Ex-politician says bribery, official misconduct statutes are unconstitutional

[March 08, 2023]  By Brett Rowland | The Center Square

(The Center Square) – The 80-year-old man once called the "Velvet Hammer" for his successful dominance of Illinois politics is arguing the state's bribery and official misconduct statutes are unconstitutional ahead of his corruption trial.

Former Illinois House Speaker Michael Madigan served in the Illinois House from 1971 to 2021. From 1997 to 2021, he served as speaker of the Illinois House, making him one of the state's most powerful politicians. He faces 23 counts of racketeering, bribery and official misconduct as part of a federal indictment. Madigan said he was just doing his job as a politician and that the state's laws are overly broad.

"Political officials routinely work with lobbyists and entertain outreaches from their constituents," Madigan's attorneys wrote in a pre-trial motion seeking to have many of the charges dismissed. "This conduct is central not only to the conduct of office but also to American democracy."

His attorneys further argue that "statutes that impermissibly chill such interactions infringe on rights that go to the core of democratic government and violate the First Amendment."

Madigan was initially charged along with co-defendant Michael McClain, in March 2022 with 22 counts of racketeering and bribery for his alleged improper dealings with the state's largest utility, ComEd. Prosecutors further alleged that he used his political power to unlawfully steer business to his private law firm, Madigan & Getzendanner. In October 2022, prosecutors filed a superseding indictment that charged Madigan and McClain with conspiracy related to an alleged corruption scheme involving AT&T Illinois.

Madigan's attorneys said that federal prosecutors failed to make their case that Madigan engaged in quid pro quo transactions.

"The government alleges that ComEd hired certain individuals or entities at Madigan’s recommendation and contends that, because legislation affecting ComEd passed the Illinois General Assembly during the same decade, crime was afoot. That is not enough. Yes, the government identifies votes Madigan cast or positions he took with respect to certain energy legislation, but it fails to assert that Madigan took any of those votes or positions for the purpose of benefiting ComEd in exchange for its hiring decisions."

In July 2020, ComEd agreed to pay $200 million to resolve a criminal investigation into an eight-year bribery scheme, according to the U.S. Department of Justice. The company entered into a deferred prosecution agreement in which it admitted it arranged jobs, vendor subcontracts and payments for associates of Madigan to help ComEd with its efforts in the legislature.

David Parker, an associate professor at Saint Xavier University, said Madigan's attorneys are challenging the official misconduct statute itself.

"They are saying any conviction under this law would be unconstitutional because 'any act' is way too broad, too vague," Parker said.

The state's official misconduct statute says "A public officer ... commits misconduct when, in his official capacity ... [he] [s]olicits or knowingly accepts for the performance of any act a fee or reward which he knows is not authorized by law."

Parker said Madigan's motion aims to undercut the prosecution's case.

"They're trying to take away as much of the foundation of government's case as they possibly can," Parker said.

The defendant's attorneys argue Madigan was doing his job as a politician.

"It is not enough to allege that Madigan took actions that happened to benefit ComEd – indeed, myriad interest groups across Illinois supported the same legislation as ComEd. Nor would it be enough for the government to allege that Madigan took actions intending to benefit ComEd," they wrote in a pre-trial motion. "The government must allege that Madigan solicited jobs from ComEd intending to take actions in the Illinois General Assembly to benefit ComEd in exchange for ComEd’s hiring decisions. It has not done

Madigan's attorneys said it would be impossible to operate a political system under the state's existing laws, which they argue are unconstitutional because they are overly broad.

"Under the government’s theory of prosecution, the only way for state legislators to avoid committing a federal crime with assurance would be to abstain entirely from recommending individuals for jobs with private companies that might possibly be affected by legislation," they wrote. "That is not and cannot be what the law requires."

Madigan has pleaded not guilty. He previously said he spent 50 years working to serve the public.

"I was never involved in any criminal activity," he said in a statement in March 2022. "The government is attempting to criminalize a routine constituent service: job recommendations. That is not illegal, and these other charges are equally unfounded."

Brett Rowland is an award-winning journalist who has worked as an editor and reporter in newsrooms in Illinois and Wisconsin. He is an investigative reporter for The Center Square.