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Timing, the constitution and the governor’s “leverage”

Monday, Jan 30, 2017

* My weekly syndicated newspaper column

Question the timing all you want, but last week’s legal filing by Attorney General Lisa Madigan to stop paying state employee wages without an official appropriation is long overdue and is completely consistent with a 2016 Illinois Supreme Court ruling and with her (and the governor’s) opposition to a similar lawsuit brought by social service providers.

Back in 2015, after the General Assembly and the governor couldn’t come to terms on a budget deal, AFSCME and other unions went to court and asked a judge to force the state to pay state workers even though there was no official appropriation for the salaries. That ruling remains in place today.

But this passage in the Illinois Constitution pretty much says it all: “The General Assembly by law shall make appropriations for all expenditures of public funds by the State.”

So the Illinois Supreme Court ruled in March of 2016 on a different case that the portion of AFSCME’s contract with the state requiring payment of back wages could not be honored without a proper legislative appropriation. In other words, no appropriation, no payment, even with a contract.

It was a completely reasonable decision. The governor shouldn’t be able to sign contracts and then force state payment without an actual appropriation. The potential for abuse is mind blowing. Just imagine if Rod Blagojevich could’ve paid whomever he wanted, how much he wanted without any legislative permission.

Gov. Bruce Rauner’s position against a lawsuit brought by human service providers is also completely in line with that 2016 Supreme Court decision. The service providers say their signed state contracts mean they should be paid in full even though the General Assembly hasn’t approved the appropriations to do so. Never once has Gov. Rauner said those providers ought to be paid without a formal budget in place.

But there he was last week saying that Attorney General Madigan’s motion would “directly harm” state workers while urging her to drop her legal motion. He’s been fighting the state employee unions since Day One and has said he wants to help social service groups, yet he wants state workers paid without an appropriation but doesn’t want social service providers paid the same way?

C’mon, man. I was born at night, but not last night. What’s he really up to? Give me a minute and I’ll get to it.

House Republican Leader Jim Durkin’s reaction to AG Madigan’s move appeared to fly in the face of common sense: “This decision clearly undermines the legislature’s duty to negotiate a bipartisan solution.”

I was in Decatur to give a speech last week about the prospects for the Senate’s much-touted “grand bargain” when I found out about AG Madigan’s motion. My speech, as initially written, gave that bipartisan effort no better than a 50-50 chance to spur a final deal.

If the attorney general had filed her motion last year after the Supreme Court ruling, we wouldn’t be in this mess today, and Leader Durkin most certainly knows it. Nothing focuses the General Assembly’s bipartisan attention quite so much as a massive crisis.

So, why didn’t she file it last year? I’m told she wanted to give the General Assembly and the governor some time to work things out. They eventually agreed to a stop gap budget, so she laid low. But that stop gap budget expired at the end of December and the General Assembly left town last week without making significant progress.

There will naturally be widespread suspicions that AG Madigan acted on behalf of her father. The Illinois Republican Party explicitly made that very point when it claimed the attorney general “decided to put Speaker Madigan’s power politics ahead of hard-working families in an effort to shut down state government.”

That last sentence is the key here. The governor has done all he could to avoid a shutdown because a shutdown means all the emphasis would then be on quickly passing a real budget and the tax hikes which go along with it to reopen the government’s shuttered doors.

And that means the governor will lose much (or most, or possibly even all) of his beloved “leverage” to force through his various anti-union/pro-business economic reforms. And that leverage, whether he admits it or not, is the extreme pressure that’s been put on social service providers and the people they serve since this impasse began 18 long months ago.

The attorney general has asked the judge to allow the governor and the General Assembly to delay any order until February 28th to give them time to work out a deal.

Get on it, folks.

- Posted by Rich Miller        

34 Comments
  1. - Oswego Willy - Monday, Jan 30, 17 @ 8:39 am:

    Rich, great column. It allows the discussion of politics while framing the lack of governing that the politics fueled.

    Great read.

    To the Post,

    ===And that means the governor will lose much (or most, or possibly even all) of his beloved “leverage” to force through his various anti-union/pro-business economic reforms. And that leverage, whether he admits it or not, is the extreme pressure that’s been put on social service providers and the people they serve since this impasse began 18 long months ago.===

    This is/was the whole ball game. It’s Rauner’s “Everything”.

    Read the Raunerbots here, the apologists, the ridiculous Rauner Press Shops (governmental and political)…

    “We will do whatever, only after… ”

    Then… then the Raunerbots, the apologists, the embarrassing Rauner Press Shops… they are say, simply “leverage”.

    You can’t have a must to do something, then say you aren’t using leverage to get your “everything”.

    Enough is Enough.

