Today we join the nation in celebrating the life and legacy of Dr. Martin Luther King, Jr. When we scheduled our Direct Democracy series, we did not intentionally plan to release the final installment today - but it is appropriate. Direct Democracy brings power to communities. It places the ability to shape policies that affect everyday life in the hands of the people.
The current, sporadic system of initiative and referendum favors those with the resources to know where Illinois’ limited opportunities exist and to navigate the labyrinth of ballot access. As we have laid out over the last three weeks, Illinois law includes high barriers to the limited opportunities for initiative and referendum currently allowed by state law. Moreover, courts have invalidated attempts by citizens to create a local framework for direct democracy. The Illinois Constitution establishes a right to initiative and referendum only where the General Assembly deems fit. During the half-century history of our current constitution, that has resulted in merely a few hundred opportunities for referendums, many applicable in limited times or places and long since outdated. Illinois residents demand change, and lawmakers are beginning to respond. For the first time in over two decades, and only the second time in nearly forty years, Illinois has a new speaker of the house. Last week, the General Assembly sent bills on education reform and criminal justice reform to the governor’s desk. Now more than ever, Illinois residents demand accountability, transparency, and access to the decision-making process. Bringing direct democracy to Illinois will improve all three. In Part 4 of this series, we contend that Illinois should enshrine a right to direct democracy through a combination of a constitutional amendment and state statute. The first three parts of this series described a number of barriers to direct democracy in Illinois, including restraints on the existing initiative and referendum opportunities in state law. While the General Assembly could overcome many of these barriers through legislation, some provisions of the current constitution may hinder a broad right to direct democracy. Therefore, direct democracy in Illinois must begin with a constitutional amendment. Illinois should amend the constitution to enshrine a right to direct democracy at the state and local levels Amending the Illinois Constitution to include a right to initiative and referendum for Illinois residents would shelter the process from future attempts to limit it. It would also overcome several potential hurdles inherent in creating the right solely through changes to statutory law. The process for a constitutional amendment is straightforward: three-fifths of each house of the General Assembly must approve the amendment, then voters at the next general election must approve passage by either three-fifths of those voting on the question or a majority of voters participating in the election. The Illinois Constitution currently contains provisions that could hinder an effort to legislate a right to direct democracy. “The legislative power is vested in [the] General Assembly,” which means a statewide initiative and referendum process could be challenged by a later General Assembly as an infringement on the body’s constitutional authority. Furthermore, it remains unclear if the General Assembly could broadly grant an initiative and referendum process to non-home rule units. The constitution grants home rule units immense control. In fact, home rule unit ordinances trump state statutes unless the General Assembly has specifically restricted the home rule power over the area in question. However, just the opposite is true of non-home rule units: with limited exceptions, non-home rule units “have only powers granted to them by law.” When the General Assembly does grant them power, it is specific and by subject matter; a grant of a broad process like initiative and referendum could face a challenge, and it is impossible to gauge how the courts would handle such a novel case. Lawmakers can avoid concerns about the legislative power and limits on non-home rule entities by amending the state constitution to specifically provide a right to both state and local direct democracy. Additionally, if Illinois passed the right to initiative and referendum only by statute, a later General Assembly could repeal the law by majority vote with the governor’s signature. Future lawmakers could also negate the right by passing impossible standards for petition gathering. By enshrining the right as an amendment, the General Assembly can set standards that will remain attainable. Standards for Initiative and Referendum A constitutional amendment and statutes may simultaneously define the rules governing the form of petitions and questions, time for gathering and submitting signatures, and thresholds for access to the ballot. Any constitutional provision could only be changed through further amendment, requiring three-fifths vote of each chamber of the General Assembly and statewide voter approval. Changes to state law would require only a majority of each house and the governor’s approval. Thus, by setting minimum protections in the constitutional amendment, the General Assembly can provide baseline protection for direct democracy. The constitutional amendment should set limits to protect the right to direct democracy but allow future a General Assembly to ease requirements Illinois law provides a wide range of signature and timing requirements for various initiative and referendum opportunities. For advisory questions of public policy, the Illinois Election Code requires “at least 8% of the total votes cast for candidates for Governor in the preceding gubernatorial election” in the political unit. As discussed in Part 3 of this series, Idaho requires twenty percent of the votes cast in the last election. Illinois lawmakers should aim for an achievable standard that also requires a showing of significant public support to place a measure on the ballot. This balance may take some trial and error, and the criteria may need to shift depending on residents’ ability to meet standards. New processes elsewhere in the law, such as electronic signature gathering, could further impact the advocates’ ability to reach the ballot. Illinois can balance the competing concerns of ballot access and ballot crowding by setting a maximum percentage of signatures via constitutional amendment while allowing the General Assembly to ease the requirement through legislation. The General Assembly should include standards for clarity and understanding of referendum questions To ensure public understanding and limit concerns about potential confusion, lawmakers should preserve standards for clarity in referendum questions. Part 2 of this series explored the standards set by the Illinois Supreme Court in Hoogasian v. Regional Transportation Authority, Leck v. Michaelson, and Lipinksi v. Chicago Board of Election Commissioners. The court later summarized the standard: “whether the referendum could stand on its own terms and was self-executing or left gaps to be filled by either the legislature or municipal body, creating uncertainty about what voters approved.” As this remains the standard in Illinois, it would presumably apply to a newly created right to initiative and referendum; however, confirming this standard through legislation would help ensure continuity and clarity in the process. The law could also require election authorities to send out ballot pamphlets with explanations of proposals, including simple arguments both for and against, similar in structure to what applies to proposed constitutional amendments now. Illinois must pass a Direct Democracy Amendment to empower residents now and in the future Illinois is changing. The General Assembly has begun to respond to voters’ concerns about accountability, transparency, and ethics in ways that advocates could barely dream about a few short years ago. It is time for Illinois to join over two dozen states that give residents a stake in the lawmaking process. By enshrining the right in the constitution, Illinois can give current and future generations the ability to adapt law to community and state needs.
Petition gathering is core political speech, protected by the First Amendment.
