"Ignorance Is Biss"

“I spent the last two years working to pass the Secure Choice Retirement Savings Program in Illinois, [and the last three years working to pass a bill to diminish and impair public employees’ and retirees’ contractual benefits and rights that were earned].”

Dear Friend,

"You’ve probably heard me talk about our looming retirement crisis. Half of Illinois' private sector workers — 2.5 million people — lack access to employer sponsored retirement plans. Researchers estimate that nationally our retirement savings deficit is between $6.8 and $14 trillion…

  

"This is a huge crisis, approaching us with terrifying speed. If we don’t do something about it, we’ll be facing an epidemic of seniors living in poverty, with horrific human consequences, not to mention huge costs to government.

"Fortunately, there are commonsense ways to address this. That’s why I spent the last two years working to pass the Secure Choice Retirement Savings Program in Illinois. It creates an automatic enrollment IRA so that workers without employer sponsored retirement plans still have an easy way to save for retirement using a payroll deduction and benefiting from low fees…

"On April 9, we were rewarded: the bill passed the Senate (with no votes to spare!). A House committee then passed the bill on a bipartisan 7-2 vote, but unfortunately we ran out of time and weren’t able to round up enough support to pass the bill out of the House before the end of our spring legislative session. We were disappointed, but undeterred…

  

"Finally, during the final week of the fall veto session, we were rewarded — the bill passed the House with 67 votes (seven to spare!) on December 2nd, and then finally passed the Senate again with 30 votes (none to spare!) on December 3rd. It’s now heading to Governor Quinn’s desk, and he’s already told me how excited he is to sign it.

"It’s been a joy and an honor to work on this project, and especially to work on it with so many dedicated, passionate, tenacious advocates. Literally millions of Illinois workers will now have a better shot at a dignified, secure retirement.

"This process has reminded me that with patience and persistence, we can make the world a better place and improve lives. I feel incredibly fortunate to hold a position in the State Senate that allows me to try to do that every day, and I promise to do the best I can to live up to that possibility."

Best,

Senator Daniel Biss
9th District – Illinois

On Illinois Senate Bill 1/ Breaking a Constitutional Contract with Public Employees and Retirees: 

An Interview with Daniel Biss/ with Commentary, Wednesday, January 22, 2014

Chad Aldeman: First, can you say why you are interested in pension reform, and what made this bill important?

Daniel Biss: I’m interested in pension reform because the first two years of my service in the Illinois General Assembly were years that followed a very significant tax increase and yet saw extremely deep cuts in discretionary spending to areas of public service that I cared deeply about, the reasons that I entered public service in the first place. The size of our pension payments was so large that if we tried to address our budget problems without looking at pensions, we would be signing ourselves up for deep and never-ending impacts on the rest of state government. I just couldn’t get to a place where that seemed acceptable. I sought out changes to the pension system that ultimately strengthened and preserved it for those who rely on it the most…

[“By far and away, the main reason the state’s contributions to its pension systems are increasing so much annually is the unrealistic, heavily back-loaded schedule the legislature set back in 1995 for repaying the debt the state owes to its pension systems. Of the $6.19 billion General Fund contribution to the five pension systems for FY2014, about $1.02 billion is attributable to the normal cost of the benefits being earned by current workers, while $5.17 billion constitutes debt repayment” (Analysis of FY2014 Illinois General Fund Budget from the Center for Tax and Budget Accountability). Furthermore, impairing a constitutional contract does not “strengthen and preserve it for those who rely on it the most”; breaking a contract with public employees will not address the revenue and debt problems in Illinois]…

Aldeman: Am I reading correctly that the changes apply to legislators? Was that a complicating factor in the negotiations?

Biss: It is true. Whatever the bill does for other pension systems—for state employees, teachers, and state university employees—the bill either replicates the same policy for legislators or asks more of them.

[“Leaving the judges out of pension reform: ‘I would call this buying off the judges…’” (Ann Lousin, a professor at the John Marshall Law School in Chicago who helped draft the Illinois Constitution in 1970)]…

Very few of us were prepared to do something like this to teachers, state workers, and university employees unless we were prepared to do it to ourselves as well.

[Approximately 80 percent of public employees have only one pension. How many pensions will the average Illinois legislator have?].

As an example, in 2010, Illinois created a new “Tier 2” of benefits for employees hired after January 1, 2011. It’s a relatively stingy plan. This bill didn’t change anything for those workers at all. The only exception is that the bill did have a cut for Tier 2 legislators. I just couldn’t look myself in the mirror and sponsor a bill that left me off the hook.

