Turd in the Punch Bowl
ArchPundit
Larry Craig rethinking on decision to resign.
There hasn’t been this much fun since Alan Keyes swore he’d be in Illinois for the long haul.
September 2007
More on the Special Session Lawsuit
Rich comes back and offers up a fairly detailed post about the lawsuit filed by the Governor to force Special Sessions at the time and date he proposes, a quorum be present, and to forbid the granting of excused absences when a quorum is not present at a Special Session called by the Governor.
To start in reverse order, The Governor and the Courts are forbidden from determining or judging the rules of either Chamber:
(d) Each house shall determine the rules of its proceedings, judge the elections, returns and qualifications of its members and choose its officers.
Simply put, the rules of the Chamber are only decided upon by the Chamber. IOW, the last part of the suit, to stop the Speaker from granting excused absences is without any legal merit. The Constitution could not be clearer.
On the middle point, forcing a quorum is only a rule of the House and it says the Speaker *may* compel attendance. How would he compel attendance? In many states he might call out the Sergeant at Arms or the State Police, but Illinois isn’t clear on this issue. The rules of the House are the only place such authority is granted and no enforcement mechanism is supplied. The Constitution is silent on this matter and as such, the rule subject to the above clause I excerpted.
The silence by the State Constitution is not by accident. Article I Section 5 of the U.S. Constitution:
Section 5. Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.
The Texas Constitution Article 3 Section 10:
Two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide.
For those that remember the fleeing Texas Lege Members, the power was clear that the Speaker of the House in Texas could have the Members arrested and compelled to attend. Illinois offers no such Constitutional power and the power is only contained within the House rules–something that a Constitutional decision cannot be based upon, and only the House can interpret and enforce. It’s questionable that the Illinois Speaker could do what the Texas Speaker did. Hence, even if the courts thought the Speaker was wrong in terms of telling people to stay away, there is no power upon which the courts could base a writ of mandamus to the Speaker.
The Governor’s suit cites Rock v. Thompson (1981) which is the notorious Banana Republic case. The Illinois Supreme Court issued a writ of mandamus to Governor Thompson forcing him to hold a session with a quorum to adopt a rule for electing the President of the Senate. The situation was quite different in that Thompson attempted to attempt deliberations without a quorum and, in fact, when he attended the second session on January 15th, he waited for a quorum to assemble before the vote could take place. The rule later passed, then allowed for if a quorum was not available, the decision on a Senate President would be put off for 24 hours until a quorum was finally available.
Rich argues that the final issue is not without merit regarding whether the Governor can call a Special Session at a specific time and day. I think the language is important here:
(b) The Governor may convene the General Assembly or the Senate alone in special session by a proclamation stating the purpose of the session; and only business encompassed by such purpose, together with any impeachments or confirmation of appointments shall be transacted. Special sessions of the General Assembly may also be convened by joint proclamation of the presiding officers of both houses, issued as provided
One quick point about a comment by Eric Zorn on the issue:
Those who wrote the laws and framed the state constitution simply presumed that such uncheckable powers would be used in a mature, responsible, thoughtful manner, so there was no need to load up the statute books with limitations, qualifiers or even exhortations to use the power only for the good reasons it was given.
Ummm…no. This is Illinois and in 1970, the time of the 6th Constitutional Convention, I think everyone was pretty sure the Governor and General Assembly would do just about anything they could to get an upperhand.
It is true that this part of the lawsuit is not without merit, but it’s hardly a slam dunk for the Governor given the language above. The House rules are irrelevant because the courts have no authority to rule upon those. The law is relevant to some degree and the Governor’s brief cites
3. Nothing in this Act affects the power of the Governor under Article IV, Section 5 of the Constitution of Illinois (1970) to call a special session.The Governor, when calling a special session, shall file the proclamation calling the session with the Secretary of State. The Secretary of State shall take whatever reasonable steps necessary to notify the members of the General Assembly of the date and time of the special session.