    As Diana Rauner shamelessly backs Bruce and takes the Pritzker $5 million, it’s both RaunerS willing to destroy social services (less The Ounce, of course) so Bruce can get Labor to fold in Illinois, and Diana can call it a business decision while heading to her Social Servive organization.

    You can’t say the AG is stifling a deal when the month of February exists. What is being removed is Rauner’s embarrassingly crass falsehood that Bruce Rauner *gulp* cares for state employees.

    Bruce Rauner’s own words gut that argument and filet the lack of truth too.

    So, we’re all gone 18 months without a budget. Any governor not willing to fund his/her own agencies or even put pen to paper what his/her agencies’ worth to their missions are, they deserve to be held accountable by losing leverage designed to hurt it destroy the social safety net of Illinois, (except for his wife, who will circumvent the pain), for an agenda that can’t get 60 and 30 to get to their desk.

    Now I will see, very clearly, who cares for Illinois, and who lusts for an agenda at the cost of Illinois and her people.


  2. - Texas Red - Monday, Jan 30, 17 @ 8:41 am:

    Very good logic here except the premise it is based on is seen through a certain viewpoint. This idea about Rauner …”He’s been fighting the state employee unions since Day One and has said he wants to help social service groups, yet he wants state workers paid without an appropriation but doesn’t want social service providers paid the same way? ” Is only one way of viewing his motives. One could just as easily say the at Rauner has been taking steps to rein in the escalating budget crisis and one big part of that is spending and the Union contracts and pension woes are a huge part of that crisis. So as always in life there are two (or ten) sides to every story.


  3. - A complete no-brainer - Monday, Jan 30, 17 @ 8:44 am:

    Constitutional principles have been repeatedly jettisoned during this standoff. The Guv has yet to present a balanced budget; the GA has failed to pass a balanced budget; and two comptrollers have engaged in constitutionally dubious practices in executing their ministerial duties.

    When the executive and legislative branches violate the constitution, it’s the judiciary’s responsibility to step in. That’s why the LG actions are long overdue.


  4. - A Non - Monday, Jan 30, 17 @ 8:45 am:

    As a state employee, I’m glad she did this. But I’m afraid it won’t go anywhere. I predict on February 27th or 28th the GA will find the money under a couch and appropriate funds for payroll and we’re right back where we started.


  5. - PublicServant - Monday, Jan 30, 17 @ 8:46 am:

    Well said Rich. Far from “creating” a crisis (The current propaganda emanating from Rauner, his dupes, and sympathizers), the Attorney General is doing her job, and her response to Rauner’s joke of a press release, was perfect.

    Someone on the Dem side better start cranking up some press on this to get out their point of view, because this is an existential blow to Rauner, and he’ll go full throttle to shoot this down.


  6. - Another state emp - Monday, Jan 30, 17 @ 8:55 am:

    AG Madigan made the right choice. Had the Governor and GA done their jobs all along she wouldn’t be put in this position.


  7. - A Jack - Monday, Jan 30, 17 @ 8:58 am:

    I agree 100%. Illinois government is malfunctioning because it is not following the primary rule book, the Illinois Constitution.


  8. - Try-4-Truth - Monday, Jan 30, 17 @ 9:07 am:

    =====- Texas Red - Monday, Jan 30, 17 @ 8:41 am:

    Very good logic here except the premise it is based on is seen through a certain viewpoint. This idea about Rauner …”He’s been fighting the state employee unions since Day One and has said he wants to help social service groups, yet he wants state workers paid without an appropriation but doesn’t want social service providers paid the same way? ” Is only one way of viewing his motives. One could just as easily say the at Rauner has been taking steps to rein in the escalating budget crisis and one big part of that is spending and the Union contracts and pension woes are a huge part of that crisis. So as always in life there are two (or ten) sides to every story.======

    If your 2nd way of viewing Gov. Rauner’s motives were true, why doesn’t he pivot to an alternative way of accomplishing his goals? Why is it always bashing AFSCME employees?

    The truth is that the Gov. makes his motives crystal clear by his words and his actions. I don’t need to read anything into his motives. They are right there for anyone to see.


  9. - AnonStateWorker - Monday, Jan 30, 17 @ 9:07 am:

    It dehumanizes people to call them ‘bots’ I could say as much of union people. But I don’t, because I really see both sides of this fight. At the end of the day, I don’t believe the leadership on either side cares much about the ‘little people.’ A pox on both their houses. Why? Because This state is dying for lack of fresh thinking. Call it whatever you like, you can’t suck the life out of people and expect them to hang around and just keep taking it. I don’t want to leave Illinois. I grew up here. My extended family is here. But I can’t lose even more income to taxes. My kids are having a terrible time finding work. Something’s got to change. If it doesn’t, I don’t see how we can stay here. Rauner & Team Madigan are both driving us out. Wish it wasn’t so.