[Regarding Tier 2: Illinois legislators have failed to address the flaws in the newly-hired public employees’ pension plan. The “Tier 2” benefit structure for employees faces problems because the benefit is worth less than employees are paying for it. Tier 2 is a looming issue that must be resolved, but SB 1 will possibly create the same problem for the Teachers’ Retirement System (TRS) and, likely, the State Universities Retirement System (SURS)]. 

Aldeman: One component of the bill is a gradual increase in the retirement age for current employees. For example, if an employee is 46 years or older as of June 1, 2014, they face no change, but if they’re between 45 and 46, their retirement age will increase by 4 months. The law creates tiers like this, adding four months to the retirement age a year until the employee is less than 32. Anyone 32 or younger would have their retirement age increased by 60 months (5 years). What was the rationale for creating this tiered system?

Biss: This is probably one of the parts of the bill that feels the fairest to some people. If you’re close to retirement, moving the retirement age is a lot to ask. If someone is 59 and planning to retire at 60, changing their retirement age is changing their life in a really extreme way. On the other hand, telling someone who’s younger, say 40, just doesn’t seem as much to ask, particularly in a climate where other workers in the private sector are retiring later.

[“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. At the same time, the plain language also indicates that an employee’s pension payments and other membership entitlements are ‘contractual’ rights that may be presumably altered through mutual assent via contract principles. Further, the Clause’s prohibitory language against the diminishment or impairment of pension benefits is cast in absolute terms and lacks any exceptions…” (Eric M. Madiar, Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate)].

I have always felt you need to protect those close to retirement [But not public retirees?]. In a bill I introduced a year ago, we had somewhat crude bands. Those bands were larger than what emerged in the final bill. The bigger bands worked ok, but they unfairly penalized people depending on when their birthday fell in relationship to the bands. The Senate Republicans came up with the idea we compromised on. It may be difficult to write it out, but it’s phased in smoothly and doesn’t make someone say, “I can’t believe I was born only two days late.” It’s less capricious and arbitrary. We wanted to phase it in over a reasonable time period while sheltering those who are close to retirement. However, part of the challenge for a place like Illinois, because we have so much debt, is that an unbelievably large portion of our liability is associated with workers and retirees who are over the age of 60. In other words, the vast majority of our unfunded liability is to retirees. What this means is that changing the retirement age just can’t move the needle significantly enough on the cost side.

We were asked, “How can you possibly touch retirees?” but once you realize that two-thirds of our liability is associated with people over the age of 60, it doesn’t seem plausible to make a significant fiscal change while leaving retirees untouched.

[“The significance of any modification of the “Pension Clause” is “the extent to which [retirees] will be deprived of the benefit [they] reasonably expected; the extent to which [retirees] can be adequately compensated for the part of that benefit [COLA] of which [they] will be deprived; […and] the extent to which the behavior of the party [Illinois General Assembly] failing to perform or to offer to perform [or] comports with standards of good faith and fair dealing… The promise to honor commitments and pay for the public employees’ pension is of ‘sufficient importance’ to all citizens of Illinois. To pass pension reform is ‘an unequivocal manifestation of intention not to perform… legal duties…under a contract… When there is a duty of immediate performance of a promise, failure to perform in full is a breach’” (Professor of Law, Emeritus, Claude D. Rohwer and Professor of Law, Emeritus, Anthony M. Skrocki, Contracts in a Nutshell)].

Aldeman: There’s been quite a bit of questioning about the legality of the changes. Article XIII, Section 5 of the Illinois State Constitution says, “Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency of instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” The last part, “shall not be diminished or impaired” has been seized on as prohibiting changes like what’s in this bill. Can you explain the counter argument for why these changes are legal?

Biss: There are a number of different arguments. I would lay out two here. First, there is consideration given to the class of affected individuals in this bill. It is consideration to the class rather than an opportunity for each individual to renegotiate their contract. For those still working, their annual contributions will be reduced by 1%.

[No consideration was given to public employees in Senate Bill 1: reducing the contribution rate for current teachers by one percent was not a consideration. It was not negotiated; furthermore, modification of contract principles for retirees was also without consent. “It is well settled that a contract, once made, must be performed according to its terms, and that any modification of those terms must be made by mutual assent and for consideration” (Ross v. May Co., 377 Ill. App. 3d 387, 389 (2007)].

For the entire class, there is a significant new right in the form of additional funding. The Supreme Court has said the Constitution has protected the right to a benefit, but we’re also creating a new right to fund the benefit properly and therefore guarantee its fiscal health and stability. We’re not only going to an actuarially funding schedule, we’re going above and beyond that. All of this is money going to the retirement system and therefore to the employees.

