Originally published at Forbes.com on January 8, 2020.
Earlier this week, I griped that an Illinois State Senator, Heather Steans, had claimed that the state had solved its pension problem except for the pesky issue of legacy costs. Governor JB Pritzker, too, has claimed that there’s nothing to be done except to find more money, and Chicago Mayor Lori Lightfoot’s vaguely worded statements about the matter don’t amount to anything more, either.
But it seems about time for a deep dive into a narrow question: what did the Illinois Supreme Court have to say about pensions? It’s the sort of thing that seems very nit-picky but is actually very relevant to the situation in Illinois.
As a refresher, Illinois’ 1970 constitution is one of only in two in the nation which explicitly guarantee that state and local employees have a right to pension benefits based on the formula in effect at hire, without reduction, until retirement. (The other is New York.) This is via the “pension protection clause,” Article XIII, General Provisions, Section 5,
“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.”
This is not a part of some grand principle, but tossed in as a miscellaneous item among the text of the oath of office, the authorization of state funding of public transportation, and the requirement of a supermajority for the authorization of branch banking by the General Assembly.
In 2013, Illinois passed legislation which aimed to reduce pension liabilities, but various groups representing the affected employees filed suit, and the Supreme Court overturned the legislation in a 2015 decision. This decision recapped not merely the 2013 decision, but included more extensive commentary on Illinois pensions, citing, for example, 1917 and 1957 reports characterizing state and local pension plans as in a condition of insolvency, and a 1969 overall funded status of 41.8%.
The first thing that the Court makes clear in its decision is that the 1970 constitution bound Illinoisians to provide undiminished and unimpaired pensions to every state or local worker ever hired with such a promise, with no room for any changes whatsoever. Yes, it uses the language, technically true, that it was the people of Illinois who, in voting for the constitution, restricted the General Assembly from making any such changes, rather than acknowledging that those people were rather powerless to evaluate any such individual provision agreed to by the delegates drafting the constitution once it was put up for a vote. (In fact, on only four topics were voters given the ability to vote individually, vs. an all-or-nothing up-or-down vote: cumulative voting for the legislature, election of judges, capital punishment, and the vote for 18 year olds. The constitution itself was ratified by vote of 57%, with a turnout of 37% of voters in a special election in December, which all makes it a bit insulting for the Court to proclaim that it was the People of Illinois who asserted their will in this manner.)
The decision asserts, in short, that the delegates knew full well that pensions were not properly funded, and intentionally made the choice to guarantee pensions by means of obliging future generations to pay, no matter what, rather than funding them as they are accrued.
In fact, the text cites multiple attempts to provide some alternate language to the constitution’s blanket statement, which did not succeed:
“We note, moreover, that after the drafters of the 1970 Constitution initially approved the pension protection clause, a proposal was submitted to Delegate Green by the chairperson of the Illinois Public Employees Pension Laws Commission, an organization established by the General Assembly to, inter alia, offer recommendations regarding the impact of proposed pension legislation. . . . It recommended that additional introductory language be added specifying that the rights conferred thereunder were ‘[s]ubject to the authority of the General Assembly to enact reasonable modifications in employee rates of contribution, minimum service requirements and the provisions pertaining to the fiscal soundness of the retirement systems.’
“Delegate Green subsequently advised the chairman that he would not offer it because ‘he could get no additional delegate support for the proposed amendment.’ . . . Shortly thereafter, a member of the Pension Laws Commission sent a follow-up letter to Delegate Green requesting that he read a statement into the convention record expressing the view that the new provision should not be interpreted as reflecting an intent to withdraw from the legislature ‘the authority to make reasonable adjustments or modifications in respect to employee and employer rates of contribution, qualifying service and benefit conditions, and other changes designed to assure the financial stability of pension and retirement funds’ and that ‘[i]f the provision is interpreted to preclude any legislative changes which may in some incidental way ‘diminish or impair’ pension benefits it would unnecessarily interfere with a desirable measure of legislative discretion to adopt necessary amendments occasioned by changing economic conditions or other sound reasons.’ . . . . This effort also proved unsuccessful. The statement was not read and no action was taken during the convention to include language allowing a reasonable power of legislative modification” (p 21 – 22).