The language is ambiguous at best. Note that neither the law nor the Constitution explicitly state the Governor has the power to determine the date and time. There may be an implication in the end of the directly above about the Secretary of State notifying members of the date and time, but even that is not as clear as one might think. In theory, House or Senate rules could dictate a specific start time for different times of sessions. I tend to think the general idea is that the General Assembly will act and certainly, in most circumstances, should act as the Governor specifies.
The Parliamentarian further noted when Hoffman objected:
To the contrary, the Constitution in Article
IV, Section 6(d), gives the Const… gives the House and the
Senate individually, each chamber of the General Assembly,
the authority to determine their own rules of proceedings,
included in the ability to determine its own rules of
proceedings is determined when and where to meet. As for
the statutory provision, the Special Session Act covers two
scenarios. One is when the House and the Senate together
issue a joint Proclamation calling for a Special Session.
In that instance, the Special Session Act does require that
the date and time be put in the joint Proclamation issued by
the Speaker and the President of the Senate. Notably, in
the provision of the Special Session Act related to the
Governor, there is no such requirement. There may be a
contemplation that the Governor may choose to put a date and
time in, but there is no mandate. And in any event, that
statutory mandate would yield to the constitutional
prerogative of the House to determine its own rules.
Therefore, it’s the ruling of the Chair that the convening
of this Third Special Session at this time is constitutional
and proper.”
The provision of the House determining it’s own rules is a very powerful portion of the State and National Constitutions and one the Courts tend to avoid. Other states explicitly state whether the Governor can name the time and date of the session, Illinois chose not to and that is relevant to the Court’s rulings.If one assumes that Blagojevich is correct concerning the date and time, the question then becomes can the courts issue a writ of mandamus to compel a Special Session at a specific date and time determined by the Governor. Rich comes up with a point that is very important:
Actually, there is at least one other alternative. The judge could rule that the Constitution and state law give the governor the right to set the time and date of the special sessions but refuse to inject itself into whether it should penalize someone for violating it. That power should be left to the House or the Senate, respectively.
And this would be consistent with the Constitution that states both that the rules of the General Assembly are subject only to the interpretation by each chamber and that such violations should be dealt with by the chamber. In this case it would be not justiceable because the only possible consequences are those which the Court cannot enforce.
Where will the courts fall? My guess is that the two issues related to a quorum and granting excuses absences will be thrown out. If the courts view the issues as separable then the Governor, at best, could get the Speaker and President to gavel in a special session at the time the Governor insists. At best. IOW, the best case scenario leaves teh Governor with no power to call a productive Special Sesison. This isn’t as bad as it may seem, the General Assembly can meet and refuse to pass anything anyway. My guess is the courts will look at the two parties and say the courts cannot solve a political problem. The other alternative, and the worst for the Governor, is that he can call a Special Session, but the General Assembly cannot be forced to act at a specific time and so the Governor is weakened.
All-in-all, the Governor has virtually guaranteed the Executive lose the power in the ambiguity of the authority as it stands now. Heckuva Job!
Fine Moments in Illinois Governance
Apparently the Governor is coming up with a transit funding plan
Take the mass transit funding issue for example. A number of legislators (myself included), unions, transportation advocates and interest groups have supported SB572 as a prudent means of not only avoiding a transit funding crisis, but of providing reform and accountability for years to come. In fact, it’s safe to say that it is the only substantive proposal with any tangible support on the table.
The Governor’s response? “I’ll veto it.” His alternative that he wanted to have a special session about? Um, none.
Let me sum up this fairly simply
IT’S FUCKING SEPTEMBER, WHERE THE FUCK WAS THE PLAN IN MAY?
Quite Impressive
John Bambenek filed a complaint lacking in merit to the degree that the FEC actually ruled on it in a reasonable amount of time:
| For Immediate Release | Contact: | Bob Biersack |
| September 4 , 2007 | George Smaragdis | |
| Michelle Ryan |
FEC Resolved Two Matters Involving Internet Activity;
Applies Media Exemption to Political Blogs
WASHINGTON – The Federal Election Commission announced today that it has unanimously resolved two complaints alleging that Internet blog activity is subject to Commission regulation, finding that the activity is exempt from regulation under the media or volunteer exemption.
