Legal battle beginning to fill comptroller post


by RUSS STEWART

Death can be extraordinarily beneficial to an ambitious politician. Death creates openings, and openings are opportunities.

The death of Illinois Comptroller Judy Baar Topinka creates a tantalizing opening. The question in political circles is, who gets her job, a caretaker or a keeper?

Having been re-elected to her second term on Nov. 4, Topinka’s death on Dec. 10 creates two thorny legal issues — who appoints her successor, and for what duration?

Article V, Section 7, of the Illinois Constitution vests appointment power in the governor should a vacancy arise in the office of attorney general, secretary of state, treasurer or comptroller. No appointment can be made if the lieutenant governor’s office is vacant. Death or resignation of an incumbent is deemed to make the office vacant, as does an election victor’s "failure to qualify." Topinka’s death triggers the "failure to qualify" threshold, but that won’t occur until Jan. 12, when her new term starts.

On that day, at the moment that Topinka’s term begins, so does Bruce Rauner’s term as governor. Therefore, Topinka’s vacancy does not exist until that date.

Since Section 7 states that the "governor shall fill the office by appointment," it would appear that outgoing Governor Pat Quinn can appoint a comptroller immediately, but only for the remainder of Topinka’s term through Jan. 12, when that vacancy ends. Then, when Topinka fails to qualify on Jan. 12, Rauner can make the appointment.

However, additional wording indicates that the appointee "shall hold office until the elected officeholder qualifies or until a successor is elected." Topinka is her own successor, and she will not "qualify" on Jan. 12, so a Quinn appointee could theoretically serve "until a successor is elected," which wouldn’t be until 2018. It’s a lawyer’s dream, with contradiction writ large. If Quinn appoints a Democrat to the post, it presumably would be outgoing Lieutenant Governor Sheila Simon, who lost to Topinka on Nov. 4. Unless the General Assembly mandates a special election in 2016, Simon would serve Topinka’s full term.

There are no provisions in the state Constitution for special elections to fill any vacant offices, and since the General Assembly has adjourned for 2014, there will be no new law forthcoming before Jan. 12. This will go to the courts, with the arbiter being the Democratic-controlled state Supreme Court. Inasmuch as that august body approved the 2011 remap and Rahm Emanuel’s residency and killed the pension "reform," there is no doubt that they will rule in a manner not adverse to the Democrats’ interest.

Republicans, ever the defeatists (which is understandable in Illinois, as they are chronically defeated) are grousing that since a Republican won the office in November, a Republican should succeed her. After all, they note, the Constitution mandates that when a state senator or a state representative dies or resigns, a member of the same party is appointed by the local party, and any congressional vacancy is filled by special election.

Get real. Such concepts as fairness and justice are outside the political realm. Illinois has a long history of winner take all. Those in win, and those out pout. To the victor go the spoils — but not until taking office. To the defeated remain the spoils until they’re ousted from office. Quinn recently appointed his 30-year-old campaign manager, Lou Bertuca, as the $160,000-a-year post as the executive director of the Illinois Sports Finance Authority, which manages U.S. Cellular Field and Soldier Field. His tenure cannot be terminated by Rauner.

When a statewide vacancy occurs, the governor has two options, to appoint a caretaker or a keeper. The caretaker, usually of the governor’s party, keeps the office warm until the next election, while a keeper is someone sufficiently talented to utilize the office’s resources and visibility to win the next election. Illinois’ most famous keeper is Jim Edgar; almost every other appointee in the last century who ran to keep their office was defeated. Since 1900 there have been 10 appointees to the four offices, and five have run but only one has kept the office. That’s a winning percentage of 20 percent. Here’s the scorecard:

1914: Democratic Secretary of State Harry Woods, who was elected in 1912, died, and Governor Edward Dunne appointed Democrat Lewis Stevenson, the uncle of future governor and presidential candidate Adlai Stevenson and the grand uncle of future treasurer and senator Adlai Stevenson III. Woods lost in 1916 to Republican Louis Emmerson, who was elected governor in 1928.

1944: Democratic Secretary of State Edward Hughes died, and Republican Governor Dwight Green appointed Republican Richard Yates Rowe, a member of a prominent political family, to the vacancy. Rowe lost to Democrat Eddie Barrett in 1944. Barrett went on to become the Cook County clerk, and he was convicted of accepting bribes. Interestingly, Rowe’s son lost to Adlai Stevenson III for treasurer in 1966.

