In the abstract, two suits now pending in Sangamon County Circuit Court pose interesting questions involving the constitutional tenet of separation of powers and the proper roles of the executive and legislative branches in lawmaking.
In the surreal world of here-and-now Illinois politics, the suits are among the latest signs of the toxic environment infusing government under the control of the state's dysfunctional Democratic leaders.
Both suits were filed by attorneys working for Gov. Rod Blagojevich. The first, filed in late August, asked the court to order House Speaker Michael Madigan to hold special sessions on the days and at the times the governor wishes, and to force representatives to show up for the sessions.
The second, filed a few weeks later, wanted a judge to order House Clerk Mark Mahoney to record officially the governor's budget veto message as of September 4, rather than some later date, so lawmakers would lose the opportunity to override the vetoes midway through statewide hearings on the cuts.
At first blush, the Constitution would seem to favor the governor's positions, but its specific language is flexible enough to be interpreted in the speaker's favor, especially if one factors common sense into the equation.
The special session brouhaha erupted after Blagojevich vowed to call in lawmakers every day until they passed a budget to his liking. One of the summons was for 2 p.m. on a Saturday, but the House met at about 10:15 that morning and quickly adjourned, so that members could go home overnight before reporting for the Sunday special session.
Later, after the House passed the full-year budget that Blagojevich ultimately trimmed, Madigan told House members they didn't need to show up for another special session the governor called to consider a one-month budget.
Blagojevich sued.
In its Legislative Article, the Constitution says "the governor may convene the General Assembly or the Senate alone in special session by a proclamation stating the purpose of the session." State law charges the secretary of state with notifying lawmakers of the special session's date and time.
Traditionally, most governors have called special sessions in consultation with legislative leaders, choosing a day and time convenient for everyone. Typically, the call would come after the governor and the legislative leaders reached agreement, so the legislature would return to vote on the deal, thus saving lawmakers' time and taxpayers' money (a special session costs more than $30,000 a day in living expenses and mileage reimbursement for members and for operating costs of the chambers).
Probably none of the current charter's drafters — Madigan among them — envisioned a governor using the power to harass lawmakers into bowing to his will, the most obvious rationale for Blagojevich's 16 special session calls from early July to mid-August. (In fact, with 17 summons in a 2004 budget standoff, the governor accounts for almost half of the 67 special session calls issued under the 1970 Constitution.) Moreover, only two of the summons involved actual legislation. No bills were introduced at any of the 14 other meetings.
So one could reasonably conclude Blagojevich was willing to burn almost $500,000 to hold lawmakers hostage until they capitulated, while Madigan acted prudently in advising members to stay home until they were really needed.
The governor's unprecedented suit against the House clerk — a mere functionary — further poisoned the air between the Democratic governor and the speaker, who also happens to be state Democratic Party chair.
In normal times, the legislature wraps up its spring session in early summer, then returns in the fall to consider vetoes. The first day back, the governor's messages are read into the record, and the 15-day clock for overriding them starts running.
But these times are anything but normal, so when the House met in early September to consider long-term funding for Chicago-area mass transit, no official note was taken of the governor's message whacking some $470 million out of the $59 billion budget lawmakers approved.
The Constitution says if lawmakers are not in session when the governor vetoes general legislation, the veto is to be filed with the secretary of state, who shall forward it to the originating house "promptly upon the next meeting." But in a separate provision authorizing the governor to reduce or eliminate particular allocations in a budget bill, the charter says only that the appropriation measure "shall be returned to the house in which it originated," with no mention of how quickly transmittal must occur. House rules are ambiguous, too, and can be read to say the clerk should record vetoes "as soon as practical."
Timing was critical to the underlying political fight. Blagojevich claimed the money slashed from the spending plan was for "pork" and other lower-priority projects that had to go to make way for higher health care spending.
To dispel the governor's rhetoric and gin up support for overrides, Madigan arranged sessions around the state to hear from local mayors, human services advocates, educators and others hurt by the governor's cuts, more than 70 percent of which were earmarked for health care, human services and education, according to an analysis by the Center for Tax and Budget Accountability, a nonpartisan think tank.
Moreover, Blagojevich generally axed projects supported by Senate Republicans and House Democrats, while leaving untouched Senate Democrat and House Republican requests. One exception: initiatives backed by members of the legislative committee that will determine whether the governor can use agency rule-making to enact the health care expansion lawmakers refused to approve.
The Constitution was written with the underlying premise that public officials, governors included, would behave responsibly. While that may have been a naive assumption, a prudent judiciary might well heed former U.S. Justice Felix Frankfurter's words of six decades ago and avoid the "political thicket" surrounding this litigation.
Traditionally, most governors have called special sessions in consultation with legislative leaders, choosing a day and time convenient for everyone.
Charles N. Wheeler III is director of the Public Affairs Reporting program at the University of Illinois at Springfield.
Illinois Issues, October 2007