In Matter Under Review (MUR) 5928, the Commission determined that Kos Media, L.L.C., which operates the website DailyKos, did not violate the Federal Election Campaign Act. The Commission rejected allegations that the site should be regulated as a political committee because it charges a fee to place advertising on its website and it provides “a gift of free advertising and candidate media services” by posting blog entries that support candidates. The Commission determined that the website falls squarely within the media exemption and is therefore not subject to federal regulation under the Act.
Since 1974, media activity has been explicitly exempted from federal campaign finance regulation. In March 2006, the Commission made clear that this exemption extends to online media publications and that “costs incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station. . . , Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication,” are not a contribution or expenditure unless the facility is owned by a political party, committee, or candidate. With respect to MUR 5928, the FEC found that Kos Media meets the definition of a media entity and that the activity described in the complaint falls within the media exemption. Thus, activity on the DailyKos website does not constitute a contribution or expenditure that would trigger political committee status. The Commission therefore found no reason to believe Kos Media, DailyKos.com, or Markos Moulitsas Zuniga violated federal campaign finance law.
In MUR 5853, the Commission rejected allegations that Michael L. Grace made unreported expenditures when he leased space on a computer server to create a “blog” which advocated the defeat of Representative Mary Bono in the November 2006 election. The Commission also rejected allegations that Grace coordinated these expenditures with Bono’s opponent in the race, David Roth, and found that no in-kind contributions to Roth’s campaign resulted from Grace’s blogging activity. The Commission also found that the respondent did not fraudulently misrepresent himself in violation of 2U.S.C. § 441h.
The Act exempts from regulation volunteer activity by individuals. In the FEC’s Internet regulations, the Commission clarified that an individual’s use, without compensation, of equipment and personal services for blogging, creating, or hosting a website for the purpose of influencing a Federal election are not expenditures subject to the restrictions of campaign finance law. Even if there were some costs or value associated with Mr. Grace’s blog, these costs are exempt from Commission regulations. The FEC therefore found no reason to believe Mr. Grace or the Roth campaign violated federal campaign finance law.
Additional information regarding MURs can be found on the FEC website at http://www.fec.gov/em/mur.shtml.
This release contains only summary information. For additional details, please consult publicly available documents for each case in the Enforcement Query System (EQS) on the FEC website at http://eqs.nictusa.com/eqs/searcheqs .
| 1. | MUR 5928 | |
| RESPONDENTS: |
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| COMPLAINANT: | John C.A. Bambenek | |
| SUBJECT: | Failure to register as a political committee | |
| DISPOSITION: | (a-c) No reason to believe there was any violation of the Federal Election Campaign Act
The Commission found that Kos Media, LLC, and DailyKos are media entities. As a result, the activities described in the complaint are exempt from the definitions of contribution or expenditure. |
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DOCUMENTS ON PUBLIC RECORD: | Documents from this matter are available from the Commission’s web site at http://www.fec.gov by entering 5928 under case numbers in the Enforcement Query System. They are also available in the FEC’s Public Records Office at 999 E St. NW in Washington. |
More on Hanania
Hanania at it again:
The point is Blagojevich HAS THE RIGHT to everything he has done, calling special sessions, introducting legislation. ANYONE can introduce legislation through a specific process, not just legislators.
Except appropriating money without the General Assembly approving the appropriation which is what he says he’s doing right now.
From the Illinois Constitution
SECTION 2. STATE FINANCE (a) The Governor shall prepare and submit to the General Assembly, at a time prescribed by law, a State budget for the ensuing fiscal year. The budget shall set forth the estimated balance of funds available for appropriation at the beginning of the fiscal year, the estimated receipts, and a plan for expenditures and obligations during the fiscal year of every department, authority, public corporation and quasi-public corporation of the State, every State college and university, and every other public agency created by the State, but not of units of local government or school districts. The budget shall also set forth the indebtedness and contingent liabilities of the State and such other information as may be required by law. Proposed expenditures shall not exceed funds estimated to be available for the fiscal year as shown in the budget. (b) The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.