The Court also rejected the use of the state’s “police power” to reduce pensions, that is, the notion that the greater need to provide basic services could justify reducing pensions, noting that other provisions in the constitution included wording qualifying the promises made as subject to affordability, but that the pension protection wording was absolute. In addition, the 1970 constitution, and its drafters, cared not in the least for pension funding, only that the benefits are paid out to retirees; and the legislature, in its 2013 benefits-reduction legislation, was not making the case that it could not pay benefits which were due, but that the burden placed on the state budget of prefunding those benefits was too great. In fact, the Court even proposed that a reamortization schedule would have been sufficient to avoid a funding burden (p. 20) — that is, rejecting the notion that there is any particular urgency to funding pension liabilities at any particular level at any particular point in time.
It’s all, I suppose, a trick of assuming that there is a singular People of Illinois who, through their ratification of the constitution, promised to pay future benefits when they come due, rather than recognizing that the People of 1970 (presumably quite unknowingly) restricted future generations of Illinoisians by forcing them to make these payments without limitation.
But here’s some good news:
The Court’s decision emphasizes over and over again that what binds the General Assembly and the people of Illinois are the key words of Article 13, Section 5, “ the benefits of which shall not be diminished or impaired.” It’s a simple ruling: you can’t do anything which has the effect of reducing existing or future benefits (and the guarantee of a future Cost of Living Adjustment is included in such promises) so long as this phrase exists in the Illinois constitution.
This is a much narrower claim than some have made, including Gov. JB Pritzker himself, that those future accruals are guaranteed under the contracts clause of the United States Constitution, or by applying basic principles of justice and fairness, so that an amendment could never actually accomplish its purpose. Rather, the Illinois Supreme Court says that the constitution-writers intentionally gave pensions an elevated level of protection beyond what the U.S. Constitution requires via this clause. Here’s the key text:
“The pension protection clause clearly states: ‘[m]embership 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.’ (Emphasis added [in the decision text].) Ill. Const. 1970, art. XIII, § 5. This clause has been construed by our court on numerous occasions, most recently in Kanerva v. Weems, 2014 IL 115811. We held in that case that the clause means precisely what it says: ‘if something qualifies as a benefit of the enforceable contractual relationship resulting from membership in one of the State’s pension or retirement systems, it cannot be diminished or impaired’” (p. 14).
In other words, the key words that the Court emphasizes are “diminished or impaired,” not “enforceable contractual relationship.”
In the end, my reading of this decision says that the Court gave Illinois voters a roadmap to pension reform: there is only one path forward, that of an amendment, but it is at the same time, it is a travelable path, achievable if there is sufficient political will or grassroots support. Unfortunately, we know there is no political will, on the part of those currently in power. What the grassroots Illinoisians think about it is another question.
December 2024 Author’s note: the terms of my affiliation with Forbes enable me to republish materials on other sites, so I am updating my personal website by duplicating a selected portion of my Forbes writing here.
“…The concerns of the delegates who drafted article XIII, section 5, and the citizens who ratified it have proven to be well founded. Even with the protections of that provision, the General Assembly has repeatedly attempted to find ways to circumvent its clear and unambiguous prohibition against the diminishment or impairment of the benefits of membership in public retirement systems. Public Act 98-599 [was] merely the latest assault in this ongoing political battle against public pension rights. As we noted earlier, through that legislation the General Assembly [was] attempting to do once again exactly what the people of Illinois, through article XIII, section 5, said it has no authority to do and must not do…” (The Illinois Supreme Court, May 8, 2015).
To anyone attempting to amend the Pension Protection Clause: my response to you is to re-read Article XIII, Section 5: “Pension and Retirement Rights” of the Illinois Constitution. Read Article 1, Section 16: “Ex Post Facto Laws and Impairing Contracts” of the Illinois Constitution. Read Article I, Section 15: “Right of Eminent Domain” (the Takings Clause) of the Illinois Constitution. Read Article I, Section 2: “Due Process and Equal Protection” of the Illinois Constitution. Read Article 1, Section 10 of the United States Constitution: “No State shall… pass any… ex post facto Law, or Law impairing the Obligation of Contracts…” Read Amendment V, Section 1 of the United States Constitution: “No person shall be… deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.” Read Amendment XIV, Section 1 of the United States Constitution: “Due Process and Equal Protection.” To ignore the Fifth and Fourteenth Amendments of the U.S. Constitution and change laws that protect one group of people is to ignore due process and equal protection of the laws that guarantee contractual agreements as well. Finally, read the entire Illinois Supreme Court ruling: docket number 118585, filed on May 8, 2015 instead of excerpts.
