“Anyone following the pension-reform debate knows
Illinois has long diverted the money needed to properly fund its pension
systems to avoid tax increases, cuts in public services or both. Some may not
admit it, but they know it. They also know this practice is the primary reason
why the systems are under water.
“Because much of my time the past three years has been
spent on the state’s pension problem, I wanted to find out how long it’s been
that way and how long we have known about it. As chronicled in an article I
wrote that was published by Chicago-Kent College of Law, I have an answer: 1917.
That’s not a typo.
“In 1917, the Illinois Pension Laws Commission warned
leaders that the retirement systems were nearing ‘insolvency’ and ‘moving
toward crisis’ because of the state’s failure to properly fund the systems. It
also recommended action so that the pension obligations of that generation
would not be passed on to future generations.
“The warning and funding recommendation went unheeded, as
did similar warnings and recommendations found in decades of public pension
reports issued before and after the pension clause was added to the Illinois
Constitution in 1970.
“For decades, these reports consistently warned the
public and lawmakers of the dire consequences of the state’s continued
underfunding and of the significant burden unfunded pension liabilities posed
for taxpayers. They advised that the pension clause bars the legislature from
unilaterally cutting pension benefits of retirees and current employees.
“Indeed, one of the clause’s purposes is to prevent the
state from reneging on its pension obligations during a fiscal crisis because
of the burden imposed by unfunded liabilities. The clause was added at a time
when the pension systems were no better than they are today.
“These reports also reveal that as early as 1979 Moody’s
and Standard and Poor’s advised Illinois that it would lose its AAA bond rating
if it did not begin tackling its increasing unfunded pension liabilities.
“In 1982, Gov. Jim Thompson succeeded in passing
legislation making pension funding far more dependent upon stock market returns
to stave off higher state pension contributions. Interestingly, that
legislation resulted from a report commissioned by Thompson that highlighted
how the pension systems should consider investing in mortgage-backed securities
to obtain higher stock market returns.
“Further, a 1985 task force report noted that Standard
and Poor’s reduced its bond rating for Illinois from AAA to AA+ because of the
state’s ‘deferral of pension obligations,’ and that another rating agency
viewed Illinois’ pension funding as a future financial ‘time bomb.’
“Finally, the much-heralded 1995 pension funding plan was
designed to increase the state’s unfunded liabilities and postpone its
actuarially sound pension contributions until 2034.
“Given this well-documented history, it’s extremely hard to legitimately believe Illinois’ current situation is so surprising that the state constitution can be ignored and pension benefits unilaterally cut. As noted in my previous legal research, the pension clause does not support such a result.
“The likelihood of
that result occurring seems even more remote given the Illinois Supreme Court’s
July decision, in which it explained that the clause was intended to ‘insulate’
benefits from ‘diminishment or impairment by the General Assembly’ and that the
court could not rewrite the clause ‘to include restrictions and limitations
that the drafters did not express and the citizens of Illinois did not approve.’
“Make no mistake,
the court’s decision strongly signals doom for the argument that the 2013
pension-reform bill is constitutional because the legislature can trump the
pension clause when it declares a fiscal necessity. So, too, does the state’s
sordid history of failing to properly fund its pension system.
“When it comes to
Illinois’ pension-funding problem, what’s past is prologue. Addressing this
problem, however, requires the acceptance of this history, as well as the
obligations and boundaries imposed by the pension clause.”
Eric M. Madiar is chief legal counsel to Senate
President John Cullerton.
Commentary:
James Madison was prescient when he wrote 226 years ago that “laws impairing the obligation of contracts are contrary to the first principles of the social compact and to every principle of sound legislation… One legislative interference is but the first link of a long chain of repetitions” (qtd. in Fliter and Hoff 20-21).
from The Contract Clause and the State of Illinois’ “reserved sovereign powers” in Senate Bill 1 (June 12, 2014).
James Madison was prescient when he wrote 226 years ago that “laws impairing the obligation of contracts are contrary to the first principles of the social compact and to every principle of sound legislation… One legislative interference is but the first link of a long chain of repetitions” (qtd. in Fliter and Hoff 20-21).
Undoubtedly, this has been the case in Illinois for several
decades and, as most of us know, there are more than a dozen antedated court cases that
confirm legislative attempts to subvert both the Illinois and U.S.
Constitutions. Of course, the most recent challenge to a constitutional
contract is Senate Bill 1, although 80 Illinois legislators did not vote to
break a constitutional contract with public employees and retirees.
As some of us are also aware, nearly all of Attorney General
Lisa Madigan’s 180 answers and defenses to the claims currently defending the
State and U.S. Constitutions are simple rejoinders and appear ironically akin
to Bartleby’s existential “I prefer not to” denials. Madigan’s tautological
ripostes are merely “Defendants deny the allegations” or “Defendants lack
knowledge sufficient to form a belief regarding the remaining allegations” for
54 of the 66 pages.
