partisan in nature, all three of the foregoing conventions soon gave way to intermediate partisan bickering and endless debates, decisions which were made at secret party caucuses rather than in public debate, and voting by individua delegates that appeared to be motivated more by political ambition and self interest than by considerations of public interest.

The referenda votes in New York, Michigan and Illinois suggest that ultimately the success of any constitutional convention depends not only on the wisdom of the proposals it has made, but also, just as importantly, on public confidence in the manner in which the convention has addressed the problems with which i was faced. A substantial segment of the population, regardless of normal party preference, if it senses that partisanship has overtaken statesmanship in the serious business of drafting constitutional provisions for the structure and machinery of state government."

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THE BI-PARTISAN ALTERNATIVE AND THE ROLE OF THE PEOPLE

Measured purely in terms of success at the polls, recent bi-partisan conventions have fared considerably better than partisan conventions held during the same period. The proposals of all four bi-partisan conventions noted above were in fact approved by the voters, although, significantly, the two most recent ones were limited to questions of reapportionment wherein the conventions were obliged to follow the Supreme Court's "one man-one vote" mandate, while the 1947 New Jersey Convention specifically excluded consideration of the con troversial issue of reapportionment." While the potential for partisan bickering decisions made in secret at party caucuses, and voting motivated by political ambition and self-interest would not seem to be greatly lessened simply because a convention is bipartisan rather than partisan, on the basis of the record to date it may be concluded that the bi-partisan approach to delegate selection, often coupled with convention rules which require substantially more than a simple majority before proposals can be submitted to the voters,22 offers substantially brighter prospects for voter approval of constitutional changes than does the wholly partisan approach.

In terms of resistance to special interest pressures and elimination of "legis lative detail," the evidence offered by bipartisan conventions is mixed. The 1947 New Jersey Constitution is relatively brief, with approximately 16,000 words while the 1943 Missouri Constitution is inordinately long, with 40,000 words In assessing the prospects for genuine constitutional improvement, however mere use of an arithmetical yardstick of the number of words employed may not be very helpful.

Because parties tend of necessity to think in short-run terms the next election the coming legislative battle, the capture of public support-they can reasonably be expected, when operating in enforced bi-partisan conditions, to avoid to the greatest degree possible anything which smacks of controversy and, instead, to adopt an extremely conservative approach to the process of constitutional reform This attitude has perhaps been best expressed by some present Illinois legislators who have already indicated that in their view the primary purpose of the forthcoming convention is simply to rewrite the Amendments Article so that hereafter, legislatively-initiated constitutional amendments can more easily be ratified by the voters. In essence, the coming constitutional convention is viewed simply as an extra session of the General Assembly.

When one weighs this attitude against the widely held belief that our 100 year-old Constitution is generally obsolete, against the indisputable mandate for change evidenced by the overwhelming vote for Con Con on November 5th, and against the over-all legislative record on constitutional reform for the past

20 In addition to the three partisan conventions discussed in the text, the proposals o the 1964-67 Rhode Island and 1965 Tennessee Conventions were rejected by the voters of those states, and the proposals of the 1964 New Hampshire Convention were approved only in part.

21 The Pennsylvania Convention of 1967-68 was also limited to consideration of only four constitutional articles. Its proposals, which were greatly influenced by the work of a state wide citizens organization and the state bar association, were approved by the voters in the April 1968 primaries.

22 Under the Illinois Constitution, it does not appear that the General Assembly has any authority to bind the convention to a particular set of convention rules. On the contrary it appears that the convention has inherent authority to adopt its own rules of procedure and that it can authorize submission of proposals to the voters by a simple two-thirds o any other majority it deems advisable.

23

several years, one may reasonably ask whether the bi-partisan approach to Con Con offers any real prospect for substantial constitutional change, let alone substantial improvement, even if the voters were to approve such changes as might be proposed.

Perhaps the most serious defect in the bi-partisan approach to delegate selection, however, lies in the fact that participation in the constitutional convention, which properly speaking should be representative of the broadest spectrum of political interests, would necessarily be restricted to the relatively new individuals who are closely linked with the formal organizations of the two major political parties. The plain fact is that the largest "party" in the State of Illinois is neither the Democratic nor the Republican Party, but the great mass of independent voters who on election day generally, but not always, cast their ballots for candidates who have been put forward by one or the other of the two more organized political parties.

