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Huge power grab or major legal stretch?

Tuesday, Mar 14, 2017

* My weekly syndicated newspaper column

If Attorney General Lisa Madigan succeeds in convincing the Illinois Supreme Court to consider ordering the state to stop paying employees without an appropriation, and if Governor Bruce Rauner’s legal team uses the same arguments it did in St. Clair County, it will be important to understand the repercussions of his strategy.

First a little background. The Illinois Constitution and state laws are clear that no state money can be expended without a legal appropriation, which is legislative speak for a special kind of bill that lists how much government agencies, commissions, etc. can spend on various items.

As you probably know, the state hasn’t had a “real” budget in a couple of years. A budget is basically just a collection of appropriations. The last legal appropriation for state-employee payroll expired on June 30, 2015. Negotiations between the governor and legislative leaders stalled, and shortly thereafter a judge in St. Clair County ordered the state to pay its workers anyway. Everybody figured this would probably be a temporary situation, so nobody squawked too much. It’s been done before for a few weeks.

But the governmental stalemate has continued for more than 20 months. In January, Madigan got tired of waiting for the governor and the General Assembly to cut a deal and filed a legal motion in St. Clair County to vacate that 2015 order. She lost. We’re not sure exactly why because the judge didn’t issue a formal opinion, but the governor’s office was at that hearing and filed a brief opposing Madigan’s motion.

The governor doesn’t want Madigan to win because his bargaining position will be greatly weakened if the courts effectively shut down the state by ruling that money can’t be spent without appropriations. Rauner is demanding some business-related reforms, a property-tax freeze, and a few other things before he’ll agree to a tax hike to balance the state’s infamously out-of-whack budget. So the man who once bragged that he would use the crisis of the state not having a budget to force through his preferred legislative changes now wants to avoid a much-worse crisis that would compel him to abandon his demands to prevent the catastrophe of an actual government shutdown.

Got all that? Okay.

One of the arguments used by the governor’s lawyers when they won at the county level last month was that a bunch of state laws are in reality “continuing appropriations.” A continuing appropriation is a law mandating that certain state bills be paid in perpetuity. The General Assembly isn’t required to pass new appropriations every year, and the governor isn’t required to sign them into law. It’s automatic-pilot spending.

But the governor’s lawyers want to redefine what a continuing appropriation is. According to the governor’s legal brief, “there are many statutes that function as continuing appropriations by mandating the State to perform specific services. Employees who provide those services must continue to be paid.”

Examples the governor’s lawyers used included a state statute mandating that the Illinois Department on Aging “exercise, administer, and enforce all rights, powers, and duties vested in the Department on Aging by the Illinois Act on the Aging.” Complying with these and other mandates, they claimed, “necessitates paying personnel” – because compliance can’t be accomplished without employees.

The governor’s legal team then argued that it would take a lot of time to sift through all state laws to find these mandates, and that the task needed to be followed up by “evidentiary hearings to assess what employees are necessary to provide such services.” Such a process could take months, if not years. There are a ton of those mandates in the state-statute books.

Needless to say, if such an argument prevailed, it would give the executive branch almost limitless authority to spend taxpayer money as it pleased. And it wouldn’t end with employee salaries, either. If the Department on Aging determined that it needed a new Chicago office building to perform its mandated functions, or had to let millions of dollars in new contracts, or had to purchase a dozen new vehicles, then under the governor’s legal logic it could go right ahead and do so without any legislative approval whatsoever.

The governor’s team references what it considers to be favorable court rulings from 1953 and 1974, but this is either one of the most blatant executive-power grab I’ve seen or the biggest legal stretch ever.

* And while we’re on this topic, Doug Finke made some good points about the lawsuit

Clearly, an adverse ruling from the court would force the governor and General Assembly to do something. You can’t expect people to come to work and not pay them. Nor can you expect the state to function without a workforce.

The solution could be approval, finally, of a permanent spending plan, or it could be just a narrowly focused thing to keep employees paid while everything else continues to languish.

Either way, it would be something.

Rauner also criticized Madigan for making the move just when things were coming together on the Senate’s “grand bargain.”

That worked better before Rauner peeled Republican support from the bargain.


- Posted by Rich Miller        

  1. - Anonymous - Tuesday, Mar 14, 17 @ 8:22 am:

    The governor’s office is wrong that all those “shall” clauses mean he can spend money without an appropriation. What they mean is, he needs an appropriation in order to pay for those mandated services. And if he can’t or won’t negotiate that appropriation, then he’s got big problems.

  2. - Anon - Tuesday, Mar 14, 17 @ 8:26 am:

    Huge power grab AND major legal stretch.

  3. - Bobby Catalpa - Tuesday, Mar 14, 17 @ 8:28 am:

    What makes this even more interesting is Mendoza’s refusal to pay $21 for Rauner’s expanded computer operations. I mean, she’s absolutely right — why stiff social services and pay high priced consultants?

    I very much appreciated Mendoza redirecting like this. Obviously, I hope employees continue to get paid — but if spigot closes — totally — I certainly hope it gets back on track with employees, schools, and social services.