In Meyer v. Grant, the U.S. Supreme Court held that the act of circulating petitions for ballot initiatives is protected political speech under the First Amendment. Colorado provided a six-month petition process for either proposed legislation or proposed constitutional amendments. Colorado state law at the time also made it a felony for any proponents of one of these petitions to pay petition circulators. Proponents of any such statewide petition must submit signatures equal in number to at least five percent of all votes cast for candidates for the Office of Secretary of State in the preceding general election. Because the proponents concluded, based on their prior experience as circulators, that they would need paid circulators to succeed in their initiative campaign, they brought an action under 42 U.S.C. § 1983, seeking to have the ban on paid circulators ruled unconstitutional. At trial, the district court judge found that the ban on paid circulators did not violate the petitioners’ First Amendment rights because it did not place any restraint on their individual expression. The court also found that this ban did not have a measurable impact on the petitioners’ ability to place their initiative on the ballot. The court found that even if the restriction burdened the petitioners’ speech, the state’s interest in ensuring every initiative has a sufficiently broad base to warrant placement on the ballot, as well as protecting the integrity of the initiative process, outweighed the petitioners’ First Amendment interest. After a divided U.S. Court of Appeals for the Tenth Circuit upheld the district court, an en banc rehearing of the Tenth Circuit found that the record indicated that the petitioners were engaged in speech when obtaining signatures, and the available pool of circulators being smaller than if they could have paid circulators constituted a burden on their speech. The en banc rehearing also rejected the argument that, because ballot initiative is a state-created right, individual states are free to impose whatever condition they see fit. The Supreme Court upheld the Tenth Circuit’s en banc opinion, ruling that this content-neutral limitation on political speech required exacting, or intermediate, scrutiny. Following the Court’s seminal Buckley v. Valeo, which addressed a litany of campaign finance provisions, content-neutral limitations must be substantially related to an important government interest. The Meyer Court found that “[a]ppellees seek by petition to achieve political change in Colorado; their right to freely engage in discussions concerning the need for change is guarded by the First Amendment.” The kind of discussions required to convince someone that a proposal is worthy of public scrutiny and debate is clearly “core political speech.” A restriction like prohibiting paid circulators restricts the number of voices who will speak on an issue, limiting the number of people proponents can reach and lowering the likelihood of a proposal earning a position on the ballot. The Court also rejected the state’s argument that the ban on paid circulators was not a burden because alternative means of communication were available. “The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for doing so.” In summary, First Amendment protection for initiative petition circulation is “at its zenith.” The Court likewise rejected the state’s arguments on the need for the prohibition, as all of the interests presented were adequately accomplished by other ballot access requirements. Signing an initiative petition is also core political speech. In John Doe No. 1 v. Reed, the Supreme Court stated that the act of signing an initiative petition was also political speech. The Court applied a framework for the analysis of First Amendment protection for petition signers, which remains the current test. The petition at the center of Doe would have extended certain benefits in Washington to same-sex couples. Respondent intervenors in the case sought to obtain copies of the petitions, including names and addresses of the signers. The petition sponsor and some signers contested this effort, arguing that disclosure would violate their First Amendment rights. The Court stated that “[a]n individual expresses a view on a political matter when he signs a petition under Washington’s referendum procedure… In either case, the expression of a political view implicates a First Amendment right.” They went on to state that “[p]etition signing remains expressive even when it has a legal effect in the electoral process.” In other words, just because something has a legal effect on either the outcome of an election for a candidate or, in this case, the future of potential legislation, does not make the activity any less political speech. The Supreme Court was unequivocal in identifying petition signing as an expressive act of political speech. Thus the Court applied the same level of “exacting scrutiny” to this disclosure requirement as they did to other disclosure requirements on speech. The Court found a substantial relation between an important government interest and the disclosure requirement. However, the case provides a framework for the privacy of future potential petition signers. Idaho provides a model for state and local direct democracy. Idaho provides more opportunities for binding questions of statewide or local policy through citizen-initiated referendums. The Idaho Constitution provides a general right to initiative and referendum, but the process is defined by statute. Idaho law includes a full chapter dedicated to referendum procedures, laying out requirements for the form of the question, signature requirements, filing procedures, and other pertinent details. While the chapter directly addresses requirements for statewide initiatives, subsections define parallel processes for city and county referendums. These subsections substitute respective officeholders and duties in place of their statewide counterparts. They also define the threshold as “at least twenty percent (20%) of the total number of qualified electors voting in the last general county [or city] election in November of an even-numbered year.” To reach the ballot with a statewide initiative, proponents must collect signatures equaling at least six percent of all qualified electors at the last general election, both statewide and in each of at least eighteen legislative districts. The form of petitions is also set by statute, which notably contains the following subject-matter restriction: “PETITION. (1) An initiative petition shall embrace only one (1) subject and matters properly connected with it.” While Illinois law does not currently contain a parallel provision, case law governing the form and clarity of questions, covered in last week’s installment, serves a similar purpose. The Illinois Constitution might include a substantial barrier to a similarly broad, statewide initiative and referendum process; the text specifies that “[t]he legislative power is vested in [the] General Assembly. Though Illinois courts have not definitively answered whether this constitutes a bar to a broad delegation of authority to the people, a purely legislative change may evoke such a challenge. Building direct democracy in Illinois requires nuanced understanding of state constitutional constraints. The Illinois Constitution provides a right to initiative and referendum. However, this may not be open-ended enough to provide for both statewide and local direct democracy processes. Furthermore, a statutory process would always be subject to later legislative bodies’ whims, leaving the right susceptible to curtailment. Next week’s installment will consider this dynamic in proposing a path towards an inclusive, accessible direct democracy in Illinois.
Direct Democracy Series Week 2: The Courts
As last week's installment showed, the Illinois Constitution and statutes provide only limited opportunities for initiative and referendum. State law defines only a few hundred opportunities for direct democracy, with many of these inapplicable or unhelpful to most Illinois residents. Over the ensuing decades since the passage of the 1970 state constitution and the creation of the current initiative and referendum process, courts have confirmed the text's narrowness and enforced strict procedural barriers to ballot access. Arguments invoking constitutional rights, public policy benefits, and fairness have fallen flat, as courts have held to a rigid, four-corners reading of the limited sections in the Illinois Constitution. Efforts to creatively expand direct democracy, such as creating a local process for initiative and referendum, face high hurdles. The bottom line is that improvements to direct democracy in Illinois, from subject matter opportunities to ballot access, will not come from the courts. This week's installment in the CAC Direct Democracy series explores the court cases that shape the current understanding of Illinois law surrounding the local initiative and referendum process. These cases provide lessons that advocates must use to successfully use the existing limited system and issues to address during future legislative efforts to improve direct democracy in Illinois. Over the next two weeks, this series will provide the lessons we can learn from other states, changes that could be made to Illinois law, and a proposal to bring better, broader, more inclusive direct democracy to Illinois. Direct Democracy Part 2: How Courts Address Initiatives and Referendums Illinois law includes three types of referendums: binding local initiatives, binding statewide constitutional amendments, and advisory questions of public policy. This series's focus is the first category, a limited avenue of direct democracy granted in the Illinois State Constitution. According to Article VII, Section 11: Proposals for actions that are authorized by this Article or by law and which require approval by referendum may be initiated and submitted to the electors [...] by petition of electors in the manner provided by law. This passage grants power to the people of Illinois to change the law, but only where authorized by a provision in the Constitution or statute passed by the General Assembly. In practice, this leaves very few useful opportunities for direct democracy. In the subsequent fifty years since the Constitutional Convention, advocates have initiated or attempted to initiate referendums on a wide range of subjects across the state. Many of these attempts fell short in the face of challenges and judicial scrutiny, creating a history of case law that displays the few protections for initiatives explicitly or implicitly guaranteed by the law and where significant barriers exist to direct democracy in Illinois. The following cases represent a chronological framework of cases leading to the current understanding of the state's narrow, restrictive initiative and referendum process. Home Rule Municipalities Enjoy Broad Power Clarke v. Village of Arlington Heights was the first case to test any provisions of the Article VII initiative power created by the 1970 Illinois Constitution. Section (6) states that a home rule municipality has the power, subject to approval by referendum, to adopt, alter, or repeal a form of government provided by law, and to "provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law." In Clarke, the plaintiff brought an action contending that provisions of the Arlington Heights Code which designated an appointed village clerk, and another requiring eight trustees to be elected at each election, were in conflict with state statutes mandating both an elected village clerk and only six trustees and that state law must prevail. The Illinois Supreme Court interpreted the question on appeal to whether a home rule municipality such as Arlington Heights may, by referendum approval as outlined in Section 6(f), make these changes contrary to the Illinois Municipal Code, which had been enacted before the 1970 Illinois Constitution. Citing precedent, the court held that the power of home rule units of government must be read broadly under this new constitution. It noted that home rule was added to the state constitution to remedy the issue that municipal actions were too limited by only what had been explicitly authorized by state action. In short, the home-rule powers set out in Article VII must be read as authority to effect structural changes according to that text, even if such changes conflict with state law. The court noted that the form of government clause does not require municipalities to