Stronger Pay-to-Play Bill Needed


In spring, 2008, the legislature passed HB824 over Gov. Blagojevich's veto, and subsequently I started to see quotes, columns, and campaign literature by politicians, including some I support, claiming it ended "pay-to-play" in Illinois. For example, my friend Dan Kotowski said that the bill ensures that elected officials are not for sale and Dan Hynes said that "pay-to-play politics will be prohibited in Illinois government."

Whether that was incomplete reading of legislation, or simple political hype, I don't know, but such claims oversold the new law somewhat.

HB824 targeted only one noxious practice: payments by contractors who have or seek business — of more than $50,000 annually — with the state.

When the bill was new, I wrote that HB824 doesn't address "contributions which buy appointments, fill vacancies, or gain favor on bills (such as a zoning variance)." Such trading of money for access, influence, or power is a more insidious and more common species of pay-to-play than blatant money-for-money purchases of state business. "The bill also ignores troublesome third-party payments, such as hiring an official's spouse, or donating to an official's favorite charity."

At risk of indulging in a little "told you so," these formed the essence of the charges we eventually saw that led to the impeachment of the governor. And nothing Gov. Blagojevich did or tried to do in attempting to sell a Senate seat would be illegal under HB824.

I wrote in 2008 that a more comprehensive ban on pay-to-play, in all its variants, would (a) enact reasonable contribution limits, and (b) extend, within constitutional limits, the existing ethics ban on personal gifts to also include the swap of campaign cash for official acts. In fall, 2009, the General Assembly finally passed some modest contribution limits, to take effect in a future election. However, then, as now, both the donor and donee in a transaction that might otherwise be a Class 2 felony are usually protected if the quid pro quo is logged as a political contribution.

A reform law addressing this second aspect would have to be careful to respect legitimate first amendment rights, including those of activist groups, businesspersons, and existing and aspiring governmental employees. Proving intent might often be tough. But Illinois has no shortage of talented constitutional lawyers, and we've passed bills to regulate many less-toxic activities. The only real obstacle is lack of political will.

Looking back at the outrage over Blagojevich it's important to remember that his was not simply a problem of one aberrant personality, even if it is a jaw-dropper. What the governor was caught saying crudely on tape is how many politicians think and act as a matter of course. We have to root out the mentality that has put Illinois atop the list of most corrupt states, tainting decisionmaking on everything from what becomes law to who governs. Fighting pay-to-play in patchwork fashion is not the answer. If we ever want to get rid of "Where's mine?", "One hand washes the other," and "We don't want nobody nobody sent," we have to smack the hand that picks up the tab.

From an essay originally published on Gapers Block, Dec. 10, 2008

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