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Illinois Wed Dec 10 2008

Stronger Pay-to-Play Bill Needed

This spring, the legislature passed HB824 over Gov. Blagojevich's veto, and subsequently I started to see quotes, columns, and campaign literature by politicians, including some I support, claiming it ended "pay-to-play" in Illinois. For example, Dan Kotowski said the bill "ensures that elected officials are not for sale" and Dan Hynes said that "pay-to-play politics will be prohibited in Illinois government."

Whether that was incomplete reading of legislation, or simple political hype, I don't know, but such claims oversell the new law somewhat.

HB824 targeted only one noxious practice: payments by contractors who have or seek business -- of more than $50,000 annually -- with the state.

In an editorial I submitted to the Tribune at the time, but which they didn't print, I wrote that HB824 doesn't address "contributions which buy appointments, fill vacancies, or gain favor on bills (such as a zoning variance)." Such trading of money for access, influence, or power is a more insidious and more common species of pay-to-play than blatant money-for-money purchases of state business. "The bill also ignores troublesome third-party payments, such as hiring an official's spouse, or donating to an official's favorite charity."

Forgive me if I indulge in a little "told you so." As it turns out, these are the essence of the fiercest charges we've yet seen against a sitting governor in Illinois. And nothing the governor did or tried to do in attempting to sell a Senate seat would be illegal under HB824.

A more comprehensive ban on pay-to-play, in all its variants, would (a) enact reasonable contribution limits, and (b) extend, within constitutional limits, the existing ethics ban on personal gifts to also include the swap of campaign cash for official acts. Currently, both the donor and donee in a transaction that might otherwise be a Class 2 felony are usually protected if the quid pro quo is logged as a political contribution.

A reform law would have to be careful to respect legitimate first amendment rights, including those of activist groups, businesspersons, and existing and aspiring governmental employees. Proving intent might often be tough. But Illinois has no shortage of talented constitutional lawyers, and we've passed bills to regulate many less-toxic activities. The only real obstacle is lack of political will.

In the howls for the governor's head it's important to remember that this is not simply a problem of one aberrant personality, even if it is a jaw-dropper. What the governor was caught saying crudely on tape is how many politicians think and act as a matter of course. We have to root out the mentality that has put Illinois atop the list of most corrupt states, tainting decisionmaking on everything from what becomes law to who governs. Fighting pay-to-play in patchwork fashion is not the answer. If we ever want to get rid of "Where's mine?", "One hand washes the other," and "We don't want nobody nobody sent," we have to smack the hand that picks up the tab.

 
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Ramsin / December 10, 2008 1:25 PM

Essentially Jeff, isn't the problem just cash in politics? We can keep dancing around these problems all we want, but until we get full public financing and either abolish cash in politics altogether or put in some kind of blind system where donations must be anonymous, won't we just keep plugging holes only find new leaks springing elsewhere?

Isn't Buckley v. Valeo just wrongly decided and the cause of these troubles?

Jeff SmithAuthor Profile Page / December 10, 2008 3:14 PM

The problem is more complex than that. How do you limit the size of a campaign -- a political organization, formed under fundamental First Amendment rights to associate and assemble -- when we don't limit the size and budget of corporations, commercial organizations? Would you have liked to see some Bush admin government agency step in and tell Obama he had too much money and too many campaign workers, and had to cut back his ads, or trim his forces?

Any limit changes the overall equation. Limiting overall expenditures by candidates concentrates more power over news and public opinion in the hands of the media, largely conservative-owned (though often staffed by liberals).

The decline of public forums -- the privatization of public space -- has meant fewer avenues for speech (or campaigning) without spending money. The Internet is an equalizer, but knocking on doors has only become harder, as has talking to people in public, as commons are replaced by shopping malls.

A related problem is the increasing distance between government and the governed. Congress was only supposed to be one rep for every 30,000 people. Districts are now prohibitively large. The area I've been organizing in north Evanston has a population larger than the combined total of New York and Boston at the time of the Revolution.

Buckley v. Valeo did uphold limits on contributions. It struck down limits on expenditures. I don't know that you could ever outlaw private expenditures with respect to elections. I understand antipathy toward limiting what a private individual can spend getting their POV out, especially opinions about government and elections which are at the core of free speech. But the balance of compelling governmental interest ought to be re-examined in view of what we've learned since Buckley. I'd argue that government has a compelling interest in preserving democracy against purchase, such that some restrictions are reasonable.

To the extent that the traditional answer to a problem of speech is more speech, creating full public financing -- and more forums, including open access to TV -- with stronger disincentives to "skip" it as Obama did this last cycle, indeed suggests itself as a crux of the solution. Another dimension is looking at the underlying inequalities that produce imbalance in political spending and political power.

Jeff SmithAuthor Profile Page / May 23, 2009 7:33 PM

My initial long answer above may have obscured a shorter one: yeah, cash in politics has to be considered the main problem.

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