pick between certain forms of government that have already been approved by the legislature. It found that this novel modification was entirely in line with the plain meaning of the language. This case presents a useful lesson on the benefit of open-ended language, such as allowing local governing units to "adopt, alter, or repeal" a form of government in the manner provided by law. The drafters of the 1970 Constitution wanted to allow for free creative usage of this Article VII power. They wanted local governments to have the authority to tailor their structures to fit local needs, acknowledging different municipalities would have different needs. Other cases make clear this flexibility does not extend to citizen-initiated measures, regardless of the drafters’ intent. Courts Should Consider the Totality of the Circumstances in Judging the Sufficiency of Ballot Referendum Language In Hoogasian v. Regional Transp. Authority, the Illinois Supreme Court set out a test for lack of clarity in a ballot initiative. This case dealt with a special public referendum in the six counties that were to be affected by the Regional Transportation Authority Act's passage. In that March 19, 1974 election, a majority of voters marked ballots in favor of creating the Regional Transportation Authority. The Regional Transportation Authority Act was quite comprehensive, laying out in detail the powers, authority, and limitations of the new agency. The question presented to the voters was the precise language as was mandated by the statute; nonetheless, the Plaintiffs claimed the proposition was "so vague, indefinite, uncertain, unclear, uninformative and broad as to deprive them of property without due process of law." This can be restated as a contention that, because of the vague language of the referendum question, "the voter had no idea what he was being asked to vote for or against when confronted with the referendum ballot in the polling place." In responding to this assertion, the court identified that "[t]he sufficiency of the proposition cannot be totally divorced from the circumstances in which it was submitted." Notably, many other transport authorities in the areas affected by this referendum had been in existence "for years." Hence, it is likely that many of the voters would have known their function. Although the legislature did not fully summarize any of the specifics of the act in the referendum question, the court believed that it was reasonably apparent to the average citizen where they would go to obtain more information before election day. The court took judicial notice of the extensive discussion and attention, in particular the extensive media coverage which had been generated by this question, and used that as an additional basis for its conclusion that the voters would have well understood on what issue they were voting. To put the holding of this case another way, courts may not judge the sufficiency of the language used in a referendum question solely on the text which will appear on the ballot. Instead, they must look at the totality of the circumstances surrounding the question to determine whether or not the voters will understand what they are being called to vote yes or no on. Ballot Referendums Require a Coherent Scheme and Must Stand On Their Own Terms Lipinksi v. Chicago Bd. of Election Com'rs clarified and expanded on Hoogasian in examining the sufficiency of a referendum, which would have created a nonpartisan election process, including runoffs, for the mayor, treasurer, and clerk of the City of Chicago. The referendum read: Shall the mayor, the treasurer and the clerk of the City of Chicago be elected on a nonpartisan ballot, by at least a 50% majority vote, but if no candidate receives at least 50% of the votes cast for the respective office, then in a runoff election between the two candidates for the office who received the greatest number of votes for that office at the initial election? This referendum was challenged both because it had failed to get the requisite number of signatures to qualify for the ballot and that it was fatally vague and ambiguous. In addressing the issue of vagueness and ambiguity, the Illinois Supreme Court began by stating that Article VII, Section 6(f) of the Illinois Constitution required that voters approve "'a coherent scheme for altering the election of their officials.'" The court emphasized that a referendum submitted under Article VII, Section 6(f) of the Illinois Constitution must be able to "stand on its own terms"; if it is not self-executing and leaves gaps that must be filled in by a legislative body, the question presented to voters is "uncertain." This is not to say that a referendum question must supply the answer to every possible sequence of events itself; local ordinances or state statutes may be able to fill the gap, and in that situation, a referendum would still be considered self-executing. In this case, however, the court found that the Election Code could not "fill the gap." Specifically, suppose this referendum had been adopted in the November elections. In that case, candidates for this new form of the consolidated primary could not begin to circulate petitions until, at most, 40 days before the statutory deadline, in contradiction of the statutorily mandated 90 day petitioning period." Additionally, the court expressed concern that, as the referendum was silent on the number of signatures required to get on a nonpartisan ballot, the requirement would default to the Election Code rule for third party candidates. In the case of the mayor of Chicago, that would have made the requirement to qualify for the ballot 25,000 signatures, an approximately 500% increase over the number required at the time of the lawsuit. The court expressed additional concern at the contradiction of the term "50% majority," as a majority is by definition greater than 50%. The court held that any referendum that has to be "interpreted, supplemented and modified in order to be implemented" is constitutionally defective, as voters cannot be said to have approved a coherent scheme for altering the election of their officials. The court determined that the referendum, in this case, was equally constitutionally defective, as it left questions regarding implementation unanswered and provided details that conflicted with the Election Code. To distinguish this case from Hoogasian, the court noted that voters had no outside information they could consult for additional clarity on the referendum's effect. As a final matter, referenda brought under Article VII are specifically meant to be binding. Therefore any question which is specifically brought under those provisions may not be added to the ballot as an advisory question. Therefore, the court found the contested referendum fatally vague and ambiguous and unfit for a spot on any future election ballot. From Hoogasian, Leck, and Lipinski, the central test regarding clarity arose: whether or not a referendum is genuinely "self-executing." Any future ballot questions must conform to this test. Ballot Referenda Need Not Be Written in Optimal Form to Be Judged Sufficient Johnson v. Ames revisited the clarity and specificity rules of Leck, Lipinski, and Hoogasian in 2016. The plaintiff in Johnson sought to place a question on the ballot about imposing term limits on the Village of Broadview's elected president. Despite a strong dissent from the Village of Broadview Electoral Board Chair claiming that all the constituents she had talked to said they understood the question, the board held that the question could not appear on the ballot. On judicial review, both the Circuit Court and the Court of Appeals agreed with the board's chair that the question was not vague or ambiguous and should be placed on the ballot. Though the Illinois Supreme Court initially denied a petition for leave to appeal, this case reached came before it on a Rule 316 certificate of importance solely on the issue of whether the referendum was vague, which the Supreme Court accepted and took the case on the briefs which had been filed in the appellate court. The referendum at issue stated: Shall the terms of office for those persons elected to the office of Village President in the Village of Broadview, at the April 4, 2017 consolidated election, and at each election for said office thereafter, be limited such that no person shall be eligible to seek election to or hold the office of Village President where that person has been previously elected to the office of Village President of the Village of Broadview for two (2) consecutive full four (4) year terms. Both parties to this case cited Leck and Lipinski as their primary authorities but disagreed as to how the cases should be applied. The Illinois Supreme Court restated the test to whether a referendum could "stand on its own terms" or whether it would have gaps that would need to be filled by some legislative body. In this case, the plaintiff contended that Leck and Lipinski required "clear, unequivocal language identifying [its] temporal reach." The court found the fact that the referendum did not specifically identify when the consecutive four-year terms needed to begin was not fatally vague, as it could be determined that this referendum targeted individuals who wished to run for the office of Village President, starting with the 2017 election, who had been previously elected to that office. In other words, reading the referendum in full answered all the questions as to that part of its applicability. The plaintiff also contended that there were provisions in the referendum which were contradictory and that it was thus fatally vague on those grounds. The contention was that the clause identifying when the referendum would begin would imply that the two-term limit would not apply to anybody running in the April 2017 election and that this contradicts the clause that prohibits anybody who has been previously elected to the office of village president for two terms to run again. The Illinois Supreme Court disagreed, finding the plain meaning of those two clauses simply identified when the new requirements would be applied, as well as determining what the new requirements were. Most importantly, the Illinois Supreme Court held that a valid referendum need not necessarily be presented in optimal form. The court determined that Leck and Lipinski simply require that it be clear what voters approved. If the voters approved this question, the effect would be sufficiently clear. The preceding four cases lay out an important ballot initiative protection: the ability for existing law to "fill the gap" when a ballot question does not explicitly provide the answer, as long as the question is as clear and thorough as necessary to be understood by the voter and implemented by the government. This is an important protection since many issues of local policy are not straightforward. Furthermore, few citizens could craft a ballot question that would have an answer for every possible series of events, regardless of whether answers could be found somewhere in the law, while still making the question as understandable as Hoogasian and its progeny require. The point of the ballot initiative as articulated by the Constitutional Convention delegates and others around the country who have granted this right, is that it allows the voters to be creative. The Hoogasian protection preserves the creativity of the ballot initiative, though it has been inconsistently applied. To ensure this protection is maintained, the holdings of Hoogasian and its progeny should be codified. Home Rule Municipalities May Pass Ordinances Altering Their Form of Government and Place a Referendum on the Ballot Under the Ordinance In Flowers v. City of Moline, the Illinois Appellate Court analyzed Article VII's scope and interpreted what makes a referendum question legally sufficient to be presented to the voters. In this case, the plaintiff challenged the City of Moline's authority to alter its form of government by altering appointment procedures for multiple city offices. The city passed an ordinance making all of these changes and, on the same day, passed a resolution calling for submitting the ordinance in question form to the public through a referendum. The plaintiff sought to both keep the referendum off the ballot and to enjoin the city from enforcing the ordinance. As a brief initial matter, the court confirmed that, because the City of Moline was a home-rule unit, it was free to supersede the state statute which had previously defined how a city may adopt a