According to the Chicago Tribune, Illinois Attorney General Lisa Madigan has petitioned the Illinois Supreme Court to remove Governor Rod Blagojevich from office temporarily so that Lieutenant Governor Patrick Quinn can assume the role of acting Governor. According to her filing to the Supreme Court, one objective is to prevent Blagojevich from using his power to appoint a U.S. senator to replace President-elect Barack Obama, who resigned from the seat as he prepares to enter the White House.
Madigan is using Section 6 from the Illinois constitution.
SECTION 6. GUBERNATORIAL SUCCESSION
(a) In the event of a vacancy, the order of succession to the office of Governor or to the position of Acting Governor shall be the Lieutenant Governor, the elected Attorney General, the elected Secretary of State, and then as provided by law.
(b) If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed.
(c) Whenever the Governor determines that he may be seriously impeded in the exercise of his powers, he shall so notify the Secretary of State and the officer next in line of succession. The latter shall thereafter become Acting Governor with the duties and powers of Governor. When the Governor is prepared to resume office, he shall do so by notifying the Secretary of State and the Acting Governor.
(d) The General Assembly by law shall specify by whom and by what procedures the ability of the Governor to serve or to resume office may be questioned and determined. The Supreme Court shall have original and exclusive jurisdiction to review such a law and any such determination and, in the absence of such a law, shall make the determination under such rules as it may adopt.
Note in paragraph (c), it is the Governor, not the Attorney General, who triggers his replacement because of incapacity. In paragraph (d) the General Assembly is entitled to enact a law to determine if the Governor is able to continue serving. In the final fall-back, the Supreme Court can determine the ability of the Governor to serve under whatever rules it adopts. This seems to me to be a slender legal thread on which Madigan has petitioned the Supreme Court. Moreover, would the Supreme Court take on the role of deciding a Governor’s fitness to serve in the absence of a conviction or even an indictment? I think not.
That leaves the current political issue. Who will appoint the successor to President-elect Obama’s Senate seat? Let’s assume that somehow the Governor is removed or resigns (say, in exchange for immunity from federal prosecution). Then, Lieutenant Governor Patrick Quinn would have the Governor’s power, at least temporarily, to appoint someone to the vacant U.S. Senate seat. One possibility is that Quinn would appoint himself to the vacancy and then Attorney General Lisa Madigan would move up to the Governor’s office by virtue of her being next in the line of succession. This could come about by agreement between Quinn and Madigan.
In economic parlance, this is a mutually beneficial arrangement for both parties. Like in any commercial transaction, all parties to an exchange must benefit, otherwise the deal does not take place. The reader might be observing by now, that this transaction is coming close to the kind of scenario that Governor Blagojevich discussed with his aides. The vacant Senate seat is of “golden” value and will be sought after, regardless of who possesses the right to make the appointment. The governorship is also of considerable value, especially if it comes without the huge costs of a campaign.
Politics hates a vacuum. The economic version of this principle is that resources go to their highest valued use, given small or no transactions costs. In commercial transactions, side payments are often made. Apparently, side payments in politics, especially in cash, is considered in bad form. This might block a perfectly efficient political outcome. But who ever said that politics yields a perfect solution to anything?
An alternative scenario for filling the vacant Senate seat is to impeach and convict Governor Blagojevich and fill the vacancy by a special election. This arrangement would take months to complete and would cost millions in campaign expenditures. Moreover, a Republican might win the special election. That would be a completely unacceptable to the principals who are all Democrats. Talk about transactions costs, that would be a whopper.
Ah, let the political games begin.
Jim Johnston ([email protected]) is a policy advisor to The Heartland Institute.