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The Spring 2013 legislative session ended Friday evening, with a whimper rather than a bang. Though the General Assembly did have a few meaningful accomplishments, they were unfortunately overshadowed by the areas where we did nothing at all or stepped backwards. Here is where things now stand on some of the more significant topics we aimed to address.
Pensions. When this legislative session began, perhaps the clearest point of consensus was that we had to address the fiscal burden placed upon the state by our enormous pension debt. Given this universal agreement, it is quite simply unacceptable that we adjourned without making any progress — this is a terrible indictment of our poor performance as legislators, and it will further a viciously unfair fiscal and psychological burden on public employees, taxpayers, and those who rely on state services.
So how did we get here? Underlying the policy debate is a legal argument regarding the implications of Article XIII, Section 5 of the Illinois Constitution. There is no question that this clause provides a very strong protection for public employee pension benefits; indeed, the historical interpretation (and the current interpretation in several other states that have similar provisions) is simply that anyone who’s already in the system is entirely immune from any pension changes of any kind. At the same time, it has become pretty clear that it would be fiscally untenable for the state to hold to the more simplistic black-and-white interpretation of the pension clause. Specifically, if we were to leave the pension formula of everyone who’s already hired entirely untouched (rather than taking an approach of shared pain that asks for sacrifice from all stakeholders), the resulting tax increases and spending cuts in other crucial programmatic areas would simply be crushing for our state — for our schools, our most vulnerable citizens, our infrastructure, and our economy.
How, then, can we reconcile the constitutional protection with the need for some changes? There are two very different philosophies on this topic. One approach says that in order to save the economic and social health of the state, our current emergency condition will allow some pension changes, so long as they restore the fiscal position of the pension systems so that we can credibly promise workers that they will actually receive a pension, and if they are carefully crafted, equitably distributed to the extent possible, and adequate to resolve the problem but not so large that they relieve other stakeholders of the responsibility to sacrifice. The other approach says that even under circumstances of fiscal emergency, unilateral pension changes are still unconstitutional — but certain changes can be acceptable under some circumstances if we give participants a choice between various types of changes (for instance, between a reduction in pension benefits and a reduction in retiree healthcare benefits).
The House passed a bill (SB1) that was based upon the first, “fiscal emergency” theory; this bill was very similar to a series of pension bills that Representative Elaine Nekritz and I sponsored over the course of the last half year, and I supported it when it came up for a vote in the Senate. Most of my colleagues, however, prefer the second, “choice” theory, and passed a bill (SB2404) that was supported by public employee unions and that gave employees three different options; I voted against this bill when it passed the Senate. I’m sure that thousands and thousands of words will be written dissecting what ensued, but it can be summarized like this: both sides in this dispute apparently decided that doing nothing was preferable to passing the other side’s bill, and the two sides weren’t prepared to sit down together and work out any kind of third option or compromise, so we went home without accomplishing a thing.
Here’s my view on this topic. First and foremost, I think it’s fair to say that both sides make legitimate legal arguments, and that there are scholars of repute and integrity on all sides of this debate. With that in mind, my interpretation of my legislative responsibility is that it’s my job to formulate the best public policy I can, subject to the constraint that it meet a good-faith test of constitutional plausibility. Simply put, legislators should legislate and courts should judge — and given two competing reasonable theories that are both supported by knowledgeable people, I’m going to go with the approach that I believe to be best for the people of Illinois.
Which approach is that? I think one of the most important parts of the answer is that when evaluating the fiscal impact of a bill that gives every employee and retiree multiple choices, you can never be sure of who will pick which option. This makes it extremely hard to predict savings, which, in turn, makes it difficult to promise that the plan is affordable. To be a little more precise, many who opposed SB2404 complained that its advertised savings were inadequate; I agree with that statement, but even more concerning is that I was never persuaded that the savings estimates I saw were realistic, because they didn’t take into account all permutations of different choices that employees might make. The only reason we’re having this painful debate is because the pension systems have placed unmanageable budgetary pressure on the state, and I don’t understand why anyone should sign off on a plan that doesn’t come with a predictable level of budgetary relief. This does not mean that any plan that involves choices should be rejected out of hand, but it does mean that we have to be exceedingly careful before approving such an approach.