managerial form of government. The court held that the term "by law" in Article VII does not mean that the forms of government must be explicitly provided by statute, as city ordinance is also "law" within the city. Most importantly, the court noted that the form of government clause includes three words: adopt, alter, or repeal. The interpretation of the form of government clause advanced by the plaintiff would essentially mean that home-rule municipalities would only have the authority to adopt a different form of government as provided by statute or to repeal their current form of government. In other words, this interpretation renders the word "alter" completely meaningless. The use of the word "alter" necessarily means that home-rule units have the authority to tailor their form of government to their own, specific needs. Therefore, the city did not exceed its authority in making these novel changes to its form of government. Without State Law or Municipal Ordinance Underlying It, Citizen-Initiated Referendum Altering the Form of Government Fails The above cases set out cohesive interpretations of the processes in Article VII of the Illinois Constitution for citizens to propose changes through referendum and for local government to alter form. In 2020, Harned v. Evanston Municipal Officers Electoral Board dealt with questions involving both processes: an initiative for referendum to alter the form of Evanston government. The case surrounded a comprehensive ballot question known as the “Evanston Voter Initiative,” or “EVI.” The EVI question stated: "Shall the people of the City of Evanston provide for a voter petition and referendum process for the consideration and passage of city ordinances as follows: The people of Evanston provide that the offices of City Clerk, Mayor, and aldermen of the City Council have the power and duty to determine the necessary and proper procedural rules regarding the passage of city ordinances and the express duty to assist the people of Evanston in exercising their right to petition and make known their opinions regarding the consideration and passage of city ordinances. At the request of at least 25 Evanston electors, the City Clerk shall promptly cause a proposal to be drafted into ordinance form, including an official summary of the proposed ordinance. The official summary of the proposed ordinance may be introduced by a petition filed with the city clerk and signed by many electors equal to at least eight percent of the total votes cast in Evanston for candidates for Governor in the preceding gubernatorial election. The procedure for filing the petition and determining its validity and sufficiency shall be established by the City Clerk, who shall make the determination of validity and sufficiency within 21 days of a petition filing. Upon the determination of a valid and sufficient petition, the City Clerk shall within one business day submit the ordinance proposed by the official petition summary on the agenda of the next City Council meeting for its consideration. The City Council shall take a record roll call vote on the proposed ordinance within 70 days of submission by the City Clerk. If the City Council does not pass the proposed ordinance within the 70 day period, the official summary of the proposed ordinance shall be submitted by the City Clerk to the electors for their approval by referendum at the next regularly scheduled election held in all precincts of the city and held at least 70 days after referendum submission by the City Clerk. If the official summary is approved by a majority of those voting on the question, the proposed ordinance shall have the force and effect of passage by the corporate authorities of the City of Evanston unless it is disapproved by a resolution of the City Council not more than 30 days after the election?" The objections to this question were that it: (1) presented a binding referendum question, in violation of state law; and (2) that the question as presented would confuse voters. The appellate court began by affirming that Article VII, Section 11 only provides for voter-initiated referenda for "[p] for actions which are authorized by [article VII] or by law and which require approval by referendum." The court also noted that Section 28 of the Election Code clarifies that, to qualify for the ballot, a referendum must be authorized independently by either statute or the state constitution. Evanston, by nature of its size, is automatically a home-rule unit. Much of the case analyzed Section 6(f) of Article VII, which defines the powers of home rule units to “adopt, alter or repeal a form of government provided by law,” and “to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law.” Petitioner argued that the second clause was an appropriate vehicle for the petitioners' proposed change because it altered the duties which certain officers had: specifically by limiting a portion of the duties allocated to the City Council and the Mayor, and by increasing the duties of the City Clerk. The Court found that this second clause was only invoked when providing for new or different offices, changing the manner of selection of officers, or terms of office. As to the first clause of Section 6(f), the court found that the EVI would not adopt or repeal any preexisting form of government. The form of government clause does, of course, allow for alterations to a form of government, and the court stated that a proposal implicates that part of the clause when it "substantially change[s] the inherent powers belonging to one part of government." However, the court declared that the EVI fails under the form of government clause because the novel "form of government" provided for by the proposal would not be one "provided for by law." The court distinguished this case from Flowers by stating that the city government in Flowers had passed an ordinance creating the form of government before submitting the proposal to the voters. Because the EVI was initiated by the voters and the Evanston City Council had not acted beforehand, there was no law providing for this form of government. Though the court could have disposed of the case following analysis under Section 6(f), it chose to rule on the issue of vagueness and confusion as well, drawing on the tests from Leck, Lipinski, and Ames. The court held that Johnson v. Ames was distinguishable from the case in front of it because the referendum at issue was significantly simpler: it created term limits, and the missing piece of the referendum could be easily inferred. The court read the EVI as requiring the city to decide, at some later date, the procedures for filing the voter-initiated petitions contemplated by the question, as well as the methods for determining validity and sufficiency. The court was also concerned with potential situations the question was silent on, such as what happens if a voter-driven initiative is passed by the city council but vetoed by the mayor. Applying these facts to the Leck and Lipinski test, the court found that the EVI was not sufficiently self-executing. Enhancing Direct Democracy in Illinois Requires Changing the Law As these cases show, the right to initiative and referendum enshrined in the Illinois Constitution remains constrained to the point that direct democracy in Illinois is nearly nonexistent. Would-be proponents must find narrow openings in the law and leap high hurdles to have an opportunity to change local law through a referendum. Though the record of proceedings at the constitutional convention point to the drafters' intent that local government remain flexible, the decades since have shown that flexibility exists only in the hands of home rule authorities However, these cases also show opportunity: the need for home rule power has a corollary need in people power. Where the General Assembly has opened up limited opportunities for direct democracy, advocates have often taken advantage. Next week, we will look to other states for models Illinois may follow in expanding direct democracy. In two weeks, finally, we will present a path forward to a broader and more inclusive initiative and referendum process. Direct democracy week 1Â How the Illinois Constitution and Laws Shape Direct Democracy in Illinois12/31/2020
Direct Democracy Part 1: How the Illinois Constitution and Laws Shape Direct Democracy in Illinois
The U.S.Constitution does not provide a right to direct democracy. The First Amendment protects all forms of speech, including political, although it does not reference direct democracy. The Constitution contains no direct reference to any form of citizen-led initiative. However, federal courts have held that if a state decides to grant the right to sign and circulate ballot initiative petitions to its citizens, that mechanism does find protection in the First Amendment. The state may not then place unconstitutional barriers upon it. Ballot initiatives combine the expressive activities of presenting a stance and attempting to persuade others to agree with it, with an attempt to effectuate political change, thus facilitating self-governance, making it part of the core sphere of activities the First Amendment is designed to protect. Though "direct democracy" is not a phrase found in the U.S. Constitution, its history is long and well-established. Forms of direct democracy stretch from early colonial authorities through modern state and local governments. In contrast, Illinois enshrined the citizenry's right to initiate advisory referenda and to initiate limited types of binding referenda. It is one of few states that allows citizens to place advisory questions of public policy on the ballot and virtually without subject matter limitations. It stands to be repeated that opportunities to place binding initiatives, questions that will become law if approved by voters, are limited in Illinois. The authors of the 1970 Illinois Constitution were clear about the powers of initiative that they wanted to invoke, as will be detailed further below and in future installments, and they built in protections for those rights. While the text indicates some limitations on these opportunities, Illinois Appellate Court cases have very narrowly construed this privilege, establishing a tight framework in which direct democracy proponents must maneuver. This paper will map a path forward. The right to petition to place binding questions on the ballot in Illinois must be amended to have any meaningful power. This week's installment offers a brief discussion of the two initiative-granting amendments of the Illinois Constitution and their contours. Next week will detail the relevant judicial decisions affecting the viability of citizen-initiated referenda at the local level. The third week will take a broad look at what lessons may be gleaned from other states, focusing specifically on United States Supreme Court cases. These cases have ruled that signing and circulating ballot initiative petitions are core political speech. The fourth and final week will provide suggestions towards a broader, more inclusive, and robust framework for direct democracy in Illinois.
In 1970, Illinois framed a new constitution, allowing for "home rule" municipalities and counties with far more ability to shape local law than before. The advocates who called for a constitutional convention wished to disperse power to the local level, including new ways to raise municipal revenue and shape laws unless restricted by the General Assembly or constitution. Municipalities reaching a population of more than 25,000 automatically become home rule; smaller municipalities may elect to become home rule via referendum. The Illinois Constitution goes on to define certain powers and limitations on home rule government. In addition to additional taxing powers, "[h]ome rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive." Over the subsequent fifty years, courts have read this provision broadly, confirming home rule municipalities' ability to enact a wide range of laws, set their own rules of legislative procedure, and ignore those rules upon a vote of the elected city council or village board. Though the constitution and laws passed by the General Assembly have limited home rule municipalities on specific subjects, it is clear that the framers successfully shifted significant decision making power to the local level. While the constitution provides for mostly open-ended powers for home rule government, the opposite is true for direct democracy. Each opportunity for citizen-initiated referendum must be spelled out directly in the law.
