It was one of the worst bills Robert Schofield, lobbyist for the Illinois affiliate of the American Civil Liberties Union (ACLU), had seen in his five years at the Capitol. The bill became law as the Drug Property Forfeiture Act, and Schofield calls its passage a most frustrating move by the General Assembly. "It was a bill that I think even just an average non-civil libertarian but fair-minded person would agree is a bad idea because it allows police and prosecutors to seize your property and keep it without proving you guilty of anything," says Schofield. The bill allows civil forfeiture, as opposed to criminal forfeiture, meaning the prosecution simply files an action against the property itself based on the allegation that it was used to violate a drug law. Prosecutors can confiscate property without ever charging the owner or proving the commission of a crime. As a result, the individual whose property has been seized has to file an action, hire a lawyer and pay out money to get the property back. "You don't have to be tried. You don't even have to be charged," says Schofield.

The ACLU believes the process set up by the Illinois Drug Property Forfeiture Act (Public Act 86-1382) violates the American theory of "innocent until proven guilty," as well as the Fourth Amendment guarantee against unreasonable searches and seizures and the Fifth Amendment protection against the taking of property without due process of law. As for legal remedies, the burden of proof lies with the individual.

"Yet no one gives a damn," says Schofield. Despite ACLU opposition, the bill (HB 3610) passed both houses and was signed into law by Gov. James R. Thompson in 1990. There were only three or four votes against the bill in each house. "The only fight over it at all was how the revenues from confiscated items would be divided up," he says. "It got virtually no press attention, and I couldn't get anybody too excited about it." Even the ACLU's typical allies seemed to realize they would just be wasting their time by fighting, and they let the bill slip through the process.

Bills that involve drug enforcement and are potentially dangerous to civil liberties pass through the General Assembly with little or no objection, says Schofield, regardless of ACLU opposition. He has seen bills proposed to aid the drug war continually encroach on civil rights. "This whole war on drugs has been a disaster for civil liberties across the nation and in Illinois," he says.

In the Illinois General Assembly and other state legislatures around the nation, civil liberties often hang in a precarious balance. Rights such as freedom of speech, privacy and religion are constantly weighed against the need for equal opportunity, the efforts of law enforcement and the continuing drug war. The balancing act never ceases between protecting society as a whole and protecting civil liberties of individuals, and neither do ACLU efforts to tip the scales toward civil liberties.

Although the ACLU began primarily as a public interest law organization litigating cases before federal courts, its focus is shifting. With the trend to conservatism in federal courts, especially the U.S. Supreme Court, the ACLU has found state constitutions, courts and legislators more willing to uphold civil rights and afford greater protections. In a legal sense, securing rights at the state level is more effective because of the "hierarchy of rights" created by federalism, says Jane Whicher, the ACLU's First Amendment lawyer in Chicago. As she explains, the U.S. Constitution acts as a floor, setting a minimum level for protections required for citizens in all states. There is no maximum limit, however, to the guarantee of rights, which means state lawmakers and state constitutions are free to guarantee greater rights for their citizens. The ACLU is taking advantage of the hierarchy by lobbying state legislators to secure and protect civil liberties.

While many ACLU affiliates are only now forming their state-house lobbies, Illinois has had a full-time lobbyist in Springfield since 1978. Still, the Illinois ACLU lobby is a humble one. Schofield runs a one-man operation working out of a one-room office near the Capitol. Working without great financial backing or an organized membership network to give him clout, Schofield acknowledges that the ACLU lobby lacks the money and political influence that he says drive politics. What it doesn't lack, however, is variety.

In the interest of ACLU policies, Schofield lobbies from one end of the political field to the other, joining forces with conservatives on some issues and liberals or moderates on others. The causes joined by the ACLU range from freedom of information to the right to privacy, from teenage abortion without parental notification to comparable worth, from vouchers for private schooling to protection against eavesdropping on cellular phones without a warrant, from the treatment of juveniles who commit crimes to the rights of drug offenders — and always protection of the due process of law.

As the lone voice of the ACLU in the General Assembly, Schofield maximizes his role in the legislative process by focusing on the facts of each issue. He often serves as an information warehouse for legislators and other lobbyists. He provides them with background information, informs them of the

