Saturday, October 6, 2012

Amendment's Meaning Sparks Meaningful Debate

Author: Jim Dey
Publication: The News-Gazette
Published: October 6, 2012

Today's column can be summed up in a few words, "Just because you're paranoid doesn't mean they're not out to get you." Or not.

Everyone knows our elected officials are desperate to solve Illinois' apocalyptic public pension woes and, at the same time, equally desperate to avoid political retribution from the voters for doing so.

So what better way to do so than to have the voters themselves approve the means by which the benefits of public employees or retirees are modified in a way that reduces, or even eliminates, the pension funds' $80 billion-plus unfunded liability.

Sure, it's black helicopter stuff, but this is Illinois, a place where the politicians don't play straight with the public for two days in a row.

Ever heard of Constitutional Amendment 49 to the Illinois Constitution? It's on the Nov. 6 ballot, and it will become law if it is approved by the supermajority of 60 percent of those voting on the question or a majority of those who cast a ballot for any office in that election.

The amendment purports to make it harder for state and local government to increase public sector pensions. It supposedly was driven by the propensity of some legislators, Chicago's Democratic House Speaker Michael Madigan to name one, to pass special legislation aimed at enhancing pension benefits of connected politicos.

Did you hear about the Madigan bill that allowed two teachers' union lobbyists, nonpublic jobs, to qualify for $100,000-plus annual public pensions by working one day each as a substitute teacher?

Backers say the proposed amendment is intended to make it more difficult to pull stunts like that by increasing the number of votes necessary to pass such legislation from a simple majority to a special two-thirds majority.

It's especially ironic that Madigan is the chief sponsor of the amendment to make it harder for people like Madigan to use the legislative process to pay off political friends with taxpayer dollars.

But some skeptics argue that the amendment's convoluted language is really a back door effort to override Article XIII, Section 5, of the Illinois Constitution, which provides that the pension benefits earned by state employees "shall not be diminished or impaired."

In other words, the Illinois Constitution states that once you earn it, no one can take it away.

It's the view of retired University of Illinois Professor John Kindt that Madigan & Co. are hiding behind the amendment's wall of words to provide the legal cover necessary to override the so-called "nonimpairment clause."

"It's a threat to all benefits," Kindt argues.

That may or may not be the case. Many do not share Kindt's interpretation.

UI economist J. Fred Giertz, who plans to vote against the amendment, said he's not concerned the proposed amendment would jeopardize the retirement benefits public employees have earned.

He acknowledged that "some people believe it's kind of a back door attempt to replace the nonimpairment clause."

"No one seems to be concerned about it within the university," Giertz said. "I think it's not a problem."

He opposes the amendment because it is sloppily drafted and fears it will have a confusing effect on local governments. But he speculated that he is in the minority.

"I think it's very likely to pass," he said.

This is technical, boring stuff. Indeed, readers may feel themselves nodding off, and that's if they haven't already stopped reading.

Here's the background.

Beset by pension woes and embarrassed by continued revelations over pension sweeteners for special groups of state employees or, even more outrageous, state pension benefits for non-state employees, legislators hatched the plan for Amendment 49 earlier this year.

Speaker Madigan filed the proposed amendment with the clerk of the Illinois House on April 9. Whatever Madigan really wants, he gets. So by May 3, both the Illinois House and Senate had signed off on the proposal by overwhelming margins.

The House vote was 113-0, with local Reps. Chapin Rose, Jason Barickman and Naomi Jakobsson voting yes. The vote in the Senate was 51-2. Area Sens. Dale Righter and Shane Cultra voted in favor while Champaign's Mike Frerichs provided one of the two no votes.

Rose said he supports the concept of requiring a two-third votes to approve pension increases in state and local government and believes that's what the amendment does.

"The clear reading of this is that it just affects future benefit increases," Rose said. "That's the way it was explained."

However, he has heard from critics and plans to meet with Kindt to listen to his interpretation. "I stand to be corrected," Rose said.

Barickman said he anticipates voting for the amendment and said it was prompted by a desire to "allow voters a direct opportunity to weigh in on some of the pension reform measures" considered in Springfield.

"My intent was certainly not to try to create a back door way to reduce already accrued benefits," he said.

Barickman emphasized that he is not providing a legal interpretation of the amendment's language, just describing its purported intent.

Sen. Frerichs attributed his no vote to the poor drafting of the amendment.

"It could have been a lot more simple and clear," he said.

The proposed amendment is so long that it will not be printed on ballots. Instead, voters will be provided the conventional explanation of its meaning and asked to vote yes or no.

Kindt suggested that the extraordinary length of the proposed amendment is no accident. He said it "contains more words than the entire first 10 amendments to the U.S. Constitution" and that the "obvious intent ... is to hide its true impact from voters in a 700-word avalanche of unnecessary and deceptive words."

Critics have focused on the amendment's final paragraph, which was added at the last minute of legislative review, as the game changer.

Here's what it states:

"Nothing in this section shall prevent the passage or adoption of any law, ordinance, resolution, rule, policy or practice that further restricts the ability to provide a 'benefit increase,' 'emolument increase,' or 'beneficial determination,' as those terms are used under this section."

For starters, what does "beneficial determination" mean? Isn't that another way of saying a determination of benefits?

But what about the entire paragraph?

Springfield lobbyist Dick Lockhart, in a memo sent to his clients, said he interprets it to mean the following: "Although providing or increasing a benefit would require a three-fifths vote of the governing body, like a school board or a city council, restricting or eliminating a benefit can be done with a simple majority vote."

That's the black helicopter interpretation — the conspiracy theory view of the amendment's real intent.

Of course, what the amendment really means can only be divined by the judicial branch of government. So the question of the amendment's meaning is open to debate until the courts make an interpretation.

There also is a conspiracy theory about the conspiracy theory. Noting public employee unions and various retiree groups oppose Amendment 49 because it will make it harder to win benefit increases, Rose said he wonders "if there is really something (to what the critics are saying) or are they trying to scare people into opposing it?"

This is a debate over legal definitions with no definitive answers — at least not until the amendment passes and the legal questions are addressed in court. But by then, it might — with emphasis on the word "might" — be too late.

Here's a link to the complete language, at the General Assembly's website.

Jim Dey, a member of The News-Gazette staff, can be reached by email at or at 351-5369.

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