Citizens of Illinois, I believe, should measure the product of our efforts by these tests: Is the Constitution of 1970 superior to the Constitution of 1870? Is the Constitution of 1970 relevant to the problems of our state at this time? By either test, I submit, the 1970 Constitution possesses a more efficient and economical governmental structure, while strengthening at the same time our commitment to the human needs of our people… the 1970 Constitution talks to a human purpose and a human society. And unlike the 1870 Constitution, our new constitution, balanced and practical, holds out hope to the people of Illinois that their government can, indeed, be responsive to their needs and their problems in this twentieth century. Samuel W. Witwer, president, Sixth Illinois Constitutional Convention.
How well have the efforts of Samuel Witwer and his 117 fellow delegates met the tests he laid out in the convention’s closing moments in the half century that’s passed since the convention’s final adjournment?
The question is especially timely now, as the citizens he cited ratified the delegates’ work 50 years ago this month, on December 15, 1970.
While hardly an unbiased observer—covering Con-Con was this writer’s first major assignment as a fledgling reporter for the Chicago Sun-Times—I believe the document has fared well, albeit with a handful of needed tweaks and a couple still pending.
Clearly, the 1970 Constitution provides “a more efficient and economical government structure” than its century-old predecessor. For example, consider these improvements clarifying the separation of powers among the state’s three branches:
• The lieutenant governor no longer is the presiding officer of the Illinois Senate, as the 1870 document established.
• Legislators meet in annual sessions, rather than for six months in odd-numbered years, as was the case under the old charter. Moreover, the Senate president and the House Speaker may call special sessions, a power previously reserved for the governor.
• The document makes clear the governor proposes and the Legislature adopts a budget, and gives the governor new powers to rewrite legislation or reduce appropriation bills, subject to legislative override. In addition, spending bills can’t contain policy language, a change meant to preclude the U.S. Congress’ bad habit of tacking unrelated issues onto budget bills,
•¨ The Legislature chooses an auditor general to review the fiscal operations and policies of all state government, giving lawmakers oversight of their budget and policy decisions, in place of the former popularly-elected auditor of public accounts. Further, the 1970 constitution created the office of comptroller to keep the state’s books and write the checks, in tandem with the treasurer, who’s responsible for the safe-keeping and investment of the state’s receipts. In the past, the duties had been combined in a single office, permitting Orville Hodge to embezzle more than $6 million in the 1950s.
• With three-fifths approval in both chambers, the state can sell bonds for public works projects; under the 1870 document, voter approval was needed to borrow more than $250,000, leading past governors and lawmakers to create fictitious “private” entities to do the borrowing, at higher interest costs. In a similar vein, delegates established “home rule,” giving cities with population greater than 25,000-- and any others whose voters requested it-- considerable leeway in managing their own internal affairs, including broad borrowing power. The 1870 charter’s much tighter debt limits helped spur the expansion of special taxing districts when counties and cities couldn’t sell bonds to finance much-needed services like fire protection, libraries, or park districts; Illinois still has more limited-purpose units than any other state.
The foregoing is not exhaustive, of course; many other examples of efficiency and economy in government structure can be found in the 1970 charter, although one should note that not all the relevant opportunities have been seized over the last five decades.
Witwer’s second test— does the new document “strengthen… at the same time our commitment to the human needs of our people”—may be harder to evaluate, given the social and economic disparities revealed so starkly by the ongoing pandemic. But the language certainly holds out the aspirations:
• The Bill of Rights spelled out in the charter’s Article I includes a section barring discrimination in employment and property sales and rental based on “race, color, creed, national ancestry, and sex.” Another prohibits discrimination against the handicapped, while a third states: “The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.” Ironically, while its inclusion in the new constitution didn’t cause much of a stir, a few years later, the equivalent federal language--- equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex—became one of the state’s most polarizing issues as the proposed Equal Rights Amendment to the U.S. Constitution. Indeed, ratification here didn’t occur until 2018, 48 years after Illinois voters approved the state’s new constitution, ERA and all.
* “The state has the primary responsibility” for funding “an efficient system of high quality public educational institutions and services,” according to Article X—Education. Perhaps more so than any other, this lofty aim has been thwarted over the years, first by a 1973 state high court ruling that the language is a goal, not a requirement, since then by local districts’ heavy reliance on property taxes to cover insufficient state funding. The state’s share of K-12 costs peaked at roughly 48 percent in the 1975-76 school year; since then, it’s fallen to roughly 37 percent in the 2018-19 school year, according to the state education board’s most recent report. The ISBE calculations, though, include the $4.7 billion state contribution that year to teachers’ pension systems, which local educators note can’t be used for ongoing costs; factor out pensions, and the state’s share of total costs falls to 28 percent, one of the lowest in the country. The new evidence-based funding model adopted a few years ago promises to boost state dollars to local schools, if—a huge qualifier—its funding requirements can be met in tight fiscal times.