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Robert Schofield He is: Legislative director for the Illinois Affiliate of the American Civil Liberties Union (ACLU), February 1987 to April 1992. His career: Schofield will be moving on in early April to join the North Carolina Legal Services, which lobbies and litigates on behalf of the poor and disadvantaged. He has a bachelor's degree in history and political science from UCLA and a J.D. from George Washington University Law School, Washington, D.C. Things he'll miss: "I'll miss the clarity and compelling nature of the issues. I feel very strongly about the issues I lobby for with the ACLU. ... I'll also miss the politics of Illinois. The process here is very fascinating. I'll even miss the late nights at the end of session. Illinois state politics is so entertaining. It's politics at its most basic level. It's pure power politics." On what his successor can expect: "The remainder of the decade is going to be a very challenging time for civil liberties. But with reapportionment changing the face of the General Assembly, it will be a good time for a new person to come in. The legislature has been kind of stagnant during my whole tenure; we've had the same leadership and the same members the entire time. Now there's the possibility of new blood and new ideas. And as the trend in civil liberties has been away from the courts and toward the legislatures, the people's liberties are much more at the whim of the majority. ... I can see several possible gains over the next 10 years. I think there's a good chance that affirmative pro-choice legislation will be passed by the end of the decade. Another area of concern that should benefit is AIDS issues." Regrets of ACLU lobby: "I wish we could have developed a more affirmative agenda and passed more bills. But it seems the way to get bills passed is to be an insider, and that would be inherently against our principles. I wish we could have more people in high positions of power to advance civil liberties. I've seen it work in other states where people who are concerned with civil liberties also have positions of power." Accomplishments: "I feel like I've been able to humanize the organization's image. In many people's eyes, the ACLU is a radical leftist organization. But we're really just mainstream Americana, concerned with the Constitution." On defending the rights of unpopular groups: "I don't mind defending any of the groups I've been called to defend. That's just one of the misconceptions about the ACLU: that we're here to defend Nazis, Communists, criminals and drug dealers. We're here defending all of our rights. People don't understand that to the extent any group's rights are limited, all of our rights are limited." Amyllen Bodily

questions involved and supplies supporting arguments for ACLU positions. "Schofield is strong on background material and facts," says Rep. Barbara Flynn Currie (D-26, Chicago). "He acts both as an information network and an alert system."

Schofield values his role as a civil liberties watchdog. "I can lobby more powerful lobbyists with organizations — that might not have noted a bill or been concerned about a bill — to get concerned and perhaps to stop it. We're certainly not a powerhouse, but we do have an important role to play," he says.

The ACLU's Illinois Affiliate boasts more than 15,000 members. It is a group that could wield political influence under the organized phone-network system Schofield hopes to see installed. Illinois is a test-state for ACLU's computerized membership listing system that would make use of the large membership base for lobbying. Under the system, Schofield would notify the Chicago office of proposed legislation, and the office would activate a "phone tree" — alerting members to call their lawmakers to urge a vote for or against the bill. Because each ACLU member is also a legislator's voting constituent, every phone call would carry weight.

Schofield spends the majority of his lobbying energy opposing bills that would threaten civil liberties. He has reviewed thousands of bills for provisions that threaten civil rights. Year after year, he says he finds the same objectionable provisions, particularly anti-choice, censorship of speech or expression, capital punishment and intrusion of privacy. Anti-drug bills also constantly challenge civil liberties, he says.

One new twist Schofield has seen is the recently introduced mandatory "record labeling act," HB 2771. If passed, the bill would punish record store owners for selling "objectionable" recordings unless the recordings have a label warning parents of such themes as advocacy of certain criminal sexual offenses, homicide, ritual mutilation, suicide, hate crimes, the use of a controlled substance or the unlawful use of alcohol. For selling such a recording without a label, first time offenders could spend up to a year in jail and pay a maximum $1,000 fine. Repeat offenders could spend up to three years in jail and pay up to a $10,000 fine. The record labeling bill, says Schofield, is an attempt to copy other states that have similar restrictive legislation.

When he finds a bill like HB 2771, Schofield immediately goes to work. He first gets a copy of the bill, flags the suspect parts and consults with the ACLU's Chicago lawyers to determine the extent of the threat and possible actions. Next, he contacts likely allies among other lobbyists — in this case representatives of the recording industry — as well as legislators. He would likely call the bill's sponsor, at least to determine if the bill is a serious proposal or only an election year publicity ploy. Next, Schofield develops testimony for the legislative committee hearings and then follows the bill through the entire legislative process. He may also suggest amendments that would diminish the bill's negative effect on civil liberities, or he may try to stall or kill the bill before any vote on it.

Traditionally, the ACLU has mainly reacted to proposed legislation, but now it is becoming increasingly pro-active. If a need for greater protection by state law is apparent, Schofield, with help from the Chicago office, drafts legislation on behalf of the ACLU. Protecting cordless and cellular telephones

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from eavesdropping without a warrant is one such instance. Schofield drafted the bill (SB 2166) after the U.S. Supreme Court upheld an Iowa law stipulating that because cordless phones use the airwaves like radios, the police can listen in whenever they choose. With passage of the ACLU-drafted bill (Public Act 86-1206), Illinois police must follow existing procedures to obtain a warrant before eavesdropping on cordless or cellular phones. It was Schofield's responsibility to find a legislative sponsor, search for support, testify in hearings and persuade the opposition to push the bill through.