One need only compare the number of voters who registered and voted in two party primaries held on June 11, 1968, with the number of voters who voted in the general election held on November 5, 1968. There were nearly three times as many voters who voted in the general election as voted in the party primaries, or, stated another way, there are nearly twice as many voters who do not care to state a party preference as there are who do-for both parties combined!" If the minimum requirement for party endorsement as a convention delegate in an election guaranteeing bi-partisan representation were simply that the candidate had voted in the party's primary, the people's range of selection for delegates (except for those few additional independents who conceivably might get their names on the ballot) would, as a practical matter, be reduced by at least twothirds of the theoretically available choices.

Even as a party adherent, I cannot subscribe to that theory of "limited leadership" which says that only members of the Democratic or Republican Parties are capable of providing leadership for a consitutional convention. The evidence offered by the non-partisan Maryland Convention is, in fact, the other way. If delegate selection for the coming convention is conducted on either a partisan or bi-partisan basis, it is likely that many outstanding citizens, who are not closely linked with either of the two major political parties, will be discouraged from running at all. Among them may be some who have worked so long and hard to bring this convention about.

It is undeniable that strong endorsements of Con Con by the two principal gubernatorial candidates, by the Democratic and Republican party chairmen of Cook County, and by other state and local party leaders and candidates played a substantial role in passage of the November 5th referendum. But it is also undeniable that Con Con would have never received the overwhelming vote it did without the year-long efforts of the Illinois Committee for Constitutional Convention, which was supported by 70 leading business, professional, labor, agricultural, educational and civic organizations throughout the state and by over 25 local citizens committees both Downstate and in Cook County, and without the splendid media coverage and editorial support which Con Con received from newspapers, radio and television. Civic-minded people contributed their time, their money and their organizational effort-right down to the precinct levelto bring the dramatic opportunities afforded by a constitutional convention before all the people of this state.

23 Flamm, "The Adverse Prospect-The Case Against Con Con," 49 Chicago Bar Record 326 (1968). 24 According to official records of the Secretary of State, there were 833,498 Democrats and 739,675 Republicans registered for the June 11, 1968 primaries, or a total of 1,573,173 persons who declared their party affiliation with one or the other of the two major political parties. By contrast, there were 2,307,295 votes cast for the Republican gubernatorial candidate, 2,179,501 for the Democratic gubernatorial candidate, and 19,175 for the Socialist-Labor candidate. Or a total of 4,505,971 votes for the highest state office in the Nov. 5, 1968 general election.

25 In Cook County, local citizens committees were active in New Trier Township. Evanston Township, Chicago's North Side, the Third Senatorial District Western Suburbs, PalosOrland-Worth Townships, and South Suburban Cook County. Downstate, in addition to local citizens committees in Lake and DuPage Counties, there were county-wide committees in the following counties: McHenry, Kane, Will, DeKalb, Winnebago, Stephenson, Whiteside, Rock Island, Knox, Warren, McDonough, Peoria, McLean, Champaign, Madison, and St. Clair. Con Con received substantial majorities in all of the foregoing counties except the last three, and in Adams County it barely lost with 49.9 percent of the total vote cast.

In addition to the foregoing, a Student Committee for a State Constitutional Convention, comprised of college students, functioned widely and effectively in the Chicago area.

In sum, the overwhelming "grass roots" response which Con Con received November 5th both cut across and went far beyond the normal partisan divisio which exist in this state. The General Assembly must now ask itself whethe bi-partisan convention, limited to delegates representing only two of the ma political forces in this State, and likely to respond in only a limited fashion currents of change which have overtaken our state in the last 100 years, will p vide an adequate response to people's mandate of November 5th.

"NON-PARTISAN" POLITICS—SOMETHING NEW FOR ILLINOIS

Non-partisan constitutional conventions are not a new phenomenon. At le three were held during the reform era of the second decade of the present centu Nebraska in 1919-20, Massachusetts in 1917-19, and Ohio in 1912. All three p posed substantial constitutional changes which the voters approved. More cently, the non-partisan conventions of Rhode Island in 1944, 1951, 1955 and 19 and of Alaska and Hawaii, have met with similar success, although the expe ence of the latter two is somewhat atypical because of the absence in those sta of long-established political systems and traditions comparable to those in ot states in the 20th century. Against this record of success at the polls, howev stands the glaring exception of the Maryland Convention of 1967–68.

