Con-Con revisited

Illinoisans have one year to decide
whether they want a new state constitution.
Let the debate begin

by Pat Guinane

The Democratic dominance that has spawned political paralysis in Springfield can, in no small terms, be chalked up to dumb luck. A scrap of paper randomly plucked from a stovepipe hat six years ago gave Illinois Democrats the power to draw a legislative map that greatly facilitated the party's current stranglehold over state government.

This "Russian roulette" redistricting game, as one longtime political observer dubs it, is far from what the framers of the 1970 Illinois Constitution envisioned. And it's among several policy questions that loom large as Illinois prepares to ask voters if it has come time to revise the state charter.

Many observers question whether the political climate is suitable for conceiving a new constitution. The last convention, the sixth in Illinois statehood, took place in an environment surprisingly insulated from intrusion by interest groups. Delegates wrestled with myriad hot-button issues, including the death penalty and employment and housing discrimination. But they largely were able to avoid the sort of polarizing outside pressure a new crew likely would face on issues such as abortion and gay rights.

Those who rewrote the state Constitution nearly four decades ago say their handiwork produced a blueprint built to last. Still, the ensuing years have revealed some structural weak points, and the enmity permeating prevailing discourse in Springfield could further fuel attempts to draft a new set of rules and operating procedures.

"The dysfunctional state of the state today might give cause to revisit some provisions because this is idiotic," says Marion Mayor Robert Butler, a delegate to the 1969-70 convention, popularly called Con-Con for short. "When personality conflicts engaged in by three or four leaders work to the detriment of 12 million people, there is something wrong with that picture."

Intractable discord among Gov. Rod Blagojevich, Senate President Emil Jones Jr. and House Speaker Michael Madigan — all Chicago Democrats — has, among other things, rekindled talk of equipping Illinois voters with what amounts to an eject button for disappointing politicians. Lt. Gov. Pat Quinn floated a similar mechanism for ousting appointed utility regulators on the Illinois Commerce Commission after electric bills began to rise last winter. And Quinn, a self-styled populist, isn't the only one intrigued by the prospect of making voter recall a constitutional right.

"As I look at some of the people who are holding office today, I'm not so sure we shouldn't have had a recall provision in there," former Metra Chairman Jeffrey Ladd says of the 1970 Constitution he helped write as a delegate from McHenry County.

But Mike Lawrence, director of the Paul Simon Public Policy Institute at Southern Illinois University, argues a recall provision would only further enfeeble elected officials already averse to heavy lifting. "I don't want to see them become even more paranoid. I want to see them become more courageous," he says. "Today they focus too much on the next election. If you put a recall provision into the Constitution, they'll be focusing on the next week or the next month."

Tunnel vision certainly isn't a new affliction in Illinois politics, which is why participants in the last constitutional convention are glad the General Assembly decided to make the selection of delegates a rare, nonpartisan affair. "We didn't run under a party label, which turned out to be a very good thing, even though most of the time everyone knew what party you were," says former Illinois Comptroller Dawn Clark Netsch, who began her political career as an independent Con-Con delegate. "It made it possible to develop alliances that might have been much more difficult to put together if we all had been elected either as Democrats or as Republicans."

It again would be up to the General Assembly to decide whether delegates to a new convention — two from each of the 59 state Senate districts — go on the ballot under a major party label.

"The selection process for the delegates to a new convention and the funding for the new convention would be vetted by the current General Assembly and the current administration," notes Wayne Whalen, a Chicago attorney elected to the 1969-70 convention from his hometown of Hanover, in far northwestern Illinois. "I think people are generally dispirited with the state of state government right now. These incumbents would be deciding those issues."

But first voters must decide it's time for a new constitution. That alone is no easy task. Delegates to the last convention decided the constitution question should be put to voters every other decade. But the last vote, in 1988, failed by a 3-1 margin, despite a series of awareness-raising regional hearings put on by the now-defunct state Commission on Intergovernmental Cooperation.

The question will be put to voters a year from now, on November 4, 2008. But in order for a new convention to be called, the referendum must win support from either 60 percent of those voting on the question or a majority of all voters. "Those are tough," says political scientist Kent Redfield. "You're going to have ballot drop-off at the bottom. People are just going to skip the proposition."

In fact, more voters — 1,069,939 — ignored the question 19 years ago than those who endorsed the call for a new convention — 900,109. Redfield, a professor of political studies at the University of Illinois at Springfield, says the pooling of dissatisfaction among close observers of state government could buoy support for a new convention. But those political junkies would need to get the remaining electorate hooked on the idea.

