Above the law: Amendment 1 would let government unions void over 350 Illinois laws
By Mailee Smith, Perry Zhao
Above the law: Amendment 1 would let government unions void over 350 Illinois laws
By Mailee Smith, Perry Zhao
Voters in Illinois will be asked Nov. 8 whether to add a new amendment to the Illinois Constitution. Disingenuously dubbed a “workers’ rights amendment,” it is an extreme change rife with unintended consequences that could have dire effects on Illinoisans – including children.
A review of Illinois’ state statutes shows the amendment would allow government unions to override more than 350 provisions related to schools, children and other residents.1
Even those 350-plus provisions are likely just a fraction, because the language of Amendment 1 is so broad it’s hard to predict every potential state law that could be undermined.
That’s because the way Amendment 1 is written, it would allow government unions to nullify state laws simply by including contrary provisions in their union contracts.2
A similar amendment was attempted by unions in Michigan in 2012.3 At that time, then-Michigan Attorney General Bill Schuette penned a memorandum explaining the amendment would “abrogate,” or overrule, more than 170 existing Michigan laws.4
The repercussions would be even more extreme in Illinois.
Here’s how it would play out: The broad language of Amendment 1 doesn’t just guarantee a right to bargain over typical labor issues such as wages and benefits. Instead, it adds the generic terms “safety at work” and “economic welfare” to the mix of negotiable subjects – making the issues that can be negotiated virtually unlimited.5
After giving unions the “fundamental right” to demand virtually anything, Amendment 1 guarantees government unions a permanent right to go on strike to get their demands met.6
Among the more than 350 laws at risk are provisions:
• Protecting school children
• Regulating immunizations of school children
• Outlining required school curriculum
• Protecting children under the watch of the Department of Children and Family Services
• Prohibiting political activities while engaged in government work
• Prohibiting unionization of elected officials
• Prohibiting politicians from holding multiple government offices
• Prohibiting government employment of people convicted of violent crimes
• Allowing termination of government employment for misconduct
• Setting public safety policies
The language of the amendment also prohibits lawmakers from passing a law interfering with, negating or diminishing its reach. That means lawmakers will never be able to limit what unions can demand in negotiations. They will never be able to restrict when government unions go on strike.
What’s more, the contracts created under Amendment 1 will carry the weight of the constitution, allowing government unions to override state laws.7
If union leaders don’t like a specific state provision – such as background checks for government workers – they can simply contradict the law in the union contract. Whatever language is in the union contract wins out.
Amendment 1 would threaten safeguards for kids in school
The School Code is meant to ensure a safe, quality education for the state’s school children.8 But teachers unions could undermine basic safety provisions by negotiating over licensure and other “conditions of employment.”
For example, one provision prohibits anyone who has committed a sex offense from being licensed to teach.9 It also provides no one convicted of a drug offense can be licensed to teach or supervise until seven years after the end of the sentence.10
Another allows the State Superintendent of Education to suspend or revoke a teaching license for actions such as abuse or neglect of a child, incompetency or unprofessional conduct.
But a teachers’ union could negotiate a contract provision holding that licensure is not required to be employed as a teacher in the school district (i.e., it’s a “condition of employment” the unions can negotiate).
It wouldn’t matter that state law requires licensure. A contract provision would be mightier than state law. And any licensure requirements and qualifications could be tossed by the wayside.
Amendment 1 would allow government unions to decide medical policies, such as immunizations, for school children
In December 2021, the president of the American Federation of Teachers – the second-largest teachers union in the U.S. – reportedly backed mandatory COVID-19 vaccines for students.12
Under Amendment 1, local union leaders could demand children be vaccinated from certain illnesses or diseases before employees will show up to school.
Currently, the School Code outlines the procedure for required medical examinations and immunizations for Illinois students.13 Teachers unions could demand other vaccination requirements – such as that all district students have COVID-19 vaccinations – in their contracts, claiming it a negotiable subject because it pertains to “safety at work.”
