Subject Illinois’s Pension-Protection Clause To Federal Challenge

The state’s deepening fiscal crisis will end when an ordinary citizen, who is not a public employee, successfully challenges the Illinois constitution’s ‘pension-protection clause’ in a federal court.

The pension-protection clause is vulnerable to challenge because it violates the US Constitution’s guarantee that all citizens are entitled to equal protection under the law. Whereas the Fourteenth Amendment forbids any state from denying ‘any person within its jurisdiction the equal protection of the laws,’ the pension clause of the Illinois constitution defines a special class of citizens and protects it at the expense of others.  For too long, Illinois citizens have been told that they must live by this extraordinarily punitive and unfair provision, which is driving up the cost of government to benefit just one sub-population: public employees whose pensions and benefits the state guarantees.

Illinoisans are so used to living with this provision of their constitution that they don’t even stop to think how extraordinary it is. What other monetary benefit in our society enjoys such a complete guarantee? Medicare? No. Social Security? No. Private pensions? No. Food stamps? No. Despite Americans’ extensive reliance on such benefits, none of them enjoys a constitutional guarantee. Any of these benefits can be changed, diminished, or completely taken away.

Whereas the ordinary Illinois citizen must tolerate uncertainty, those lucky enough to belong to the ‘right club’ can be confident that their benefits can never be lessened or removed.  Illinois’s pension-protection clause defines a special class of citizens in terms of their distinctive relationship to the state and then confers unassailable privileges on them.  Article 13, section 5, of the state constitution states

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.

“Membership . . . shall be a relationship”: that’s the key phrase. Those who choose to work in Illinois’s public sector become members of a club whom the state apparatus will protect no matter what. Those who are not public workers are out of luck. Not only do ordinary Illinois citizens lack the equal protection under this law, but, because of it, their own financial security is being actively impaired, and the public welfare of Illinois is being gradually sacrificed to secure the well being of one special class in perpetuity.

As matters stand, Illinois’s pension-protection clause has become the yardstick against which any pension-reform legislation must be fearfully measured. The state courts are firm in their devotion to this provision, which benefits everyone in Illinois government, including its judges. Sensible, hard-won pension-reform legislation has been struck down while legality of this patently odious and in-egalitarian provision has gone unchallenged.

Illinois citizens must stand up and challenge the constitutionality of Illinois’s pension provision in the federal courts. A provision leading to such unfair and destructive outcomes is an affront to the larger purposes of government. It penalizes the bulk of Illinois’s population while extending extraordinary protections to public workers. It’s time for those penalized to ask: “What about me?”

Copyright Susan Barsy

6 responses

    • Yes, but would it be? It would be a very difficult, long, and uncertain process, especially given the forces that would be organized against it. Our state is going to go down in the meantime. The city’s bond rating has just been downgraded to junk status, and the state’s finances are equally rocky. The state judiciary is no help, having just unanimously struck down a pension-reform law that the legislature finally managed to pass. It may also invalidate an agreement to alter pension financing in Chicago that the city and the affected unions cooperated in forming.

      It’s a desperate but deeply absurd situation. Here is a trenchant analysis of the depth of Illinois’s difficulties.

      Sometimes the only way to break through all the nonsense in Illinois is to appeal to federal authority.

  1. Your argument makes total sense. The essay is very well written. I wish it could be published in a widely circulated medium.

  2. As a state employee, I take no offense at your position. However, those with lengthy tenures may ell have started at a very modest salary, and their pension provided incentive to stay committed to their jobs. More recent years have seen salaries increase as well as pensions, but state legislators failed to invest funds as they should have. All parties must make sacrifices. The union serves a good purpose, but should make concessions considering the present circumstances. IMHO.

    • Peggy,
      Thank you for writing in. As I wrote in an earlier article, our pension system offers benefits to many deserving public employees, and I believe the benefits most receive are warranted. At the same time, it’s impossible to ignore the fact that there are many instances of waste and abuse of the pension system that, because of the pension-protection clause, we are powerless to correct.

      Our state constitution’s protection of pensions closes off many avenues of action that would save our state from bankruptcy. Sadly, corruption in our state is so rampant that mismanagement of pension funds has been perennial. Both public workers and tax-payers have been robbed.

      Most states have public-pension systems, but only two have pension protection written into their constitutions. As it is, our state supreme court may use this provision to strike down even the reforms that unions consent to. This seems irresponsible and wrong.

      I can’t imagine how it will all play out. We are all victims of an irresponsible and corrupt power elite.
      Best wishes,