How serious is the political crisis in Illinois? Each day brings new word that the emergency is intensifying; the latest came Friday, when Illinois attorney general Lisa Madigan asked the state supreme court to declare Gov. Rod Blagojevich incapable of governing, arguing that the scandal surrounding Blagojevich amounts to a disability that prevents him from serving as governor. At a news conference in Chicago, Madigan also suggested that Blagojevich’s legal troubles are plunging the state into financial crisis, making the governor’s removal an even more urgent priority.
There’s no doubt the problems in Illinois are serious. But a closer look at events suggests that some key state officials, all of them close allies of Barack Obama, are actively fostering a sense of crisis and, in the case of Madigan, actually taking steps to make the crisis worse — while citing the worsening crisis as the reason Blagojevich must go immediately.
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In calling for the Court to remove Blagojevich, Madigan pointed to a section of the Illinois constitution which says the legislature “shall specify by whom and by what procedures the ability of the governor to serve or to resume office may be questioned and determined.” Madigan also cited a state supreme-court rule that laid out the procedure for such cases and argued that Blagojevich’s current situation amounts to a “disability” that justifies stripping him of his powers.
But the constitutional provision cited by Madigan was written to deal with a governor who suffered a physical or mental disability — not a political one. “There is a history of the word ‘disability,’” says Ann Lousin, a professor at Chicago’s John Marshall Law School who was a researcher at the Illinois constitutional convention when the provision was written nearly 40 years ago. As Lousin recalls, the lawmakers were mindful of the case of Henry Horner, the Illinois governor who in 1938 suffered a massive stroke but did not leave office. (Horner died in 1940, just before his term would have ended.) “The people who were at the constitutional convention…were people who remembered Horner, they knew the situation, and they wanted to put something in,” Lousin tells me. “It was absolutely physical and mental disabilities.”
Given that, the Illinois supreme court might well reject Madigan’s argument. But if it were to agree with Madigan that political and legal “disabilities” are grounds for removal, the Court would then have to come up with a definition for such “disabilities” — and then investigate whether Blagojevich’s circumstances fit the criteria for removal. That is a turn of events few experts want to see. “Would the court have to investigate the facts to determine whether the governor is disabled or not?” asks Ronald Allen, a law professor at Northwestern University. “Absolutely, and that is what I do not want to see happen — an investigation of some ambiguous charge to see whether a politician is able to hold office.” (Allen tells me he favors Madigan’s fallback plan, which was to ask the court, if it declined to declare Blagojevich disabled, to simply issue an order forbidding the governor from performing some executive functions.)
Beyond stretching the definition of “disability,” Madigan also claims that her task is especially urgent because Blagojevich’s problems are leading Illinois toward financial disaster. She gave her reasoning at the Friday news conference, when a reporter asked her to explain how state business “is not being accomplished because of the governor’s situation.”
“I’m going to give you one example,” Madigan answered. “Short-term borrowing — as you are aware, the state of Illinois is behind in paying its bills, in particular to Medicaid providers. I believe we have a backlog of at least a billion dollars in bills. In order to make those payments, there was short-term borrowing that was scheduled in the very near future. At this point, we — they have postponed that. And it may be very difficult to move forward on short-term borrowing.”
And just why is that? Madigan went on: “Because as part of the process, as the attorney general, I play a number of roles. One is to essentially review and say that the short-term borrowing is legal, but another portion of that requires me to sign a certificate certifying that I am not aware of any proceeding or threatened litigation challenging the authority of the governor to hold his office. And so I at this point would not necessarily be able to sign that.”
With that, Madigan argued that Blagojevich’s problems have led the state to fiscal crisis because it desperately needs to borrow money but cannot do so because it cannot get the signature of . . . Lisa Madigan. And that is because Lisa Madigan is engaged in litigation challenging the authority of the governor to hold his office.