So that’s where we stand today. The state is in serious trouble, the pension systems are in serious trouble, and the legislative debate on this topic is in disarray. Public employees who have for years been justifiably angry that their pensions were underfunded and mismanaged by legislators are now also justifiably angry that the legislature has not taken action to address the problem. Taxpayers, individuals who rely on the many state services that are being crowded out by skyrocketing pension costs, and citizens who love the State of Illinois and wish it a healthy future are justifiably angry as well. When we finally take action on this topic — even if we pass a bill supported by public employee unions — there will be lawsuits, and time will be spent in court. Then, if our fixes are upheld, it will be literally decades before they take root and our fiscal problems are resolved.
We must act, and we must act soon. I have tried my best to bring about a workable resolution, and clearly I have failed so far. I will continue trying. I am open to compromise, I am open to new ideas, and I am open to hearing from and working with literally anyone. Also, I am very sorry.
Marriage equality. On February 14, the Senate passed SB10, a bill to legalize same-sex marriage in Illinois. After months of optimism, tension, and uncertainty, the House adjourned without calling SB10 for a vote, because it did not have enough supporters to pass. This was a huge disappointment.
I only have two things to add to this well-worn debate. First of all, the legislators who led the fight on this issue in the House, and the advocates they were working with, did a phenomenal job. They were tireless, they were tenacious, they were principled, and they left no stone unturned. The outcome was heartbreaking — and nobody is more heartbroken than they are! — but that doesn’t diminish the quality of work that Representatives Greg Harris, Kelly Cassidy, and Deb Mell did. When Illinois finally achieves marriage equality, it will be in large part due to their work.
Secondly, several people have written to me on this topic saying something like “I agree with your position on marriage equality, but I think it’s a distraction from the important issues to work on it right now”. While I’m certainly sympathetic to the view that we need to work hard to right our state’s fiscal ship, I have to say that I disagree with the overall sentiment being expressed here. It’s always easy to postpone a fight for someone else’s equality, for someone else’s right to visit a spouse in the hospital, for someone else’s freedom from Kafkaesque custody and immigration battles — but we should never put civil rights on the back burner. These fights are long and they are difficult, but I am confident that in the end equality will prevail — and that our state will be the better for it and each of us will be the better for having stood up for justice.
Concealed carry. The General Assembly did take action on this issue, as directed by the 7th Circuit Court of Appeals, which gave us a June 9 deadline to pass some sort of legislation enabling the carrying of concealed weapons. Almost everyone, including myself, hoped we would pass some sort of legislation, because it seemed possible that had we not done so before June 9, the court would have simply repealed our ban on concealed carry, leading to a potentially scary and unregulated situation.
However, I was not of the opinion that any bill at all was better than missing the deadline, and I was disappointed with and voted against HB183, the bill we eventually passed. This compromise did include some positive measures regarding training, lost and stolen weapons, and a number of places where the carrying of weapons will be prohibited, but at the end of the day I believe it to be a step in the wrong direction. It does not make any significant effort to distinguish between the very different attitudes and public safety problems in different parts of the state, it allows the carrying of concealed weapons in restaurants as long as under half their revenue comes from alcohol, and it prohibits municipalities from placing further restrictions on the carrying of concealed weapons. At a time when public opinion clearly reflects a desire for sensible gun safety measures, I am disappointed that the Illinois General Assembly went so far in the opposite direction.
Budget. The General Assembly passed a budget mostly along partisan lines this session. I would characterize it as a fairly moderate budget — it avoided some of the truly austere cuts to education and human services that had been discussed earlier in the session, while still setting aside money to pay down liabilities incurred during the current (FY13) fiscal year. Maybe even more importantly, the budget seeks to fully fund next year’s liabilities rather than intentionally shorting them to create an artificial crisis next spring that would require multiple supplemental appropriations.
