I don’t buy it
Monday, Oct 15, 2012 - Posted by Rich Miller
* I read this op-ed by John Kindt last month and couldn’t make hide nor hair of it…
Amendment 49 on the November ballot in Illinois is cleverly drafted to concentrate more monetary power in the same Springfield legislative leaders who have de facto bankrupted the Illinois Treasury. With $83 billion in projected liabilities, Illinois has the nation’s largest state budget crisis.
Amendment 49 is crafted to strip local governments and voters of current decision-making prerogatives and transfer those decisions to Springfield.
Among other subterfuges, Amendment 49 overrules and destroys the Illinois Constitutional protection against eliminating or reducing earned benefits, such as pensions for state retirees who by state law cannot receive Social Security and, in many instances, cannot receive Medicaid.
Furthermore, thousands of elderly retirees and current state employees were mandated by Illinois law to pay into Illinois retirement systems and then were legally prohibited from having Social Security.
Amendment 49 contains more words than the entire first 10 Amendments to the U.S. Constitution — the Bill of Rights. The obvious intent of the verbose Amendment 49 is to hide its true impacts from voters in a 700-word avalanche of unnecessary and deceptive words.
Marketing experts know that few voters will read beyond the benign first sentences and that voters will be inclined to vote “yes” in that benign spirit. While the voters may wish to vote to concentrate more monetary power in Springfield leadership, they should not be tricked into misdirecting their votes and eliminating their current constitutional safeguards by the confusing 700 words in Amendment 49.
For example, hidden in the “last sentence” is the new constitutional provision: “(d) Nothing in this Section shall prevent the passage or adoption of any law, ordinance, resolution, rule, policy or practice that further restricts the ability to provide a ‘benefit increase,’ ‘emolument increase,’ or ‘beneficial determination’ as those terms are used under this Section.”
Thus, Amendment 49 overrules the current Constitutional safeguard known as the “non-impairment provision” in Article XIII, sec. 5, of the Illinois Constitution.
As confirmed by expert memoranda — for example, the State Universities Annuitants Association memoranda (at www.suaa.org, June 8, 2012) — Amendment 49 was drafted outside normal processes, including the Springfield Legislative Reference Bureau.
Among other problems for local taxpayers, the language overriding the “non-impairment provision” was added at virtually the last minute as the “last sentence” hidden at the end of 700 words.
Amendment 49 has also been disguised with various monikers including “HCA49” and “HJRCA49,” and it was originally floated by Speaker Michael Madigan’s office as “Amendment 5.”
Instead of concentrating more power in Springfield’s legislative leadership, taxpayers should consider simply rejecting Amendment 49 as just more deceptive legislative legerdemain.
* Kindt uses a heckuva lot of scare tactics in the piece. That gibberish about the proposal having different names is just whacky talk, for instance. There is no such a thing as “HCA49.” HJRCA49 is the actual, legal legislative name. Amendment 49 is short-hand.
* But what really irked me was how Kindt cited a bit of language and then declared that it overrules the Constitution’s non-impairment provision without any explanation whatsoever.
As far as the proposal’s last sentence goes, it appears to simply mean that local governments can add even more parliamentary roadblocks to benefit increases. Go look for yourself at how benefit increase, emolument increase and beneficial determination are defined under the proposal.
* Even AFSCME and the We Are One union coalition don’t buy into this analysis…
“Legal counsel for the We Are One Illinois coalition of unions does not share the view that (the amendment) threatens existing constitutional pension protections,” said AFSCME spokesman Anders Lindall.
Until the opposition comes up with actual legal reasoning behind this claim, I just can’t buy into it.
- Anonymous - Monday, Oct 15, 12 @ 9:50 am:
This argument seems to have come from one particular group. I don’t agree with the analysis. If they are right it will make interested parties look pretty foolish, however if they are wrong it will make me very skeptical of what they have to say in the future.
- Dee Lay - Monday, Oct 15, 12 @ 9:54 am:
Mr. Kindt, what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it.
