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Is it worthless to amend a worthless state Constitution?

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The Northwest Herald's Editorial Board decided not to weigh in on whether to vote for or against the pension constitutional amendment. But if you read the non-endorsement in today's paper, you'll see that the paper's editors are hardly enamored with it.

The amendment, proposed by Democratic House Speaker Michael Madigan, D-Chicago, is supposed to make it harder for lawmakers to fatten pensions. In a nutshell, it requires a three-fifths supermajority vote for any Illinois governing body, from Springfield to school boards, to enact any bill that enhances public pensions.

But the newspaper's editors are not sold on the idea that it will do so. The editorial concludes that the proposed amendment "does nothing" to solve the $83 billion unfunded liability of the five state-run pension systems. It also concludes that the amendment "allows Madigan ... and his cohorts to pat themselves on the back and take credit for doing something about the pension crisis when that something really is nothing."

Fixing the pension system is of course vital to the state's economic survival – to put the cost in perspective, the $83 billion owed to the system wouldpay for the construction of more that 13 Nimitz-class aircraft carriers. But as I explained in a front-page story last month on the amendment, this reform initiative is likely the equivalent of slapping a My Little Pony Band-Aid on a sucking chest wound..

Consider the following:

• It's been 10 years since the General Assembly approved a pension sweetener.

• The last two sweeteners passed by state lawmakers passed with only two "no" votes among the 177 lawmakers in both houses. That's well past the 71 votes needed in the House and 36 needed in the Senate under this proposed amendment.

• The new rules would require only one more vote on a seven-member school board – that would be easy to get in any year, and probably even more so in what is shaping up to be the YearoftheIllinoisTeacherStrike. As for four- or five-member boards – like most local government pension boards – the amendment would have no impact, because a three-fifths majority and a simple majority are mathematically identical.

In short, this amendment could be a help many years down the line to rein in Pensions Gone Wild, but it will do almost nothing to address the present crisis. It has the appearance of a feel-good measure – voters sick of hearing about unscrupulous public officials exploiting loopholes to pad their pensions can vent their anger, and state lawmakers can try to avoid any further credit rating downgrades by showing that they are "doing something" about the problem.

But there's an even deeper factor to explore here, which I mentioned in passing in my story, namely that the 1970 Illinois Constitution is, sorry to say, a worthless document.

I wrote, " ... given that the General Assembly regularly takes liberties with interpreting the state Constitution - the balanced budget requirement is just one example - the possibility exists that future General Assemblies can find ways around this new limitation if enacted."

That's a polite way of saying that the state Constitution isn't worth the paper on which it's written.

And trust me, our craft state lawmakers will be able to find plenty of loopholes in this monstrosity. As one author pointed out, the amendment is more than 700 words long – that's longer than the entire Bill of Rights.

We're all used to not being able to take Springfield at its word. But state lawmakers have extra special contempt for what is supposed to be the ultimate, inviolable check on the powers of state government.

Some examples:

• BALANCED BUDGET: Expenses shall not exceed revenues in the state budget, according to Article 8, Section 2(b). In fact, the preceding section, 2(a), prohibits a governor from even submitting a deficit budget for review. So how did Illinois rack up such a huge budget deficit?

In the name of fairness, a lot of states are running deficits, and every state but one – Vermont – has a balanced budget mandate, according to the National Conference of State Legislatures.

• SCHOOL FUNDING: The state shall be the primary funder of education, or so says Article 10, Section 1. It's not – local property taxes are, and state lawmakers are seriously contemplating adding teacher pensions to the mix.

• VETO POWER: Gov. Pat Quinn, in an obvious effort to capitalize politically from the Aurora, Colo. shootings, abused his amendatory veto powers (Article 4, Section 9) to completely rewrite a pro-Second Amendment bill which passed both houses into an assault weapons ban that has been on hold because it doesn't have the votes to pass.

While Quinn said he acted legally, Rich Miller at Capitol Fax points out that Illinois Supreme Court case law forbids governors from using an amendatory veto to change the fundamental purpose of a bill.

A commenter on the Miller article I linked to made a great point: If what Quinn did was legal, as he maintains, why can't he just rewrite a bill to lessen pension benefits by fiat? One of the answers, as I blogged here, is that the clause protecting pension benefits (Article 13, Section 5) is the only part of the Constitution that our lawmakers consider sacred.

• SUBMITTING BILLS: Bills passed by both houses must be presented to the governor within 60 days of passage (Article 4, Section 9). But when lawmakers in May 2011 passed a massive expansion of gambling, the Senate did not give the bill to Quinn out of fear that he would veto it.

Senate President John Cullerton, D-Chicago, got around the requirement by filing a motion to reconsider after the bill passed, which in effect froze it in place.

• SHELL BILLS: The state Constitution requires in Article 4, Section 8(d), that bills be read by title in both chambers of the General Assembly on three separate days. But despite this measure, which is aimed at transparency, a lot of important bills get hashed out in back rooms.

Legislators accomplish this through "shell bills" that essentially are placeholder bills consisting of a spelling correction, replacing "the" with, well, "the." Click here to see what a shell bill looks like, and this will make more sense. Legislators read the blank shell bill to meet the constitutional mandate, only to come out of their back rooms and ram through bills as an amendment, allowing a same-day vote without the otherwise mandated due diligence, and with the added bonus of avoiding public scrutiny.


The hopeless situation I just enumerated is one of the reasons I voted in 2008 against holding a constitutional convention. Why waste millions ($14 million to $100 million, depending on which side you believed) creating another worthless state constitution? If I want to buy toilet paper, I can get a much better deal at Costco.

As for the amendment on the Nov. 6 ballot, if I want to read 700 meaningless and confusing words, I'll go to McDonald's next time it plays Monopoly and read the contest rules.

From my conversations with voters, they seem to be divided on this issue into four schools of thought:

1) This was Mike Madigan's idea, so I'm voting against it on general principle.

2) I'm a public-sector employee, so I'm voting against it.

3) The unions oppose this, so I'm voting for it on general principle.

4) I'm tired of reading about people retiring at 60 with six-figure pensions, and people padding their pensions with one day of work, so I'm voting for it.

So whatever school of thought you belong to, good luck when you go into the ballot box to weigh in on this one.

As for me? I belong to a fifth school of thought – the highest law in the Land of Lincoln is not what the Constitution says, but how Madigan, and to a lesser extent Quinn and Cullerton, feel like interpreting it.

Senior Writer Kevin Craver can be reached at kcraver@shawmedia.com.

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