Illinois law does not contain any comprehensive mechanism for voter-driven ballot initiatives. Instead, the right to citizen-initiated referenda is grounded in the Illinois Constitution, and its progeny are scattered throughout the Illinois Consolidated Statutes, and particularly so in the Election Code. Generally speaking, Illinois law allows for three types of citizen-initiated referendum: (A) binding local initiatives, (B) binding statewide constitutional amendments, and © advisory questions of public policy. Though this series only addresses the first category, the sources for all three types of referendum follow. A. Binding Ballot Initiatives at the Local Government Level Article VII, Section 11 of the Illinois Constitution, which allows for ballot initiatives to make changes to local government, with varying impact depending on whether the local government is considered "home-rule" or not, provides as follows: Proposals for actions which are authorized by this Article or by law which require approval by referendum may be initiated and submitted to the electors by resolution of the governing board of a unit of local government or by petition of electors in the manner provided by law. Referenda required by this Article shall be held at general elections, except as otherwise provided by law. Questions submitted to referendum shall be adopted if approved by a majority of those voting on the question unless a different requirement is specified by this Article. B. Statewide Binding Ballot Initiatives Article XIV, Section 3 of the Illinois Constitution, allowing for limited voter driven proposed amendments to the State Constitution, provides as follows: Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election. Amendments shall be limited to structural and procedural subjects contained in Article IV. A petition shall contain the text of the proposed amendment and the date of the general election at which the proposed amendment is to be submitted, shall have been signed by the petitioning electors not more than twenty-four months preceding that general election and shall be filed with the Secretary of State at least six months prior to that general election. The procedure for determining the validity and sufficiency of a petition shall be provided for by law. If the petition is valid and sufficient, the proposed amendment shall be submitted to the electors at that general election and shall become effective if approved by either three fifths of those voting on the amendment, or a majority of those voting in the election. This is currently the only method in Illinois law that allows for a binding statewide referendum initiated by petition. Illinois law additionally allows non-binding advisory questions. C. Advisory Questions of Public Policy At the outset, it should be noted that the only limits on questions of public policy that are not explicitly allowed by either Article XIV or Article VII are outlined in Section 28-6(c), which states as follows: Local questions of public policy authorized by this Section and statewide questions of public policy authorized by Section 28-9 shall be advisory public questions, and no legal effects shall result from the adoption or rejection of such propositions. Section 5/28-9 of the Illinois Election Code sets out the process for initiating an advisory question for statewide referendum. The section states in pertinent part: Petitions for advisory questions of public policy to be submitted to the voters of the entire State shall be signed by a number of voters equal in number to 8% of the total votes cast for candidates for Governor in the preceding gubernatorial election. Such petition shall have been signed by said petitioners not more than 24 months preceding the date of the general election at which the question is to be submitted and shall be filed with the State Board of Elections at least 6 months before that general election. While such advisory referendums are outside the scope of this paper, it is worth noting that courts, including the Seventh Circuit Court of Appeals, acknowledge these measures as a constitutionally protected forum. D. State Laws Governing Petition Format and Ballot Access Citizen-initiated referendums include set parameters for the petitioning and filing periods, the number of signatures required, and any limitations on the type of election where a referendum may be initiated. While some binding referendum provisions scattered throughout state law specify requirements for individual initiatives, the Election Code provides a default set for any referendum where state law does not provide specific requirements. Other sections of the Election Code set out verification and hearing procedures for Article XIV proposed amendments or for statewide advisory questions of public policy. III. THE ILLINOIS CONSTITUTION AND STATE STATUTES SEVERELY LIMIT OPPORTUNITIES FOR DIRECT DEMOCRACY Currently, Illinois law provides for several hundred opportunities for binding referendums, ranging from questions on taxation to the creation of township mental health boards to discontinuation of a pig marketing program. Most Illinoisans would find a high number of the current opportunities inapplicable or unhelpful. EXAMPLES OF BINDING REFERENDUMS Most opportunities for binding referendums in Illinois are narrowly focused and dispersed throughout many sections of Illinois law. Each one may require a different number of petition signatures or other legal processes in order to make the ballot eventually. Unfortunately, this takes the narrow path to binding referendums described above and narrows access to those who have a reasonably sophisticated understanding of Illinois law, history, and advocacy. The following short list illustrates the nature of this problem.
Next week, we will lay out how courts have even more narrowly interpreted and limited the opportunities for direct democracy in Illinois. Over the last nine months, many local governments have creatively and effectively balanced the realities of pandemic health concerns and necessary social distancing measures with the responsibility of public access and transparency for public meetings. Unfortunately, others have avoided making even minimal efforts to provide the public with reasonable access to meetings and opportunity for public comment. CAC and individuals and community groups are busy monitoring hundreds of public bodies to keep them accountable. As a reminder, on March 16, Governor Pritzker issued an executive order allowing public bodies great flexibility to meet remotely. He did not, however, suspend public access to meetings and encouraged public bodies "to provide video, audio, and/or telephonic access to meetings to ensure members of the public may monitor the meeting[s]." Two days later, Attorney General Raoul issued further guidance reminding public bodies of their duties under the Open Meetings Act and suggesting procedures to comply with the law responsibly. CASE STUDY for Open Meetings Act Compliance During the Pandemic The Lyons School District 103 Board ignored public access during five meetings in March and April. On March 17, the Board met entirely by telephone, without any public access or comment. During four subsequent meetings, access was limited to ten people, including up to seven board members, plus various staff, with any remaining spots open first to media and then to the public. Any members of the media or the public needed to show up at the meeting site to determine if access was available. The Board failed to broadcast these meetings, nor did they record the meetings for the public to view later. The result was nearly two months of meetings without reasonable, meaningful public access. For the first three of these meetings, the Board failed to provide an opportunity for public comment. The result was three meetings without public input or oversight. Following these meetings, CAC submitted a request for review to the Public Access Counselor alleging multiple Open Meetings Act violations. Adding insult to this public accountability injury, the School Board failed to meet the statutory response deadline of seven business days, finally issuing a reply two months late. The School Board claimed that it has substantially complied with the provisions of the Open Meetings Act. In response, CAC community lawyers argued that "substantial compliance" is not the correct standard under the Open Meetings Act and has not been for at least twenty-five years. The Public Access Counselor agreed with CAC! Read the determination letter, below:
Apri 24, 2020 ILLINOIS PUBLIC INTEREST AND NEWS ORGANIZATIONS REQUEST THAT GOVERNOR PRITZKER PROTECT THE FREEDOM OF INFORMATION ACT AS ESSENTIAL TO GOVERNMENT BUSINESS AND OPERATIONS ELMHURST – The Citizen Advocacy Center and over two dozen Illinois public interest and news organizations have requested that the Governor’s office protect the Illinois Freedom of Information Act during the state’s disaster period as an essential governmental function. The Freedom of Information Act is essential to the operation of local governments. Governor Pritzker’s Stay at Home Order, Executive Order 2020-10, identifies media outlets as essential businesses and operations; concomitantly, the media and the public’s most potent tool to monitor government activity is the Freedom of Information Act. "The Freedom of Information Act is central to our democracy and important to maintain government transparency, especially during difficult times,” said Robert K. Elder, President of the Chicago Headline Club. “We ask Governor Pritzker and the attorney general to uphold this vital part of maintaining public trust." The Governor does not modify any provision of FOIA in any of his COVID-19 orders, presumably because compliance is possible without compromising public health. In contrast, Executive Order 2020-7 modifies two provisions of the Open Meetings Act to advance social distancing measures. It suspends the physical presence requirement to comprise a quorum, and it expands the reasons for which elected officials could choose to meet remotely. The Governor also encouraged public bodies “to provide video, audio, and/or telephonic access to meetings to ensure members of the public may monitor the meeting.” Likewise, the Governor’s Office should continue to ensure that members of the public may monitor government activities by accessing public records. Public bodies should comply with the Freedom of Information Act to the extent that compliance does not compromise the health and well-being of employees or residents. The protection of public health and compliance with FOIA are not mutually exclusive, where compliance does not violate social distancing or other public health measures. Government officials and employees continuing to work at the office or who are equipped to work from home should provide records in response to FOIA requests. "Like other workers who are operating from home, government employees may respond to requests and inquiries remotely,” said Maryam Judar, Citizen Advocacy Center Executive Director. "A common-sense approach to FOIA compliance during the stay at home order is incorporated into the statute. FOIA officers may contact FOIA requesters to narrow requests, identify readily responsive records, and negotiate timelines without violating measures that protect public health.” Undoubtedly the FOIA process will be less efficient during this crisis, as some records may be temporarily inaccessible. In such circumstances, public bodies may invoke the unduly burdensome provision of FOIA, as long as they reply to FOIA requests within five business days. They should additionally inform the requester that these records will be provided when regular business resumes.
