* Pension reform proponents are doing a great job of getting their singular message out to editorial boards. Here’s the Dispatch-Argus: “Why Illinois pension clause cannot be ruled absolute”…

Rep. Elaine Nekritz, one of the architects who built SB 1, is among those who believe that the authority exists in the right circumstances for the state to curtail those benefits and, if the case against SB 1 is judged on that basis, it would stand. […]

And the court’s ruling in this case could have impact well beyond our own state borders. SB 1 supporters we spoke with, including Rep. Nekritz, said that if the high court provides absolute protection for pensions it “will mark a sea change here and everywhere” because virtually every constitutional provision going back to the Civil War has been found to have limitations through reasonable police powers. For example, standards for search and seizures, the power of eminent domain, the right to bear arms and the free speech rights we already mentioned.

A number of friend-of-the-court briefs offered by constitutional scholars and others detailed the case law that supports upholding such powers regarding pensions. Because justices agreed to expedite the case, those briefs will not be part of the written record, but Ms. Madigan should have no trouble proving the state’s case regarding the need to exercise police powers in the current pension crisis, particularly given that the state’s pension clause makes clear that pension agreements are contractual and therefore subject to contractual law.

We believe that if they view all of the evidence, justices will see that doing nothing about pensions is the equivalent of shouting “fire” in that crowded theater and the fallout will be more than this financially troubled state can stand.

* The Southern Illinoisan: “Pensions and Absolutes”…

In reality, few absolutes are really that, and even our most well-known federal amendments to the constitution have restrictions. Our First Amendment right to free speech is not absolute – as evidenced in the oft-quoted “can’t yell ‘fire’ in a crowded movie theater” scenario. Our Second Amendment right to keep and bear arms is restricted each time we go through airport security. And the Eighth Amendment “absolute” prohibition of cruel and unusual punishment allows capital punishment to be decided on a state-by-state basis.

And yet, Judge Belz chooses the state pension funding provision of the Illinois State Constitution as an absolute. We don’t think so.

* Sun-Times…

Is the pension clause in the state Constitution, which protects benefits from being impaired or diminished, so absolute and so ironclad, that it trumps all else? In a world of severely restricted public resources and the state’s staggering $110 billion unfunded pension liability, should pension payments always be first in line, ahead of schools, prisons and social services?

A powerful constitutional argument says no. The argument, which we hope will prevail, says that the state’s pension clause is not absolute, that it doesn’t trump all else. In extreme circumstances such as those we find ourselves in today, benefits can — and should — be reduced. Public employees unfairly carry the burden on this, but the law leaves their benefits largely intact while scaling back annual cost of living increases. Most important, the law greatly reduces a very real risk of insolvency for the state’s pension funds, which would be far worse for a retiree. […]

The unions refuse to entertain this view, saying there can be no exceptions. That absolutist view leads to the second, equally convincing argument. In constitutional law, there is no such thing as an absolute right, a right that isn’t subject to exception or cannot be regulated, as a group of law professors wrote in a brief to the Supreme Court. Even the country’s most highly cherished rights – the First Amendment right of free speech and the Second Amendment right to bear arms — are subject to limits. The language is absolute, but the practice never is, with every right potentially subject to regulation for pressing reasons.

* Madeline Doubek…

“Constitutions are always subject to interpretation and I think, historically, have not been considered to be absolute,” [Rep. Elaine Nekritz] said, citing the U.S. Constitution’s right to bear arms as one of those examples that show a provision “replete with restrictions.”

* From the Illinois Times…

The state points out that prior to the 1970 Constitutional Convention that enacted the pension clause in question, pension benefits were considered “gratuities” that could be changed at any time. Madigan’s office says the convention delegates created a layer of protection around benefits by ensuring they would be considered a contractual relationship. The state claims all contracts are understood to be changeable.

“If the pension clause really bars the state’s exercises of its police powers under every possible circumstance, no matter how dire the consequences, then the ‘contractual relationship’ the clause creates is unlike any other contractual relationship ever recognized in American law,” lawyers for the state wrote.

Madigan’s office is careful to say that accepting the contract theory won’t lead to lawmakers using it to justify slipping out of other contracts at will. The state lawyers claim that police powers only apply in certain circumstances, although they don’t address the threshold for triggering those powers.

* But, unlike everybody else, the IT takes the counter-claims seriously…

“What we are trying to merely say,” convention delegate Henry Green said in 1970, “is that if you mandate the public employees in the state of Illinois to put in their five percent or eight percent or whatever it may be monthly, and you say when you employ these people, ‘Now, if you do this, when you reach sixty-five, you will receive $287 a month,’ that is, in fact, what you will get.”

The plaintiffs further bolster their argument by citing a letter from then state Sen. E.B. Groen to delegate Green. In the letter, Groen claims Green’s proposal for what would later become the constitution’s pension clause was “inflexible” and “would only serve to curtail the powers of the Legislature and limit its authority.” Groen urged Green to revise the clause by making the protection “subject to the authority of the General Assembly to enact reasonable modifications .…” Green rejected the idea, and Groen’s proposal was never presented to the rest of the delegates. […]

Illinois’ pension systems have been underfunded since at least 1917, the plaintiffs say, noting that the state commission tasked with overseeing the systems at the time said they were “moving toward crisis” due to insolvency caused by “financial provisions entirely inadequate for paying the stipulated pensions when due.” In 1969, the year prior to the Illinois Constitution and its pension clause being adopted, the state pension systems were only funded at about 41.8 percent, the plaintiffs say. By 2013, when the law in question was passed, the systems were funded at 41.1 percent.

The state’s pension systems have always had enough money available to pay their existing retirees. Instead, pension underfunding refers to the systems’ inability to pay now for all current and future benefits – a distinctly unlikely scenario that would only arise if all existing employees retired at once and began drawing a pension. Illinois’ underfunding is still considered a problem, however, because most other states can cover a significantly higher percentage of their current and future pension obligations, making Illinois look bad by comparison. […]

One of Rauner’s proposed changes hinges on defining benefits as only those already accrued, excluding future benefits yet to be earned. However, Rauner’s plan may be undercut by the plaintiffs’ arguments in the existing pension lawsuit. The plaintiffs cite Constitutional Convention delegate Helen Kinney, who said in 1970 at the convention: “All we are seeking to do is to guarantee that people will have the rights that were in force at the time they entered into the agreement to become an employee ….”

While I agree that this pension clause is unlike any other pension clause or contract, it was purposely drafted to be as rigid as possible. The whole intent behind the clause was to prevent the GA and the governor from doing exactly what they ended up doing with SB1. Delegates rejected a mandate on full government funding, but the clause they adopted was seen as a way of scaring the politicians into doing the right thing. Obviously, it didn’t work.

* And while you can accurately say that all other constitutional rights are limited, that’s because of the way they’re drafted. Here’s the First Amendment…

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let’s take the “freedom of speech” example since it’s cited so often by SB 1 proponents. The founders did not explicitly define what free speech actually is. That’s implicitly left up to Congress and the courts.

Now, the Illinois pension clause…

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…” is what it is. And while “enforceable contractual relationship” may be left open to some interpretation, “the benefits of which shall not be diminished or impaired” is clearly not. It’s gonna be really tough to get around that crystal clear language and its obvious intent.