SPECIAL STAFF REPORT
After 5 years, Constitution has both friends and foes
Home rule provisions, the amendatory veto, 8:5 income tax ratio, personal property tax, single-member districts, selection of judges—these are the topics that drew the most attention in a survey by Illinois Issues
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AS DECEMBER 15, 1975, the fifth anniversary of the popular ratification of
the new Illinois Constitution approaches, a cross-section of informed
Illinois citizens have expressed approval
of major features of the new charter,
but this general approval is accompanied by identification of several alleged defects. In addition, many who
responded to a survey thought constitutional amendments were needed.
The home rule provisions of Article
VII, the local government article, drew
the most favorable mentions as well as
some of the most adverse criticisms. Article IX, revenue, was also the subject of
considerable pro and con comment. In
addition, two controversial topics which
failed when presented as separate
propositions five years ago with the
Constitution—single-member representative districts and appointment
of judges—surfaced again in recommendations for change. Likewise the
governor's amendatory veto—the subject of a proposed constitutional amendment that failed in 1974—stirred comment favorable and adverse. Illinois Issues sent a brief questionnaire in early August to a group which
included elected state officials,
Constitutional Convention delegates
and staff, legislative leaders and
chairmen, and officers or spokesmen of
civic and other organizations. One hundred and thirty-three questionnaires
were mailed out and replies were received from 40 persons (about 30 per
cent). The questionnaire asked: |
The new basic law was drafted by a
convention which met in Springfield from December 8, 1969, to September 3, 1970. The Constitution became generally effective July 1, 1971, after voter ratification in a special election on December 15, 1970. A total of 2,017,717 ballots were cast in the election. The ballot also included four separate propositions (see Table 1)—single member House districts, appointment of judges, abolition of the death penalty, and lowering the voter age to 18.None of these separate questions passed. A United States Supreme Court decision in 1972 so sharply restricted use of the death penalty that many considered it had been abolished, although legislatures have since sought to conform to the court's guidelines in restoring the death penalty in limited circumstances. The voting age was lowered to 18 in 1971 by ratification of the 26th amendment to the federal Constitution. But single-member districts and the selection of judges remain live issues in Illinois, as the survey shows.
Wide range of opinion
On the other hand. Rep. Dwight P. Friedrich (R., Centralia), a Con Con delegate, wrote, "At this point I believe the new Constitution is considerably inferior to the old one." And Rep. Romie J. Palmer (R., Blue Island), minority spokesman on House Judiciary II Committee, said he thought the parts of the Constitution which were working out best were "probably those parts reenacted from the 1870 Constitution because of settled meanings."
December 1975 / Illinois Issues / 355
Home rule offers flexibility, creativity says a legislator, but a labor spokesman says it sets up two law-making authorities
Table 2
Bill of rights: Prohibits discrimination in jobs and housing based on sex or race. Equal rights for women. Prohibits discrimination against the handicapped. Permits freedom from unreasonable eavesdropping.
Legislative: Legislature can override vetoes by a three-fifths vote. Governor given reduction and amendatory vetoes. Annual sessions.
Executive: Executive agencies may be reorganized by governor. Elections in nonpresidential years, starting in 1978. Joint election of governor and lieutenant governor. Comptroller replaces auditor.
Judicial: Judicial Inquiry Board created. Two or
more counties may share one state's attorney.Elections: State Board of Elections provided.
Education: State given primary responsibility for financing education. State Board of Education provided for; Board to appoint chief education officer.
Revenue: Classification of property in larger counties allowed. Corporate income taxes and individual income taxes to be in ratio of 8:5. Legislature to abolish personal property tax by 1979 and provide replacement. Permits certain tax exemptions. Debt restrictions eased.
Finance: New article providing for executive budget, auditor general selected by legislature, and uniform accounting system.
Local government: Home rule provisions for some counties and municipalities. Sheriffs and treasurers may succeed themselves. Enables intergovernmental cooperation. Permits area taxes for special services.
Constitutional revision: Reduces legislative vote and popular approval vote needed to three-fifths. Same for legislative vote on amendments to United States Constitution; also requires general election before legislature can consider such amendments. Provides for popular initiative in certain legislative article changes.