1956: A huge scandal arose when it was revealed that Republican Auditor of Public Accounts (now comptroller) Orville Hodge pocketed $1,576,344 from issuing false state warrants, and he was convicted of embezzlement and imprisoned. Republican Governor Bill Stratton appointed Lloyd Morey as a caretaker, and despite the scandal, Republican Elbert Smith beat a strong Democrat, Michael Howlett, in 1956.

1962: Treasurer Joe Lohman, having lost the 1960 Democratic primary for governor to Otto Kerner, who won the governorship, resigned in 1961. His keeper replacement, amid much fanfare in the Polish community, was Francis Lorenz. When Lorenz sought election in 1962, he was trounced by Bill Scott, who went on to become the state attorney general and who later was convicted of income tax evasion.

1964: Republican Secretary of State Charles Carpentier was in the midst of a campaign for governor when he died in April of 1964. Although Downstate state representative Paul Powell — later to be renowned for stuffing cash in shoeboxes — was the Democratic nominee for Carpentier’s job, Kerner appointed a caretaker, William Chamberlain. Powell was elected in 1964.

1970: Powell died in October of 1970. His sordid scamming surfaced later. Since the office controlled 3,000 jobs, it was a choice patronage plum. Republican Governor Dick Ogilvie appointed a caretaker, former speaker John Lewis, a Downstater who was tasked with making his employees work for Ogilvie in 1972. Ogilvie made former Cook County treasurer Ed Kucharski, who had lost to Democrat Alan Dixon in the 1970 state treasurer’s race, Lewis’s deputy and the 1972 nominee. Auditor Mike Howlett beat him.

In 1976, under the revised 1970 Illinois Constitution, the auditor became the comptroller. Dixon was re-elected in 1974, and he ran for secretary of state in 1976, replacing Howlett, who lost a race for governor. Newly elected Republican Governor Jim Thompson chose to appoint a caretaker, Donald Smith, to Dixon’s vacancy. In 1978 Democrat Jerry Cosentino beat Jim Skelton for treasurer by 164,639 votes. Had Thompson appointed a keeper, Cosentino likely would have lost.

1980: Scott went to prison, and Dixon won Stevenson’s III’s Senate seat when Stevenson retired. That gave Thompson two openings. He appointed Ty Fahner, a former law partner, to succeed Scott in 1980, and Jim Edgar, a young and telegenic Downstate state representative, to replace Dixon. Those were keeper appointees. Each had a 2-year window of opportunity. Fahner got headlines with his investigation into the Tylenol poisonings, and Edgar solidified his Downstate base. Edgar did better.

In 1982, when Thompson beat Stevenson by a meager 5,074 votes, Edgar beat former treasurer Jerry Cosentino by 233,656 votes but Fahner was thrashed by former lieutenant governor Neil Hartigan by 544,689 votes. In 1990 Edgar beat Hartigan for governor by 83,909 votes.
Although employing only about 50 staffers, the comptroller’s office has enormous media clout, even through its occupant is a glorified bookkeeper. The comptroller issues the checks that pay state employees and vendors. The legislature appropriates the funds, and therein lies the office’s power, which is to publicize Illinois’ dire financial straits. More than $7 billion owed to Medicaid providers can’t be paid, more than $100 billion in pensions are unfunded, and the state spends $3 for every $2 in tax revenue it receives.

The comptroller monitors Illinois’ revenue stream. If outgo exceeds income, the state is broke. Comptrollers can deliver bad tidings, and look good doing it. Democrat Dan Hynes, who served from 1998 to 2010, was like "Chicken Little," perpetually predicting that the sky was falling. His doom-and-gloom persona almost enabled him to beat Quinn in the 2010 primary. Topinka, who won election as comptroller in 2010 after serving as treasurer from 1994 to 2006, was more restrained, less partisan and less pessimistic. She did, however, block $4 billion in borrowing proposed by Quinn.

Rauner, who won election as the "change Springfield" candidate, needs a comptroller who will backstop his anticipated cuts in spending, entitlements and taxes, and who will give him political cover and justification if taxes need to be increased. That means a comptroller who can proclaim an imminent state government shutdown, and that means no Sheila Simon as Topinka’s replacement.

The insider Republicans’ choice for Topinka’s job is Tom Cross, a longtime state representative who just lost the state treasurer’s race by 9,225 votes. He knows the game, but Rauner may opt for a less political, wonkish CPA-type, who might have more credibility.

Send e-mail to russ@russstewart. com or visit his Web site at www. russstewart.com.


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