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A rethink may be in order here

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Illinois

* My weekly syndicated newspaper column…

Imagine a lobbyist approaching a legislator and promising that if the member voted for a specific bill, the lobbyist would contribute to their campaign committee.

Lobbyists have been convicted here for doing just that, going back to at least 1982.

Legislators would be violating state law if they made that deal. The statute prohibits legislators, candidates and others from promising “anything of value related to State government,” including any “action or inaction on any legislative or regulatory matter, in consideration for a contribution to a political committee, political party, or other entity that has as one of its purposes the financial support of a candidate for elective office.”

So, when I saw a recent candidate endorsement questionnaire, that’s the first thing that came to mind. But after I thought about it and did some research, I decided my initial impression may be wrong. Even so, I came away from this believing organizations that send out these questionnaires need to rethink their approaches, and legislators definitely need to study what they’re signing.

Equality Illinois’ latest endorsement questionnaire informs candidates: “We will consider your votes on the following bills as well as your responses to the following questions.”

The first question involves legislation to fully implement the Keeping Youth Safe and Healthy Act from 2021. “Will you recommit to voting for this initiative?” legislators are asked.

To be clear, it doesn’t look like they’re violating state law, nor are the many other groups that ask similarly worded questions. As you can see above, the law as written is aimed at legislators and candidates, and the criminal case law in question (People v. Brandstetter) was a straight-up offer of a $1,000 campaign contribution for a vote.

Equality Illinois’ CEO Brian Johnson said the questionnaire was vetted by longtime elections attorney Michael Dorf, who Johnson said, “sees no legal issues with our questions or our process.”

Equality Illinois’ Johnson insisted “a positive answer on any one question does not guarantee an endorsement, nor does a negative answer on any one question guarantee a non-endorsement.”

It is instead a “totality of factors,” including their voting history, their “level of support for the LGBTQ+ community broadly,” their “partnership with LGBTQ+ community groups,” their “connection to the LGBTQ+ community” and their answer to the four questions posed to them. Those questions are part of a “holistic picture,” Johnson said.

Illinois is among “a minority of states that doesn’t require the teaching of sex ed,” Johnson said, and that’s what the bill on the questionnaire is about — making sex education mandatory in public schools.

Illinois law allows school districts to opt out. “LGBTQ+ kids are literally dying,” Johnson said, pointing to a decline in the number of schools offering sex ed during the past few years. “LGBTQ+ youth have higher rates of bullying, higher rates of mental health challenges and higher rates of suicide. When schools refuse to teach public health and safety education, LGBTQ+ kids suffer, some with their lives.”

So, Johnson said, “Knowing whether a candidate is willing to support legislation that will save kids’ lives — while not dispositive — is very important to our board in making their endorsements.”

Jay Young of Common Cause Illinois told me, “The prohibition in Section 5-30 applies to legislators and candidates and not to groups like Equality Illinois, so there isn’t anything unlawful about their questionnaire.”

But does that mean legislators and candidates could be the ones in hot water if they pledge to vote for a bill on an endorsement questionnaire?

Common Cause’s Young wondered whether candidates and legislators “shared the same understanding about providing a “holistic” picture that Equality Illinois claims to be looking for.

“I’m not sure that that comes across fully in the language of the questionnaire that plainly states, ‘We will consider your votes on the following bills as well as your responses to the following questions.’”

Also, would the group really endorse someone who answered “no” on that very important question? Johnson said they could in certain circumstances, like if a strong supporter opposed it over a local issue or faced a homophobic opponent with a decent chance of winning.

The bottom line, though, is associations, legislators and candidates really need to think these things through. Are the groups putting legislators and candidates in any sort of jeopardy? And are the legislators and candidates opening themselves up to criticism … or worse?

Yes, these groups need to know who they’re dealing with. I can certainly see the nuance here. But others may not be so inclined.

posted by Rich Miller
Monday, Dec 11, 23 @ 9:08 am

Comments

The Capt Fax raised some interesting ideas. Mostly how far some can go to think of ways to pimp folks who still are willing to become an elected officials. We always thought the candidate questionnaires generally were mostly fresh opportunities for self inflicted wounds.

Comment by Annon'in Monday, Dec 11, 23 @ 9:18 am
This strikes me as a dramatic expansion of the principles we currently apply to judicial campaigns. The basic premise there is that judicial candidates create the appearance of a conflict of interest if they comment on issues they might have to rule on. It’s also why we forbid judicial candidates from making direct fundraising solicitations.

Expanding those rules into legislative elections would be problematic. The system right now allows interest groups to ask candidates for their positions, and decide who to support based on their answers. Individual voters also have that right. This dialogue, to me, is one of the basic building blocks of democracy.

Ending those exchanges could chill legislative candidate speech, much as it chills judicial candidate speech. More likely, though, is that we’d replace an open and honest system with one of winks and nods. Interest groups would still talk to candidates, and decide who to support based on their political positions. It just wouldn’t be written down, and everyone involved would deny the bleedingly obvious. I don’t think that would be an improvement for anyone.