DECEMBER 3, 2019 LOCAL CITIZENS RECEIVE CITIZEN INITIATIVE AWARD FROM THE CITIZEN ADVOCACY CENTER FOR THEIR COMMUNITY ACTIVISM ELMHURST – The Citizen Advocacy Center (CAC) will recognize its 2019 Citizen Initiative Award recipients on December 11, 2019. Since 1997, CAC has honored local community activists and community groups who inspire democratic participation and use civic, legal, and community organizing tools to advocate for a self-identified issue of public concern. “Citizen Initiative Award recipients are proactive in addressing problems they identify in their neighborhoods. They organize, advocate, and make a difference in their communities. The award recognizes the crucial role of the citizen in everyday democracy. Because of their activism, democracy thrives, even in the face of adversity,” said Maryam Judar, CAC’s Executive Director. The event starts at 6:30 p.m. on December 11, 2019 at the Citizen Advocacy Center, 188 Industrial Dr., Suite 106, in Elmhurst. It is open to the public and free of charge with a $10 suggested donation. Reservations are not required but are helpful! Call CAC at 630-833-4080 or email CAC@CitizenAdvocacyCenter.org to reserve a space. The 2019 Citizen Initiative Award recipients are: The Pick Neighborhood, Elmhurst, for successfully organizing neighbors around a common cause. Being located behind one of the busiest intersections in Elmhurst, the residents of the Pick Neighborhood are mindful of balancing the need for development and preserving their small subdivision’s unique character. When residents learned of a proposed development to build a large gas station and convenience store on a lot adjacent to their neighborhood, they had environmental concerns that included potential noise, fumes, traffic, and impact on the Salt Creek. Working with a CAC community lawyer, residents dove into learning about zoning applications, requirements, public hearings, their rights at public hearings, and how to organize neighbors. The Pick Neighborhood packed the public hearing at the Elmhurst Planning and Zoning Commission and methodically presented their concerns. Their advocacy was successful as the proposed plan was rescinded. Residents in the Pick Neighborhood remain organized and are proactively working with the City of Elmhurst to plan for how to develop the vacant property. Save Lufkin Pool, Villa Park, for organizing to save a community resource, transforming a neighborhood issue into a community issue, and increasing government accountability. When the Village Board voted to close Lufkin Pool in late 2017, surprised residents formed Save Lufkin Pool to hold the Village Board accountable for not being more proactive in obtaining meaningful public input prior to closing such a vital public space without a plan to replace it. The group advocated for a plan that would allow the pool to remain open while the Village built a long-term plan to serve residents. Save Lufkin Pool successfully transformed their neighborhood issue into a community-wide election issue that affected the Village Board’s composition, organized neighbors to attend and speak out at Village meetings, and uncovered a failure of the Village to comply with bidding requirements. While the pool was ultimately demolished, Save Luftkin Pool organizers were successful in changing the civic landscape of their community to increase accountability and awareness in Villa Park. The group remains actively engaged in Villa Park. Stan Zoller, Buffalo Grove, for his commitment to promoting the Freedom of the Press and the education of journalists from high school students to professionals. Stan Zoller is an award-winning journalist with over four decades of experience, working as an educator of young journalists at the high school and college level for over 20 years. He serves on the board of the Chicago Headline Club, where he helps organize the annual FOIA Fest that brings journalists, watchdogs, students, and government officials together to discuss Freedom of Information Act and government transparency issues. Mr. Zoller previously served as Executive Director of the Illinois Journalism Education Association, helped develop and pass the Speech Rights of Student Journalists Act, an Illinois law that protects student journalists, and routinely alerts CAC to issues of concern related to student journalism. Represent DuPage, DuPage County, for advocating for improved ethics for the DuPage County Board. Represent DuPage is a chapter of a national nonprofit, nonpartisan organization focused on passing anti-corruption laws. Members of Represent DuPage have frequently spoken out at DuPage County Board meetings to promote best practices in appointments and elections. The organization is working to reform the DuPage County Board’s ethics ordinance to ensure enforcement of ethics provisions, limit campaign contributions from county vendors, and protect the public from conflicts of interest and nepotism. In consultation with a CAC community lawyer, Represent DuPage developed an ethics proposal that includes appointment of the inspector general by an independent commission, enhanced guidance for the existing Ethics Commission, stringent new restrictions on nepotism and conflicts of interest, and a "cooling off" period before former employees and officials can lobby the county. The Citizen Advocacy Center is a 501(c)(3), nonprofit, nonpartisan, community-based legal organization. Founded in 1994, CAC's mission is to build democracy for the 21st century by strengthening the citizenry's capacities, resources, and institutions for self-governance. Recognition by CAC is not in any way an endorsement of any individual who is or may become a candidate for public office. For more information about CAC or to make a contribution, visit us at www.CitizenAdvocacyCenter.org. July 11, 2019 Tax Increment Financing: Property Tax Diversion or Property Tax Surcharge?