Amendment 1 would allow government unions to set school curriculum
There are also numerous provisions related to curriculum that could be undermined by a union contract. Currently, the School Code requires courses in civics, consumer education, U.S. history, patriotism and proper use of the flag, and genocides in history, among others.14
But the amendment’s unlimited language would allow union leaders to demand curriculum changes during negotiations – perhaps refusing to teach certain subjects or adding others that must be taught in a district’s schools.15
Amendment 1 would threaten safety measures for kids under the watch of DCFS
The mission of the Department of Children and Family Services to protect “children who are reported to be abused or neglected” and “provide for the well-being of children in our care” could be undermined if Amendment 1 passes.16
The Children and Family Services Act includes a section requiring DCFS to acquire “background information” on all its employees17, and another prohibiting employment of anyone declared a “sexually dangerous” person.18
It also includes a provision requiring DCFS to review cases to determine whether caseworkers appropriately “identified and addressed actual or potential drug or alcohol abuse problems of clients.”19
Similarly, the Safeguard Our Children Act requires various duties of employees caring for children in residential facilities contracted by DCFS, such as ensuring a plan of care is created for residents and that missing children are properly reported.20
But Amendment 1 would allow union contracts to contradict and override these provisions. For example, the union representing DCFS workers21 could demand a contract provision prohibiting the state from performing background checks or from reviewing employees’ work – under the auspices that such provisions relate to a “condition of employment.”22
Amendment 1 would allow government workers to do political activities at work
Illinois law prohibits employees of local government – including employees of school districts – from engaging in political activities while at work or on duty.23
But this prohibition could be explicitly undermined by contract provisions allowing employees to engage in politics while working.
It isn’t hard to imagine government unions using contracts to gain political momentum through their members during work hours. Government unions already flood politicians with cash24 and their negotiations are considered by the U.S. Supreme Court to be “inherently political.”25
And then there’s the example of the Chicago Teachers Union, which has a history of pushing political, non-labor-related issues at the bargaining table, such as defunding the police.26
Performing political actions during work time is a natural next step for government unions.
Amendment 1 would allow politicians to unionize
Amendment 1 opens unionization and bargaining to all state and local government employees – even employees who were historically prohibited from organizing.
Current Illinois labor laws exclude certain positions from the definition of “public employee,” meaning people in those positions do not have a right to unionize.
Excluded positions include elected officials, employees of the General Assembly, labor board employees and managerial employees.27 Current law also excludes principals in public schools.28
But Amendment 1 uses the term “employee” generally, without definition or limitation. That means it applies to anyone who is employed by a state or local government unit.
Current laws defining an employee would run afoul of Amendment 1’s prohibition on any law that interferes with, negates or diminishes the right to organize and bargain, as would any future law passed by the General Assembly.
The result of Amendment 1’s loose drafting is that anyone who is employed by a state or local government unit has a “fundamental right” to organize and bargain under Amendment 1. And that includes elected officials, principals, county sheriffs and a host of other state and local managerial positions.
A push to unionize upper-level government officials is already happening in Illinois and other states. Just this year, the Illinois House of Representatives passed a bill that would allow principals in Chicago to unionize.29 The legislature in the state of Washington is considering collective bargaining for legislative staff – meaning employees responsible for advising and assisting lawmakers and pushing legislation behind the scenes would be beholden to unions.30
The push for unionization of government employees would be expanded and intensified if Amendment 1 passes.
Amendment 1 would allow politicians to hold multiple government offices
A number of provisions prohibit elected officials from holding more than one government position at a time. Because Amendment 1 doesn’t prohibit elected officials from unionizing, they could organize and then bargain for provisions to their financial advantage.
For example, county board members, aldermen, trustees and township officials currently are prohibited from holding other offices. Mayors, clerks and treasurers are prohibited from actively holding any other municipal office.31 But union contracts could permit this sort of “double dipping,” allowing elected officials to hold more than one position on the taxpayers’ dime.