[Illinois legislators who challenge constitutional contracts can never be trusted. As a matter of fact, according to Representative Elaine Nekritz: “The so-called pension payment guarantee has wiggle room. If the state fails to make a pension payment, a retirement system could file action in the Illinois Supreme Court to compel the state to make the required payment. But if the state faces a crisis, it could simply vote to change what the required payment would be; [thus], effectively working around that guarantee”].

The second argument is simply one of balancing priorities. The Constitution does include Article XIII, Section 5. But it’s a long constitution and it includes other things too, such as a free public education and health and welfare and safety. It’s very clear that we’ve had to cut spending on things like public education in a way and to an extent that imperils the quality of our services.

[“… [T]here are those among us who want to abandon] the fundamental principle that the rules of the game for contracting parties are not to be changed midstream… This is especially hard to comprehend when public employees have diligently and faithfully paid their contributions while their government employers have failed to pay their required share. Indeed, for decades, states have treated pension systems as a credit card to pay for government services and avoid tax increases or service cuts (p. 194)... For lawmakers, it is simply politically more palatable to unilaterally cut pension benefits for public employees and retirees than to raise taxes, cut services, or both…” (Eric M. Madiar (2012). Public Pension Benefits under Siege: Does State Law Facilitate or Block Recent Efforts to Cut the Pension Benefits of Public Servants? ABA Journal of Labor & Employment Law, V. 27, no. 2, 179-194. Retrieved December 7, 2012 (Defending and Protecting Public Employees’ Pensions against the Legislative Siege)].

My expectation would be that the courts decline to rule narrowly but will recognize that this was an attempt to balance between different priorities, all of which are important, some of which are statutorily and others which are constitutionally protected. Though it was a difficult and painful struggle internally, I felt like the public harm from doing nothing at all was unacceptable to the people of Illinois. I hope the courts will weigh that seriously and carefully as they make a determination...

[“…One thing we cannot do [Daniel Biss]… is ignore the Constitution of Illinois… No principle of law permits us to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may seem…” (from Ann B. Jorgensen et al., Appellees, v. Rod R. Blagojevich, Governor, et al., Appellants).]

“[Any] attempt to denigrate the validity of decades of judicial precedents about the binding nature of legislation establishing pension commitments to government employees and to motivate state courts to overturn long-settled premises about these commitments would impose its own, unjustifiable costs. The states and their instrumentalities have promised pension benefits to their employees; those employees have relied on those long-standing promises; and as a result the citizens of the states have benefited from the services provided by those employees. [In short,] there is no sound public policy reason to conclude that these promises – based on the reasonable expectations of the contracting parties – should not be fully protected by the laws prohibiting or limiting the impairment of contracts” (Greenfield, Douglas L., Lahne, Susan G. (2012). How Much Can States Change Existing Retirement Policy? In Defense of State Judicial Decisions Protecting Public Employees’ Pensions. National Council of State Legislatures Legislative Summit).

“[The Pension Protection Clause was approved by the Constitutional Convention and ratified by the people of Illinois. Over the years, the Illinois Supreme Court has had several occasions to interpret the Pension Protection Clause. The Illinois Supreme Court’s decisions have been consistent: ‘[T]his court has consistently invalidated amendments to the Pension Code where the result is to diminish benefits.’ McNamee v. State, 173 Ill. 2d 433, 445 (1996). That is because, under the Pension Protection Clause, the ‘contractual relationship’ between a retirement system member and the State of Illinois is ‘governed by the actual terms of the Pension Code at the time the employee becomes a member of the pension system.’ McNamee, 173 Ill. 2d at 439.

“[In a strikingly similar context, the Illinois Supreme Court also has warned: ‘No principle of law permits us to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may seem.’” (Jorgensen v. Blagojevich, 211 Ill. 2d 286, 316 (2004) (from the 12-page legal document recently filed by the law firm of Tabet, DiVito & Rothstein on behalf of the plaintiffs named from the IRTA and IASA)].

[Your oath of office, Senator Biss: “Each prospective holder of a State office or other State position created by this Constitution, before taking office, shall take and subscribe to the following oath or affirmation: ‘I do solemnly swear (affirm) that I will support the Constitution of the United States, and the Constitution of the State of Illinois, and that I will faithfully discharge the duties of the office of…to the best of my ability’” (The Constitution of the State of Illinois, Article XIII—Oath or Affirmation of Office, Section 3)]. 
 

For the complete interview, Click Here.

