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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

September 2013, vol. 15, no. 1

The pension conundrum delivers even more constitutionality issues as legislators are denied their pay

Over the past couple months, the pension debacle has taken center stage in Illinois politics and state government. As the problem continued to grow, constituents, legislators, and even the Governor, attempted various resolutions to a problem with no clear answer. Most recently, however, Governor Quinn has resorted to the most extreme measure yet, getting to legislator’s wallets.

On July 10, 2013, Governor Quinn used his line-item veto power on an appropriations bill, House Bill 214, to eliminate General Assembly members’ salaries, effectively vetoing legislator’s paychecks, until a pension reform bill is signed into law. In response, Senate President John Cullerton and House Speaker Michael Madigan have filed a joint lawsuit against Governor Quinn, challenging the constitutionality of his line-item veto. While many may debate the political nature of Governor Quinn’s maneuver, such motivations are irrelevant in the eyes of the law.

The legal question, of course, becomes one of precedence. If one branch is able to unilaterally have so much power over another, where would it stop? The lawsuit argues that Quinn violated the constitutional separation of powers between the Executive and Legislative Branch by stating, “If the Governor’s line-item veto is upheld, the independence of each member of the General Assembly is forever compromised. Any governor will hold a trump card over a co-equal branch of government, attempting to bend the members of the General Assembly to his or her will with the threat of eliminating their salaries, which for some legislators is their only source of income…In this particular instance, Governor Quinn has stated that his dispute with the General Assembly is over the lack of pension reform legislation. Next time it may be gun control, abortion rights or tax policy.”

Overall, the complaint made a two-part argument:

First, the argument is that the Governor’s line-item veto did not actually eliminate the legislative salaries, but only struck the itemized compensation for members, not the total for the salaries. This argument stems from the technical nature of how legislation, and in particular appropriations bills, are drafted and how they should be vetoed.

For example, the portion of the appropriations bill below remained intact, as indicated:

Officers and Members of General Assembly

For salaries of the 118 members of the House of Representatives at a base salary of $67,836

7,766,100

For salaries of the 59 members of the Senate at a base salary of $67,836

3,947,800

Total

$11,713,900

For additional amounts, as prescribed by law, for party leaders in both chambers as follows:

For the Speaker of the House, the President of the Senate and Minority Leaders of both Chambers

104,900

For the Majority Leader of the House

22,200

For the eleven assistant majority and minority leaders in the Senate

216,800

For the twelve assistant majority and minority leaders in the House

206,900

For the majority and minority caucus chairmen in the Senate

39,500

For the majority and minority conference chairmen in the House

34,500

For the two Deputy Majority and the two

Deputy Minority leaders in the House

75,600

For chairmen and minority spokesmen of standing committees in the Senate except the Committee on Assignments

532,000

For chairmen and minority spokesmen of standing and select committees in the House

906,400

Total

$2,138,800

Therefore, the argument essentially posits that the lump sum for the base salaries, as well as the additional salary to party leaders, should be enough to still require the Illinois Comptroller to pay the legislators because it still remains in the bill and was not vetoed.

Second, in the alternative, the complaint charges that even if the Court finds that the Governor effectively did eliminate the salaries by striking through the itemized salaries, the Governor’s actions violated the Illinois Constitution. Pursuant to Article IV, Section 11 of the Illinois Constitution, “[a] member shall receive a salary and allowances as provided by law, but changes in the salary of a member shall not take effect during the term for which he has been elected.” Therefore, the Governor’s actions—making salary changes mid-term—violates the State Constitution.

Interestingly, as recently as this year, members themselves have often made attempts to reduce their pay or the pay of the Executive Branch. For example, in this current General Assembly, House Bill 93 (McSweeney) was introduced to reduce the salary of the Governor, Lieutenant Governor, Secretary of State, Comptroller, Treasurer, Attorney General, and General Assembly members by 10% beginning January 14, 2015. Of these legislative attempts, some have even been successful. For example, in 2012, the General Assembly instated furlough days for legislators and prohibited cost-of-living adjustments for fiscal year 2013. This had been the fourth consecutive year that the General Assembly had voted to cut its own salaries.

However, these previous cost-saving attempts did not try to change the salary during the current term. Changes would either take place after the next election, or they were not considered salary adjustments. The timing of the change, therefore, is important for constitutional standards. The fact that the Governor’s action would make salary changes mid-term, arguably could make it an unconstitutional action.

The debate is whether under the Illinois Constitution, the Governor, who is also not accepting his own salary, does in fact have the authority to line-item veto the appropriation. In a statement responding to the lawsuit, Governor Quinn said, “Today’s lawsuit filed by two members of the General Assembly is just plain wrong. If legislators had put forth the same effort to draw up a pension reform agreement that they did in crafting this lawsuit, pension reform could have been done by now. Instead of focusing on resolving the state’s pension crisis—which is costing taxpayers millions of dollars a day – legislators have chosen to focus on their own paychecks and waste taxpayer time and money on this lawsuit. My action to suspend the appropriation for legislative pay is clearly within the express provisions of the Illinois Constitution.”

Legal arguments aside, President Cullerton and Speaker Madigan appear to root their argument in a commonsense approach, as well. For instance, it does not seem to make sense to allow any Governor the ability to suddenly withhold the pay of the legislators based on a single legislative issue. While pensions, arguably, are one of the more important issues that the State faces, every single issue the legislature deals with is important to someone or some constituent. Therefore, every issue should be given its due consideration and deference. The President and Speaker’s lawsuit notes that the Governor’s unilateral action could result in his arbitrary selection of issues, which he deems most important, and require the legislature to ignore many issues that may be pressing to other individual constituents or groups. Such an outcome could have serious ramifications on the separation of powers between the legislative and executive branches.

Essentially, there are two different but seemingly equal portions of the Illinois Constitution that were not in conflict until now. Although a hearing has not yet been set, the legislators have missed their first paycheck and the issue has become real for many families. At the end of the day, the Court will disregard press statements and political motivation to focus on the main issue: whether a governor, under the Illinois Constitution, has the authority to line-item veto, mid-term, the salaries of the state’s legislators. Ultimately, the Court’s decision could have a serious impact on the delicate balance and separation of powers in the State of Illinois. ■


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