Aldermen Tue Dec 14 2010

A Peek at Election Law Tweaks

By Jeff Smith

On Monday, Dec. 13, a small group of journalists, reform advocates, and political junkies gathered in a conference room at the Michael A. Bilandic Building to hear a three-person panel review some of the important changes to Illinois election law enacted last year in what was finally passed as Public Act 96-0832 (click preceding link to view text of Act as it amended existing law; click here to download as a PDF). Cindy Canary of the Illinois Campaign for Political Reform, Andy Nauman from the State Board of Elections' division that regulates campaign finance reporting, and Cara Smith (no relation), the Public Access [FOIA] Counselor for the Illinois Attorney General, did their best in a quick review to navigate attendees through a pastiche of legislation that, as Canary put it, is "like going into the inner chamber of hell." The changes have some immediate impact on the municipal elections barreling down upon us all, with larger ramifications for other future races. However, reviewing what the law does and doesn't do also highlighted new ambiguities created, and how in significant areas much remains to be done.

Canary reminded the audience that the law was a product of intense fight and "hostile negotiations." So it's no surprise that, like much if not most Illinois law affecting the wheels of power, it's less a rebuild than a redecorating. Still, it contains, for the first time ever in Illinois, some limits on contributions, some limits on receipt of contributions, and some limits on movement of money between committees. "Some" is far less than ideal, but the context is that Illinois was, indeed, the Wild West where even sky-high was sometimes not high enough. Canary also characterized the law as beefing up disclosure, reporting, and enforcement mechanisms.

A key change is that whereas in the past, all entities that surpassed a threshold for either contributions or campaign expenditures was simply termed a "political committee," the new law requires self-identification as one of four different types: candidate committee, political action committee, political party committee, and legislative caucus (i.e. leadership) committee. The first two will constitute the vast majority of committees, and all existing committees are required to state what they are by December 31.

The limits on contributions are higher than for federal office: while they vary for committee, in essence they boil down to $5,000 from individuals, $10,000 from corporations, unions, or associations, and $50,000 from PACS to individual candidates per election cycle (meaning those limits are effectively doubled in primary-general cycles); if giving to any committee other than a candidate, an individual, corporation, union, or association can give double what they'd give to an individual candidate. As has correctly been pointed out in numerous editorial quarters, committees controlled by existing political party leaders in Illinois are subject to far looser limits. Taking a step back, a neutral observer would probably say that the possible influence of civic-minded wealthy (or middle-class but very generous) individuals has been the most weakened, and that of PACs, parties, and party leadership, the most strengthened.

Disclosure will now be quarterly instead of tied to the election calendar, eliminating the long gap between some reporting periods, and contributions over $1,000 have to be reported within 5 days, at any time of the year, not just in the run-up to an election. And there are more formal requirements for reporting of "independent expenditures," although former law was considered by many to cover such activity.

The hasty drafting of the Act shows in some of the loose ends. For instance, a literal reading of the law would seem to bar anyone giving their own campaign more than the $5,000-per-election limit. Yet other parts indicate that that wasn't what was meant, since there are specific provisions dealing with "self-funding" as well as granting an exemption on limits to any candidate facing a well-heeled self-funders (the so-called "millionaires' exception") -- in which case the race reverts to old-fashioned Wild West, IL. So the SBE is attempting to address that, even as I write this, through the rulemaking process.

An interesting quirk that prompted some discussion in the room had to do with the definition of "electioneering communication," which figures in numerous triggers and limits throughout the bill. The old law defined it as virtually anything designed to influence an election, but the new law appears to limit it only to broadcast communications (yet including the Internet). In other words, on its face, the limits on electioneering, or the required reporting of electioneering, don't seem to apply to taking out a newspaper ad -- or sending direct mail. This appears to be a large oversight.

Smith's overview of the changes to FOIA highlighted that governmental information, ostensibly for public use, can often turn into ammunition in a political campaign. Computerization is making compliance easier, and the trend is definitely toward disclosure. How the demands for transparency ultimately get balanced with legitimate privacy rights of government employees, and the need for some degree of confidentiality for any organization to function, is a work in progress.

Nauman's presentation on all the new things that the State Board will be tasked with, including monitoring of compliance with the new pay-to-play laws, made me wonder if anyone is paying attention to the fact that that might require additional funding for the agency. Most agencies are looking at cutbacks, but controls on the integrity of the election process itself are probably an area where it doesn't pay to skimp.

How any of this may impact the upcoming Chicago municipal elections was not completely clear. The new law is for sure guaranteed to spring traps on any candidate not sufficiently aware of the law, and not sufficiently lawyered up. And such oversight, in this politician-suspicious environment, might surely be seized upon by an opponent. Every single campaign would do well to have at least one designated person responsible for understanding and guiding through the process. Not knowing the rules, in any game, can cost you. Despite the flaws, them's the laws.

As to the substance of the Act, as opposed to process, most aldermanic campaigns don't garner the magnitude of contributions the law limits (although some recent campaigns have flirted with the million mark); the big hitters in the last round, 2007, were the unions upset over the big-box ordinance. However, with Chicago itself bigger than numerous states, a mayoral race could easily attract the big bucks. So there's a huge advantage for any candidate who can raise such funds now, before the new law takes effect on January 1. The year-end reports will be revealing, because for Major Players and Rezko wannabees, should they exist, or for a municipal candidate with, say, Wall Street or Beverly Hills connections, these are the last Days of Disco.