Buffalo Springfield - For What It's Worth

A Chicago Teacher Explains How Her School Fought Back Against Standardized Testing—And Won by Sarah Chambers

“…Boycotts do not just happen—they are organized. The testing boycott at my school was strategically planned with a multifaceted approach that included teacher, parent and student support. Although the planning and implementation of this strategy occurred in a one-month span, the agitation around over-testing and employee power in the school organizational structure was built over a couple of years…

“Previously within the Chicago Teacher’s Union (CTU) and the social justice caucus within the union, CORE (Caucus of Rank and File Educators), we had discussed the many ways over-testing was damaging education but hadn’t spoken of concrete steps and strategies to combat these tests as teachers. We brought More Than a Score’s fliers on over-testing and opt-out letter templates to CORE’s monthly meeting. CORE’s testing committee also created a boycott checklist/timeline that included the steps necessary to lead to a successful boycott and massive opt-out of a test...

“During this CORE meeting, the members of the CORE testing committee presented a strategy to spread the opt-out movement to schools throughout the city. We explained that for a school to organize for a teacher boycott, they must simultaneously organize a school-wide student opt-out campaign. CORE members brought thousands of letters to their own schools and nearby schools that had a growing testing resistance movement…

“[P]arents were shocked by the number of tests and the amount of instructional time lost, which most schools rarely publicize. Parents asked many questions and were disturbed to learn the spring 2014 Illinois Standards Achievement Test (ISAT), which would take away one to two weeks of instruction time, was already being phased out and was no longer even tied to the same high stakes of promotion and school leveling for which it had been originally created. Families quickly embraced the idea of opting out of this exam.

“The most effective strategy for educating parents on an issue is to have other parents, rather than teachers, discuss with them. Parents place the greatest trust in other parents, especially parent leaders, because they know that they have the same interests in mind. At our information session, we identified a number of parent leaders who were especially eager to take on the ISAT. Before long, these parents were leading their own information sessions.

“Soon, students began to lead meetings as well, educating their parents and peers about high-stakes testing and the opt-out process. We continued to have these sessions four to five times at various locations before and during the boycott. These sessions not only helped build toward the boycott but also continued through the boycott itself, helping to correct misinformation. 

“In addition to group information sessions, one-on-one meetings were important for building support around the idea of a boycott with faculty. During these meetings, I spoke with teachers before and after school, during lunch and in passing about the opt-out movement nationally and locally, as well as the ‘big picture implications’ of over-testing, such as the firing/layoffs of quality experienced teachers, public school closures, and the agenda to privatize our school system. Sprinkled in these discussions was the word ‘boycott.’

“…Through our staff-wide personal email listserv, I sent articles on over-testing and issues with the Common Core State Standards and dates of informational sessions and panels led by organizations, such as More Than a Score, against excessive testing and guided parents and teachers on how to opt out children...

“Two weeks before the ISAT was supposed to be administered, I prepared a union meeting at Saucedo to launch a massive opt-out campaign. We made copies of the opt-out flyer and template for each Saucedo student from third through eighth grade. I knew the stakes were high for this effort—if CPS got wind of such a massive opt-out operation, they would try to swiftly shut down all opt outs at our school and across the city.

“At the union meeting, we had a discussion about the implications and logistics of a massive school-wide opt-out of the ISAT exam. One of the major obstacles to disseminating information about opting out is political. We took precautions to ensure that no teacher was passing out ‘political materials’ while on the clock. We were all to pass out the opt-out fliers and templates before or after school by picking up our class five minutes early or dropping them off five minutes late. The teachers told their students to return the opt-out letters to their homeroom teachers rather than to the administration so that the administration wouldn’t catch wind of the campaign.

“With the signed letters in their hands, teachers could make copies and turn them all in on the same day. This also protected the student in case the letter happened to be ‘lost’ by administration. Once the students received the letter templates, opting out spread like wildfire.

“Almost the entire student body did not want to take this tedious standardized test, so they urged their parents to opt them out. Within a week, we had around 50 percent of the students at our own school opting out of the ISAT exam. We set a date to turn all the opt-out letters in to the counselors. By then, the administration at Saucedo already knew about it. At that point, they were not opposed to students opting out because the CPS central office hadn’t threatened their careers and force-fed them lies about loss of school funding…

“The only way to launch this dialogue against over-testing and to strike a blow against the privatization agenda was to boycott the test. And that is exactly what we did… The key to having an effective boycott vote is to ensure that all staff in the testing grades actually attend the union meeting, which is a serious hurdle for many schools. The Chicago Teachers Union strike in 2012 taught me that to achieve 100 percent attendance at a meeting of overworked educators, it helps to have multiple forms of advertising and announcements—and serve food. We advertised the union meeting through our whole staff email listserv, posted signs on the punch-out clock, placed notes in everyone’s mailboxes, and called all the teachers through our staff phone tree…

“At the union meeting, we had everyone sign in so we could easily see if there were missing staff. Team members found others not in attendance and brought them to the meeting. The meeting began with teachers and CTU organizers discussing the boycott—both the benefits and the possibility of severe consequences such as discipline or termination. We had a rich discussion of the pros and cons among the teachers right up until the vote.

