CHARLES R. BERNARDINI contends that:
A member of the board of directors of
Project LEAP (Legal Elections in all
Precincts), and chairman of the
Election Law Reform Committee of the
Chicago Council of Lawyers, he is counsel
to the Medical Specialties and Science
Specialties Groups of American Hospital
Supply Corporation. His views presented
here do not necessarily reflect the
views of those organizations.
Major revamping f statutes needed to give board independence from politics
DURING THE Constitutional Convention debates over whether to delete
any reference to the State Board of
Elections in the new Constitution,
Delegate Robert L. Butler of Marion
presented the following argument in
support of the board: "I have long felt
that Babe Ruth wouldn't have set any
home run records if he hadn't taken the
bat and gone to the plate and swung it —
I think if we don't defeat the motion to
delete, we will be doing the same thing as
taking the bat out of Babe Ruth's
hands."
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In retrospect, one wonders if Delegate
Butler was aware that the Babe also set
records for strikeouts as well as for
home runs. If he knew, he kept it to
himself so as not to needlessly discourage the other delegates. In any event, the
board has since not only struck out, but
has even been accused of "throwing" a
number of games and has been suspended from action until new managers
can be selected and new ground rules
established. This article outlines the
statutory changes which I feel are
necessary if the board is to break out of
its prolonged slump and avoid having its
constitutional franchise permanently
lifted. (Proposals are in italics followed
by explanation and comment.)
1. The board should be comprised of
five members, knowledgeable in election laws and procedures, appointed by
the governor for five-year staggered
terms, subject to the advice and consent
of the Senate. One member, who would
serve as chairman, should not have held
office in, or been a candidate in the
primary of or the nominee for elective
office of, any political party during the
preceding five years, and should be a
person unaffiliated with either of the
two major political parties.
Of the statutory changes needed,
none is more important than the prescription of an odd-numbered board. The General Assembly and the governor
must decide whether they want the
board to have a realistic chance to carry
out its powers and duties, or whether
they want a situation in which deadlocks
— and the consequent political compromise preserving the status quo — can
be expected. As long as one political
party, in effect, has a veto power over
any significant action, who really
believes significant action will ever be
taken affecting that political party's
interests? Public pressure to resolve
deadlocks or to motivate action by the
board simply has not been effective in
the past, and there is no reason to
believe it would in the future. A recent
Illinois Legislative Council study of 13
states having independent statewide
election boards with substantive powers
indicated that only New York, Rhode
Island and Illinois have an even number
of voting members.
A fifth member, unaffiliated with
either major party, would have prevented the spectacle, of the board being
unable to agree for a month this past
summer on who its new chairman would
be. A fifth independent member would
also have prevented the arbitrary
decision on the major governmental
question of how elections for judicial
vacancies would be structured in early
1974; or in what situations political
committees would have to report contributions and expenditures, as occurred
in September of 1974.
A sizable and growing body of Illinois
voters do not consider themselves
affiliated with either of the major
parties, as evidenced by public opinion
polls and primary turnouts. A case, both
moral and legal, could be made that to
deny participation on the board to this
body of voters is unfair.
The proposal advanced here would
allow members of the Senate, in their
confirmation role, to view an individual's entire background, not merely the
less-than-crucial fact of whether he or
she voted or did not vote in one or two
political parties' primaries in the past x
number of years. They could determine
whether such a person was truly "unaffiliated," or "independent," by taking
into account voting records, political
activities and any other factors they
deem relevant.
2. The hiring of technical consultants,
other than as full-time agency employees under the Personnel Code, should be
prohibited, except as necessary for
actual litigation or as hearing examiners.
The consulting contract abuses have
been well documented. Among them: a
$49,000 contract to a Chicago public
relations firm to help the board's public
information officer write news releases; well over $100,000 paid to the firm of the
late Charles Barr, Republican state
central committeeman, to perform
"advisory, supervisory and lobbying"
duties; over $35,000 paid to Andrew
Raucci, controversial attorney long
associated with Democratic "machine"
politicians, for research and advice; fees
paid to Cook County Clerk Stanley
Kusper, Michael Lavelle's political
sponsor and former boss, from the
entity supposedly supervising his office.