In fact, only legislators can introduce legislation. The Governor can propose a budget, but that isn’t given an up or down vote if the General Assembly does not want to–and in fact, he is one of the few Governor’s to get an up or down vote without many amendments. 107-0 Against. Much of the rank and file hated the plan more than the Leaders. Emil didn’t have the votes even if he wanted to pass the GRT.
The legislative power is vested in a General Assembly consisting of a Senate and a House of Representatives, elected by the electors from 59 Legislative Districts and 118 Representative Districts.
We do not have initiatives in this state except for advisory initiatives and Constitutional Amendments to change the structure of the government. The Illinois Constitution is one of the most limited Constitutions in terms of direct democracy. Seeing other states and how the initiative process has become a tool of moneyed interests often, that isn’t a bad thing.
What the Governor also claims the ability to do is change administrative rules without JCAR approval. He has some latitude with that, but it’s limited and certainly not to appropriate money that was not appropriated by the General Assembly. With JCAR approval, Blagojevich could increase eligibility, but that does not increase the amount of money appropriated and the state would run out of money to fund the program for the full year if JCAR approved. If JCAR doesn’t approve, he has very limited ability to make any changes to rules. Furthermore, he is not going to get JCAR approval and without that, he may not change the administrative rules related to eligibility as he is trying to do. The Illinois Administrative Procedures Act is far more restrictive on rulemaking than most states and certainly the federal government.
Appropriations can only be made by the General Assembly. Vetoing an appropriation does not mean the spending authority still exists for the Governor–the appropriation cannot be spent by anyone barring a veto override and then, and only then, can it be spent on what it was appropriated for. Moving money from a Member Initiative to a health care program is unconstitutional and an impeachable offense. This is no joke–it’s exactly why we created impeachment in the first place.
===As for Madigan taking at shot at Blagojevich, he didn’t really support Blagojevich’s re-election as enthusiastically as he has supported other candidates and we all know that. He gave Blagojevich a rough time, so you know exactly what I was referring too. But you can ignore the facts of Madigan’s laying back.
Laying back is a lot different than trying to take him out. Madigan didn’t. Unfortunately. You said he failed–he didn’t try. He just didn’t work that hard and frankly, he didn’t need to. Emil spent all of his time on getting a supermajority and did very, very little for the Governor.
===And even if Blagojevich did not articulate a program during an election, he articulated his mission and agenda in specific and broad strokes and people voted for him because they trust his judgment and instincts and his commitment to doing what’s right. So when he does unveil a new program after an election, at least he’s not like most other politicians who promise not to increase major taxes before an electiona nd then turns around and does it with ghusto.
The man has a 22 percent approval rating. He makes Shrub look popular in Illinois. He won because he killed Judy Baar Topinka in May and she was such a bad candidate, she couldn’t exploit his weaknesses.
A key platform of his was that he wasn’t going to raise the income or the sales tax. Technically true, but the GRT has many of the features of a sales tax. And it is more unpopular than a sales tax–probably wrongly, but it is as of now. I’ve seen the polling data on trust, and he doesn’t have it with the people of Illinois. Worse, he is falling back on that promise to not raise taxes to stop a deal on CTA which would include a regional sales tax–but he won’t offer any alternative funding mechanisms. CTA is on the brink and everyone can agree, but one guy.
===By the way, I didn’t compare Blagojevich to Washington. I compared the battle led by Madigan against Blagojevich to the battle led by super sleaze dcarksider Ed Vrdolyak against Washington. Don’t change comments.
First, the entire point of Vrdolyak’s fight was to destroy a Black Mayor and had little to do with programs. Second, if the Governor had proposed the current health care deal in May, the Speaker was willing to agree to it. The Governor went for all or nothing with the GRT until it was clear he wasn’t getting it and then he came up with a plan to change administrative rules that will effectively bankrupt the state health care programs before the end of next fiscal year.
Again, I liked the Governor’s plan, I just think he ought to follow the Constitution to get there. It was a mistake to go for all or nothing in one year. It’s a typical mistake of this Governor though and his arrogance and intransigence stops real progress on these issues. If he were to have made a grand deal for property tax relief for suburbanites, dealt with CTA, and then traded that for universal health care the next year with at least a GRT on services, I bet a deal would have been made. He couldn’t wait and the introduction of the GRT was not adequate–the interest groups swarmed it stopping it from becoming viable this year with virtually no plan to defend it. If he had gone and worked with the Leaders before he introduced the plan, he could have created a working relationship, but he didn’t. He decided to attack, attack, attack.