It is generally conceded that the Maryland delegates, who were elected in single non-partisan election, were both able and conscientious. The parties doubtedly had their preferences, but elimination of party labels from the bal had the predictable effect of encouraging voter selection on the basis of me rather than simple party affiliation. While for the most part the delegates w known as civic and professional leaders, nearly half of them had prior experie in public office. Interestingly, none of those who emerged as natural lead during the Convention was actively engaged in party politics.

Although the opinion is frequently expressed that "party responsibility" i valuable, if not indispensable, pre-requisite to efficient decision-making, the Ma land Convention operated as or more efficiently than the partisan and bi-partis conventions held recently in other states. The Maryland delegates were genera resistant to the external pressures of special interest groups, but in the end, reform document which they produced was supported by the leadership of b major political parties, by business and organized labor, and by the civic lead ship of the state.

In view of this support of the massed leadership of the state, the results of referendum on the proposed new Constitution held on May 14, 1968 were surprising as they are instructive. Contrary to expectations that the Consti tion would win approval without trouble, it was rejected by 56 percent of 650,000 people who turned out to vote, nearly half of the state's 1.4 mill registered voters.

Post-election analysis attributes two of the causes of defeat to the Conventio decision to submit its entire work to the people in a single package, and to failure of the Constitution's proponents to mount the kind of intensive," gr roots" campaign that is always vital to the success of any constitutional refer dum. The Constitution's most vocal opponents consisted mainly of two loos organized, but nonetheless effective alliances: county officials in rural ar whose positions, secure under the 1867 Constitution, were not mentioned in new one; and a group of Baltimore surburbanites who feared the poten development of some form of metropolitan government which, they thoug would necessarily result in higher taxes and possibly racial integration of th schools. The Maryland Convention's proposals would undoubtedly have fa better if these two opposition groups been divided by means of separate s missions and if there had been a better organized campaign for voter appro after the Convention's adjournment.

A third factor in the defeat was that both the Maryland Convention and referendum on its proposals were held at a time of grave social unrest and c disorder. The Convention, while including the best of the state's civic lead ship, did not enlist the direct participation of those people, black or white, v were most directly affected by this social crisis. A document labeled as refo produced by those standing largely outside the swirl of social crisis, could o have increased the wariness of an already uneasy electorate.

26 Illinois experienced a similar period of unrest during its Convention of 1862, held ing the Civil War. The proposals of this Convention were also rejected by the voters. "Report of the Committee on Constitutional Revision," Appendix C, supra, at 70-71.

On the whole, the Maryland experience is both encouraging and instructive. First, it demonstrates the workability of the non-partisan selection process for convention delegates. The Maryland Convention cannot be faulted in terms of either the quality of the delegates who were elected, or of the document which they produced under the full scrutiny of the news media and the public. In short, minimization of partisan and special interest pressures at a constitutional convention pays off in constitution-making as opposed to legislating. Second, the first two factors contributing to defeat of the Maryland Constitution are clearly correctable, the one by separate submissions of the more controversial proposals, and the other by an intensive post-convention campaign to increase voter understanding.

The third factor contributing to defeat of the Maryland Constitution, social crisis, is a fact of contemporary society which we cannot escape. A constitutional convention cannot itself solve all the social ills of our times. But the Maryland experience suggests, at a minimum, that if a new charter for government is to meet the people's approval, the convention which frames it should properly include the representatives of all the people whose approval is being sought. In the end, constitution-making is not simply an exercise in legal draftsmanship. Nor can it be viewed solely in terms of the classical approach of bringing greater efficiency and economy to the operation of state government. Ultimately, the process of renewal and repair of the basic structure and machinery of government is aimed at nothing less than increasing the ability of government to respond more adequately to the tough, expensive and terribly human problems of our society. In this process, where people must strive to find common ground, there is no room for the narrower "clash of party and interest."

Con Con, then, offers both a tremendous challenge and an exciting opportunity to the people of this state. By opening the delegate selection process to all the people, and allowing full expression to be given to all the contending forces of our society, we may do much to end the mutual hostility, suspicion and divisiveness which we, as a people, cannot long endure. With patience, understanding, intelligence, and human decency toward one another, we the people of Illinois, acting within the framework of the law, can and will establish a new tone, and chart new directions, for the government under which we live.

1

(From the Chicago Bar Record, December, 196

Can Public Officials Be Delegates to the Constitutional Convention?

By WILBUR S. LEGG