No compelling reason exists for the
board, which should be able to draw at
no charge on the expertise of 102 county clerks, the Illinois Election Laws Commission
Continued at bottom of page 16.
March 1977 / Illinois Issues / 15
Bernardini says
set per diem salaries for
board members and limit
their political activity to
voting in elections. Open
board hearings and give
subpoena powers to board.
Put board employees under
Personnel Code and
prohibit the hiring
of consultants
mission and approximately 100 employees, not to mention board members who
are supposed to be knowledgeable in
election laws and procedures, to hire
outside consultants — especially public
or party officials — except where
necessary in actual litigation matters or
as hearing examiners.
3. The salary of board members
should be set at $200 per diem up to a
maximum of $22,000 per year.
The present salaries of $25,000 per
year for the chairman and $22,500
per year for the other members — all
part-time positions — tend to insure
that the positions are given only to party
professionals as rewards and incentives
for faithful service. Only New York pays
its state election board members more,
and most states pay either modest per
diems or merely travel expenses. If paid
on a per diem basis, board members
would be more likely to leave the day-to-day operations to the executive director,
a situation which hopefully would result
in less internal politics and more
professionalism.
4. Members should be prohibited
from engaging in any partisan political
activity during their tenure, except to
vote at elections.
The present statute includes this
prohibition for board employees, but
not for members. As recognized by the
Illinois Supreme Court, the first loyalty
of board members should be to the
citizens of the state, not to a political
party. They should not be amenable to
political influence or discipline in the
discharge of their official duties.
5. All board hearings should be open
to the public. In the alternative, the
burden of proof required of complainants in closed hearings should be
statutorily established at a reasonable
level.
The present statute allows closed
preliminary hearings on complaints of
campaign disclosure violations. The
board has interpreted this statute in
such a fashion that individuals with
complaints must actually prove their
case in detail at the closed hearing,
without subpoena or discovery powers.
Only then will such individuals be
allowed to present their facts at a public
hearing where those tools are available.
The rationale offered by board member
Franklin Lunding for this heavy preliminary burden of proof is that part of the
board's job is to screen out irresponsible
complaints, so a party's enemies cannot
disrupt it by bringing endless random
charges. The difficulty with this viewpoint is that it can and does effectively.
preclude investigation and public airing
of embarrassing charges against political organizations (for example, the
decision in 1975 that the Democratic
Party of Chicago and of Cook County
are not political committees).
6. The board should have subpoena
power to conduct investigations within
the entire scope of its responsibility,
16 / March 1977 / Illinois Issues
not solely with regard to the Campaign
Disclosure Act, as is now the case.
7. The board should be statutorily
required to appoint an executive director to administer its daily operations.
A full-time executive director, required by law to answer to all members
equally, could encourage a less politically-oriented operation and would
keep members out of hiring and other
operational processes.
8. The employees of the board should
be returned to the jurisdiction of the
state Personnel Code.
As reported by The State Journal - Register: ". . . the board, which was
meant to do an objective and professional job of supervising elections
throughout the state, has turned its own
agency into a veritable political jungle
.... Employees are hired on a patronage basis, with the four members of the
board dividing the patronage among
themselves and keeping lists to make
sure that each gets his share."
The board set up its own merit system
(designed by an outside consultant) in
the summer of 1976. A return to the
state Personnel Code, however, would
be a step toward permanently establishing a degree of professionalism on
the board.
As Alan Gratch and Virginia Ubik
point out in their study,* "A forthright
and aggressive state board of elections
could do much to open the election
process and establish consistent and
uniform practices throughout the state.
It could neutralize the election machinery so that it does not work to the ad vantage or disadvantage of any particular
group or political party." In many
important respects, the board has not
lived up to its responsibilities or to the
hopes of its original proponents.
Whether the legislature will live up to
its responsibility — this third time
around — to provide the necessary
statutory surgery and whether the new
governor will have the political courage
to appoint the caliber of people who
will provide the necessary postoperative
care, will soon be determined.
*Alan S. Gratch and Virginia H. Ubik, Ballots
for Change: New Suffrage and Amending Articles for Illinois (Urbana: published for the Institute of
Government and Public Affairs by the University
of Illinois Press, 1973).