- reformer - Monday, Oct 15, 12 @ 9:55 am:
Ambiguity in constitutional language is a potential problem. I agree Kindt didn’t explain why the last sentence of the proposal would repeal the no impairment provision. But the lack of clarity in that sentence is troublesome.
- huh - Monday, Oct 15, 12 @ 10:03 am:
This and some of the other anti-HJRCA49 materials I’ve seen are blatently wrong.
But the one thing that seems to stand out as the most blatent lie is the statement, “Amendment 49 was drafted outside normal processes, including the Springfield Legislative Reference Bureau.” Those who pay attention (and I’m assuming anyone who vehemently opposes HJRCA49 has been paying attention) know that HJRCA49 was a new version of HJRCA5, which was introduced more than a year before 49. Also, HJRCA49 has an LRB number - how do you say it was drafted outside of the LRB process if it does in fact have an LRB number? The House and Senate Rules both state that legislation has to have an LRB number, which means at some point it goes through LRB.
- RNUG - Monday, Oct 15, 12 @ 10:08 am:
I read A49 multiple times last week trying to make sense of it. I think the fear of the last sentence is the possibility that it opens the door to arguing any future changes to reduce existing pension benefits might be allowed under the A49 language.
When it isn’t 100% clear, you can make it mean whatever you want. Illinois legislative history has often had things that say up when meaning down (my personal favorite was the Prompt Payment Act that changed the time for the State to pay without interest penalty from, I think, 90 days to 120 days), so the fear is somewhat justified.
- Mouthy - Monday, Oct 15, 12 @ 10:11 am:
No wonder the SJ-R didn’t see fit to print the last line in their pension story today. Most people, the ones that can read and comprehend written words, would see that the pension jeopardy issue was non existent. Looks like wishful thinking by the giant coupon book SJ-R.
- Cassiopeia - Monday, Oct 15, 12 @ 10:39 am:
If This sneaky language is hidden in this last sentence then it is so well hidden that only this “business” professor with his x-ray intellect can see it. Since he apparently doesn’t understand legislative logistics I don’t think he knows what he is talking about.
- walkinfool - Monday, Oct 15, 12 @ 10:42 am:
I don’t support the proposed Amendment, since it in practice is more a political stunt than anything else, and since we mess with our Constitution entirely too much on issues best left up to the standard processes of the legislature.
However, I find nothing worthwhile in Kindt’s arguments.
- PublicServant - Monday, Oct 15, 12 @ 10:56 am:
Rich, I have to admit, I’m not seeing the connection between the wordy amendment language, and overriding the current non-impairment clause. But, I can tell you that it is what’s being circulated by SUAA and others. They do have a point though. The language is overly wordy and ambiguous. Not something a voter will be reading thoroughly in a voting booth with five other voters waiting behind him to vote too. All-in-all, kind of a stupid way to modify the constitution IMHO.
- alegra - Monday, Oct 15, 12 @ 10:57 am:
The blue colored literature that we received in the mail from the Secretary of States office lists on page #4 Argruements /Against the Proposed Amendment. Please read the section “Possibility of Disagreement on Terms” Page #3 lists Argruements in Favor of the Proposed Amemdment. Think everyone should have received 1 since it is addresssed to Residential Customer, Illinois
- mokenavince - Monday, Oct 15, 12 @ 11:11 am:
Making hide nor hair of it,I haven’t heard that in a coons age.WoW!
- Anonymous - Monday, Oct 15, 12 @ 11:22 am:
John is not the only one that thinks this stinks. This is Madigans brain child, why would people not believe it is a bad idea ? Here is a link for you Rich. http://galesburgplanet.com/posts/19419
- alegra - Monday, Oct 15, 12 @ 11:26 am:
Also, the phrase “beneificial determination”. This would mean benefitianl to who(m)? We”ll have a different set of GA members in 10 years. Playing devil’s advocate here, could it be beneficial to the taxpayes, workers, new pension system or could it be beneficial to limit benefits in IMRF, SURS, GA pensions etc to 25 years benefits or death, which ever comes first. Don’t think this would happen but using this to illustrates the holes in the wording maybe. Just saying.