It already may be too late. An organized coalition would need 18 months and at least $12 million to wage a PR campaign capable of mustering voter support for a new Con-Con, say Ann Lousin, a research assistant to the 1969-70 convention, and veteran U of I political science professors Sam Gove and James Nowlan. They made that assessment to the Union League Club of Chicago in May. The trio also suggested a crisis in state government, be it a financial meltdown or a major scandal breaking just before next November, might raise enough public ire to swing a successful convention call.

Still, even a well-funded, highly motivated movement would find itself swimming against a strong pro-establishment tide. "The Constitution was a pretty hard-fought set of compromises between a lot of diverse interests in Illinois, so there's an awful lot of people who have a vested interest in the status quo, or a fear of the unknown," Redfield says.

"I think you're going to have organized opposition to Con-Con. The political parties, the politicians, they know how to win with the status quo."

Thus far, few groups have taken a public position on the possibility of a new convention. The state's largest teachers union, for one, remains satisfied with the current Constitution. "When you take a bedrock document such as the state Constitution and open it up, there's the possibility that interest groups with very narrow views of the world may decide to get involved and such a situation could imperil the human and civil rights of the people in Illinois," says Charles McBarron, communications director for the Illinois Education Association.

"We just don't think it's worth it."

Enthusiasm for a new constitution typically runs inversely to one's satisfaction with the current state of the state. Ralph Martire, a vocal school funding reform advocate, says he's ready to run for delegate. "It's almost as if we need a constitutional convention on school funding reform to save us from our legislators, who don't have the backbone to do it," says Martire, executive director of the Chicago-based Center for Tax and Budget Accountability. "Everyone knows it's the right thing to do, but no one is willing to do it because of purely political fears — and small-minded fears."

Delegates addressed school funding the last time around, ultimately deciding "the state has the primary responsibility for financing the system of public education." But state lawmakers have failed to put up at least 51 percent of the cost of running public schools, and the courts have dismissed the constitutional proclamation as hortatory language reflective of wishful thinking, not legislative mandate. School funding no doubt would warrant considerable attention in the drafting of a new constitution. But unlike Martire, who advocates a fundamental student entitlement backed by compulsory state funding levels, others aren't convinced Con-Con is the correct avenue for reform.

"We believe that legislation is the best way to do that," says Clare Fauke of A+ Illinois, a school funding reform advocacy group. "There's been a Constitution that spells out a primary responsibility for education funding. But that's not going to change unless legislators in Springfield actually pass laws to change that system and find new funding sources. You can't just snap your fingers and have a billion dollars in additional school spending."

At the same time, the looming prospect of a constitutional convention provides an alluring, if not whimsical, opportunity to move key policy decisions out of the hands of politicians. Groups stymied by the system could assert their voices to those who would be writing new rules of engagement.

"I think the interest groups would have considerably more influence this time than they did in the late 1960s," says Lawrence, the SIU policy institute director. "I think you would see strong interest group involvement in the election of delegates, and that involvement would continue into the session and on the votes on issues in the convention. The trial lawyers would be very much involved. The business community certainly would be aggressively involved. And then you'd see the right-to-life and the pro-choice people. You'd probably see groups who want to advance gay marriage, and on the other side of it would be some fundamentalist religious groups."

Conservative organizations, including the Illinois Family Institute, last year sought to ask voters whether same-sex marriage should be banned in the Illinois Constitution. But they failed to gather enough valid signatures to place the nonbinding referendum on the ballot.

At the same time, it was only a year ago that state law began to protect gays and lesbians from discrimination in areas such as housing and employment. Supporters could seek to cement those protections in the state Constitution, which already prohibits discrimination on the basis of color, creed, national ancestry, physical and mental handicap, race and sex.

The current Constitution, which took effect two years before the U.S. Supreme Court ruling in Roe v. Wade, also is silent on the issue of abortion. In general, abortion rights advocates say Illinois laws compare favorably to neighboring states, and they're wary of revisiting the issue in a constitutional setting.

"The problem you have with it is, once you open it up, anything can happen," says Terry Cosgrove, president and CEO of Personal PAC. "And we do know that the vast majority of the voters and the vast majority of people in Illinois do support the right to privacy when it comes to abortion and family planning. It's also a resource question. From our organization's standpoint, do we spend a lot of time and effort and money taking a position on this versus our mission, which is to elect pro-choice candidates who would protect the reproductive rights of the women of Illinois?"