Additions: Environmental article. Economic interest statement for certain officials required. Allows state aid for transportation. Protects public employee pension rights.
Source: Adapted from Samuel K. Gove and
Thomas R. Kitsos, Revision Success: The Sixth
Illinois Constitutional Convention (National
Municipal League, New York, 1974), pages 114--116.
"Members of the Illinois General
Assembly continue to attack the work
product of the Constitutional Convention," wrote Rep. Thomas H. Miller
(R., South Holland), who was a
delegate to the convention. "However, I
see no evidence to indicate damage to
any Illinois citizen because of its
passage." But the speaker of the House,
William A. Redmond (D., Bensenville),
is pessimistic. "I am afraid the 1970
Constitution may result in unbridled
taxation and expenditure at all
governmental levels," he wrote. Two Constitutions compared Local government and home rule More than a third of the survey respondents named the home rule provision as the part of the new charter that is working out best. Examples of comments are:
Rep. Virginia B. Macdonald (R., Mount Prospect), former delegate: Donna Schiller, state president, League of Women Voters, Chicago: Rep. Gerald W. Shea (D., Berwyn),
majority leader of the House: "The
home rule section takes the burden of
local problems off the legislature, and it
has not been abused as critics said it
would." But some take the opposite view with
respect to home rule. Examples: Rep. Romie J. Palmer (R., Blue
Island): "I question the long-term effect
of the home rule section. The Con Con
delegates could have set up the conditions for a state within a state." Lawrence E. Reinold, Illinois
Association of Federal, State, County
and Municipal Employees, Springfield: "Home rule puts any organization that
has statewide programs in a dilemma of
not knowing how to achieve goals in
each home rule unit .... This constitutional provision affects almost
every piece of legislation submitted in
the General Assembly. Practically
every bill must be amended to read,
'Home rule units are not subject to this
act.' This procedure is causing a split in
authority. One authority is the General
Assembly and covers the smaller communities, and the second authority is
the home rule units." One respondent took a wait-and-see attitude: 356 / Illinois Issues / December 1975
Inevitably the new Constitution is
compared to its predecessor, a charter
drafted soon after the close of the Civil
War which served Illinois for a century.
But in its major structural aspects, the
new Constitution does not differ
markedly from the older document. The
membership of the Senate was increased by one. One executive officer,
the chief education officer, was made
appointive rather than elective, and the
title of another was changed (auditor to
comptroller). Provision was made for a
legislative postauditor. Nevertheless,
many changes were made, as shown in
Table 2, based on a recent study of the
convention.
Article VII, the local government article of the new Constitution is new; the
previous Constitution had an article
dealing with counties which mentioned
townships but did not deal with other
forms of local government. Article VII
provides for "home rule" for counties
which have an elected chief executive
(thus far only Cook County qualifies)
and municipalities with a population
of more than 25,000, as welt as municipalities which may elect by referendum to become home rule units. The
article provides considerable flexibility
in the structure of county governments; provides for the formation, consolidation, or dissolution of townships by
referendum; permits additional taxes
for special services in a selected area
of a county or municipality; and permits intergovernmental cooperation.
David Kenney, Southern Illinois University, Carbondale, former delegate: "Home rule is the most significant part. It offers local governments much opportunity to solve their problems."
Robert E. Cook, Illinois Association
of Realtors, Springfield: "If home rule
is carried to the extremes that some city
spokesmen have proposed, there won't
be enough of the state left for the
legislators to bother governing."
Rep. Harold A. Katz (D., Glencoe),
chairman, House Judiciary II Committee: "We ought to evaluate particularly carefully in the years ahead the
operation of the home rule amendments
and the provisions relating to the incurring of debt by the state and by
government units. I do have some concern over their long-run effects."
One respondent supported the local government article's purpose but was critical of its language:
Other parts of the local government article singled out for favorable mention were provisions for intergovernmental cooperation, special area services, and permitting county treasurers and sheriffs to succeed themselves in office. For example:
Jay Smith, Urban Counties Council, Chicago: "The intergovernmental cooperation and special services areas provisions offer a broad opportunity for innovative arrangements whose impact has not yet been felt."
