Illinois Senate Bill 1 and Senate Bill 2404: A Speculation

“The best deceptions are the ones that seem to give the other person a choice: your victims feel they are in control but are actually your puppets. Give people options that come out in your favor whichever one they choose. Force them to make choices between the lesser of two evils, both of which serve your purpose. Put them on the horns of a dilemma… Such is the power of giving people a choice, or rather the illusion of one, for they are playing with cards you have dealt them… For people who are choosing between alternatives find it hard to believe they are being manipulated or deceived; they cannot see that you are allowing them a small amount of free will in exchange for a much more powerful imposition of your own will” (Robert Greene, The 48 Laws of Power).

Let’s imagine that the final Illinois Senate Bill 2404 bill includes a Part A: Madigan's version and, just in case it is voted unconstitutional in the IL Supreme Court, includes a Part B: Cullerton's “Choice” version, just in case Part A is struck down. You might ask: can this be possible?

There is a legal precedent for this type of two-part bill:
 
“…State v. Duren, supra… Mr. Duren was charged with capital murder under §§559.005 and 559.009, RSMo. (Supp. 1975) (repealed). 547 S.W.2d at 477. Relying on Woodson v. North Carolina, 428 U.S. 280 (1976), (finding unconstitutional a North Carolina post-Furman statute that provided for a mandatory death penalty), the trial court found §§559.005 and 559.009 ‘authorized imposition of the death penalty in a manner violative of the Eighth [Cruel and Unusual Punishment] and Fourteenth [Due Process and Equal Protection] Amendments to the United States Constitution,’ held the statutes unconstitutional, and granted Mr. Duren’s motion to dismiss his indictment. Id.
“On appeal, this Court held that §559.011 – titled ‘Alternative punishment if death penalty declared unconstitutional’ – applied to ‘save’ the indictment and authorized Mr. Duren to be sentenced, if found guilty, to life imprisonment. Id. at 480-81. Section 559.011 provided, ‘If the category of capital murder or the penalty prescribed herein is declared to be unconstitutional by the Missouri Supreme Court or the United States Supreme Court, all killings which would be capital murder under any of the circumstances specified in section 559.005 shall be deemed to be murder in the first degree and the offender shall be punished accordingly...’ (See A9).

“Of particular interest to the present case is the Court’s response to Duren’s claim §559.011 did not apply since the United States Supreme Court did not find the death penalty ‘per se’ unconstitutional: We think the argument lacks merit. In the first place, the legislative intent obviously was to provide for the possibility the ‘penalty’ could not be imposed for any reason; and secondly, this court, having now ruled that the ‘penalty’ is unconstitutional under the existing statues, has made the second contingency effective. Id. at 480-81…” (State Ex rel. Bobby Joe Mayes, Appellant vs. The Hon. John D. Wiggins, respondent, pgs. 21-22).

This antedated court case allowed a legislature to create a statute contingent upon future events and combine two statutes together using consideration.

“…[Nevertheless], as explained in Kraus v. Board of Trustees of Police Pension Fund of the Village of Niles, 72Ill. App. 3d 833, 849 (1979), legislation ‘which has an incidental effect on the pensions which employees would ultimately receive, is not prohibited’ if it is ‘directed toward another aim.’ Conversely, because Part B is directed specifically toward penalizing pension annuitants, it is an impermissible end-run around the Pension Protection Clause. Similar end-runs around the Pension Protection Clause are equally impermissible” (Gino L. DiVito, John M. Fitzgerald, and Katherine M. O’Brien of Tabet, DiVito & Rothstein LLC, Constitutional Issues Concerning Legislative Pension Reform Proposals, February 2013) (Constitutional Issues Concerning Senate Bill 1, Pt. B)

But the aforementioned speculation is unlikely, however, because “Bad Cop” Madigan’s shelling of Cullerton’s SB 1 was perhaps meant to expedite the acceptance of “Good Cop” Cullerton’s newly-sponsored bill SB 2404 by the We Are One Illinois Labor Coalition.

“A spokesman for House Speaker Michael Madigan, [however], was quick to point out the flaw in Cullerton's proposal, which is that ‘it doesn't look like it saves money.’ In fact it doesn't save nearly as much as the bill Madigan passed out of his House, about one-third as much over the next three decades. If the House Democrats' version would cut $140 billion in state spending by the mid-2040s - to cover a $97 billion and growing unfunded pension liability, largest in the nation - the current Senate incarnation would trim $46 billion” (Our View: The House deals, the Senate calls, pension poker game continues).

If Cullerton’s bill passes both Houses and then is signed into law, watch out for that next pension reform bill! It’s just a matter of time until their next assault on the Pension Clause.