Similarly, state’s attorneys are prohibited from engaging in private practice, helping ensure there are no conflicts of interest.32
Amendment 1 would allow government to employ people convicted of violent crimes
Illinois law currently prohibits employment and/or certification of convicted felons in specified positions, including law enforcement officers,33 county sheriffs34 and other state or municipal employees.35
Similarly, state police officers cannot have criminal records and must pass mental and physical tests and examinations.36
What’s more, Illinois law states a county sheriff must be a U.S. citizen.37
Whatever one thinks of these restrictions, the people of Illinois and their elected representatives have, up until now, had a voice in determining the requirements for officers charged with enforcing the laws of the state. Amendment 1 would suppress the voices of the people and their representatives.
To illustrate the unexpected consequences that could follow, the Prairie Du Pont Fire Protection District made national news in December 2021 when the fire chief was replaced by a man previously convicted of arson.38
Amendment 1 would make it impossible to fire bad actors
Illinois law provides a Zero Tolerance Drug Policy for state police employees. Any employee who tests positive for substances prohibited in the Illinois Controlled Substances Act is discharged.39
The state also allows the termination of state police officers for exercising excessive use of force or exercising unprofessional, unethical, deceptive or deleterious conduct or practice harmful to the public.40
But state laws could easily be overridden by disciplinary and termination procedures in union contracts. Such contract clauses have already been identified by the U.S. Department of Justice as standing in the way of needed police reforms in Chicago.41 If Amendment 1 passes, these clauses will permanently carry more weight than state law and undo reform efforts.42
Amendment 1 would allow government unions to set public safety policy
A number of provisions regulating police procedures could be changed via collective bargaining agreements if Amendment 1 passes.
These include provisions requiring training in use of force and use of de-escalation techniques;42 regulating in-car and body-worn cameras;43 and requiring drug and alcohol testing for a law enforcement officer involved in an officer-involved shooting.44
These are highlights of the more than 350 provisions in Illinois state law that could be undermined by government unions if Amendment 1 passes.
And while more than 350 provisions have been identified, many more likely exist. The language of Amendment 1 is so broad and vague it’s hard to predict every potential state law or local ordinance that could be trumped by a union contract. The Illinois Compiled Statutes include thousands of provisions related to all aspects of residents’ lives, from general provisions (chapter 5) and elections (chapter 10) to business transactions (chapter 815) and employment (chapter 820). The foregoing review notes only provisions in statutes directly related to government employment that are most obviously impacted by Amendment 1.
Government unions have a history of pushing unpopular issues, or issues beyond the scope of ordinarily negotiated employment topics, that lawmakers don’t want to address. For example, CTU has already pushed its social agenda on housing, immigration, wealth redistribution and defunding the police in negotiations with Chicago Public Schools.45 For now, CPS can push back and refuse to negotiate those issues. That’s not necessarily the case if Amendment 1 passes.
Amendment 1 would allow government unions to pass their most unpopular demands at the bargaining table, and voters would have no way to hold them accountable.
No state laws related to government employees – including teachers – will be safe from union control if Amendment 1 passes Nov. 8, 2022.
1The Illinois Compiled Statutes include thousands of provisions related to all aspects of residents’ lives, from general provisions (chapter 5) and elections (chapter 10) to business transactions (chapter 815) and employment (chapter 820). A review of the statutes most obviously related to employment of government workers revealed more than 350 provisions could be undermined by union contracts if Amendment 1 is passed by voters.
2Senate Joint Resolution Constitutional Amendment 11, https://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=110&GA=102&DocTypeId=SJRCA&DocNum=11&GAID=16&LegID=136166&SpecSess=&Session=
3Michigan “Protect Our Jobs” Amendment, Proposal 2 (2012), https://ballotpedia.org/Michigan_%22Protect_Our_Jobs%22_Amendment,_Proposal_2_(2012). The measure lost by a 15-point margin.
4Memorandum from Bill Schuette to Gov. Rick Snyder (July 20, 2012), https://abc.org/Portals/1/Documents/Newsline/PLA%20memo.pdf.
5SJRCA 11, https://www.ilga.gov/legislation/billstatus.asp?DocNum=11&GAID=16&GA=102&DocTypeID=SJRCA&LegID=136166&SessionID=110. What’s more, the vague and undefined subjects of bargaining will generate litigation, leaving courts to ultimately decide what is and is not mandatory under the amendment.