Obviously, the budget is a giant and complicated document, and if you have any specific questions or thoughts, please be in touch and we’ll be happy to discuss. But broadly speaking, I’d make one point. This budget, by virtue of being less austere than was threatened, has been characterized as an indication that the State of Illinois is out of fiscal trouble. Unfortunately, if you look more closely, you’ll see that we still have severe difficulties ahead of us.
First off, while the cuts could have been deeper, it’s important to understand that there still isn’t a lot of money left for key priorities. For instance, after years and years of deep human service cuts, mostly flat funding or small cuts are far more pleasant — but they’re by no means adequate to protect our most vulnerable citizens in the way that they have the right to expect. Similarly, after many years of expecting a full appropriation for General State Aid for public schools, we funded it at around 95% two years ago and 89% last year — and this year we’re at 89% again. That feels a lot better than the 82% that was bandied about, but understand that it’s a wholly inadequate way to fund education, and it represents a continued breakdown of the school funding formula.
Finally, given the increasing fixed costs associated with pensions, debt service, and group health insurance, even this modest budget is only affordable because of an unexpected $1.3 billion windfall associated with the fiscal cliff debate in Washington and short-term behavior changes the panic surrounding that debate caused. Going forward, we will only be able to continue to pass budgets that look even halfway reasonable if we achieve comprehensive and significant pension reform and improve our inadequate and unfair tax structure.
Medicaid expansion. Probably the most positive step the General Assembly took this session concerned the passage of SB26, the Medicaid expansion bill. The main purpose of the Affordable Care Act (“Obamacare”) is to provide health insurance to almost all Americans, and one of the vehicles by which it does this is expanding the Medicaid program. Medicaid is a federal-state partnership wherein states determine eligibility and reimbursement rates and federal government shares in covering the costs.
Under the Affordable Care Act, states have the opportunity to expand eligibility for Medicaid, and for the federal government to reimburse 100% of the costs of the new population. This is a major victory for low income Illinois residents, as well as a win for public health and a fiscally smart move given the massive and invaluable federal reimbursement. It took most of the session to pass SB26, and when it finally did pass it had a variety of additional components that caused some anxiety, but all things considered this is probably the most significant good news to come out of the legislative session.
Fracking. There was a great deal of discussion this session about hydraulic fracturing, or “fracking,” a mechanism to extract natural gas by fracturing underground rock layers using pressurized liquid. There is a lot of economic enthusiasm around fracking, and there is also a great deal of very serious environmental concern regarding its impact on safety, health, air quality, and water quality.
I supported SB630, a bill to create a moratorium on fracking. This bill, however, was two votes short of passing the Senate. After it failed, we passed SB1715, a bill to put in place strong regulations on the practice of fracking. While I was a proud supporter of the moratorium, I also voted for this regulatory bill, for several reasons. First of all, the failure of the moratorium was a clear indication that we would not be able to stop fracking from coming to Illinois — and if it’s going to happen, then it should be carefully and responsibility regulated. Second, this regulatory bill was painstakingly negotiated by many of our state’s leading environmental groups — including the Sierra Club, the National Resources Defense Council, the Environmental Law and Policy Center, and the Illinois Environmental Council — all of which wound up supporting the final product. I always make up own mind on every issue and never simply take direction from advocacy groups (even advocacy groups that I work extremely closely with and respect tremendously, like these environmental organizations). However, I do think that in order to build the environmental movement’s strength, it’s important to signal that when the advocates come to an agreement with traditional adversaries and sign off on a compromise, legislators who believe in the cause are likely to support the compromise. That will strengthen advocates’ hands in future negotiations, and so it was a consideration for me in deciding my vote.
As we move forward into this new world of fracking, we will have to monitor the activity extremely closely. It is my hope that the regulatory framework put in place by SB1715 will protect the safety of Illinois residents and our environment, but should that not turn out to be the case we need to be ready to take further action to keep our air and water clean.