  10. - Hopeful - Monday, Jan 30, 17 @ 9:09 am:

    As a state employee I see two possibilities to put pressure on Rauner without going on strike but it would require a lot of help from the Dems downtown.

    First one is to pass an appropriation bill….maybe even a continuing one….with the way it is implemented based on the current contract. This would force a shutdown unless a contract was agreed upon by the union and the governor at the time. If Rauner can’t and won’t deal with AFSCME then I guess it would be his fault that the shutdown happens.

    Second would be to make the pension reform part of the GRAND BARGAIN contingent upon a contract deal with the union and then all of the other pieces of the bargain contingent upon every other part of the bargain. Talk about a poison pill! This would again require Rauner to deal with the union in order for the whole Grand Bargain to happen, which again would make him at fault for the whole thing falling apart.

    I have heard rumors that Cullerton had said that he didn’t want to do pension reform while also hitting state employees hard on other fronts like health care and wage freezes…


  11. - Lew - Monday, Jan 30, 17 @ 9:11 am:

    The Gov. had a meeting with money over the weekend.


  12. - Seats - Monday, Jan 30, 17 @ 9:13 am:

    The concern I see from stste workers is that. That we could be shut down for upwards of two weeks over this. Then once a budget is created, we’d need to go on our own strike directly afterwards, with the back to back work stoppages creating a long time without a paycheck.

    Is that a fair assumption?


  13. - Honeybear - Monday, Jan 30, 17 @ 9:17 am:

    My prediction is that a budget will be hammered out but Rauner will still not sign it. February 28 will come. No pay for any state employee. JT will send an email requiring all workers to come to work. Those who don’t will be fired.

    It won’t take very many firings to force workers to come in

    That’s why the strike authorization needs to go forward.

    Sure it’s a prediction.

    But it makes a lot of sense to me.

    At least the Afscme’s wouldn’t be forced to work for no pay

    This whole move fails if government doesn’t come to a complete and utter halt.

    Afscme’s vote yes to authorize.


  14. - Anonymous - Monday, Jan 30, 17 @ 9:23 am:

    Rauner doesn’t care about paying state employees so much as he wants to control the spigot. Without a budget, he can’t pay current employees or hire scabs.


  15. - Last Bull Moose - Monday, Jan 30, 17 @ 9:28 am:

    AFSCME should delay the strike vote pending resolution in the Courts. A Budget driven shutdown is much better than a strike.

    Honeybear, your paranoia is showing. Not even Rauner can force people to work without pay. Lincoln freed the slaves.


  16. - Keyrock - Monday, Jan 30, 17 @ 9:28 am:

    Lisa shouldn’t get too much credit for this. A non-political AG dedicated to enforcing the law would have done this on day one.


  17. - The Colossus of Roads - Monday, Jan 30, 17 @ 9:29 am:

    Rauner has the ability to declare and emergency for life, health, safety, etc. There is a special fund for this and if it runs out he can move funds or get loans. I believe he would do this for both a strike and for a shut down.


  18. - Winnin' - Monday, Jan 30, 17 @ 9:43 am:

    Rauner and Durkin’ appear to be “shocked, shocked” to learn there must be an appropriation to pay state employees.


  19. - STILL WATERS - Monday, Jan 30, 17 @ 9:45 am:

    Wouldn’t it be great if a halt to pay by the courts and a strike happened at the same time. Win, Win.
    Just sayin’


  20. - Oswego Willy - Monday, Jan 30, 17 @ 9:54 am:

    ===One could just as easily say the at Rauner has been taking steps to rein in the escalating budget crisis and one big part of that is spending and the Union contracts and pension woes are a huge part of that crisis. ===

    LOL!

    Really. It’s been 2 years, what are those savings. You get the numbers, I’ll wait, thanks.

    There is no other side without the measurable numbers.


  21. - wordslinger - Monday, Jan 30, 17 @ 10:02 am:

    –“This decision clearly undermines the legislature’s duty to negotiate a bipartisan solution.”–

    I’ve read that sentence from Durkin three times and have no idea what it’s supposed to communicate.

    That’s not a word-salad, that’s a word-train-wreck.


  22. - Norseman - Monday, Jan 30, 17 @ 10:16 am:

    Good column Rich.


  23. - sal-says - Monday, Jan 30, 17 @ 10:17 am:

    Great article; great perspective. Thanks!