Clayton C. Harbeck, Illinois Sheriffs' Association, Oglesby, endorses provisions "pertaining to county government, especially with reference to succession of sheriffs and treasurers."
Revenue article
Two features of the revenue article continue to be controversial: the 8 to 5 ratio between the corporation income tax and the personal income tax, and the abolition of the personal property tax. At the 8 to 5 constitutional income tax ratio, the corporation income tax is set at 4 per cent, and the personal income tax at 2½ per cent. The tax on corporations cannot be increased without increasing the tax on persons, for example, since this would change the ratio. Nor for that matter, can either tax be lowered without lowering the other tax.
Personal property taxes applicable to individuals were abolished by an amendment to the old Constitution adopted in its waning hours in November, 1970. The new Constitution retains this abolition but further provides for abolition of all remaining personal property taxes— primarily, taxes on corporate property — on or before January 1, 1979. The lost revenue is to be replaced by a non-property tax on those relieved of the burden of the personal property tax.
Examples of comments on the revenue article:
Lester W. Brann, Jr., Illinois State Chamber of Commerce, Chicago: "The revenue article, and related financial provisions, seem to be working out best. The drafters' careful balancing of the limitations in the article... give realistic assurances on maintaining economic balance in Illinois. This balance translates into jobs, continued economic growth, and a realistic method of keeping taxes in check, everyone's taxes." Maurice W. Scott, Taxpayers Federation of Illinois, Springfield, a former delegate, took the position that the "revenue article is working well in that it makes it possible for many of Illinois' taxes to be more equitable when implemented by the General Assembly." But, Scott considered the personal property tax replacement provision deficient "because the intent is spelled out in weak language." Rep. William D. Walsh (R., Elmwood Park), assistant minority leader of the House: "In my opinion the revenue article is working well. There seems to be little doubt as to its meaning. But others disagree. For example: Rubin G. Cohn, University of Illinois College of Law who served on the staff of Con Con: "Article IX prohibitions against graduated income tax and the 8-5 maximum ratio of corporate to individual income taxes . . . impose serious obstacles to a sound and equitable state revenue policy and have no place in the Constitution." Jeannette Mullen, Barrington Hills, former delegate: "The provisions on replacement of the personal property tax are pretty ridiculous and may make it a practical impossibility to remove that tax—all of which was apparent when the amendments [to the original draft] were attached." Joseph T. Meek, Western Springs, also a former delegate, likewise cites as an example of a deficiency "the ambiguities in ad valorem [personal property tax] replacement source problem, as amended by the delegates during the final days of the convention."State debt The old Constitution required a referendum before money could be borrowed against the state's credit; the new Constitution permits borrowing |
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December 1975 / Illinois Issues / 357
Recommendations for change include two proposals that failed: single-member legislative districts and
'judicial merit selection'
without referendum if authorized by a
three-fifths vote of members elected to
each house. Comments were both
favorable and adverse: House Speaker William A. Redmond, Bensenville: "The removal of the
bonding limitation and too lenient
provisions for issuing new bonds may be
a disaster." Legislative article Ms. Lousin: "The deletion of procedural constitutional restrictions
on passing bills, such as the three readings at large rule" was an advance.
