Illinois citizens are expected to sit tight as the cost of meeting state and local pension obligations brings their government ever nearer to bankruptcy.  Everyday, we hear of a new head-ache: how our property-taxes are likely to begin sky-rocketing, or how short-term borrowing to pay pensions will soon destroy Chicago’s bond rating, and how people are leaving the state to avoid being stuck with the costs when the looming disaster of all-out bankruptcy finally arrives.  Yet no matter how painful to the citizenry, our government must rake together the money for public-pension obligations that are burgeoning.

All because a section of the Illinois constitution stipulates that, no matter what, one class of Illinois citizens can count on protections that no others can: the benefits of belonging to a state pension system must not be diminished or impaired.  In the service of this constitutional provision, the state may be driven into bankruptcy and the rest of the population held forever accountable for promises that by-gone politicians irresponsibly made.  The needs of ordinary citizens are being choked off so that those of lawmakers and public workers may be fulfilled.

The power of the legislature to pass laws conferring benefits on themselves and other public workers is difficult to limit.  The pension ‘system’ in Illinois is an irrational bricolage of myriad laws passed over the decades.  The Chicago Tribune has described it as a “convoluted mess of provisions riddled with giveaways, funding flaws, excessive borrowing, and pension holidays.”  The pension code is organic in the sense that’s easy to add to, but any benefit, once added, is virtually impossible to take away.

Consequently, the state’s pension system is an unholy mix of the good, the bad, and the ugly.  It pays pensions to convicted felons like Jon Burge and to brazen scoundrels who had the luck to head up our towns and public universities.  It pays millions of dollars in benefits to cagey officials who correctly perceived the advantages of ‘double-dipping.’  The fact that citizens are powerless to curb the excesses of the pension system feeds hostility to it, to the detriment of many decent and deserving public employees.

Why not take a page from the four Virginians who have mounted a potentially game-changing challenge to the Affordable Care Act by questioning the meaning of just one of its phrases?  Should the public welfare of Illinois be sacrificed to secure the well-being of one special class in perpetuity?  In fact, the pension provision defines a special class of citizens in terms of their distinctive relationship to the state and then confers unassailable privileges on them.  How can this be constitutional?

 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.

As matters stand, the pension provision has become the yardstick against which any pension-reform legislation must be fearfully measured.  Sensible legislation has been struck down while legality of this patently odious and inegalitarian provision has gone challenged.  Illinois citizens should stand up and challenge the constitutionality of the pension provision itself.  A requirement that leads to such unfair and destructive outcomes is an affront to the larger purpose of government.  Does it really trump every other principle of constitutional law?

Given the urgency of Illinois’s fiscal condition, this question should be engaging the state’s best legal minds.

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Susan Barsy, “The Pension Stand-Off in Illinois”