Mikva on Obama's 'Present' Votes

'Present' Perfect
Abner J. Mikva
The New York Times
February 16, 2008

Senator Hillary Clinton should probably be forgiven for not remembering the course on the state Constitution that she would have had to take as an eighth grader in Illinois. But had she remembered it, she would have known that Senator Barack Obama was not ducking his responsibility in the Illinois Senate when he voted ''present'' on many issues.

Unlike Congress and the legislatures of most other states, each chamber of the Illinois Legislature requires a ''constitutional majority'' to pass a bill. The state Senate has 59 members, so it takes 30 affirmative votes. This makes a ''present'' vote the same as a no. If a bill receives 29 votes, but the rest of the senators vote ''present,'' it fails.

In Congress, in contrast, a bill can pass in either the House or the Senate as long as more people vote for it than against it. If 10 people vote in favor and nine against, and the rest either vote ''present'' or don't vote at all, the bill passes. It can actually pass with just one vote, as long as no one votes no.

In the Illinois Senate, there can be strategic reasons for voting ''present'' rather than simply no. A member might approve the intent of legislation, but not its scope or the way it has been drafted. A ''present'' vote can send a signal to a bill's sponsors that the legislator might support an amended version. Voting ''present'' can also be a way to exercise fiscal restraint, without opposing the subject of the bill.

I recall voting ''present'' on many bills when I was in the Illinois Legislature. In the 1960s, for instance, I voted ''present'' on the annual highway appropriations bill. Like many of my fellow senators, I thought some of the money being allocated should have gone to public transportation. Still, I didn't want to vote no, because I did not want to stand against the basic principle of maintaining our public roads. So I voted ''present.''

It never occurred to me or to any of my critics that I was ducking responsibility for a making a decision. Mr. Obama was an outspoken member of the Illinois Senate, and not someone known for dodging questions, whether they were on ethics, police responsibility, women's choice or any other hot-button issue.

Even if Senator Clinton does not remember the constitutional majority requirement in Illinois, one of her advisers might have explained it to her. When I was White House counsel, President Clinton frequently reminded me that he had taught constitutional law before he ran for public office. I would hope that he would assume that another constitutional scholar -- Barack Obama -- would be aware of his voting responsibilities as a state legislator.

Abner J. Mikva has been an Illinois state legislator, a United States congressman, a federal judge and, from 1994 to 1995, White House counsel. He now directs the Mandel Legal Aid Clinic at the University of Chicago Law School.

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