    And leave all Rauner’s computer nonsense — and it is nonsense since there are no numbers to back up the savings — shut down.

  4. - wordslinger - Tuesday, Mar 14, 17 @ 8:29 am:

    The govenor’s legal argument would seem to make a strong case for the social service providers that are suing him for reneging on their contracts.

    Same for all other vendors that are not being paid.

  5. - Oswego Willy - Tuesday, Mar 14, 17 @ 8:34 am:

    The logic would dictate that Rauner is making a case that those signed Social Service contracts should be paid.

    Is the governor also advocating that his powers of who, what, and when in regards of payment begin and end with the Executive and only one Executive… Governor?

    Lots to own then too.

    Diana Rauner thinks this all is a “business decision”, so there’s that…

  6. - working stiff - Tuesday, Mar 14, 17 @ 8:36 am:

    if stopping the pay puts an end to this crisis leverage, then do it. let’s get this budget done. keep all these businesses from closing, schools open etc.

  7. - Reluctantly Living in ILL - Tuesday, Mar 14, 17 @ 8:37 am:

    Thanks, this was a helpful description of the case before the IL Sup Court.

    It would seem that the Court here might serve as an important check on executive authority. I’m curious as to why the lower court rejected Madigan’s motion to stop pay.

    Does anyone know when we might expect a ruling from the Supreme Court?

  8. - RNUG - Tuesday, Mar 14, 17 @ 8:50 am:

    I’m going to ignore the legal stretch for a minute and concentrate on something from last week that is related.

    Remember the argument of which fund some workers should be paid from? The choice was between GRF and a revolving fund. I’ve had some experience with one of the State’s revolving funds. Each year, when the budget was prepared, we asked for a certain level of spending authority for said fund. The GA would then establish a cap on how much we could spend. Technically, it wasn’t an appropriation per se because the revolving fund was effectively a continuing appropriation and all the GA was doing was controlling how much was spent out of it each year.

    IMO, that’s why the Governor and the Comptroller were fighting over which fund to use, and why Rauner is trying to build up / preserve cash in the revolving funds … arguably, he has an implied appropriation of sorts to spend money from those revolving funds. Of course, the money is only supposed to be spent on the designated purposes of each fund … but we’ve seen how fast and loose Rauner is on paying from inappropriate funding sources.

  9. - The_Equalizer - Tuesday, Mar 14, 17 @ 8:51 am:

    As has already been stated, by this logic anyone owed money by the state needs no appropriation to be paid, whether that be providers, state employee back pay, etc. Or so it would seem….

  10. - Mason born - Tuesday, Mar 14, 17 @ 8:58 am:

    If employees are so essential for these “Shall do” issues, how can we risk any work stoppage. Either by strike or lockout? If it’s so important to spend $ without a budget shouldn’t we ensure the necessary labor resources are not interrupted?

  11. - wordslinger - Tuesday, Mar 14, 17 @ 9:03 am:

    Mason, great point.

    Rauner’s legal team is making great arguments against the actions of the Rauner administration.

  12. - don the legend - Tuesday, Mar 14, 17 @ 9:22 am:

    I trust that some of us have had more monthly bills on the kitchen table than money in the checking account to pay them. The only thing Rauner wants is to decide which bills WON”T get paid each month. He had a comptroller who agreed with his choice of victims but now he doesn’t.

  13. - Johnnie F. - Tuesday, Mar 14, 17 @ 9:34 am:

    So the argument is all state employees are essential. That should mean unionized employees should be eligible for binding arbitration in contract disputes, right?

  14. - TinyDancer(FKASue) - Tuesday, Mar 14, 17 @ 9:49 am:

    =Needless to say, if such an argument prevailed, it would give the executive branch almost limitless authority to spend taxpayer money as it pleased. =

    It’s called running government as a business - what could go wrong?

  15. - VanillaMan - Tuesday, Mar 14, 17 @ 10:51 am:

    So now we have a Republican governor corrupting our government’s checks and balances on spending.

    Rauner is no Republican at all if he believes this immoral garbage. All citizens of all political parties must oppose this unconstitutional power grab.

    If you care about keeping government at a sustainable level, Bruce Rauner wants you to believe that super-empowering a governor, is the way to do it.

    He is no conservative, no Republican and no one’s friend.

  16. - RNUG - Tuesday, Mar 14, 17 @ 12:32 pm:

    Vanillaman @ 10:51am,

    I thought you were going to close “… and you ain’t no friend of mine.”

  17. - Mama - Tuesday, Mar 14, 17 @ 3:49 pm:

    “The governor doesn’t want Madigan to win because his bargaining position will be greatly weakened if the courts effectively shut down the state by ruling that money can’t be spent without appropriations.”

    That one sentence sums it up nicely.

  18. - Roscoe Tom - Tuesday, Mar 14, 17 @ 7:59 pm:

    Rauner may be finally hearing foot steps. It may be the only thing he listens to other than his oh so tired do-nothing rhetoric.

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