The check’s in the mail, veto out of mind – not!

House Speaker Michael Madigan has always strongly guarded the powers of the General Assembly as a coequal branch of government, so it was a little surprising when he appeared to support Gov. Pat Quinn’s line-item veto of legislative salaries back in mid July.

The governor vetoed the salaries in retaliation for the GA’s failure to pass a pension reform bill. In a press release the day of the veto, Madigan said he understood the governor’s frustration with the lack of progress, adding, “I am hopeful his strategy works.”

Behind the scenes, though, Madigan is said to be furious with the governor’s veto. Madigan’s legal staff has been meeting with other lawyers to set strategy to either get around the veto or oppose it. So far, they are not finding much in the way of non-court options.

Attorney General Lisa Madigan would have to defend the state in a lawsuit, so she’s reluctant to issue any sort of official opinion. Also, the attorney general has long maintained that checks can’t be cut without an appropriation or a judge’s order, logic that Illinois Comptroller Judy Baar Topinka used last week when she announced she couldn’t issue paychecks. And since the veto means there is no appropriation, a legal opinion wouldn’t give the comptroller any actual authority to cut the paychecks anyway.

The governor vetoed the individual salary lines (base House salaries and base Senate salaries, for instance), but didn’t veto the “total” lines (e.g. base House and Senate salaries combined). Could that be a loophole? Doubtful. An old attorney general opinion essentially ruled that the “total” lines aren’t actual appropriations. But why not go ahead and do it and then force Quinn to sue, some strategists have asked. The comptroller, who strenuously opposes the Quinn veto, reportedly refused because several lawyers involved with the discussions strongly opposed the idea.

So that could leave a court challenge by legislators, which may have been filed by the time you read this. The lawyers appear to have ruled out filing the case in Springfield, mainly because they don’t trust the Republican-leaning appellate district.

But a lawsuit would be a last resort. Obviously, such a challenge would be roundly attacked by the media and by probably a lot of Republicans as cowardly. Why not just pass a pension reform bill and then override the veto later?

Gov. Quinn’s legislative team has assured top Democrats that he would, of course, not oppose an override if pension reform is passed. But Senate President John Cullerton, for one, reportedly doesn’t want to give Quinn the ability to claim such a victory. And both he and Speaker Madigan are reportedly loath to allow this veto to set a precedent.

What if, for instance, Quinn vetoes salaries again to prod the General Assembly to make the income tax hike permanent?

Or, what if Bruce Rauner is elected? The Republican gubernatorial candidate has pledged to wage an all-out war with Springfield’s entrenched interests, privately telling some House Republicans earlier this year that he would “bring Madigan to his knees.” So allowing him this veto power would set up a near certain annual battle.

State Sen. Kirk Dillard, another Republican gubernatorial candidate, has said he approves of Quinn’s veto. If Dillard is elected, would he use a similar action to force passage of what he considers to be a balanced budget, as he has implied?

And even though the legislative leaders, Comptroller Topinka and even, reportedly, the attorney general all seem to be in agreement that the governor’s veto is blatantly unconstitutional, what if they lose in court? The veto was an unprecedented move, so nobody is absolutely certain that a court would rule in their favor.

Since the veto hasn’t yet been overridden, is it “ripe” enough for a court case? Or, can they make the argument that their individual salaries are constitutionally guaranteed and set in statute and, therefore, they shouldn’t have to muster a three-fifths majority to receive them? Nobody really knows the answer.

A favorable court ruling, even a temporary one, could allow pension reform to move forward, top Democratic sources say. Again, the leaders are loathe to do anything unless and until they come up with a new pension reform plan, so even a temporary order to issue the checks might do the trick.

Rich Miller also publishes Capitol Fax, a daily political newsletter, and CapitolFax.com.