Madigan maintains that “In light of the magnitude of the
pension problem and all of the other efforts the State has made to date [which
apparently does not include an effort to re-amortize the flawed 1995 “Pension
Ramp” to pay the debt service legislators have incurred; reform the state’s
defective revenue structure; ensure corporations pay their fair share of taxes;
reduce wasteful spending; and eliminate tax giveaways for the wealthy elite,
corporate CEOs, and millionaire shareholders of Motorola, Navistar, Mitsubishi,
and Sears, to name just a few…, according to Madigan] the Act represents a
valid exercise of the State’s reserved sovereign powers to modify contractual
rights and obligations, including contractual obligations of the State
established under Article 1, Section 16 and Article XII [sic], Section 5 of the
Illinois Constitution” (Answer and Defenses).
In other words, the State of Illinois is declaring a
financial emergency and; thus, the State’s preferred scapegoats—its vulnerable
public employees and retirees—must acquiesce to a coerced, diminished and
impaired retirement contract to solve the state's fiscal problems. This is
assumed to be a “relief afforded by the 'Act' [and] commensurate with the
[so-called declared] emergency,” though it is without “a rational compromise
between individual rights and public welfare” (Fliter and Hoff 134-35).
Illinois legislators are not dealing with a threat to the
“public’s safety, health, and morals as well as peace, well-being and order of
the state”; (98) nor are they dealing with an economic emergency of such
magnitude that they are compelled to invoke powers to protect the state's
citizens and, thus, serve a reasonable public purpose or need.
However, hundreds of thousands of citizens of Illinois are
dealing with a calculated legislative thievery and, despite Madigan’s “answers
and defenses” regarding the recent
injunction, these public employees and retirees are dealing with a
violation to the Pension and Contract Clauses, the taking of property without
due process of law, and a violation of the Fourteenth Amendment and the equal protection
of the laws.
There is a history of court cases that have prohibited state
legislatures from repealing laws that establish contractual obligations in this
nation. Historically, it is in the interests of the “public good,” to protect
property rights and respect the Contract Clause, no matter what some
politicians conveniently presume otherwise. (There are seven states that have
their legal basis for protection of public pension rights under state laws in
their state constitution: Illinois, New York, Alaska, Arizona, Hawaii,
Louisiana and Michigan. There are 34 states that have their legal basis solely
through contract, six states through property, two states through gratuity, and
one state through promissory estoppel).
What Illinois citizens can accurately predict about future
contracts with state legislators who believe they have the “power to interfere
with the obligations of contracts [that are] specifically denied to the states
[in Article 1, Section 10 of the U.S. Constitution]” (154) is that if Illinois
legislators “can declare an emergency to exist and abrogate one provision of
[both State and U.S. Constitutions]…, ‘this decision serves notice upon [every
citizen of Illinois], who heretofore had trusted in the constitutions for
protection and believed in the sanctity of a contract, that the constitutions
are no longer a guarantee nor security against the abrogation of a proper and
legal contract’” (qtd. in Fliter and Hoff 154).
“It is difficult for [laypersons] to understand how even
'rational' interference can be assumed to be among the reserved powers of the
Tenth Amendment [of the U.S. Constitution]” (154); it is also difficult to
comprehend that Illinois legislators can continue to choose which contracts to
honor and which ones to violate now and in the future.
Eighty years ago, Supreme Court Justice George Sutherland
stated: “The framers wrote the Contract Clause for the very reason that they
feared emergencies unwisely tempt legislatures to loosen contract rights… [The]
meaning of constitutional provisions [at both state and federal levels] is
changeless; it is only their application which is extensible… [W]hatever tends
to postpone or retard the enforcement of a contract, to that extent weakens the
obligation” (141).
Indeed, it has been said that a state’s “sovereign powers”
refer to a general authority of a government to regulate for health, safety, morals, and welfare of its citizens.
Nevertheless, past precedents show that “state legislatures exercise police
power by passing laws in such areas as crime, land use, infrastructure,
lotteries, discrimination, licensing of professionals, nuisances, schools, and
sanitation… State and local governments… can use police power to enact laws
promoting the general welfare only if
the laws do not violate provisions in the U.S. Constitution, including the
Contract Clause” (33).
Nearly two hundred years ago, Chief Justice Marshall stated
unequivocally: "The power of changing the relative situation of debtor and
creditor, of interfering with contracts, a power which comes home to every man,
touches the interest of all, and controls the conduct of every individual in
those things which he supposes to be proper for his own exclusive management,
had been used to such an excess by the state legislatures, as to break in upon
the ordinary intercourse of society, and destroy all confidence between man and
man.
“This mischief had become so great, so alarming, as not only
to impair commercial intercourse and threaten the existence of credit, but to
sap the morals of the people and
destroy the sanctity of private faith. To guard against the continuance
of the evil was an object of deep interest with all the truly wise, as well as
the virtuous, of this great community, and was one of the important benefits
expected from a reform of the government” (31).
This is the time for citizens of Illinois to openly resist
the way in which the state's politicians (without moral conscience) have now
chosen to “regulate public morals and
welfare.” This is the time to protest against the liars and thieves who have
manufactured a financial crisis; to protest against the liars and thieves who
have perpetuated a financial predicament through irresponsibility,
mismanagement and corruption; to protest against the liars and thieves who have
ignored moral responsibility and
refused lawful remedy for the financial problems they have created. They
have stolen part of the pension you have earned. They will continue to steal
more of your pension in the future.
