Wednesday, August 20, 2008

Voting Present Is Not Voting No

There has been much discussion since Sen. Hillary Clinton first raised the issue of the numerous "present" votes Sen. Barack Obama cast as a state senator in Illinois. "In the Illinois State Senate, Senator Obama voted 130 times 'present,'" Clinton said. "That's not 'yes.' That's not 'no.' That's 'maybe.'" During a Fox News feature on Obama this week, State Sen. John Cullerton (D-Chicago) made the claim that any lawmaker who casts a "present" vote in the Illinois legislature is actually casting a "no" vote to explain Obama's vote on abortion-related legislation. That is not true and Sen. Cullerton knows it. When I worked for the Illinois House Republicans from 1984-90, Cullerton served as the floor leader for the House Democrats. He was a master at obfuscation then. I see that he has not changed after all these years.

Illinois legislators can choose between pressing a green button for a "yes" vote, a red button for "no" vote or a yellow button for a "present" vote. During the last three years I worked for the Illinois legislature, I served as the staff floor manager for then-House Republican Leader Lee A. Daniels. In that role, it was my job to physically cast all of his votes for him when he was not on the floor. Before you panic, let me explain this. In Illinois, the four legislative leaders typically remain in their offices while the legislature is in session unless a key vote is taking place on the floor. A staff person is permitted to cast the vote for the absent leader, although the leader could monitor how his button was being voted and immediately contact the staff person by phone if his vote was not being cast according to his wishes. On rare occasions, Rep. Daniels would direct me to cast a "present" vote. The only time he ever directed me to cast a "present" vote was when he had a conflict of interest, such as when his law firm represented a client with a direct interest in the passage of a piece of legislation. Lawmakers often stated on the record their conflict of interest when they cast a "present" vote.

To be sure, members also cast "present" votes in the absence of a conflict of interest. Some legislators would express general support for a bill but choose to vote "present" because they were concerned about some particular language in the bill that might make it unconstitutional or problematic. Typically, the member in this case would explain his or her position on the record. In other instances, legislators would cast a "present" vote to express their disapproval of the bill's sponsor or the group advocating the passage of the legislation. This was a way of "getting even" without actually recording a vote against a legislative idea a legislator would otherwise support. In some instances, a group of legislators would vote "present" in a block to express disapproval with the process. In the final case, a legislator simply voted "present" because he or she did not want to risk offending either side of the issue. As far as I can tell from Obama's numerous "present" votes in the Illinois legislature, this last case explains Obama's failure to vote "yes" or "no."

It is true that a "present" vote has the same effect of voting "no" in the sense that it takes one vote away from the number of votes needed to reach a constitutional majority to pass a bill. In the case of the passage of an amendment, however, as long as more "yes" votes are cast than "no" votes, the amendment will prevail even if there is no constitutional majority. Nonetheless, lawmakers in Illinois typically cast a "present" vote for a reason other than opposition to the bill. So when Sen. Clinton described all of Obama's present votes as "maybe" votes, she had it right.

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