Tax Increment Financing: Property Tax Diversion or Property Tax Surcharge? by Jacob Butcher, CAC legal intern It is impossible to escape the impression that something has gone gravely wrong with the way that Illinois municipalities have employed the economic stimulus tool known as Tax Increment Financing, or TIF. Last week, for example, the Chicago Tribune ran an editorial entitled “TIFs were abused. Time for a new approach to city investment.” Both Inspector General Joe Ferguson and former Cook County Clerk David Orr have urged TIF reform. But what, exactly, is the problem? The standard criticism is that TIF diverts money from public schools and other government services to line the pocketbooks of developers. Call this the diversion thesis. The diversion thesis receives support from a cursory glance at Chicago’s fiscal situation. At the beginning of 2018, the City of Chicago had over $1.4 billion sitting in its TIF accounts, and just earlier this year approved a $1 billion subsidy for Sterling Bay’s Lincoln Yards project. Meanwhile, the city is undergoing a pension crisis and numerous Chicago public schools are underfunded (50 were closed in 2013). The diversion thesis has a kernel of truth to it, and it is correct in contending that TIF, as currently administered, is a scheme of regressive redistribution. But it mistakes the kernel of truth for the whole truth and misdiagnoses the primary mechanism by which TIF’s regressive redistribution is effectuated. But to understand why, we must delve into some of the mechanics of how TIF interacts with property taxes and government funding. A Refresher on How Property Taxes Fund Local Governments First, it is important to understand how local taxing bodies receive their property tax-based revenue. To simplify, I’ll use the Chicago Board of Education as my example, and I’ll further imagine that the CBOE is the only taxing body in the city. To meet its budget, the CBOE first determines how much money it needs for the upcoming fiscal year. It then requests this dollar amount, which is called the levy. The City’s property tax rate is determined by figuring out what rate must be imposed in order to reach the levy. The formula looks like this: [the city’s total property value] x [the property tax rate] = [the levy]. There are two crucial takeaways from this: First, the CBOE gets the levy it requests regardless of whether TIFs exist. TIFs thus don’t “divert” money from the CBOE in any straightforward fashion. (This doesn’t, however, show that the diversion thesis is completely wrong. Some taxing bodies may attenuate their levies because of the existence of TIFs, and otherwise might have requested higher levies to receive more tax dollars in the absence of TIFs.) Second, if we hold the levy amount constant, a lower total taxable property value results in a higher property tax rate. If it’s not clear why that is so, have another look at the formula: [the city’s total property value] x [the property tax rate] = [the levy]. As one of the values on the left side of the equation decreases, the other value on the left side must increase to make up for it. This second takeaway—the inverse relation between taxable property value and property tax rates—is the key to understanding how TIFs actually redistribute wealth. But to see why, we need a brief primer on what a TIF does. A Refresher on How TIFs Operate When an area is declared a TIF, the taxable property value of the area is frozen; during the lifetime of the TIF (23-35 years), the area’s taxable property value remains fixed at the value it had when the TIF was created. This value is called the “base value,” and any increase in the property’s value during the TIF’s lifetime is called “incremental value.” The incremental value of a TIF district is not taxable property value. This means that when the government is calculating what property tax rate it will impose to meet the levy, it performs this calculation using the city’s base value rather than its total value (total value = base value + incremental value). By shielding incremental value from factoring into the tax rate calculation, TIFs reduce the city’s taxable property value. And remember: a lower taxable property value results in a higher property tax rate. TIFs thus increase property tax rates city-wide by reducing the amount of taxable property value. (It’s also worth noting that people who live in TIFs pay their property tax rate not only on the base value of their property, but also on its incremental value. To the extent that TIFs do generate incremental value, this means that TIF-district-dwellers experience a double-whammy: both the increased tax rate that the whole city feels, plus an increased property value on which they pay that increased rate. TIFs Act as a Surcharge on Property Taxes It’s thus best to think of TIF mainly as, in the words of the Chicago Reader’s Ben Joravsky, a surcharge on your property taxes. The primary effect of TIFs is not to cause money that would otherwise go to the general treasury to instead go into TIF accounts. Instead, their primary effect is that money that would otherwise remain in your bank account instead goes into TIF accounts. How much more? It’s impossible to say for sure, but here’s one figure to consider: nearly a third of all property tax revenue goes into TIF accounts. The counterargument to the surcharge thesis is that the incremental value would not exist but for the TIFs, and so it wouldn’t be taxable value in a world without TIFs because it wouldn’t exist at all. But it defies credulity to claim that, for example, the City of Chicago only or even mainly uses TIFs to invest in areas that otherwise would not attract developers: Chicago’s most lucrative TIFs—those receiving the greatest incremental tax revenues—are located in affluent downtown business and North Side districts. Economic analysis indicates that these areas would have developed without the aid of TIF. A recent example: In April of this year, Chicago’s City Council passed an ordinance creating the Lincoln Yards TIF, which is nestled amidst some of the most affluent neighborhoods in Chicago. Why a Surcharge Is a Form of Regressive Redistribution Why is the function of TIFs as a property tax surcharge a form of regressive redistribution? To see why, consider who the surcharge benefits and who it burdens. Who is burdened? In the first instance, TIF burdens property owners who experience increased property taxes. Illinois residents pay the second-highest property taxes in the country, and Chicago-area property taxpayers are in the 93rd percentile of the nation’s largest counties. TIF also burdens renters, who indirectly pay those increased taxes in the form of higher rents. Who is benefited? TIF benefits developers like Sterling Bay (the developer behind the Lincoln Yards project) when TIF money is used to subsidize their development projects as a means of luring them to the municipality. Defenders of TIF are quick to point out that significant sums of TIF revenues are also used for public services and infrastructure, like public schools and transit. This defense does some work against the diversion thesis by noting that some of the funds diverted from local taxing bodies into TIF accounts ends up getting funneled back into those same taxing bodies. But this argument misses a key point: most TIF revenue is spent in comparatively prosperous parts of the city rather than in the south- and west-side neighborhoods that genuinely need the investment. This inequality in TIF-revenue expenditure is built into TIF’s legal framework: TIF money must be spent within the boundaries of the TIF district area in which it was raised (or in the case of contiguous TIFs, an adjacent one), and the TIF districts with the most incremental revenue to spend are in prosperous downtown and North Side districts. TIFs thus trap tax revenue in relatively wealthy parts of the city, where arguably redevelopment would have occurred in the absence of the creation of a TIF district. TIF: a tool that exacerbates inequity rather than curing blight A white paper by Chicagoland Researchers and Advocates for Transformative Education found that “[s]chools receiving TIF funds are strongly concentrated in the north half of Chicago … Meanwhile, the southern half of the city … is left behind. This is especially pertinent for Latino communities that are significantly underrepresented in the allocation of TIF revenues for school construction projects.” The same report noted that only 1% of CPS schools are selective enrollment schools, yet they receive 25% of TIF funds used for schools. “Meanwhile, local neighborhood attendance area schools … compose 69% of the CPS school system but only receive 48% of TIF revenues. Tax increment financing, as presently administered by Illinois municipalities, is a sophisticated scheme of regressive wealth redistribution, benefiting entities with access to ample financial resources at the expense of everyone else. Although Chicago has been a focus of this critique, the mechanism of regressive redistribution is applicable in any municipality that uses TIF to develop so-called blighted areas. Change will only come when a critical mass of Illinoisans demands it. But to be effective advocates for change, we must understand how TIF works: TIF redistributes wealth from households to developers primarily by functioning as a tax surcharge rather than a tax diversion. Special case: Gov. Rauner creates the nonprofit |
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| Letter to Ill. Dept of Insurance on Aetna-Humana Merger |
| White Paper on Health Insurance Merger of Anthem and Cigna |
February 23, 2016
Acting Director Anne Melissa Dowling
Illinois Department of Insurance
122 S. Michigan Ave. 19th Floor
Chicago, Illinois 60603
Re: Aetna-Humana Merger
Dear Director Dowling:
The undersigned organizations represent a wide variety of consumers across the state and have long been concerned with the competitive landscape in the health care industry. We believe competition within different health care markets that offers ample choice, high quality, and transparency is essential to ensuring accessible and affordable care to patients. We also believe competition between health insurers is essential to ensuring lower premiums, improving quality of care, and promoting access and choice.
We write to bring to your attention our concerns over the further consolidation in Illinois’ health insurance markets that would result from the proposed merger of Aetna and Humana. The proposed merger would combine two of the nation’s five largest insurers.[1] We are concerned that the merger of these large insurers could substantially lessen competition for consumers in Illinois. We write to ask that the Illinois Department of Insurance (“DOI”) and the Director carefully review this merger, and consider holding a public hearing, to thoroughly evaluate the impact of the merger in Illinois, and to take appropriate action under its authority to protect competition and consumers.
Under Illinois law, the Director is authorized to disapprove any merger of insurers that would substantially lessen competition in insurance.[2] In assessing if a health insurance merger substantially lessens competition, Illinois law applies the “competitive standard”[3] adopted by the National Association of Insurance Commissioners in its Model Act.[4]
Our comment discusses (1) the DOI’s extensive review powers, (2) the high concentration and potential anticompetitive impact of this merger, (3) the likely impact of the merger on consumer costs, (4) the possible adverse effects on network adequacy, (5) why new entry and potential competition are not likely to alleviate these concerns, (6) the relevance of possible efficiencies, (7) whether there are any remedies that can adequately protect consumers and the public interest if this merger goes forward, and (8) why public hearings could be helpful to a thorough evaluation.
I. The Illinois Department of Insurance Has Extensive Powers to Review the Aetna-Humana Merger
Illinois has granted the DOI and Director extensive powers to review mergers between insurers and to disapprove those that are “unfair and unreasonable to policyholders of the domestic insurer and not in the public interest.”[5] This is consistent with the standards adopted by the National Association of Insurance Commissioners (“NAIC”) in its Model Act.[6] This authority is in addition to, and goes beyond, the authority of federal and state antitrust enforcers.