"Nobody heeded these restrictions
anymore and their nonobservance in the
last 50 years created only disrespect for
all constitutional provisions." Paul E. Mathias, Bloomington,
former delegate, favored the reduction
and amendatory vetoes because they
"permit the governor to reduce or veto
appropriation items without vetoing the
entire bill [so that he] can eliminate
'pet' projects, control state expenditures, balance budget against an irresponsible legislature." John D. Wenum, Illinois Wesleyan
University, Bloomington, former
delegate: "The amendatory and reduction vetoes have given new vitality to
state policy-making, despite the continuing debate over the extent of the
governor's powers under these
provisions. This is of major import in a
state where the legislature is subject to
(and surprisingly responsive to)
pressures from narrow-based interest groups." One respondent was generally critical
of the legislature: Others criticized the amendatory veto
provision: Rep. Macdonald: "I feel the governor's amendatory veto has been consistently abused and after the test of five years a change is needed." Sen. Frank M. Ozinga (R.,
Evergreen Park), chairman, Legislative
Council: "The governor has assumed a
dimension of power through the use of
various vetoes that was not intended to
be given." Election of representatives David Davis, Bloomington, former
delegate: Noted as deficient the "size
and selection of legislature." Elbert Smith, Decatur, former
delegate and Con Con vice president: "Amend to provide for election of state
representatives from single member districts. Eliminate cumulative voting for
state representatives." Annual legislative sessions Sen. Donnewald: "An amendment to
restrict one year of a legislative session
to consideration of only revenue and appropriation bills should be submitted to Illinois voters." Sen. Phillip J. Rock (D., Chicago),
and assistant majority leader of the
Senate, favors "restricting even-numbered year session of General Assembly
to revenue and appropriation consideration only." W. Paul Neal, Jr., Illinois State
Chamber of Commerce, Chicago,
favors amendment to "restrict the consideration of legislation in odd numbered years to appropriations, revenue and governor's veto action which would still allow emergency general legislation to be considered through special session calls of either the legislative leaders or the governor." Effective date of laws Ms. Lousin: "It serves only to
prolong sessions beyond June 30, not to
terminate them, as was intended. Now a
faction of 40 per cent or more can seek
to delay passage of a bill on June 30, so
that it is in a better bargaining position on July 1, when the three-fifths requirement goes into effect." 358 / Illinois Issues / December 1975
Ann Lousin, John Marshall Law
School, Chicago, member of Con Con
staff and former House parliamentarian: "The three-fifths vote requirement is an adequate safeguard against
bonding to finance special or regional
interests at the expense of the whole
state. This is superior to the old
$250,000 debt limit which provided
the impetus for 'quasi-public' agencies
which incurred debt and were not responsible to the public."
Probably the most controversial additions in the new legislative article. Article IV, have to do with the governor's veto powers. In addition to the full veto
of a bill and the veto of appropriation
items (which were in the 1870 Constitution) the new Constitution added the
reduction veto and the amendatory
veto. The reduction veto can be used to
reduce the amount of an appropriation
item. The amendatory veto can be used
by the governor to return a bill to the
legislature with his recommendations
for change. It takes a three-fifths vote
of the members elected to each house to
override a full veto or item veto or to
pass a bill over an amendatory veto, but
a majority vote of members elected to
each house will suffice to restore a
reduced appropriation to the original
amount or to accept the recommendations for change in an amendatory
veto. Some favorable comments on the
legislative article were:
Richard Murphy, Urbana, convention parliamentarian: "The quality of
the General Assembly hasn't much improved—the same Chicago-downstate
squabbles, the mad rush on bills at the
end, and failure of the governor and
assemblymen to cooperate."
Sen. James H. Donnewald (D.,
Breese), a Senate assistant majority
leader: "The authority ... for the
governor to issue amendatory vetoes is
not clear enough .... There is a real
question as to whether the framers
meant the amendatory veto to serve just
to correct technical errors, or whether it
allows extensive rewriting of legislation,
as our last two governors have argued."
The system of cumulative voting for the election of representatives was also
the subject of adverse comment and
proposals for constitutional change.
Under this system, three representatives
are elected in each district, and the
voter has three votes which he can distribute among candidates as he sees fit.
Critics of the system prefer single-member districts (the proposition which
was submitted separately along with the
Constitution but which failed of adoption) and some would at the same time
reduce the size of the House. Some
comments were:
Some respondents opposed unlimited
annual legislative sessions:
One respondent was critical of the provision which requires a three-fifths
vote of members elected to each house if
legislation passed after July 1 is to become effective prior to July 1 of the
following calendar year.
Bill of rights, finance, education articles receive praise; Common
Cause officer critical of state Board of Elections
Judicial article Lawrence X. Pusateri, president,
Illinois State Bar Association: "The
judicial article is seriously deficient in
failing to provide for merit selection of
judges on a nonpartisan appointive basis." William L. Fay, Jacksonville, chairman of Con Con judiciary committee: "We still have a need for merit selection of judges . . . ." This proposal was one which failed of
adoption when separately submitted in
1970 (see Table 1). The Judicial Inquiry Board, an innovation for Illinois, was commended; the board, composed of two judges, three lawyers, and four laymen, can initiate complaints concerning the conduct of judges and file complaints with the Courts Commission, a disciplinary body. For example: Rep. Anne Wilier (D., LaGrange),
former delegate: "I served on the board
for three years and saw a vast improvement in this area compared to the old system." Mr. Wenum: "The board has brought
checks to bear upon members of the
court system which were long overdue.