But, Glen, the Supreme Court ruling (to which I’ve linked) said nothing about ex post facto Laws, or impairment of contracts. It was very narrowly limited to the specific statement in the pensions clause.
If one is going to cite parts of the Illinois Constitution best to start at the beginning which defines the overall intent.
When a benefit provided to less than 5% of the State’s population is based on actuarial science of the 70’s, becomes unaffordable due to current actuarial science and significantly impedes the State’s ability to provide necessary services (see below) to the to the remaining 95% of the State something must be done. While it might be reasonable given the poor fiscal managerial history of our legislature to attempt to protect benefits within the Constitution it is unconstitutional when it does so at the expense and harm of the majority of the citizens of the State. Currently pension liabilities take up 25% of every dollar of State revenue and that percent is only growing.
“…in order to provide for the health,
safety and welfare of the people; maintain a representative
and orderly government; eliminate poverty and inequality;
assure legal, social and economic justice; provide
opportunity for the fullest development of the individual;
insure domestic tranquility; provide for the common defense;
and secure the blessings of freedom and liberty to ourselves
and our posterity – do ordain and establish this Constitution
for the State of Illinois.; “
You might want to stick to actuarial science and leave legal analysis to the pros. You can’t simply amend the Illinois constitution to gut pension benefits retroactively. Such an act would run afoul of both the contracts clause but also the due process clause since the right to receive accrued pension benefits is a vested property interest that cannot be retroactively denied.
I’ve heard those arguments plenty often, too. But the Illinois Supreme Court did not include these among their reasons for rejecting pension reform.
They never got to Contracts Clause or Due Process because they didn’t have to. Amend Constitution to eliminate Pension Clause and then you must deal with Contracts Clauses of both US and IL Constitutions. Police powers argument is far more complex than saying “we don’t have enough money.” The State can raise taxes. There are many states with far higher income taxes than Illinois. The State still spends money on dubious projects like dog parks (just one example). It’s nowhere near as simple as you suggest. The State needs to demonstrate that it is truly broke. It isn’t.
How about a constitutional amendment that curbs future benefits and leaves earned benefits untouched? Sounds like a plan to me.
Easy way to solve: lay off all government employees. Remove all pensions. Hire new government employees. Yes you will have to pay the pensions of all those fired but most will be partial because they don’t have enough years. But over the next 30 yrs, Illinois could fund those pensions, without acquiring more pension liability.
Good luck with that. 90% of the workforce is unionized and untouchable. The 10% of the non-union employees do about 50% of the work.
Is it true that 73.6% of all statistics are made up?
I’m old enough to recall friends taking various government positions paying far less and offering fewer advancement opportunities than the private sector. Repeatedly, they would wrap their decision with, “I know I’ll get less now, but I’ll have a good pension when I retire.
Now, we call into question the contract those workers entered into. They fulfilled their part of the contract. You can also rest assured that any of those employees who somehow defrauded the government of anything would be penalized in various ways, including loss of pension benefits.
This modern narrative goes back to Reagan and busting of unions in concert with hundreds of millions spent by the Koch’s and other billionaires to seize every worker benefit and insert those funds accrued through years of toil into their control.
No more shiny, voter friendly projects until everyone is paid their due.
It is not that we call into question the contract – but the ability of the State and the taxpayers to pay. Given that the cost based on current actuarial science has grown exponentially it is an issue…. not dissimilar to social security financial issues.
Taxpayers should not be on the hook for unrealistic promises made by state politicians. Pension reform is the only way to protect retirement security. Without it, the funds will go insolvent and they’ll get next to nothing. That happened in Central Falls RI where pensioners only got 55% of what they were promised because the town went bankrupt.