- Jake From Elwood - Monday, Oct 15, 12 @ 12:01 pm:
I am surprised to see Professor Kindt’s name in this post. I would have expected his name to appear in today’s casino expansion post as he is a fervent anti-gambling crusader.
On this pension issue, I disagree but folks are touchy when you suggest any risk to their governmental pensions.
- Lou Holtz - Monday, Oct 15, 12 @ 12:25 pm:
Frankly, it was surprising and disappointing to see that Professor Kindt was the author of the piece arguing against HJRCA 49 on the theory that it negated the non-impairment clause of the Constitution. Professor Kindt has been a careful diligent and accomplished scholar. His arguments, from an economic, social and legal perspective, against gaming expansion have been rigorous, well-researched, and creative. It is disheartening that a thinker of his caliber and ability would adopt such a slipshod and dubious contention as a principal argument against HJRCA 49. While I personally support HJRCA 49, I certainly acknowledge that thoughtful, serious and conscientious individual and organizations who participate in the political process can and do oppose it. A much stronger argument against HJRCA is set forth by Professor Ann Lousin of John Marshall Law School. Although I do not think that Professor Lousin’s argument will prevail (nor should it prevail), she articulates a perspective that is firmly rooted in the law and facts.
- jake - Monday, Oct 15, 12 @ 12:27 pm:
The reason to vote against the amendment is that Constitutions should be clear concise statements of principle that more detailed laws should comply with. This amendment is anything but that. We should not have stuff like this cluttering up the Constitution. But it is not toxic; it is just clutter.
- Pot calling kettle - Monday, Oct 15, 12 @ 12:57 pm:
It’s ironic that his piece is no more concise or to-the-point than CA49.
- geronimo - Monday, Oct 15, 12 @ 1:30 pm:
Given the games the legislature has played for decades with taxpayers and workers money that didn’t make it to where it was supposed to go, don’t you think it’s a kneejerk reaction by anyone to ask what they’re up to now? Anything that gives our noble elected MORE power over anyone’s money should make people look very carefully. The wordiness looks suspicious. Why make something so non-understandable to voters?
- Anonny - Monday, Oct 15, 12 @ 1:43 pm:
If you play Warren Zevon’s “Lawyers, Guns and Money” backwards it states this amendment verbatim.
- Norseman - Monday, Oct 15, 12 @ 2:20 pm:
I don’t accept Professor Kindt’s analysis. As Rich pointed out, “(e)ven AFSCME and the We Are One union coalition don’t buy into this analysis…”
However, it is hard not to be concerned that Madigan has a hidden agenda for this amendment that could serve as a basis for impacting existing benefits.
Hidden agenda or not, I agree with others that the proposed amendment will lead to costly litigation.
My vote will be no on the amendment.
- dirt diver - Monday, Oct 15, 12 @ 3:46 pm:
Kindt’s letter to the editor (same position SUAA and Illinois Public Pension Fund Association have taken) should have been written in crayon. Apparently he did not read the actual amendment, rather the rhetoric laced “opinion sheet” put out by SUAA. SUAA should be focusing their efforts on real issues impacting its membership (retiree healthcare reform and pension reform).
I will vote no simply for this very reason. The Constitution should be written so that everyone can understand it. It should be clear and concise. This amendment is un-necessarily lenghty and complicated and is written like a statute. If you want use statutory language, put it in statute not the Constitution.
- PublicServant - Monday, Oct 15, 12 @ 5:12 pm:
Yeah that mail addressed to “Residential Customer, Illinois” is at the top of my list of must-reads in my daily mail edging out the credit card applications and campaign literature.
- Roadiepig - Monday, Oct 15, 12 @ 10:22 pm:
Thanks Rich for writing about this subject. After receiving several emails quoting professor Kindt’s editorial, all warning about the amendment secretly eliminating the non-impairment clause I was hoping you would chime in on the subject. Like another person said above- any amendment to the constitution should be concise and easily understood . This mess of an amendment is neither and should be voted down. It won’t fix the problems with the underfunding of the pension system , and that is the real problem that needs addressed anyway