6See Mailee Smith, “What you need to know about giving unions special treatment in Illinois’ constitution,” Illinois Policy Institute (Oct. 13, 2021), https://www.illinoispolicy.org/what-you-need-to-know-about-giving-unions-special-treatment-in-illinois-constitution/. Illinois labor laws already allow most government workers to go on strike. See Mailee Smith, “Rigged: How Illinois’ labor laws stack the deck against taxpayers,” Illinois Policy Institute (Winter 2017), https://www.illinoispolicy.org/reports/rigged-how-illinois-labor-laws-stack-the-deck-against-taxpayers/. Amendment 1 would prohibit lawmakers from ever limiting that right.
7The Illinois Public Labor Relations Act already includes a provision allowing the contracts of many government unions to trump state laws and regulations. See 5 ILCS 315/15. If Amendment 1 is passed, lawmakers will never be able to amend or repeal this broad superseding clause. What’s more, Amendment 1 would effectively grant the ability to override any laws to all government unions by placing the weight of the constitution, and the “fundamental right” to bargain over virtually limitless subjects, behind union contracts.
8Illinois School Code, 105 ILCS 5/1 et seq., https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ChapterID=17&ActID=1005; see also Mailee Smith, “38 provisions in Illinois School Code could be undermined by Amendment 1,” Illinois Policy Institute (Dec. 17, 2021), https://www.illinoispolicy.org/38-provisions-in-illinois-school-code-could-be-undermined-by-amendment-1/.
9105 ILCS 5/21B-15 (a).
10105 ILCS 5/21B-15 (a).
11105 ILCS 5/21B-75 (b).
12Akiko Fujita, “AFT president backs COVID-19 vaccine mandates for students, says it offers a ‘silver lining’,” Yahoo News (Dec. 21, 2021), https://news.yahoo.com/atf-president-backs-covid-19-vaccine-mandates-for-students-says-it-offers-a-silver-lining-150319905.html.
13105 ILCS 5/27-8.1
14105 ILCS 5/27-3.10; 105 ILCS 5/27-12.1; 105 ILCS 5/27-21; 105 ILCS 5/27-3; 105 ILCS 5/27-20.3.
15In fact, a source at the Illinois Educational Labor Relations Board responding to an inquiry from Illinois Policy Institute admitted unions may already be able to make curriculum demands during negotiations because it isn’t currently prohibited under the Illinois Educational Labor Relations Act, and anything not explicitly prohibited is “fair game.” Of course, if Amendment 1 passes, that potential ability to negotiate school curriculum could never be restricted by lawmakers.
16DCFS, “About DCFS” (2022), https://www2.illinois.gov/dcfs/aboutus/Pages/ab_about.aspx.
1720 ILCS 505/5.
1820 ILCS 505/11.1.
1920 ILCS 505/34.3.
20325 ILCS 58/10; 325 ILCS 58/15.
21At least some DCFS workers are represented by the American Federation of State, County and Municipal Employees Council 31. Collective Bargaining Agreement between State of Illinois and AFSCME Council 31 (2015-2023), https://www2.illinois.gov/cms/personnel/employeeresources/Documents/emp_afscme15-23.pdf.
22The Illinois Public Labor Relations Act already explicitly allows union contracts to override state law in this way (see 5 ILCS 315/15). For example, the contract between the City of Chicago Department of Police and the Fraternal Order of Police requires complaints filed against police officers to be accompanied by a signed affidavit (Agreement between the City of Chicago Department of Police and the Fraternal Order of Police, Chicago Lodge No. 7, Appendix L, Section 6). On the other hand, the Uniform Peace Officers’ Disciplinary Act provides that a sworn affidavit shall not be required. 50 ILCS 725/3.8. That section, along with others amended in 2021 by the SAFE-T Act, can easily be undermined by adding contrary provisions to collective bargaining agreements. See 2019 Ill. HB 3653. Under current law, the contract controls until a court rules differently. Amendment 1 would make this a permanent right. Lawmakers would never be able to take back control from union leaders.