I think the pension problem has grown out of control and at some point the state will be forced to file bankruptcy. I don’t understand why Boone is willing to fix the problem. Another major issue no one ever talks about is out Medicare deficit that is owed to the people on the public pension system. From what I have heard that number is almost as high as the pension deficit
I get that the math is bad.
But what you don’t address at all in your article, is the fact that these people upheld their end of the bargain and planned their retired life around a benefits package that was part of their promised compensation. Don’t you think that contract should be upheld? Don’t you think it would be immoral to back out of this contract after these people have structured their life around it?
I think we should probably get rid of the pension program going forward or substantially alter it. But I don’t think that those people that are currently retired or nearing retirement should have to rethink their entire life because the people of Illinois don’t want to pay.
I understand your point, and it is also true that traditional pensions raise a whole host of issues because they are backloaded, so that the future accrual that would be lost is the most valuable part of the pension. There are some changes that could be made without causing serious harm – in particular, removing the very low early retirement eligibilities couldn’t reasonably be said to harm someone in the same way as a loss in expected retirement income would. It might also be reasonable to consider caps on pensions, so that only high earners are affected by changes. But the state is currently spending roughly a quarter of its revenue solely on pensions and everyone is paying the price – just look at the recent Tribune articles on families with disabled adult children who cannot find a place for them because the state’s programs are too underfunded.
Unfortunate, but some reductions may be inevitable. There should be some thought or guidelines (another Blue Ribbon Commission?) on equitable reductions. Recent California pension defaults seem to have resulted in across the board 50-60 percent cuts.
Look at some of the MEP cuts: no reductions at all for those over age 80 or for disability pensions, and varied percentage cuts depending on tenure and pay. Let’s make it as painless and fair as possible.
Ed Ring, California Policy Center: “Impose a ceiling on pension benefits to retirees, based on the principle that pensions are supposed to ensure retirement security, not lavish affluence. Similarly, establish a floor for pension benefits to retirees, based on the principle that employees at the low end of the pay scale are nonetheless entitled to retire with an income sufficient to live with dignity. Assuming the pension ceiling is realistic, the savings from establishing a ceiling for benefits will greatly offset the costs of establishing a floor on benefits.”
I don’t agree, actually, but it’s a start. “It’s gonna happen, whether you like it or not.”
I believe it was San Diego where a judge ruled it was illegal to reduce pensions, but definitely not illegal to reduce (or freeze) wages, which will have a similar effect in the long run.
If your formula says your pension is 70 percent of Final Average Salary, obviously 70 percent of $50,000 is less than 70 percent of $60,000. Money saved.
A simple solution to a complex problem.
Except… The inherent assumption in reducing either pay or pensions is that all public workers are overpaid to begin with, and reductions will not affect the ability to attract and retain qualified employees.
Pension reform is not the same thing as pension reduction. There is plenty of blame to share, particularly in Illinois, New Jersey, and Kentucky, but also in most states which are now 65-75 percent funded (by the rosiest of assumptions.) Not to mention multi-employer and corporate plans.
I wouldn’t be surprised if, especially in Illinois, New Jersey, Kentucky, pensions are reduced somehow in spite of Constitutional limits because, as they say : “It’s the math.”
Undiscussed in your commentary, but central to the issue is the considerable reforms that have occurred. Teacher Retirement System has now Tiers II and III with diminished/capped benefits for the former and no defined benefit for the latter. And the age to reach maximum benefits has been raised to 67 (and at least 35 years contributing). JRS and GARS have, by comparison, had minimal reforms with judges receiving 85% after only 21 years. Whereas TRS pensioners do not receive SSA, most judges have Social Security plus private pensions through their law firms. Raising retirement for police and fire to 55 seems reasonable since the late 1940s determination of age 50 is badly out of date. Lots of opportunities for reforms exist.
One idea to consider is to ask pensioners to pay directly into their respective pensions a fee (perhaps pre-tax to make it more palatable) on a graduated, progressive scale. This would mean the UIUC/UIC physician would pay upwards of maybe 10% directly into SURS (or an overpaid TRS superintendent) while a downstate TRS retired teacher might pay in 2%. I totally understand pensioners’ fears of Springfield and paying INCOME tax in retirement as the General Assembly has spent decades underfunding and misappropriating money away from pensions. There is no trust; pensioners paid in and Springfield did whatever they wanted. Paying directly into their respective pensions would take the General Assembly out of the equation. Perhaps exempt the first $40,000 and then use a logical progressive, graduated formula.