The organization spends about $500,000 per election cycle supporting pro-choice candidates through direct-mail pieces, phone calls and get-out-the-vote efforts. If voters decide it's time for a new constitutional convention, Personal PAC, and organizations like it, would have to decide how much support to throw behind delegates sympathetic to their cause.

Ladd, a Chicago attorney who stepped down last year after 22 years at the helm of Metra, the suburban commuter rail agency, says he had to devote considerable energy to his 1969 Con-Con campaign. Fourteen candidates competed for the two delegate slots from his state Senate district. "Things were a lot cheaper then than they are today," he says. "But, yeah, you had to raise some cash."

Reaching voters in a geographic area as large as a Senate district probably would cost a candidate for delegate around $200,000, says professor Redfield, who also directs the Illinois Sunshine Project, a research effort that tracks the role of money in state politics. Candidates in contested Illinois Senate races spent an average of $210,000 last year, a 57 percent increase since 1996.

"If we are playing by current rules of raising money for a political committee and the big interest groups and the parties and the legislative leaders and constitutional officers got involved, it could be quite expensive," Redfield says. "I don't see a lot of housewives or farmers who have never been involved with politics getting elected to Con-Con."

Meanwhile, interest groups stand to play a much larger role in the swaying of delegates, with advances in technology, especially the advent of e-mail, allowing them to mobilize supporters much more swiftly. That sort of outside pressure didn't exist during the 1969-70 convention, wrote Elmer Gertz, a delegate, and Joseph Pisciotte, a top Con-Con staffer, in their 1980 book, Charter for a New Age: An Inside View of the Sixth Illinois Constitutional Convention, which was published for the Institute of Government and Public Affairs by the University of Illinois Press. The General Assembly created a lobbyist registration system for the convention, and nearly 60 groups signed up. But only a handful, including the Illinois State Chamber of Commerce and the Illinois Municipal League, kept continuous watch over the proceedings.

In fact, Chicago Mayor Richard J. Daley was widely considered the most influential interest keeping tabs on the convention. While Netsch and other liberal Democrats from in and around the city came to the convention as an independent voting bloc, the Chicago machine sent several delegates, including the mayor's son and eventual successor, Richard M. Daley, and Michael Madigan, who would begin his long reign as House speaker 13 years later.

The Daley team arrived at the convention with four major objectives and returned to Chicago with a perfect batting average, recalls Charles N. Wheeler III, whose convention coverage for the Chicago Sun-Times marked the beginning of a long career in the Illinois Statehouse press corps. Daley wanted to continue the election of judges and to preserve cumulative voting, which, until voters did away with it in 1980, provided for multimember House districts. The mayor also won approval for property classification in Cook County, meaning commercial and industrial plots could be taxed at higher rates than residential property. Home rule, Daley's other triumph, freed cities from a child/parent relationship with the legislature.

"The classic example they used was, at one point Chicago wanted to change the color of the lights on its squad cars and it had to get legislative approval to do that," Wheeler says. "It had to get a bill moved through the legislature and signed by the governor to be able to change the lights on its squad cars."

While Daley's other victories might be challenged at a new constitutional convention, home rule enjoys wide support, even winning over an initial critic. Butler, who had been Marion's mayor for six years when he began work as a delegate, insisted that the population threshold for automatically obtaining home rule be set at 25,000, so the new freedoms wouldn't apply to his city.

"At that time, I didn't think the city council had enough sense to be turned loose with the authority that you get with home rule," Butler says. "We went to home rule about nine years ago. We've had a lot of expansion and progress, most of which would not have been possible if we did not have home rule."

First and foremost, home rule gave municipalities greater authority to raise taxes and borrow money. But cities also have used it to bar handgun ownership and even ban public pay toilets. Dozens of communities smaller than 25,000 have won the powers through referendum, while only a handful of cities, including Rockford, have voted to abandon home rule. Larry Frang, assistant director of the Illinois Municipal League, says the organization sees little reason to revisit the issue in a new constitutional convention, unless delegates want to lower the population threshold in recognition of home rule's referenda success.

