the $1.2 billion due to hospitals.

“Through cooperation of the governor’s office, the attorney general’s office, the treasurer and the comptroller, we’re going to be able to minimize the damage,” said Comptroller Dan Hynes. “But it still was unfortunate that it happened the way it did.”

The federal reimbursement and assessment will allow the loan to be repaid within the month, said Sen. Jeff Schoenberg, an Evanston Democrat and architect of the assessment plan. The delay, however, means the state can’t disburse the next $600 million installment until the General Assembly comes back to Springfield to approve the new spending authority. Schoenberg adds that it’s also unfortunate that the delay could taint the state’s opportunity to get federal approval for another assessment program when the current one expires after 2008. “It’s not far fetched for the federal regulators at the Centers for Medicare and Medicaid Services to question whether Illinois actually needs the money so badly if the state is taking so long to disburse the money once it receives federal approval,” he said.

The governor sues the speaker

The already strained relationship between Gov. Rod Blagojevich and his fellow Democrat House Speaker Michael Madigan took another hit Monday. The governor officially filed a lawsuit against the speaker alleging Madigan “blatantly disregarded constitutional proclamations issued by the governor.”

The governor’s complaint, filed in Sangamon County Court August 24, says Madigan devised a “scheme” that constituted “unauthorized and escalating acts aimed at eradicating the governor’s constitutional and statutory powers.” In one instance, Madigan called a special session earlier than the governor proclaimed so representatives could go home that Saturday and come back Sunday night. The compliant also says he didn’t require his members to attend another special session, failing to convene a quorum and preventing the chamber from conducting business as the record overtime session continued.

“These unlawful acts by Madigan were all taken while the state of Illinois was facing the very real prospect of a government shutdown caused by the lack of a budget,” the complaint says.

Steve Brown, Madigan’s spokesman, said the speaker’s office will file a motion to dismiss the lawsuit in the next couple of weeks. “[The governor] made a farce of the special session process, and this is just a continuation of that,” he said, adding the speaker recognizes the governor’s power to proclaim special sessions and complies each time.

We’ll see whether anything changes if and when the governor calls another special session, as indicated by the complaint: “The governor intends to call additional special sessions in the near future to address significant issues facing the state, including issues pertaining to the Illinois transportation systems which impact more than 2 million commuters per day.”