Friday, September 25, 2009

Supreme Court Upholds Importance of Elections

The Illinois Supreme Court has been busy, and while most of the news coverage has been on wills and religion, sex offenders, and the death penalty, let's not forget another ruling that came down this week. In Gardner v Mullins, a unanimous court ruled that units of government cannot manipulate the length of time an appointee serves in elected office in order to avoid the voters. (download a pdf) We applaud the Court for preserving the integrity of the ballot.

The case arose after the death of an elected member of the Winnebago County Board. Mary Ann Aiello's term was to end on December 6, 2010. Her death on June 26, 2008 cut that short, leaving just over 29 months remaining on her term. According to state law, partial terms of more than 28 months can be filled by appointment only until the next General Election which, in this instance, would have been in November, 2008. The Winnebago County Board, however, did not appoint a successor until two months had elapsed, so that only 27 months remained in the term. That appointee then claimed that he did not have to stand for election until 2010.

The ability to appoint members to elected bodies is one of the more delicate powers given to public officials. The goal is to ensure a modicum of public representation until the voters can voice their desires. Special elections can be costly and generally draw low voter turnout; for many offices, Illinois policy is to allow for interim appointments until the next regular election.

But the power can be and has been abused. Most political observers can cite an instance or three of the swapping of one candidate for another after the primary or the substitution of one official for another after the election, all without asking the voters if they approve of the change. Usually, there is no recourse when the new official lacks credibility, except to wait for the next election.

In this case, the Supreme Court has narrowed the circumstances where a public body can manipulate the process to ensure that a favored person becomes a public official. By ruling that the remaining time on the ballot, which determined how soon voters are consulted, is calculated from the start of the vacancy and not the time of the appointment, the Court has appropriately make clear that voters should be consulted whenever possible, and not merely when convenient for the appointers. The unanimity of the ruling, written by Justice Garman, underscores this important point.

Monday, September 21, 2009

Cindi Canary in the News

ICPR Director Cindi Canary is in this week's Crain's Chicago Business with a discussion of Rod Blagojevich's recent book and how it relates to the way that campaign finance reform is playing out. A subscription is required, but here's the link.

And here's an excerpt:

With about 275,000 new book titles published annually in the United States, the odds were that, sooner or later, even Rod Blagojevich would find a publisher.

“The Governor” tells his side of the story, and I’m not buying it—either the book or his fairy tale about the zealous prosecutor out to get him.

Some might ask what Illinois has done to deserve the spectacle of Rod Blagojevich on the talk-show circuit and his wife on a jungle reality show.

And if you were listening to NPR over the weekend, yes, that was Cindi in a rebroadcast of This American Life. The show, which originally aired in 2000, includes a segment with Cindi discussing a situation where "The Fix is In." Download the free podcast here:

Wednesday, September 09, 2009

Citizens United, and Citizens' Elections

The US Supreme Court today hears oral arguments in Citizens United v FEC. It's an unusual time for the US Supreme Court to hear arguments (their term doesn't start until next month), but Citizens United is not a typical case. The Court heard arguments last Spring in the case and then took the unusual step of asking for additional arguments on issues not raised by the parties. This could be the case where the US Supreme Court takes off on a new activist agenda in the area of campaign finance.

Many have weighed in on the possible outcome, and ICPR signed onto an amicus brief (PDF) urging the Court to consider the impact of their decision on judicial elections. Much of the commentary has focused on the possibility that the Court will strike down a century of jurisprudence that forbids corporations to make campaign donations. But there are a lot of other ways the Court could rule, which also would have a dramatic impact on how campaigns are conducted, and how the public perceives the honesty of the electoral process.

At issue is whether an organization can promote a commercial enterprise during the weeks right before an election, when that commercial enterprise is focused squarely on a candidate in the election. Citizens United produced "Hillary: The Movie," a documentary critical of then-US Sen. and presidential candidate Hillary Clinton, and sought to promote the movie through TV commercials. The movie itself was available on a pay-per-view basis. The FEC objected, finding that the ads to promote the movie violated the electioneering communications provision of the 2002 McCain-Feingold Act.

How far the Court uses this case to strike down portions of McCain-Feingold will indicate how activist the Court has become. The Court could find merely that the FEC was mistaken that the electioneering communications provision covered the ads. (The electioneering communications provision deals with some ads that mention candidates in the 60 days before a General Election) The Court could find that the electioneering communications provision is unconstitutional in some circumstances, or perhaps in all circumstances. At an extreme, the Court could find, as some have predicted, that corporations have a constitutional right to participate in elections by making campaign contributions.

How the Court rules will clearly have a significant impact on how states can ensure the integrity of elections by regulating campaign finances. While striking the prohibition on corporate contributions is indeed the worst case scenario, it would have little impact in Illinois, where corporations can and do already make large (indeed, unlimited) contributions. But Illinois also has an electioneering communications provision and so a ruling in that area will affect Illinois. No matter how the Court rules, states around the nation, including Illinois, will have to take stock of their laws and make changes to assure the public that elections are fair and honest.