Amending the Illinois Pension Protection Clause

“…So long as the governor is considering a change to the Illinois Constitution, he should not stop with just one. Pritzker should add a constitutional amendment to change the state’s pension clause — the one that has stood in the way of pension reform for decades now…

“The Illinois Constitution’s best-known codicil is the one that declares pensions are a contract that can never be ‘diminished or impaired.’ Those seemingly common sense words have stood in the way of several fair-minded reform plans, including one passed by the Democratic-led legislature in 2013 that the state Supreme Court struck down two years later.

“Pritzker in his budget address said the state is obligated ‘to pay the pensions that are owed.’ How that is defined can be a matter of debate, yet the courts have so broadly interpreted the obligation that no meaningful reform can get through. A new pension clause would give policymakers options they do not currently have…

“Pritzker may not need a package deal of constitutional reforms. He probably can get the votes to pass his tax amendment without a pension fix, too. But the progressive tax alone won’t solve the state’s fiscal problems.

“Passing both amendments together would be a good sign that voters in all income brackets can look forward to some measure of relief from their new governor. Gov. Pritzker should begin that process now”—David Greising, president of the Better Government Association, a Chicago-based civic watchdog organization (The State Journal-Register, March 18, 2019). 

Mr. David Greising:

There is nothing ambiguous or vague about these decrees:

“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws” (The Constitution of the State of Illinois, Article 1—Due Process and Equal Protection, Section 2).

“Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law” (The Constitution of the State of Illinois, Article 1—Right of Eminent Domain, Section 15).

“No ex post facto law, or law impairing the obligation of contracts…shall be passed” (The Constitution of the State of Illinois, Article I—Ex Post Facto Laws and Impairing Contracts, Section 16/The Constitution of the United States, Article 1—Limitations on Powers of States, Section 10).     

“Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired” (The Constitution of the State of Illinois, Article XIII—Pension and Retirement Rights, Section 5: The Pension Protection Clause).
 
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.

If there is anything else we might examine regarding the Pension Protection Clause and its relationship to a reality that reveals repeated attempts by the wealthy elite, their politicians and the media to amend constitutionally-guaranteed pension benefit rights, perhaps we should also dispute these relentless attacks on the very intelligibility of the English language.

As stated, the foundation of public employees’ and retirees’ rights is the State and U.S. Constitutions that directly support any claims against them. State contracts are also protected by the federal government. Understandably, the 5th and 14th amendments of the United States Constitution protect due process of law. In Illinois, the legal basis for protection of past-and-future public pension rights are established in both constitutions.

Unfortunately, there are people who want to amend the Pension Protection Clause. They do not care whether teachers and other public employees have contributed responsibly to their pension funds or that teachers will receive little to no Social Security when they retire. They do not care whether retired teachers’ and other public employees’ defined-benefit pension plans are a fundamental source of economic stimulus to communities in Illinois and the only retirement income for hundreds of thousands of people.

They do not care that the State of Illinois has not consistently paid its full constitutional and obligatory contributions to the public pension systems throughout the decades, that this money was diverted to other operating expenses and special interests’ groups, that the State of Illinois saved billions of dollars by not paying what actuaries have calculated the Teachers’ Retirement System should have received throughout the years, that this theft also enabled the State of Illinois to provide services for its citizenry without raising taxes during that time, and that this money was deferred-earned income for teachers in Illinois.

Furthermore, they do not care that an amendment to Article XIII, Section 5 of the Illinois State Constitution does not nullify the $134 billion unfunded liability that the state continues to perpetuate by not fully funding the pension systems.

To possess a right to a promised deferred compensation, such as a pension, is to assert a legitimate claim with all Illinois legislators to protect that right. There are no rights without obligations. They are mutually dependent. Fulfilling a contract is a legal and moral obligation justified by trust among elected officials and their constituents.

The keeping of contractual promises is the Illinois General Assembly’s legal duty. It is something the State and U.S. Constitutions require them to do whether they want to or not. All citizens of the State of Illinois have legal justification for their rights, especially for compensation they have earned. For rights and obligations are logically correlative, and a citizen’s rights imply or complement the state legislators’ obligation to guarantee them.

-Glen Brown