Many times in the recent past the Oregon legislature has refused to make any serious PERS reform. The legislative leaders have often justified their failure to act on the excuse that the Oregon Supreme Court would not uphold the changes. A story in the Oregonian on January 31, 2012, by Ted Sickinger, provides an example of this tactic. In that story, Chris Garrett, D-Lake Oswego, said that during the 2012 short legislative session the general belief was that it was not the time to take on a complicated discussion like PERS reform. Moreover, he said it is “a fact” that much of what can be done legislatively to lower PERS costs was accomplished in previous sessions. “There’s not much point in stirring up a lot of controversy on concepts that are not going to withstand judicial review,” Garrett said. Basically, Rep. Garrett is saying that the courts will not let the legislature make any more changes to PERS.
While Rep. Garrett’s conclusion may be true under the current circumstances, it is still a poor excuse and it is a situation that the legislature can change whenever it wants to. Today, all of the justices of the Oregon Supreme Court are PERS members. They are PERS members because the 1983 legislature, in which 84 of the 90 legislators were PERS member, forced the judges to join PERS. As a result, every PERS case after 1983 has been decided by judges who were PERS members. That means that the validity of any PERS changes made by the legislature will ultimately be decided by PERS judges who will not be impartial. Those judges will have a personal financial interest in protecting their own retirement benefits and they will be predisposed to invalidate PERS reforms made by the legislature.
Rep. Garrett’s statement that it is a waste of time for the legislature to reform PERS because the Oregon Supreme Court is a convenient excuse for PERS legislators. They financially benefit from the current PERS laws and they do not want those laws changed. It is also important to note that the Supreme Court has only refused to approve PERS reforms that would lower PERS benefits after the judges were forced into PERS and became entitled to those benefits. Maintaining the PERS status quo,was in their financial best interest. PERS reform, however, may not be rejected by the courts if the judges who decide PERS cases are not PERS members. And, the legislature has the authority to require that all PERS cases be decided by judges who are not PERS members.
Clearly, the problem in getting the legislature to reform PERS is not the PERS justices on the Oregon Supreme Court. The problem is the PERS legislators who control the Oregon legislature. Today, the number of Oregon Representatives who are PERS members and those who are not PERS members is about even. But in the Oregon Senate, Senators who are PERS members greatly outnumber the non-PERS Senators. For any PERS reform to take place in the legislature the change must be passed by both the House and Senate. So far, the PERS Senators have refused to allow any meaningful PERS reform to even be discussed.
It is misleading for legislators to complain that there is no point in trying to reform PERS because of the Oregon Supreme Court. It was the legislature that forced the judges into PERS and it is the legislature that refuses to prohibit PERS judges from deciding PERS cases. Each PERS legislator financially benefits from the refusal of PERS judges to allow meaningful PERS reform. The Supreme Court is doing exactly what the PERS legislators want it to do. As long as PERS legislators control the legislature, no meaningful PERS reform will be made.
In case you are wondering, Rep. Chris Garrett who said that the courts will not allow the legislature to make any further PERS reforms, is a PERS member.