Replacing judicial elections with a merit appointment system, meanwhile, is a cause that hasn't gone away, despite opposition from the powers that be. "There's no way you're going to get that through the legislature as it's constituted now," says Nowlan, a senior fellow for the Institute of Government and Public Affairs at the University of Illinois. "I think, on balance, merit selection would be better than popular selection, but I don't know if that alone justifies a convention."

Lawrence, the SIU professor, says he feels the same way about the state's legislative redistricting process, which, in three of the past four decades, has been decided by a "Russian-roulette provision" Con-Con delegates created in the hopes of forcing bipartisan compromise. Instead, Democrats and Republicans on the decennial redistricting commissions have reached gridlock, forcing the secretary of state to draw at random the name of the party that gets to add a tie-breaking member to the panel, rendering the other party powerless over the drawing of districts.

Gov. Blagojevich's budget maneuvering in recent months also could inspire a new convention to re-examine the amendatory veto powers created by the 1970 Constitution. House Speaker Madigan over the years has sought to block gubernatorial efforts to use the veto pen to rewrite, rather than marginally revise, legislation. "I think that power was abused through the years. Even when I was working for a governor, I felt that the chief executive should not have that power," says Lawrence, who served as press secretary to former Gov. Jim Edgar. "I agree with Speaker Madigan. He and I share an aversion to the amendatory veto. I don't think the governor is a legislator."

Elsewhere, there exists nostalgia for cumulative voting, at least among a handful of die-hards. The so-called Cutback Amendment Quinn championed in 1980 reduced the membership of the House by a third. But, in doing so, it eliminated three-member districts, which had ensured each party at least one seat — and a voice — in every corner of the state. Some lament the move as the start of consolidation of power among legislative leaders that has facilitated the current gridlock in Springfield.

Similar chagrin envelops the state's lingering financial woes. At the time of the last constitutional convention, delegates set out to affirm the 1969 income tax pushed by Gov. Richard Ogilvie and later upheld by the Illinois Supreme Court. Some advocated a graduated rate that would rise with the taxpayer's ability to pay, a proposal that could be revived by a new convention.

"The graduated income tax, I'm sure, would be an issue," says Netsch, vice chair of the Revenue and Finance Committee at the 1969-70 convention. "Some would probably push for it pretty strongly. I would not predict that it would happen, although I think the dynamics may have changed somewhat from 1970. One of the prices those of us who wanted to have an income tax, and make sure it was still authorized, ended up paying was the requirement that it was a flat rate and the ratio [a link between individual and corporate income taxes]. That was primarily pressure from those who were more sensitive to the business interests, and they would still be a big factor."

The income tax, which lawmakers have hiked only twice — once temporarily — in the 37 years since Con-Con, cannot exceed a five-to-eight ratio between the individual and corporate rates. Striking that caveat from a new constitution would give a Democratic legislature and governor the power to raise the 4.8 percent corporate rate without touching the 3 percent personal income tax, a prospect sure to invite a fight from the state's business community.

The arguments against those fiscal limitations illustrate a fundamental question raised by the prospect of a new constitutional convention. Ultimately, the 1970 Constitution was a product of compromise forged with the approval of voters in mind. If interest groups succeed in injecting their positions into a new state charter, will the state come to regret it in the decades that follow?

"I think that there's a real potential for a lot of mischief," says Whalen, who chaired the Style, Drafting and Submission Committee at the last convention. Whalen was a bit of an antagonist himself, pushing for merit selection of judges against the wishes of the Daley machine and co-sponsoring a narrowly defeated attempt to abolish the death penalty.

In the waning hours of the convention, delegates supported an amendment, co-authored by Whalen, that took the judicial selection process, as well as the question of single versus multimember House districts, out of the Constitution, instead presenting them to the electorate as separate questions.

Months later, voters would opt for the status quo on both issues, also rejecting accompanying questions that gave them opportunities to end capital punishment and lower the voting age from 21 to 18. The delegates decided taking a stance on those weighty issues could sink the new Constitution, and their reasoning was rewarded when voters ratified their work by a comfortable margin.

Winning voter approval was paramount in delegates' minds. After all, the state's 1870 Constitution stood for an entire century, with voters rejecting the work of a 1920-22 convention.

Just as the death penalty was too hot to touch four decades ago, a constitutional provision for or against same-sex marriage, for instance, could doom a new document with voters. Or, if ratified, it might become a troubling anachronism for future generations. "If you start to make all those little rules prescribing conduct, I think they're rules for a passing hour rather than principles for an expanding future," says Ladd. "And it's the latter that is what a constitution should be."