The growing trend in employment to fire not only people who smoke on the job, but also at home, or who drink at home, or even eat junk food, disturbed the ACLU...

His lobbying schedule is hectic and grows even more frantic during committee hearings, says Schofield. The committees are all meeting at once with important bills in every meeting. "It's like I would need roller skates to go back and forth." And consulting with his Chicago office becomes all but impossible when the pace of amending picks up under pressure of legislative deadlines. "Quite often there'll be 100 bills posted for a four-hour House Judiciary Committee meeting where testimony will consist of five minutes from each side on a bill and that will be it. Things develop so fast," says Schofield, "that half the time I'm lobbying by the seat of my pants." Under that pressure he relies on his legal background and ACLU policy to guide him.

He has learned that yesterday's enemies may be tomorrow's friends. To optimize the ACLU's influence, at times it chooses to align itself with powerful, but unlikely, allies. For example, to prohibit employer discrimination against employees who use lawful substances after hours, Schofield aligned ACLU resources with both the tobacco industry and labor union lobbyists to pass HB 1533 (Public Act 87-0807). The growing trend in employment to fire not only people who smoke on the job, but also at home, or who drink at home, or even eat junk food, disturbed the ACLU, says Schofield. By joining the push for passage of HB 1533, the Right to Privacy in the Workplace Act, the ACLU hoped to lend legitimacy to the bill's right to privacy claims. Schofield was fighting against organized business interests on this one. Ironically, the tobacco industry lobbyist, now an ACLU ally, was a former Illinois lawmaker with whom Schofield said he had seldom particularly agreed.

Although the ACLU lobby may lack political clout, Schofield has worked to build the organization's reputation as the civil liberties expert in the General Assembly. "I've striven to build credibility and a reputation for honesty, and I think I have — at least with the members of the committees I deal with," he says. "I don't play games," says Schofield. "I don't have any leverage to play with, so lawmakers know they can trust me." And at times lawmakers come to him, seeking ACLU support, according to Schofield. "They see it as a nontraditional organization that can lend legitimacy to a movement," he says.

Credibility is key since there are few pro-ACLU legislators, and most lawmakers must be convinced issue by issue. The legal expertise of the ACLU and Schofield's own background as a lawyer provide a base of credibility for his lobbying efforts. Legislators and lobbyists on both sides of the issues trust the ACLU for facts and constitutional advice. Rep. Currie acknowledges that the credibility of a lobbyist depends upon the eye of the beholder, but she says that Schofield comes across as someone who supports the ACLU's views as his own. "He does a first rate job," says Currie. "The information he provides and his stand on civil liberty issues is absolutely credible."

Because different lobbying methods produce different results, the ACLU measures its success in several ways. The least visible side of ACLU triumphs is legislation it helped kill. The ACLU spends an enormous amount of energy opposing bills that die somewhere within the process, from committee assignment to gubernatorial veto. Although it is hard to measure the success of prevention, Schofield says he's had a hand in defeating several potentially dangerous would-be laws. In fact, during Schofield's tenure as ACLU lobbyist in the General Assembly, no new anti-choice legislation has been passed, and the impact of mandatory AIDS testing laws has been minimized.

In other instances, vigorous opposition does not derail a bill. A big ACLU loss was the passage of SB 822, the Use Immunity Act (Public Act 87-0505), a drug war measure effective September 31, 1991. It basically removes the Fifth Amendment guarantee against self-incrimination. For example, a drug dealer would be forced to testify against his co-conspirators and still be subject to prosecution if the state has sufficient independent evidence for conviction.

The ACLU's visible victories include passage of bills it has drafted or supported. The ACLU is responsible for drafting and passing the state's Freedom of Information Act, and its most recent success was the act protecting cellular and cordless phones against eavesdropping without a warrant. The ACLU can also chalk up a success in its support of the act prohibiting discrimination by employers against employee use of tobacco, alcohol or other lawful products off the job.

While Schofield and the ACLU lost in attempts to defeat the Use Immunity Act, they have won other battles to prevent legislation which they view as restricting civil liberties. These may be little-known victories for the ACLU, but they are triumphs for those who would have lost their rights. As Ira Glasser, executive director of the National ACLU, points out, "A right lost for one is lost for all."

For the ACLU, no victory is permanent. Absolute law and order may seem attractive for society, but the ACLU would argue that citizens must not lose their rights and liberties in the state's and nation's pursuit of drug-free streets and efficient law enforcement. Hard won equal access to rights that no longer exist is not much of a prize for future Americans to inherit.

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