You’re correct that substantial reforms were made with the institution of Tier II. You’re wrong about the judges. A Tier I judge will get about $170k per year pension while a full pension for a Tier II judge will be about $70k max. A huge difference.
Hold on there. Tier III was never implemented.
I am a public employee. My defined benefit pension has a 10 year vesting period. If I lose my job before fully vesting, I get nothing. I can request a refund of my contributions, but the refund includes no interest. Why would I want to provide a tax free loan to a broken pension fund. I do not. I want a 401K style retirement program.
What your not taking about is that the people of Illinois are being forced from their homes due to overtaxation of the people. When you have to leave your family behind and leave the state because your property tax is so high that is truly pathetic, yet that is what is happening. Kicking the can down the road or overtaxation of the people of Illinois is not a solution. The burden is too high, obviously when you see the amount of people fleeing the state. Whatever the solution, overtaxation of property is definitely not the answer. Your destroying people’s lives, separating families, depleting seniors of any savings, forcing disabled to loose their homes.
NO public employee pensions are guaranteed by taxpayers or the state. The various pension funds themselves are separate legal entities and only those are subject to the state constitution clause.
This is a very common misunderstanding that is constantly repeated on social media sites.
In fact, the state pension code is quite clear on the matter: ——-
“Any pension payable under any law hereinbefore referred to shall not be construed to be a legal obligation or debt of the State, … but shall be held to be solely an obligation of such pension fund, unless otherwise specifically provided in the law creating such fund.”
Is it true that any payments/funds from the federal government have to go to pension deficits first? I heard that was part of the IL constitution. In which case, any federal funds providing relief for COVID issues would actually be forcibly remitted to underfunded pensions.
Do state employees get to deduct the 15.3% FICA they pay toward your social security then. Every product or service they buy and pay for has your FICA expense ( that most state employees do not get) calculated into it. Another thing to consider is the fact that annual payment to FICA is required. The states made the mistake of payment recommendations as long as they are ultimately paid. Some Republican Governor named Edgar decided to incorporate the ramp method of pension payments. That meant he would pay less than required – basically kick the payment along with interest earned down the road. Where were you when that happened? Every governor since has followed suit of under paying in favor of all the pet projects and give aways to get the vote. The Elvis governor even borrowed from that fund with no plan to pay it back or at he very least to let the next guy worry about it. If the Illinois voters would have watched the very politicians they put into office, this problem would not exist today. You didn’t care so much back then I guess. Another thing that might surprise you is that most state employees pay 8% plus another 2% in some cases toward pensions and insurance. I guess the bottom line here is you think your Social Security is deserved but state pensions that should have been funded by you but were not are not okay. Greedy state employees that decided to keep you safe or teach your children or drive the bus that takes your kids to school for much less wage in trade for a pension just so you can make a nice living… they’re the problem.
Back to the solution: Repay the last 72 years plus interest NOW into FICA and put them into the social security system. Maybe we can catch that 72 year fee up by increasing your FICA payment to 25%. I think if you add the FICA line into every transaction, you might find it’s a staggering number as well. Maybe we can’t afford that either. Another person that responded as well as a government guy named Mitch, recommended the state file bankruptcy. There’s an idea! We’ll need to peel one of the stars off the flag though. Some understanding of Sovereign Statehood might be in order before we throw that one out there. I think Uncle Mitch thinks there are too many blue states and bankruptcy would cure that as we lose our congressional representation as we revert back to territorial status. Look in the mirror before you throw the stone and own the problem you created…or, do like some and leave the state. You got everything it had to give: roads, hospitals, educated workforce that brought employers here, schools, parks, clean water, airports and good wages to name a few. I hear Detroit is looking for residents or maybe Arkansas… there you go. Oh yeah, before you decide to bankrupt or restructure, take a look at Arkansas history; they restructured in 1933 and are still living in poverty today because when you restructure, it’s not just pensions that get hit, it’s everyone that does business with the state and that might just be the company you work for. Man up, cover you debit and live by your word or run and let others pay for your mistake. I really bet that’s not going to sit well with you. Sorry