In 2005, Illinois sought to make the sale of violent or sexually-explicit video games illegal, with a $5,000 fine or a year in jail for anyone selling the games to minors. Like similar attempts at legislating games, it failed, with the ESA then suing the state for the legal fees it had to pay to defend the case. The ESA won the case, and Illinois was ordered to pay over $500,000 in attorneys' fees. This dust-up continues to be a case study in just how badly attempts to pass unconstitutional legislation can go, as Illinois Auditor General William Holland is raising some questions about where the money to pay the ESA's legal bills came from. It turns out that 14 percent of the money was paid from the Public Health Department budget.
The way the legal fees were paid has been an ongoing concern. In May of 2007 we discovered that the governor raided funds throughout state government to pay for the litigation. Some of the areas money was taken from included the public health department, the state's welfare agency, and economic development department. If you had cash, you gave your funds to pay for the failed legislation, whether or not the department had anything at all to do with the law itself.
Illinois has been plagued with budget crises over the past several years, and being forced to raid the Public Health Department budget to pay for unconstitutional legislation is the price the state's taxpayers are paying. Illinois nursing homes are being forced to wait excessively for payments from the state. "Across the board the state of Illinois does not have a good track record for paying in terms of paying for Medicaid recipients—whether it's health care or nursing homes—it's something [that is] quite frankly an embarrassment to us in Illinois," state senator Dave Koehler (D) told a Peoria TV station. Governor Rod Blagojevich promised to speed up payments to 45 days during the last election, but the turnaround has gone in the other direction, with homes now waiting as long as five months for payments.
Tracking down exactly how much money came from which organization is proving difficult. "Auditor William Holland says Public Health has no documents showing how costs were allocated among agencies paying for the unsuccessful defense of [the law]," reports the Associated Press. Six state agencies were reportedly forced to chip in for the legal bills.
This is, frankly, an embarrassing situation to be put in, and the outrage over this use of funds could be growing with the auditor's investigations over where the money came from and why. It would be easier to defend the state's efforts at fighting for the law if there weren't so many strong precedents: by the time Illinois got around to writing its gaming law, Missouri, Indiana, and Washington had already tried to pass similar laws, only to fail on constitutional grounds. There was very little evidence that the law had any chance of succeeding in Illinois, but Gov. Blagojevich saw the law as a politically safe move.
The then-president of the ESA, Doug Lowenstein, had strong words for the legislation and the use of public money to pay for its missteps. "From the day Governor Blagojevich announced that he would seek anti-video game legislation, it was clear to everyone that the proposal would be found unconstitutional and would waste taxpayers dollars in a protracted legal fight that would leave parents no better off," Lowenstein said. "That is precisely what happened. As we said from the outset, we would have preferred to spend our resources on cooperative programs to help parents ensure their kids play appropriate games, rather than divert money to respond to politically motivated attacks on video games."
Attempts to legislate video games continue, and are expected to continue failing. Hopefully the black eye that Illinois is receiving from their own attempts to pass this law will be a good object lesson that writing legislation for purely political gain can have far-reaching consequences. Sadly, it's a lesson Illinois taxpayers are learning the hard way.
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