Imagine a lobbyist approaching a legislator and promising that if the member voted for a specific bill, the lobbyist would contribute to their campaign committee.
Lobbyists have been convicted here for doing just that, going back to at least 1982.
Legislators would be violating state law if they made that deal. The statute prohibits legislators, candidates, and others from promising “anything of value related to State government,” including any “action or inaction on any legislative or regulatory matter, in consideration for a contribution to a political committee, political party, or other entity that has as one of its purposes the financial support of a candidate for elective office.”
So when I saw a recent candidate endorsement questionnaire, that’s the first thing which came to mind. But after I thought about it and did some research, I decided that my initial impression may be wrong. Even so, I came away from this believing that organizations which send out these questionnaires need to rethink their approaches, and legislators definitely need to study what they’re signing.
Equality Illinois’ latest endorsement questionnaire informs candidates: “We will consider your votes on the following bills as well as your responses to the following questions.”
The first question involves legislation to fully implement the Keeping Youth Safe and Healthy Act from 2021. “Will you recommit to voting for this initiative?” legislators are asked.
To be clear, it doesn’t look like they’re violating state law, nor are the many other groups, which ask similarly-worded questions. As you can see above, the law as written is aimed at legislators and candidates, and the criminal case law in question (People v Brandstetter) was a straight-up offer of a $1,000 campaign contribution for a vote. Equality Illinois’ CEO Brian Johnson said the questionnaire was vetted by longtime elections attorney Michael Dorf, who, Johnson said, “sees no legal issues with our questions or our process.”
Equality Illinois’ Johnson insisted that “a positive answer on any one question does not guarantee an endorsement, nor does a negative answer on any one question guarantee a non-endorsement.” It is instead a “totality of factors,” including their voting history, their “level of support for the LGBTQ+ community broadly,” their “partnership with LGBTQ+ community groups,” their “connection to the LGBTQ+ community,” and their answer to the four questions posed to them. Those questions are part of a “holistic picture,” Johnson said.
Illinois is among “a minority of states that doesn't require the teaching of sex ed,” Johnson said, and that’s what the bill on the questionnaire is about — making sex education mandatory in public schools. Illinois law currently allows school districts to opt out. “LGBTQ+ kids are literally dying,” Johnson said, pointing to a decline in the number of schools offering sex ed during the past few years. “LGBTQ+ youth have higher rates of bullying, higher rates of mental health challenges, and higher rates of suicide. When schools refuse to teach public health and safety education, LGBTQ+ kids suffer; some with their lives.”
So Johnson said, “Knowing whether a candidate is willing to support legislation that will save kids’ lives - while not dispositiv - is very important to our Board in making their endorsements.”
Jay Young of Common Cause Illinois told me, “The prohibition in Section 5-30 applies to legislators and candidates and not to groups like Equality Illinois, so there isn't anything unlawful about their questionnaire.”
But does that mean legislators and candidates could be the ones in hot water if they pledge to vote for a bill on an endorsement questionnaire?
Common Cause’s Young wondered whether candidates and legislators, “shared the same understanding about providing a ‘holistic’ picture” that Equality Illinois claims to be looking for.
“I'm not sure that that comes across fully in the language of the questionnaire that plainly states, ‘We will consider your votes on the following bills as well as your responses to the following questions,’” Young said.
Also, would the group really endorse someone who answered “No” on that very important question? Johnson said they could in certain circumstances, like if a strong supporter opposed it over a local issue or faced a homophobic opponent with a decent chance of winning.
The bottom line, though, is that associations, legislators, and candidates really need to think these things through. Are the groups putting legislators and candidates in any sort of jeopardy? And are the legislators and candidates opening themselves up to criticism ... or worse?
Yes, these groups need to know who they’re dealing with. I can certainly see the nuance here. But others may not be so inclined.
Rich Miller also publishes Capitol Fax, a daily political newsletter, and Capitol Fax.com.