2350 ILCS 135/10.
24See Mailee Smith and Jon Josko, “Unions flood politicians with cash: How it buys clout in Illinois General Assembly,” Illinois Policy Institute (2021), https://www.illinoispolicy.org/reports/unions-flood-politicians-with-cash-how-it-buys-clout-in-illinois-general-assembly/.
25Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2480 (2018) (“The challengers in Abood argued that collective bargaining with a government employer, unlike collective bargaining in the private sector, involves ‘inherently ‘“political”’ speech. The Court did not dispute that characterization, and in fact conceded that ‘decision-making by a public employer is above all a political process’ driven more by policy concerns than economic ones.” (citation omitted)).
26Glenn Marshall, Melissa Espana, Julian Crews and Shannon Halligan, “Stalemate between CPS, union continues as mayor says ‘the ball is in the CTU’s court,’” WGN9 (Feb. 4, 2021), https://wgntv.com/news/coronavirus/chicago-public-school-students-remain-on-remote-learning-as-negotiations-continue-with-ctu/; Jackson Potter and Saqib Bhatti, “Defund police and banks; support schools and a more just social order,” Chicago Teachers Union, https://www.ctulocal1.org/chicago-union-teacher/2020/09/defund-police-and-banks-support-schools-and-a-more-just-social-order/.
275 ILCS 315/3; 115 ILCS 5/2.
28See 115 ILCS 5/2.
29Andrew Hensel, “Bill allowing Chicago principals to unionize passes Illinois House,” The Center Square (Mar. 2, 2022), https://www.thecentersquare.com/illinois/bill-allowing-chicago-principals-to-unionize-passes-illinois-house/article_2ac83bf0-9a30-11ec-945a-ff961347cd80.html. The bill is House Bill 5017 and is currently pending in the Sente. See HB 5107,https://ilga.gov/legislation/billstatus.asp?DocNum=5107&GAID=16&GA=102&DocTypeID=HB&LegID=139598&SessionID=110.
30Union Station, “Washington legislature considers collective bargaining for legislative staff,” Ballotpedia (Feb. 25, 2022), https://ballotpedia.org/Union_Station:_February_25,_2022.
3165 ILCS 5/3.1-15-15.
3255 ILCS 5/4-2001.
3350 ILCS 705/6.1. See also 50 ILCS 705/10.2.
3455 ILCS 5/3-6001.5.
3565 ILCS 5/3.1-10-5. See also 20 ILCS 415/8b.4.
3620 ILCS 2610/9. See also 20 ILCS 2610/12.6 (automatic termination of state police officers convicted of felony offense).
3755 ILCS 5/3-6001.5.
38Gina Harkins, “A man once convicted of arson was named a fire department’s acting chief. Almost all the firefighters quit,” The Washington Post (Dec. 22, 2021), https://www.washingtonpost.com/nation/2021/12/22/jerame-simmons-illinois-fire-chief-arson/ .
39 20 ILCS 2610/12.5.
40 20 ILCS 2610/12.7.
41For an example, see infra n.22; see also Mailee Smith, “How Illinois’ collective bargaining rules protect police misconduct,” Illinois Policy Institute (2020), https://www.illinoispolicy.org/reports/how-illinois-collective-bargaining-rules-protect-police-misconduct/ (citing United States Department of Justice Civil Rights Division and United States Attorney’s Office, “Investigation of Chicago Police Department,” (Jan. 13, 2017), https://www.justice.gov/opa/file/925846/download).
4250 ILCS 705/10.6; 65 ILCS 5/3.1-30-20.
4320 ILCS 2610/30; 50 ILCS 706/10-15; 50 ILCS 706/10-20.
4450 ILCS 727/1-25.
45“Questions and answers about our contract campaign,” Chicago Teachers Union, https://www.ctulocal1.org/movement/contract-campaigns/about/; Jackson Potter and Saqib Bhatti, “Defund police and banks; support schools and a more just social order,” Chicago Teachers Union (Sept. 22, 2020), https://www.ctulocal1.org/chicago-union-teacher/2020/09/defund-police-and-banks-support-schools-and-a-more-just-social-order/.