No longer can arrogant, incompetent
and unethical judges act against the
interests of justice and the public with
inpunity. Although the number of such
judges is, fortunately, small, more of
them have felt the pressures of investigation and censure in the last four years than in the previous 50." Bill of rights Attorney General Scott: "... Important areas of the new Constitution include the bill of rights, including the prohibitions against discrimination in employment and housing and discrimination toward the handicapped." Elmer Gertz, Chicago, former delegate: "It is arousing no controversy. It has been implemented by legislation and more legislation will be enacted. Court decisions and attorney general opinions have been helpful." Elections David F. Ellsworth, Common
Cause / Illinois, Springfield: "By leaving the responsibility to the General
Assembly for determining the size,
manner of selection and compensation
of the Board, party politics were allowed to play a great part in determining the future of what was intended to be a reform provision of the new Constitution." Education Gerald L. Sbarboro, chief clerk of the convention: "This has fostered state
legislative action which has led to
greater state funding of education—
which will have great long-range benefits to our children." Amending the U.S. Constitution Ms. Virginia L. Holcomb, American
Association of University Women,
Springfield: "A constitutional majority
(half plus one) would be sufficient considering the two-thirds requirement for
both houses of Congress and the required ratification of three-fourths of
the states." (Note: Ratification of the
Equal Rights Amendment by Illinois
has been blocked in the Senate because
of a three-fifths requirement.) Other provisions Amendments proposed Attorney General Scott: "I see no
need for amendments at this time." Mr. Meek: "I think we should leave
the 1970 document alone for yet
awhile." The amendments suggested were in
line with the adverse comments described above. The leading topics concerned single-member representative districts with an end to cumulative voting and appointment of judges ("merit
selection"). Additional amendment proposals
were: Spell out specific duties for the
lieutenant governor (Maurice W.
Scott). Eliminate the requirement for
recording and transcribing legislative
debates (Speaker Redmond). Clear up
an ambiguity in the language concerning a balanced budget which requires
the governor to strike a balance
between spending and estimated funds
and the legislature to strike a balance
between appropriations and estimated
funds. (Mr. Brann). Give home rule units unrestricted power to incur debt up
to a designated ceiling and require a
referendum of the voters to authorize
any debt above that ceiling (Maurice
W. Scott). Make a county with a county
manager form of government eligible
for home rule powers (Mr. Wenum).
Allow counties to make a service charge
for tax administrative services and
facilitate the consolidation and abolition of special districts (Jay Smith).
Define the lines of authority between
the governor and attorney general in
regard to acting on behalf of the state in
legal actions (Ozinga). December 1975 / Illinois Issues / 359
Several respondents favor the appointment of judges by the governor
from names submitted by judicial
nominating committees, a reform
referred to by its advocates as "merit
selection" of judges. For example:
The merits of the new bill of rights,
Article I, were noted by the attorney
general and by a lawyer who served as
chairman of the convention committee on this topic:
Some unfavorable comment was
directed at the State Board of Elections,
provided for in the suffrage and election article, Article III:
New is the assertion in the education article (Article X) that the state has
"primary responsibility for financing
the system of public education." This
drew particular mention from a
member of the Chicago Board of Education:
Amending the federal Constitution
now requires (under Article XIV) the
affirmative vote of three-fifths of the
members elected to each house. This has been criticized.
Other provisions mentioned favorably were fiscal controls (the new office
of comptroller and the Finance Article),
the requirement on certain public officers for filing a verified statement of
their economic interests, and the assertion that public transportation is an
"essential public purpose for which
public funds may be expended."
While many respondents suggested constitutional amendments to cure
defects they perceived, others were
silent on this possibility or opposed
change at this time. Examples of the latter: