In 1985, the Oregon Supreme Court recognized in the case of Burt v. Blumenauer that the legitimacy of government policy is dependent upon the consent of the governed and that excessive or questionable efforts by the government to manufacture the required consent calls the legitimacy of its actions into question.
After the Oregon legislators passed a law in 1975 which allowed them to join PERS, most legislators became PERS members. In 1989, eighty-two of the ninety legislators were in PERS and they passed another law that made PERS funding the State’s highest financial priority. Every Oregon public employer must now pay their PERS assessments before they can pay for anything else. This spending priority policy is one of the principal reasons why public employers, including the state prison system, school districts, counties and cities, are forced to reduce the services they were created to provide in order to make their PERS payments. Prisoners are released early, school teachers are laid off, class sizes are increased and teaching days reduced, police and fire protection is cut back. There is no cut back, however, in the PERS payments that are made for the public employees who keep their jobs. In fact, those PERS payments are expected to increase significantly in July, 2011 and that will result in even greater service reductions.
Any explanation or attempted justification by the legislature of this spending policy has been questionable at best and the people have never consented to it. As a result, the legitimacy of the policy is in question. While the policy benefits those legislators who are PERS members and all other 320,000 PERS beneficiaries, it hurts, rather than helps, the other 3,500,000 Oregonians.
The people have every right to demand an explanation as to why PERS must be paid first and if that explanation is not satisfactory the people have the right to change the policy. If the legislature believes that PERS funding is entitled to first priority, it should submit the matter to a vote of the people. That is the only way for such a policy to be legitimate in the eyes of the governed.