On its face, the Illinois Constitution mandates the governor and Legislature to pass an annual balanced budget. Illinois is one of 46 states whose constitutions mandate spending no more revenue than the state takes in.
Yet the governor and Legislature — year after year — pass deficit budgets, driving the state into effective bankruptcy.
State officials make ends meet by borrowing billions of dollars, not making required payments like those for public pensions and ignoring the state's bills.
What gives? To be effective, the state's balanced-budget mandate must be enforced, but there's no entity to enforce it.
For understandable reasons, the courts consider legislative spending to be an off-limits "political question." That has left the governor and Legislature free to run amok.
Late last month, three members of the Illinois Supreme Court complained about the judiciary's hands-off approach. But the three justices — Thomas Kilbride, Anne Burke and Robert Thomas — were outvoted by their four colleagues.
The trio's complaints raised the question about what, if anything, the balanced-budget requirement means.
"The issue of what constitutes the parameters of the political-question doctrine is of such vital importance that it should be resolved by the Supreme Court of Illinois and not simply left to the appellate court to grapple with," Justice Thomas wrote in a recent dissent to the high court's decision not to review a case that raised the question.
The one-sided exchange came in a lawsuit filed by Right-to-Life organizations against the state over a law providing taxpayer-funded abortions to low-income women.
One issue raised by the challengers is whether the legislature violated the balanced budget mandate by failing to appropriate funds or adopt a revenue estimate.
A Sangamon County trial judge followed by the 4th District Appellate Court in Springfield rejected the challenge, and the state's high court recently announced it would not review the decision.
The court's four-member majority — Justices Lloyd Karmeier, Rita Garman, Mary Jane Theis and P. Scott Neville Jr. — gave no explanation for their decision.
But their action prompted one political commentator, University of Illinois-Springfield political science professor Kent Redfield, to charge the high court had "ducked" the issue. He suggested the court has an obligation to address the question.
"This is an unsatisfying result, for sure," Redfield was quoted as saying.
The balanced budget language in Section 2(b) of Article VIII of the Illinois Constitution is as clear as it is meaningless, at least in the current political context.
"Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year," it states.
"Estimated" is, of course, a weasel word that lends itself to the General Assembly's incessant gamesmanship on budget questions. For example, Gov. J.B. Pritzker's recent budget proposal is balanced by estimating revenue generated by programs not yet in existence (legalizing marijuana and sports gambling). His predecessor, former Gov. Bruce Rauner, engaged in the same budget practice.
More important, however, is that the courts have opted not to get into executive/legislative budget issues because they are not "justiciable," meaning not proper for the court to hear.
"The doctrine derives from the principle of separation of powers. The function of the doctrine is to ensure that the judiciary does not exercise the powers of another branch," wrote appellate Justice Lisa Holder White in her decision rejecting the challenge to the state's new abortion law.
Relying on a U.S. Supreme Court precedent outlining the basis for the "political-question doctrine," White said the judiciary lacks "discoverable and manageable standards" to make a determination about deficit spending and that if the court did make such a finding it would have to strike down entire state budgets rather than individual appropriations for specific services.
"We are unaware of any way to parse out certain appropriations and leave others intact. The consequences to the operation of state government would be severe, especially since the state's governmental branches and agencies have relied on the appropriations since July 2017," White wrote in a September 2018 opinion.
Many state legislatures have no problem not spending more money than they take in. Illinois, obviously, is not one of them.
Jim Dey, a member of The News-Gazette staff, can be reached at firstname.lastname@example.org or 217-351-5369.