Apr 29, 2002 By M. Bradford Grabowski For The 4 min read

HARRISBURG – When state lawmakers approved a hefty raise in their pensions last year, it caused a big stir. But even more controversial may be the issue of whether lawmakers should have pensions to begin with. The head of a leading government watchdog group considers legislative pensions to be unconstitutional.

Barry Kauffman, executive director of Common Cause Pennsylvania, pointed to Article 2, Section 8 of the state Constitution, which says, “The members of the General Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever.”

Kauffman said the only way pensions would be legal is through a constitutional amendment approved by the voters.

“They would have to amend the Constitution to allow that type of compensation,” he said. “Article 2, Section 8, is pretty clear and defined language.”

But lawmakers disagree.

“I don’t know. I don’t see it that way,” said state Rep. Jess Stairs, R-Acme. “It doesn’t matter where you work, people have a chance to partake in pension plans whether they’re supplemented by their employer or not. The federal government recognizes the 401k. I don’t think his view is accepted by many people.”

In 1959, 85 years after Article 2, Section 8, was added to the state’s Constitution, the Legislature enacted a law that allowed them to join the State Employees Retirement System, which covers most state agencies. Over the years, lawmakers have increased their benefits. The Legislature last year improved its pension plan by 50 percent. That means that a legislator with 33 years of service who retires this year would get a pension equal to his or her highest salary averaged over the final three years – or about $60,000 annually for life. Even a lawmaker with 10 years of service would get a lifetime pension of $20,000.

House Minority Leader H. William DeWeese said Kauffman was using a “strict constructionalist perspective.” Laws are often interpreted broadly, lawmakers said. And in the case of the state Constitution, “salary” can be interpreted to include pensions.

“I think this matter, like so many other constitutionalist debates, is multifaceted and has been given sanction down through the decades by our constitutional interpreters: the Pennsylvania court system and its highest level arbiters, the Supreme Court,” said DeWeese, D-Waynesburg.

Lawmakers deserve pensions, he added.

“Other states recognize the common sense reality that when elected women and men devote a lifetime or devote a substantial measure of their working careers to full-time public service, that a legislative pension system is not only appropriate, but will pass constitutional muster.”

“I would strongly disagree with Barry,” said House Minority Whip Michael Veon, D-Beaver Falls. “I certainly would suggest, if he thinks it’s unconstitutional, he should file a lawsuit in Commonwealth Court. I think he would not do that because he’s aware of the precedents in court.”

Stephen MacNett, legal counsel to Senate Republicans, said he believes the issue has been adjudicated, but even if it hasn’t, pensions are nonetheless legal.

“Absent an attack on its statute, it is legally entitled to be treated as valid,” he said. “There’s a legal presumption that this is valid.”

Kauffman concedes that MacNett is right.

“The Legislature can do lots of unconstitutional things, unless someone challenges it,” he said.

Kauffman said his organization has no immediate plans to take the issue to court.

“So many things to do, so little time and money,” he said. “It’s not that we’re disinterested. It’s just that we have an awful lot on our plate now.”

Kauffman hopes, instead, that lawmakers will take the initiative themselves to change the law. Besides being unconstitutional, Kauffman contends that giving lawmakers pensions also puts them out of touch with the common Pennsylvanian.

“We don’t want to see them have a $35,000 salary and not be able to afford those things,” he said. “If you want to attract good people to government, they have to be able to afford those things. But at the same time, we want to keep them sensitized. We want them to be writing that check every month [for their retirement plan]. So, if we have to raise salaries again and take those perks away, I think it would be good for Pennsylvanians.”