As an aside, I also think you’re over-reading the statute. “Of value” and “in consideration for” are legal terms of art with narrow definitions. To take the Equality Illinois example, they’re not offering contributions in exchange for grants to the organization or jobs for their executives. I doubt that their legislative agenda meets the definition of “value” to Equality Illinois specifically, because they’re asking for statewide action that won’t profit them as an organization.

Comment by vern Monday, Dec 11, 23 @ 9:32 am
How are you proposing these groups determine who to support with their PAC dollars and members’ votes?

Comment by Just Me 2 Monday, Dec 11, 23 @ 9:33 am
I think it is 100% acceptable to know what someone stands for before offering to support them. That isn’t bribery, that is being an informed participant in the political process.

It is the same reason why I support party identification for judges, and absolutely had the complete lies that judicial nominees tell in SCOTUS confirmation hearings. If someone thinks Roe (or coming soon, Obergfell, Casey, etc.) was wrongly decided, yeah I want to know that before I’d be voting whether or not to confirm them to a lifetime appointment.

Any experienced jurist who says they don’t have an opinion on that is a liar, and that should be disqualifying on its face. We shouldn’t act like it is a scandal to want to know what someone, whether soon to be appointed, or running for election, stands for explicitly.

Comment by Homebody Monday, Dec 11, 23 @ 9:41 am
===system right now allows interest groups to ask candidates for their positions===

Correct. But not on specific bills.

===are legal terms of art with narrow definitions===

The bribery conviction in the early 1980s was about a pledged $1,000 campaign contribution from a lobbyist in exchange for a “Yes” vote on the ERA.

Comment by Rich Miller Monday, Dec 11, 23 @ 9:41 am
===How are you proposing these groups determine===

They shouldn’t ask about how they would vote on specific bills. Concepts are fine. Bills are something different.

Comment by Rich Miller Monday, Dec 11, 23 @ 9:43 am
=== Concepts are fine. Bills are something different. ===

This is a distinction without a difference to me. Bills are just concepts that are written down. If interest groups can’t mention bill numbers in questionnaires, they can still ask about the “concepts” in that bill in detail. There’s no ethical value there, just a fig leaf of performative deception.

Comment by vern Monday, Dec 11, 23 @ 9:51 am
===Bills are just concepts that are written down===

lol

No.

Not when a group is actively pushing or opposing a specific piece of legislation.

Comment by Rich Miller Monday, Dec 11, 23 @ 9:54 am
I’m reading the Sierra Club questionnaire for this year’s legislative candidates. Here’s the first question:

“While CEJA has positioned Illinois toward a 100% clean energy power sector, additional leadership is needed to improve CEJA implementation and strengthen our power grid to bring clean energy projects online faster and reduce peak power demand. Will you support legislation, *such as SB2552*, to improve CEJA implementation and strengthen our power grid and transmission infrastructure with cost-effective, clean energy resources?”

I truly do not understand why it would be more legal or ethical to remove the phrase “such as SB2552″ and replace it with a summary of SB2552.

source: https://docs.google.com/forms/d/e/1FAIpQLSe-wOjc8GvE9ds7UHRMITllqJ_u_In-ijDMhMpsRk-L6YaoUw/viewform

Comment by vern Monday, Dec 11, 23 @ 10:06 am
vern, have you seen what’s going on in the federal building? The G doesn’t do a whole lot of nuance. Better safe than sorry, IMHO.

Comment by Rich Miller Monday, Dec 11, 23 @ 10:11 am
=== vern, have you seen what’s going on in the federal building? ===

Yes, that’s why I pointed out the “of value” distinction. Those prosecutions are happening because government officials were demanding money in specific personal pockets in exchange for government action. If candidate questionnaires refer to no-show jobs or law firm contracts, there’d be a problem.

But if the feds indict every lawmaker who supports SB2552 because it got mentioned in a Sierra Club questionnaire, the first plate of crow is on me.

Comment by vern Monday, Dec 11, 23 @ 10:20 am
= Imagine a lobbyist approaching a legislator and promising that if the member voted for a specific bill, the lobbyist would contribute to their campaign committee. =

The word “Imagine” made me laugh when this first ran. Some of us don’t have to imagine it. We’ve seen it.

Good column.

Comment by Dirty Red Monday, Dec 11, 23 @ 10:23 am
As someone who has for our trade organization, prepared candidate questions for candidates for General Assembly, Gov and AG candidates, I have asked if they supported specific bills.

Those bills concerned increases in payment rates or changes to reporting requirements. We don’t have a PAC but it may be time to change my approach to speaking in “concepts”.

Comment by Give Me A Break Monday, Dec 11, 23 @ 10:37 am
I would not completely dismiss the possibility that someday an overzealous prosecutor might use the scenario Rich lays out in an indictment against a legislator — even if it’s just for the purpose of “piling on” charges. I’m stretching for effect here, but remember Al Capone went to prison for tax evasion, not murder.

I think it would be wise for advocacy groups not to ask about specific pieces of legislation, just to play it safe. Otherwise, they might invite a practice of legislators refusing to answer their questionnaires.