  24. - RNUG - Monday, Jan 30, 17 @ 10:18 am:

    == Second would be to make the pension reform part of the GRAND BARGAIN contingent upon a contract deal with the union and then all of the other pieces of the bargain contingent upon every other part of the bargain. ==

    I wouldn’t make pension reform part of the contingency because portions of the proposed bill are going to be found unconstitutional a year or two after it is passed.


  25. - Lucky Pierre - Monday, Jan 30, 17 @ 10:46 am:

    OW can you detail the Speaker and the GA’s attempts to “rein in the escalating budget crisis”?

    Of course you can’t because they have made zero efforts beyond the bare minimum “successful” stop gap budgets.


  26. - Anonymous - Monday, Jan 30, 17 @ 10:48 am:

    Rich - serious question for you or anyone else who is able to answer for someone ignorant to the process. What kind of credentials are required to be able to gain access to the “press areas” and how are they granted? Also, once a person has been granted access, how do they get acknowledged, let alone a fair/tough question answered?


  27. - Lucky Pierre - Monday, Jan 30, 17 @ 10:52 am:

    RNUG, why do you assume a consideration model is unconstitutional if salary increases are paid in the form of a bonus that is contingent on being non pensionable? The TRS language is specific to salary not bonus.This has not been litigated yet.

    If salary increases or bonus payments are not constitutionally protected how can the consideration model be unconstitutional?


  28. - Oswego Willy - Monday, Jan 30, 17 @ 10:59 am:

    ===..,can you detail the Speaker and the GA’s attempts to “rein in the escalating budget crisis”.?===

    That’s not what was stated.

    What was stated was that Rauner himself was “reining in the escalating budget crisis”

    Can you read? Serious question. Can you?

    Rauner wants leverage that doesn’t measure to any of those goals but does inflict damage to labor and is currently damaging social services.

    You think a governor shouldn’t weigh or measure they’d own agencies? Yikes, I’m embarrassed for you.

    ===Of course you can’t because they have made zero efforts beyond the bare minimum “successful” stop gap budgets.===

    No, that was Dunkin, and Rauner controlling Dunkin’s switch to stop any chance for a budget Rauner never would sign, and stopped vetoes.

    I answered your questions. Read them. Don’t play the babe in the woods. If you have s point make it. Arguing to argue isn’t working.

    Also, Rich Miller had a whole Post on Democrats and the new agenda that members were tweeting about.

    If you claim you didn’t see it, I’ll be… surprised.


  29. - RNUG - Monday, Jan 30, 17 @ 11:04 am:

    - Lucky Pierre -

    1) As drafted, the bill only allows a choice between diminishment A or diminishment B. Plain contract law even without the pension clause requires the choice be voluntary, not coerced, and the language does not allow keep what you have. Add the pension clause on top, and it clearly fails.

    2) I can see a one-time bonus being non-pensionable. But when you give a “bonus” every year that includes the previous year’s bonus and even increases it, then it clearly becomes a raise / salary … and that is undoubtedly pensionable. May have to wait a couple of years to let the pattern develop before filing a challenge but my guess is a challenge would end with a ruling it is pensionable income.

    You can call it whatever you want, but if it smells like a pig, it’s a pig …


  30. - Jimmy H - Monday, Jan 30, 17 @ 12:18 pm:

    Another excellent column from Rich that leaves the “knee-jerkers” in the dust!


  31. - Anonymous - Monday, Jan 30, 17 @ 12:54 pm:

    @The Colossus of Roads
    He cannot do it when the legislature is in session. Before he even can do that he has to get it in writing from both the House Speaker and the Senate President that they are not in session.


  32. - Skeptic - Monday, Jan 30, 17 @ 1:41 pm:

    “AFSCME should delay the strike vote pending resolution in the Courts.” A strike vote doesn’t say when (or if) there will be a strike.


  33. - blue dog dem - Monday, Jan 30, 17 @ 2:01 pm:

    Leverage. The Art of the Deal. Whatever you want to call it. If anyone out there thinks Rauner is going to let anyone named Madigan influence his actions, you are gravely mistakeN. This buffoon is going to dish out pain like we’ve never seen before


  34. - facts are stubborn things - Monday, Jan 30, 17 @ 2:44 pm:

    a vital pressure point that has been missing for much too long.

    pension protections in Illinois are among the strongest in the nation. Some states treat pensions as gratuity, some as property, some as contracts and a very few (Illinois among them) constitutionally protected against diminishment or impairment. If you took away the constitutional protection you would still have a contract and suspect all benefits to date would be protected. In Illinois it is clear that benefits are protected past, current and future. If all you had to do to diminish or impair pensions in Illinois is to say to an employee if you want to keep your current benefit then all future salary increases are not pensionable these protections would not be very strong.


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