In realm of caucuses, 'constitutional,' 'practical' rules don't always agree

SPRINGFIELD - One day last May, the 37 Democrats in the Illinois Senate went behind doors only to emerge and, on the strength of their votes alone, pass an income and sales tax increase to help balance the state budget.

At the same time, the Senate Republicans were meeting privately to plot their opposition to the tax plan. In the end, the increase never passed in the state House.

Yet there was nary a complaint from the media or good government groups that monitor the Capitol over the Democrats' meeting.

But this past week, the Republican and Democratic leaders agreed to have their members meet together privately, behind closed doors in a Capitol committee room, to hear national state government officials talk about the financial doom beset upon nearly every state. There was no action taken.

The so-called "joint caucus" touched off a firestorm of media and government watchdog criticism. In its aftermath, Senate President John Cullerton said there'd be no more such meetings and his Republican colleague said in hindsight things should have been done differently.

Why such diverse reactions? Why is it OK for the Democrats, who have enough votes to control the Senate agenda, to privately discuss strategy on actual issues, but then seemingly a sin against the constitution to include the political minority Republicans who, on most days, are powerless to do anything but object in the Senate?

"That's actually a really good question," said Cindi Canary, director of the Illinois Campaign for Political Reform, a group all too familiar with the ways of the Capitol.

"They always have closed partisan caucuses. The difference was this was the Senate as a whole. This was the entire body. There is no such thing as a joint Senate caucus. There is simply a Democratic caucus or a Republican caucus or the Senate."

Indeed, closed-door meetings - called caucuses - are an almost daily part of the legislative session. They're legal and constitutional and don't violate the Illinois Open Meetings Act, because that law conveniently doesn't apply to lawmakers.

Caucuses are where each party's members get together and voice their gripes, count their votes and figure out what they're going to do when they go into public session.

"I think you need to have a strategy," said Senate Republican leader Christine Radogno of Lemont, when asked about the partisan caucuses. "The fact of the matter is we have representative democracy. We could put a voting button in every person's house in Illinois and I don't think we'd make much more progress. It is kind of a team sport.

"Maybe that's not a great analogy. But the fact is, that's what you have: two competing sides. That's what we want, different ideas. We want people to have the opportunity to fully vet their ideas and then come out and present some options to the public. And that's what goes on in caucus."

Waukegan state Sen. Terry Link previously served as the Democratic caucus chairman.

"We talk about various things. We don't talk politics," Link said. "But we do definitely talk about what's going on, how we're going to vote on issues. There's a lot of times we'll take a roll call in there on a particular issue, if it's a controversial issue. We'll know how many votes we've got on the floor before we go on the floor or if somebody's undecided, we'll know that person's undecided."

Link said this process has been "a common practice for both sides of the aisle" and the public is well aware of that.

But those types of caucuses are different from what went on last week.

Don Craven, a media law attorney in Springfield, was among the leading critics of the "joint caucus." He said the distinction between what happened last May and last week comes down to constitutional analysis.

Here's what the Illinois Constitution says:

"Sessions of each house of the General Assembly and meetings of committees, joint committees and legislative commissions shall be open to the public. Sessions and committee meetings of a house may be closed to the public if two-thirds of the members elected to that house determine that the public interest so requires; and meetings of joint committees and legislative commissions may be so closed if two-thirds of the members elected to each house so determine."

Cullerton, the Senate president, insisted the meeting was not a Senate session, but a joint caucus that did not require a vote to be closed.

Illinois Attorney General Lisa Madigan's office offered no opinion on the constitutionality. A spokeswoman said it would require a study of the debates from the 1970 Constitutional Convention.

The transcripts of that convention were recently put on compact disc. An initial scan of the nearly 9,000 pages of debate on the searchable CD found nothing immediately conclusive regarding this topic.

Craven insists that a joint caucus is "nothing more than a meeting of the Senate" and therefore must be open unless a vote is taken in accordance with the Illinois Constitution.

But what about the Senate Democratic caucuses? With 37 members, the Senate Democrats are free to do whatever they want in the Senate if they can all agree. Isn't a Democratic caucus - which is legal and happens all the time on real issues - essentially a Senate caucus?

"For practical purposes they are," said Craven. "For constitutional purposes they are not."