Comment by Telly Monday, Dec 11, 23 @ 10:50 am
===But if the feds indict every lawmaker who supports===

That’s a classic example of taking an argument to the ultimate extreme in order to undermine the argument.

Comment by Rich Miller Monday, Dec 11, 23 @ 10:55 am
As someone who helped legislators and candidates fill out questionnaires like this, I can tell you the level of apprehension among myself and candidates is real.

Not only are they basically asked to answer yes and no on highly complex issues, but also during a time when the feds are closely scrutinizing the line between the two worlds. While outsiders (like some commentators here) may not feel like it’s a big deal, I imagine one phone call from the FBI or a sit down at the Dirksen building may change that.

I hope organizations change their approach as a way to signal to legislators, candidates and even staff that they understand the current reality and want to find a way to appropriately do this.

Otherwise, we may get to a point where no candidate feels comfortable returning questionnaires out of fear of a target being put on their back.

Comment by PolOp Monday, Dec 11, 23 @ 11:06 am
Those who are arguing “nothing to see here” might want to have some in depth conversations with counsel who know and understand the nuances of federal and state law.

You may think that just because these are moral or noble causes that the law shouldn’t be applied the same, but that’s not the case. Federal prosecutors are actively arguing that taking actions to influence a politician can constitute attempted bribery, and if that politician does something to advance legislation based on influence that is a violation of the honest conduct laws.

This questionnaire is designed to box members in and force them to vote a certain way. If the bill comes up for a vote and a member isn’t sure they can or want to vote on it, the group waves the questionnaire in their face as a reminder they said they’d vote on it, giving the impression the endorsement is contingent on the way they vote.

Comment by Thoughts Monday, Dec 11, 23 @ 11:08 am
== But if the feds indict every lawmaker who supports SB2552 because it got mentioned in a Sierra Club questionnaire, the first plate of crow is on me. ==

The worst case scenario is an indictment, but you ignore that the feds can and would have no problem talking to as many legislators as they want to ask why they voted for a bill or the circumstances around the bill. Those conversations are not cheap. They require hiring an attorney and paying for this out of your pocket, unless you want to use campaign funds for the world to see.

Take a look at Bob Rita for example. No one is saying he’s done anything wrong but because he was the sponsor of a bill wrapped up in a case he’s forced to testify and spend who knows how much.

Comment by Thoughts Monday, Dec 11, 23 @ 11:12 am
Something seemingly big is missing in this: First Amendment analysis.

Comment by Google Is Your Friend Monday, Dec 11, 23 @ 12:10 pm
===First Amendment analysis===

People v. Brandstetter addressed that.

Comment by Rich Miller Monday, Dec 11, 23 @ 12:20 pm
The Fed can decipher the law any way they want.

Could private businesses send out these questionnaires?
If they have a PAC could they do it then? They could say they’re doing it as the Comed employees union. If the Sierra Club can ask questions about Nukes and legislator support, couldn’t an employee PAC do the same? At that point is a private business asking for a quid pro quo but through their employees?

Comment by Frida's boss Monday, Dec 11, 23 @ 3:24 pm
I begin with the millions of Illinois voters who rightfully expect and desire accurate, truthful independent information about the policy positions held by candidates for public office. For organizations which are looked to by the public for this information, the answers to candidate questionnaires are a reliable unbiased source for that information. The answers to questionnaires along with past voting records are an objective instrument by which public interest organizations across the political spectrum can reach reliable endorsement decisions upon which the public can count on when deciding which candidates to vote for or against.

In my professional experience with questionnaires for pro-choice organizations, the only candidates who did not return a completed questionnaire were those who were anti-choice and those who attempted to hide their anti-choice positions from a large number of voters. These are not complicated issues unlike the many ways to reach a balanced budget or the best funding mechanisms for public education. Either you believe every person has the right to decide where, when and under what circumstances she will handle a pregnancy, or you don’t. Voters have a right to know the answer to that question. And they certainly have a right not to be lied to which, unfortunately, many candidates and elected officials have no problem doing.

Right-wing candidates are fond of stating that there should be exceptions for rape and incest in an abortion restriction, and then turn around after an election and vote for legislation without those very exceptions. Equally disturbing are those who complete and sign questionnaires to pro-choice organizations (and conduct in-person interviews with said board of directors) saying they agree with a particular pro-choice position and then do not vote for the very bills they have pledged to support both in writing and in person. They know who they are if any of them are reading this. As Maude often said to husband Walter, “God with get you for that.”

In the end, when an organization endorses a candidate, voters have a right to expect that the information was obtained objectively and accurately. When a candidate is dishonest to an organization in a questionnaire response, both the organization and the candidates have lied to voters and that is intolerable, leaving the organization with various future remedies to correct the misinformation that was provided to voters. The use of candidate questionnaires should be encouraged and those who can’t be bothered to complete them or are trying to hide their positions on issues, should not run for public office.

Comment by Cosgrove Monday, Dec 11, 23 @ 8:13 pm