“Before the boycott vote, we explained the paper ballot we would be using, with its three options: 1) Yes, I will teach rather than give the ISAT; 2) Yes, I will teach rather than give the ISAT if 75 percent of the staff votes yes; or 3) No, I will give the ISAT. Each staff member voted individually and submitted his or her ballot anonymously. We counted the ballots in front of the staff and 100 percent of the ballots were for boycotting the test!

“…The threats became more real at Saucedo when members of the administration went to every teacher one by one when they were alone in their rooms and told us, ‘You will lose your job if you boycott,’ ‘You will be replaced,’ or ‘You will be disciplined.’ Due to this intense pressure, we held meetings almost every day with multiple people from the union offices, such as CTU lawyers, organizers, the head of the grievance department, our field representative, the head of staff, and the officers, including CTU president Karen Lewis.

“Not content with bullying teachers, CPS soon began attacking our parents. Administration members called parents every day, hosted what we called ‘mis-information’ sessions, held one-on-one conferences with parents, and sent home letters to convince parents to opt their child back in to take the ISAT. The administration regurgitated lies that CPS fed them about our school losing funding, which could lead to losing our renowned band program.

“We combated these scare tactics by having parents, retirees, and other supporters pass out daily fliers with the correct information: ISAT scores are not connected to funding, Title 1 funding is not connected to ISAT scores, our music program is not connected to ISAT scores, ISAT has no bearing on selective enrollment entry, leveling of the school, or student grade promotion.

“Parents and teachers weren’t the only ones under siege; students were also bombarded. The CPS central office announced that all students, whether they were opted out or not, must be given the test booklet. These actions were intended to get students to reverse their (or their family’s) decision and take the test. To counteract these absurd rules, supporters passed out ‘students, know your rights’ cards that explained their right to refuse the exam. These cards proved to be extremely effective…

“The day before the ISAT was to be administered, we held a final boycott count by calling each teacher to ask them directly if they still chose to teach rather than give the test. A number of teachers dropped out, but twenty-five stayed strong. A group of non-tenured teachers—the most vulnerable educators among us, who could be terminated without cause—met with administration and stated that they refused to give the test to students who had opted out but would give the test to non-opt-out students. The administration agreed to their demands. This was a moment of extreme bravery for our non-tenure teachers because they could be ‘non-renewed’ with the click of a button and risked losing their jobs the following year…

“Where teachers had opt-out classrooms, they told me, they taught wonderful lessons of other resisters and activists in history, such as Gandhi and Rosa Parks. The students related these activists’ civil disobedience to our act of civil disobedience in boycotting the test. These students were engaged in learning instead of stressing over a standardized exam.

“Our act of civil disobedience did not spread to schools other than Drummond, but through our organizing efforts and press conferences, our message spread throughout the nation, our story even reaching National Public Radio and the Wall Street Journal. Our actions have spurred a significant number of discussions around Chicago and the nation about the detrimental effects of over-testing our students.

“These boycotts and the opt-out movement will only spread in the coming years. This year, I did not have to see a student pull out his eyelashes, anguished with the burden of a high-stakes exam. This is the first year that a student did not cry in my class from the stress of standardized testing.

“To all the teachers reading this, you won’t truly feel free as an educator until you stand up unconditionally for your students and boycott the test.”

For the complete article, Click Here.

Fact Sheet for Senate Bill 16—School Funding Reform Act of 2014 from Center for Tax and Budget Accountability

RELEASED: November 11, 2014

To address concerns about inequity in the Illinois' K-12 education funding formula, the Illinois Senate unanimously established the Education Funding Advisory Committee or “EFAC” in July of 2013. One specific goal supported by EFAC was making said distribution more equitable from a needs-based standpoint. In April of 2014, Senator Andy Manar (D-48) introduced SB16 in part to implement some of EFAC’s recommendations. CTBA's Fact Sheet outlines the primary goals, basic mechanics, and equity concerns of SB16.

Download Documents: Fact Sheet: SB16—School Funding Reform Act of 2014