• The 1970 charter’s Environment Article-- added in the spirit of the first Earth Day celebrated early in the convention— states, “Each person has the right to a healthful environment (and) may enforce this right against any party, governmental or private, through appropriate legal proceedings” and provides that the state’s public policy, and each person’s duty, “is to provide and maintain a healthful environment for the benefit of this and future generations.” Dozens of laws have ensued in its wake, seeking cleaner water and air by regulating polluters, funding environmental operations, and similar measures. Currently, for example, clean energy bills pending in the Legislature envision a carbon-free future for Illinois, something the framers of the 1870 constitution never would have imagined.
•- The new constitution also ordered disclosure of state officials’ and candidates’ economic interests, and authorized the Legislature to impose a similar requirement on other public officials and candidates. Here, too, delegates’ best intentions ran into Springfield politicians comfortable with traditional mores; what passes for disclosure is pretty vague, as anyone who’s checked the annual filings will tell you. The new constitution also created a two-step disciplinary framework for judges, after two Supreme Court justices resigned following 1969 revelations they had received bank stock from a party to a case before them. The two disciplinary panels originally were to be composed entirely of judges and attorneys; voters later approved an amendment adding non-lawyers to both.
-•- In its General Provisions Article, the 1970 document declares, “Public transportation is an essential public purpose for which public funds may be expended,” a declaration that 50 years later seems a no-brainer. But keeping mass transit afloat in Chicago and its suburbs and providing bus service in many Downstate communities was a pressing concern in 1970, four years before voters approved formation of the Regional Transportation Authority and a new sales tax to help fund it. In yet another “back to the future” moment, the CTA, commuter rail and suburban buses are now facing equally dire fiscal challenges, as ridership has crashed due to pandemic-motivated work-at-home orders.
Aspirations are not achievements, of course, so while the delegates 50 years ago had good intentions of “strengthening… our commitment to the human needs of our people,” the governors, lawmakers, and local officials who’ve followed in their footsteps in public service have yet been able to meet some of the framers’ lofty goals.
Still, constitutions are living documents, in the sense they can be amended to meet the needs of changing times, particularly at the state level. Indeed, since the new constitution’s provisions became effective July 1, 1971, Senate and House members have introduced almost 1,300 proposed amendments, including 71 in the soon-to-be-completed 101st General Assembly. The most recent, to allow convicts to vote, was filed just a few weeks before election day, obviously too late to make the 2020 ballot.
The first amendment adopted to the new charter still remains the most radical—the 1980 Cutback Amendment that eliminated one-third of the House—59 members—and did away with cumulative voting, perhaps the highlight of the 1870 charter. Included in an effort to help heal regional wounds still festering in the aftermath of the Civil War, the voting provision called for three House members from each legislative district under a formula that virtually guaranteed Republican lawmakers from southern Illinois and Democratic representatives from northern Illinois The hope was the locals would work together across party lines for the benefit of the state as a whole. Is it time to resurrect the old system, given the extreme polarization now afflicting the body politic? Your writer would submit the idea is worth serious discussion, especially as calls are sounding to make Chicago its own state.
Since 1980, a dozen more amendments have been ratified, most recently the 2016 “lockbox” amendment meant to insure that gasoline taxes, vehicle tags, driver’s licenses, and similar transportation-related revenues would be used only for transportation-related expenses.
Voters have said no to nine others, the most recent being the so-called “Fair Tax” amendment to permit a graduated income tax, with different rates for different income levels. The proposal fell far short of approval last month. Had it been ratified, the change would have come a close second to the Cutback Amendment in the “most far-reaching” category. Now its failure compounds the pandemic-induced fiscal woes facing Gov. JB Pritzker and state lawmakers.
Rather than revamp certain provisions, suppose citizens want to rewrite the entire document? Unlike their peers in olden times, they won’t have to wait 98 years for the chance, thanks to one forward-looking provision included in the 1970 charter—a provision that voters must be asked every 20 years whether a new convention should be called, with the time clock starting from 1968, when the call for the state’s sixth convention was overwhelmingly approved.
So far, the consensus seems to be that the once new, now aging, charter is holding up well enough. Three-quarters of voters rejected the automatic call in 1988; two-thirds turned thumbs down in 2008, with approval requiring either three-fifths of those voting on the question or a majority of those voting in the election. The crystal ball here says those sentiments are likely to prevail eight years from now, when the question is on the November, 2028, ballot, because whatever the perceived shortcomings in the 50-year-old charter, most of us still prefer handling them with a scalpel, rather than taking a chain saw to the venerable document.
Charlie Wheeler is an emeritus professor at the University of Illinois Springfield, and the retired director of the Public Affairs Reporting program.