Daily Dolt: Ray Hanania
A rare back-to-back win for Ray Hanania
Archpundit takes sides, as he always does, with clout, rather than reason. And, to emphasize his ignorance, uses namecalling rather than logic to address issues. Typical. But then, how many journalism awards has he won? Come to think of it, did he ever even serve in the U.S. Military?
Let me repeat what I said in the post:
Now, many of Blagojevich’s critics are not terribly sympathetic themselves, but they do have the Constitution behind their positions. The people are sovereign in the United States and that sovereignty is represented by the General Assembly that passes laws and appropriates money. The Governor’s job is to execute the law and spend the appropriations according to law. Suggesting that the Governor has more moral authority to be the representative of the people is an incredibly silly argument. The Governor’s job when it comes to legislation is implementing or vetoing the legislation, but he doesn’t get to pass it. In fact, he is very limited in his veto power because he can be overridden by the General Assembly.
The Governor cannot remove the General Assembly nor any individual members. The Governor cannot set rules for the General Assembly. The General Assembly can legislate control over the Executive Branch.
Madigan is elected by the voters. As are the other members of the Legislature, few of whom are happy with Blagojevich and not because of some desire to give Mike Madigan more power. The Governor is not elected to legislate, he’s elected to run the executive branch according to the law of the state–the law the legislature passes.
So, what exactly is Hanania taking issue with? Does he think the Executive Branch should pass laws on its own?
Or perhaps he could explain how the Executive Branch is supposed to be dominant?
What I found obnoxious about the column was comparing Rod Blagojevich to Harold Washington and that’s why I addressed it. Harold Washington was fighting a bunch of racist buffoons as Mayor. Rod Blagojevich is fighting not just Mike Madigan, but 3 of the 4 caucuses in the General Assembly and a whole bunch of Democratic Senators. Furthermore, everyone who has followed the entire ordeal should also understand that the program he’s trying to get now could have been passed in May. He decided to sit through the summer and fight over a program he built no support for.
Harold Washington was the opposite. He didn’t play games like that and his ultimate talent was his ability to make a deal with people who were often viscerally opposed to him. When white Chicagoans met the guy, they came away liking him because he didn’t let any political or social baggage get in the way of forming a relationship. Blagojevich does the opposite. When he has the opportunity Blagojevich choose conflict over trust building. It is a complete sham to compare the two men as being alike in any way.
Of course, Ray isn’t paying attention, I’m one of the few public supporters of the GRT and the universal health care plan Blagojevich proposed. I just happen to think, as usual, the Governor has chosen conflict over compromise and now is trying to do something that is patently unconstitutional.
In terms of Madigan–I didn’t say only Madigan. I said Madigan and the the rest of the House. Let’s remember the House as a whole voted against the GRT 107-0.
Most bizarre from Ray is this statement:
but he also has the right to intervene and insure the legislature does the right thing
in fact, the Governor has no such power. He can call the General Assembly to a special session, but he cannot make them do anything. The General Assembly is the sovereign power of the State of Illinois. We don’t have kings in this country.
Madigan had a shot at ousting Blagojevich in the last election. He took it and he lost.
?????
What is he talking about here? There was no Madigan-back primary challenge to Blagojevich in the last election, and while he was unenthusiastic, Madigan did support Blagojevich in the general.
And here’s where Hanania’s argument falls apart: Blagojevich did not campaign on a health care plan financed by a gross receipt tax. If he were explicit about this plan, and then won the election, Hanania might have a point about defying the will of the voters. (He’s still be wrong about deferring to the executive, but whatever.) Instead, Blagojevich was pretty adamant about running on a platform that he would not increase general taxes, and never mentioned a word about Illinois Covered and the GRT.
The voters aren’t psychic, so it’s tough to see how they were backing the GRT and Illinois Covered.
To suggest Eisendrath was a Madigan plant is funny, but not very serious.