Fliter, John A. and Derek S. Hoff. Fighting Foreclosure: The Blaisdell Case, the Contract Clause, and the Great Depression. Kansas: the University Press of Kansas, 2012.
Fliter, John A. and Derek S. Hoff. Fighting Foreclosure: The Blaisdell Case, the Contract Clause, and the Great Depression. Kansas: the University Press of Kansas, 2012.
-Glen Brown
“[Furthermore, a]
plain language reading of the Pension Clause’s text makes clear that
governmental entities may not reduce or eliminate a public employee’s pension
payments and other membership entitlements once the employee becomes a pension
system member… Further, the Clause’s prohibitory language against the
diminishment or impairment of pension benefits is cast in absolute terms and
lacks any exceptions…” (Is
Welching on Public Pension Promises an Option for Illinois?).
To challenge the “Pension Clause” is to defy common
understanding of its legal and moral principles and to believe that every word
in the State and U.S. Constitutions might also be interpreted in an infinite,
fabricated regression of definitions.
There is nothing transcendental or metaphysical
about these 26 words: “Membership in any pension or retirement system of the
State… shall be an enforceable contractual relationship, the benefits of which
shall not be diminished or impaired” (Constitution of the State of Illinois,
Article XIII, Section 5. Pension and Retirement Rights).
It does not require intuitive or a priori thinking
to justify or verify this claim because we have learned the English language
and the rules governing its use. We know what these words mean in relation to
written, verbal, historical and cultural contexts.
Lexical definitions, denotations and connotations
of the words “diminishment” and “impairment” are unequivocal. It is not
necessary to break down these words into simple constituent parts unless, of
course, we simply misunderstand them because of stupidity, carelessness,
intentionality or maliciousness.
We cannot mistake the meaning of words such as
“shall be an enforceable contractual relationship, the benefits of which shall
not be diminished or impaired” because we understand and speak the English
language. If words in our State Constitution are to refer or mean anything,
they must be commonly understood and accepted as they have been for decades. Moreover,
if words are to refer to anything, they must also be understood through their
use, role, employment and past agreements.
We have before us “the validity of decades of judicial
precedents” that provide “the binding nature of legislation establishing
pension commitments to government employees”
(Defending
and Protecting Public Employees’ Pensions against the Legislative Siege).
If there is anything else we might examine
regarding the “Pension Clause” and its relationship to a reality that reveals
repeated attempts by the wealthy elite, their politicians and the media to
steal constitutionally-guaranteed pension benefit rights, perhaps we should
also dispute the relentless attacks on the very intelligibility of the
English language by these liars and thieves. We know the
“Pension Clause” is valid because it is understood to be a contractual right
and guarantee that public employees have earned.
Though incompetent, corrupt politicians and their
wealthy benefactors continue to ignore legal and moral terminologies and court
precedents, logical and ethical people understand the essential history and
necessity of the “Pension Clause” and know what it also means to uphold the
State and U.S. Constitutions.
An equally important and unfortunate issue arises
when politicians/lawyers swear an oath to uphold the State and U.S.
Constitutions in one context and then contradict their pledge in another
context, made evident in Attorney General Lisa Madigan’s and Attorney Joshua
Ratz’s sidestepping arguments or attempt to use “reserved sovereign powers” to
break a constitutional contract (The
Contract Clause and the State of Illinois’“reserved sovereign powers” in Senate
Bill 1).
Logical and ethical people know that the context
which states “membership in any pension or retirement system of the State…
shall be an enforceable contractual relationship, the benefits of which shall
not be diminished or impaired” emerged because “prior to the [Pension]
Clause’s adoption, nearly all public employees were members of mandatory
pension plans that lacked constitutional protection as ‘contractual’ rights and
could be adversely changed by the legislature at any time. These mandatory
plans were also underfunded and no better funded than the State’s five pension
systems today...
“[Logical and ethical people know] public employees
believed constitutional protection was necessary because the State had
historically failed to make its required contributions and because employees
felt that the State would renege on its obligations should a fiscal crisis
arise…
“[Logical and ethical people know] the
drafters of the ‘Pension Clause’ were aware of the concerns raised and requests
made by public employee groups, the State’s failure to properly fund the pension
system, and the difference in legal protection afforded to persons
participating in a mandatory and optional pension plan. These concerns, in
turn, prompted the drafters to include the ‘Pension Clause’ in the [1970]
Constitution…
“[Logical and ethical people also know] the
drafters intended for the ‘Pension Clause’ to (1) protect pension benefit
rights in all pension plans as ‘enforceable contractual rights’ as of when a
public employee became a member of a pension system, and (2) bar the
legislature from later unilaterally reducing those rights…” (qtd.
in Illinois Pension Clause’s Convention Debates, Text and Historical
Background, Eric M. Madiar).
from Another Examination of the Illinois “Pension Clause,” or What Part of These Words Do They Not Understand? (July 13, 2014)
-Glen Brown
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