By: Mark Glennon*
Opponents of a a state constitutional amendment to allow for real pension reform have long tried to throw cold water on that idea by overstating concerns about its legality. Most of those efforts have centered on the claim that a state constitutional amendment would be barred by the United States Constitution. The Better Government Association this week wrote about a new supposed concern.
But their article contains error after error. Published on their site, Crain’s and other places, they say:
Backers of the latest drive to slash Illinois public pension benefits may want to take note of the fate of a similar effort in San Diego, which won strong voter approval years ago but was nonetheless blocked in the courts and now will not go into effect.
Nonsense. The California decision had nothing to do with Illinois or the law that would be applied if Illinois were to amend its constitution. It was strictly about a California statute. That statute requires public officials to meet and confer with labor officials prior to implementing certain changes which, the court decided, included the pension reforms San Diego tried to implement. The case is Boling v. Public Employment Relations Board. Pension reform failed there because the city didn’t meet and confer with labor.
The BGA went on to say the United States Supreme Court declined to hear the case, further indicating the obstacle Illinois would face.
Nonsense again. San Diego appealed to the United States Supreme Court solely on an unrelated issue – whether that California statute can preempt an elected public official’s First Amendment right to participate in a citizens’ initiative process, which was how the San Diego pension reform came about.
One law firm writing about the case put it simply: “Boling should not be read as a statement on pension reform.”
The BGA goes on to say that a particular research piece by the Civic Committee questioned the legality of a state constitutional amendment, quoting this line: “The options to reduce the unfunded liability are limited due to constitutional constraints.”
But that line was used in a different context entirely. The Civic Committee used it when talking about the underlying problem of how Illinois courts have interpreted our pension reform amendment. They were not talking about legality of an amendment, nor did they discuss that anywhere else in the report.
Finally, the BGA rekindles a claim that pension reform would represent an unconstitutional “taking” of property, relying only on the writings of Senate President John Cullerton’s pension law guy.
But they said not a word to support the other side and ignored the leading new decision on “taking” and other relevant federal constitutional issues. That’s this month’s Rhode Island decision validating reforms in the City of Cranston. We’ve written about that decision in detail. The court, applying the same federal law that would apply after Illinois amended its constitution, rejected claims of unconstitutional “taking” as well as “contract impairment.” Cranston’s mayor correctly called the decision historic because it withstood “a full legal challenge.”
Let’s go back to the point of the California case, which is rather interesting. That decision said San Diego should have met and conferred with labor representatives before trying to implement pension reform. Of course those meetings and conferences should occur, and it shouldn’t matter what state law says. Regardless of what the law is on that in Illinois, it should go without saying that negotiated efforts should be exhausted. They undoubtedly will be if Illinois ever gets serious about reform.
Negotiation is fair, reasonable and certain to happen. However, the unions will say what they’ve always said – “drop dead.” Interestingly, Justice Alito on the Supreme Court seemed to mock Illinois labor unions’ unwillingness to negotiate fairly. In last year’s Janus decision, he wrote that when Illinois offered cost-saving proposals, “the Union countered with very different suggestions. Among other things, it advocated wage and tax increases, cutting spending ‘to Wall Street financial institutions,’ and reforms to Illinois’ pension and tax systems (such as closing ‘corporate tax loopholes,’ ‘[e]xpanding the base of the state sales tax,’ and ‘allowing an income tax that is adjusted in accordance with ability to pay’).”
Any open legal issues that would arise after Illinois properly amended its pension protection clause would be appealable, ultimately, to the United States Supreme Court. Alito seems to be itching to write that opinion.
To recap our view on this topic, for some of our worst off towns and cities, pension reform after a constitutional amendment would almost most certainly survive the required legal test that reforms be “reasonably and necessary to fulfill an important public purpose.” More prosperous cities with healthier pensions would not. For the state’s own pensions, chances are high that reform would prevail and, if not, it’s only a matter of time before it would thanks to the states rapidly growing insolvency. There’s no political will for a constitutional amendment now, but there will be when we get to the “inevitable financial collapse,” as the Wall Street Journal termed it.
The BGA article was published by Crain’s as part of its special edition on pensions. Salute to them for including different perspectives from leading voices. However, that gave a platform to plenty of nonsense. We earlier wrote about the dishonest article by the Executive Director of AFSCME, the big public union. Next up will be an article by Amanda Kass.
*Mark Glennon is founder of Wirepoints.