Illinois law gives the DOI and the Director broad powers to fully investigate an insurance merger to determine its effects on competition, including holding public hearings where that would be beneficial.[7]
The DOI process adds importantly to that of the federal and state antitrust enforcers in a number of respects. First, the Director has the broad mandate to ensure that a proposed health insurance merger is in the “public interest,”[8] while the antitrust enforcers have a more limited review that focuses solely on whether there is a reduction of competition under antitrust law precedents. Second, the DOI, as the key regulator of health insurance, brings specific and extensive expertise in health insurance market review. Third, the DOI proceedings are public and enable a significant level of transparency and citizen participation, and the creation of a public record; antitrust investigations are confidential, with limited opportunities for public input. Finally, the DOI has broader powers to fashion and monitor remedies to protect consumers from the harms these proposed mergers could cause.[9]
II. The Merger of Aetna-Humana Will Have a Significant Impact on Illinois Health Insurance Markets
Prior to the announcement of these mergers, the vast majority of insurance markets within Illinois were already highly concentrated leaving limited options for consumers and employers. A 2014 report by the United States Government Accountability Office found that the three largest commercial insurers for individual, small group, and large group enrolled 83 percent of all Illinoisans.[10]
Data analyzing market share and concentration levels show that the merger of Aetna and Humana would result in concentration levels beyond the thresholds that trigger significant concerns under both federal antitrust law and Illinois’ antitrust and insurance statutes. According to figures compiled by the American Medical Association, the Aetna-Humana merger would result in concentration beyond those thresholds for different commercial insurance products in metropolitan statistical areas of Kankakee-Bradley, Bloomington-Normal, Lake County-Kenosha County, and Peoria.[11] Moreover, the merger will also impact the Illinois Exchange for individual consumers. Both Aetna and Humana offer competing insurance products on the exchange.[12] As a result of the merger, the Illinois Exchange would only have three insurers in three separate rating areas: Rockford (area 5), Bloomington (area 8), and Springfield-Decatur (area 10).[13]
Along with commercial insurance, the merger also raises concerns in Medicare Advantage (“MA”) markets. According to the Kaiser Family Foundation, the combined Aetna-Humana company would have a 37 percent market share in MA for Illinois.[14] In Winnebago County, the combined Aetna-Humana company will control 76 percent of the MA market, or roughly just over 15,000 lives.[15] In total, the two companies compete in 56 different counties throughout Illinois, meaning thousands of elderly consumers would lose access to a competitive MA plan.[16]
III. The Mergers are Likely to Result in Higher Consumer Costs Throughout Illinois
Studies of past health insurance mergers have documented that mergers harm consumers by leading to higher premiums and reduced service.[17] There are no studies demonstrating that health insurance mergers benefit consumers. Consumers are rightly very concerned that these proposed mergers would lead to the same harm – rising costs, i.e. higher premiums and out-of-pocket charges. In Illinois, from 2015 to 2016, insurers raised premium rates by double digits.[18] In fact, Coventry Health Care of Illinois, an Aetna owned company, sought a rate increase of 15 percent for its preferred provider organization plan, and Humana sought a 19.1 percent increase for its health maintenance organization plan.[19] With prices steadily increasing in highly concentrated Illinois insurance markets, this proposed merger could exacerbate this trend, leading to even higher consumer costs.
There is little dispute that there is a direct correlation between health insurer concentration and higher premiums.[20] According to one health economics expert at the University of Southern California’s Schaeffer Center for Health Policy and Economics, “when insurers merge, there’s almost always an increase in premiums.”[21] Two separate, retrospective economic studies on health insurance mergers found significant premium increases for consumers post-merger. One study found that the 1999 Aetna-Prudential merger resulted in an additional seven percent premium increase in 139 separate markets throughout the United States. [22] Another study found that the 2008 United-Sierra merger resulted in an additional 13.7 percent premium increase in Nevada.[23] There is also economic evidence that a dominant insurer can increase rates 75 percent higher than smaller insurers competing in the same state.[24] Moreover, an anticompetitive insurance merger could also impact out-of-pocket costs as consumers see increases in deductibles or other insurance-related costs.[25]
Most recently, the Center for American Progress (“CAP”) released findings on Medicare Advantage that demonstrated the key importance of competition. According to the CAP report, in counties where Humana and Aetna compete with each other on MA plans, both Aetna’s and Humana’s average premiums are lower. [26] Specifically, Aetna’s average annual premiums are $302 lower in counties where Humana also offers a MA plan.[27] In Illinois, Aetna and Humana offer MA plans that compete with each other in 56 separate counties.[28] The clear implication of this evidence is that a merger between Aetna and Humana would likely raise prices for MA plans throughout Illinois.
In contrast, there are no economic studies or evidence indicating that insurance mergers lead to lower prices for consumers. However, that has not prevented the merging companies from suggesting that their merger will create cost savings which they will pass along to consumers.[29] Much of these supposed savings are attributed to the new merged firm’s expected greater buying power, also known as monopsony power. According to proponents of these health insurance mergers, a dominant insurer can use monopsony power to lower provider reimbursement rates and pass the savings along to consumers.[30] But there is no evidence consumers actually receive any of these potential savings. In fact, Professor Thomas Greaney, a leading health antitrust scholar, has noted that there is actually “little incentive [for an insurer] to pass along the savings to its policyholders.”[31] More likely, the now-dominant insurer would exploit its monopsony power to benefit only itself, closing off choices, and pressuring providers to cut corners on quality of care in order to meet its demands – the opposite of what consumers need.[32] As the American Antitrust Institute, the leading non-profit antitrust think tank, recently concluded, economic studies and evidence indicate that “consumers do not benefit from lower healthcare costs through enhanced bargaining power.”[33]
Current market regulations will not deter an insurer from raising consumer costs. Some supporters of this merger have argued that the medical loss ratio (“MLR”) “directly limits the level of insurer profits,” thus protecting consumers from price increases.[34] While MLR is an important tool that requires health insurers spend 80 to 85 percent of net premiums on medical services and quality improvements, it will not adequately protect consumers from anticompetitive harm. Along with MLR not applying to self-insured plans, and the potential for MLR to be gamed by insurers to reduce consumer welfare, MLR, as health antitrust expert Professor Jamie King has observed, “does not guarantee that dominant insurers will not raise premiums and as such, it is not a substitute for the pressures toward lower costs and higher quality created by a competitive market.”[35]
IV. There are Significant Concerns over Network Adequacy
Another focus of review should be the impact of the merger on provider network adequacy. For many consumers, the provider networks offered in a plan are as important a consideration as cost. The merging insurance companies have claimed that the merger will expand access for consumers by allowing for a more extensive network of hospitals, physicians, services, and health care professionals. We are concerned, however, that the opposite could actually result, that consumers could find their options limited to plans with overly restrictive provider networks.
Narrower insurance networks are intended to give consumers the option of lower-cost insurance in exchange for limiting the number of providers. Offering the choice of narrower-network plans, assuming they meet network adequacy standards and contain providers of good quality, can be consumer-friendly, since these plans will likely cost consumers less. But if the market becomes so concentrated that dominant insurers are able to eliminate or unduly restrict broader-network options, that would be harmful for consumers who are willing to pay more and want a broader network – and it could even potentially lower quality of care, for example if higher quality providers are excluded.
We are concerned that the proposed Aetna-Humana merger and the resulting increase in market concentration could lead to narrower networks. We urge your careful attention to network adequacy in analyzing this proposed merger and as part of any public hearing; we also urge you, in the event the merger is permitted, to consider the undertakings we suggest in Section VII to help ensure maintenance of adequate network choices for consumers.
V. Difficulty of New Entry by Competitors, and Loss of Potential Competition
The likely prospect of new competitive entry into a market can potentially “alleviate concerns about a merger’s adverse competitive effects.”[36] However, as the former Assistant Attorney General of the Justice Department Antitrust Division has observed “entry defenses in the health insurance industry will be viewed with skepticism and will almost never justify an otherwise anticompetitive merger.”[37]
Entry will only alleviate concerns if the entry “will deter or counteract any competitive effects of concern.”[38] It is not enough that new firms might emerge; those firms must be forceful and committed enough to successfully constrain anticompetitive conduct. Indeed, in the mergers studied and discussed above, there was new entry, but that entry did not prevent significant harm to competition from resulting from those mergers.
In Illinois, entry either on the Exchange or within the Medicare Advantage markets has been limited and has not offset anticompetitive harm. Additionally, there is no evidence of entry in small group, large group, or the ASO markets. As previously noted, Illinois insurance markets remain highly concentrated and prices continue to rise in a number of insurance markets. Along with a further reduction in current competition, this merger may result in a significant loss of potential competition. As the Department of Justice (“DOJ) has found, entry into a new health insurance market requires “a large provider network to attract customers, but they also need a large number of customers to obtain sufficient price discounts from providers to be competitive with incumbents.”[39] This “Catch 22” makes it nearly impossible for new, competitive entry to occur, particularly in markets dominated by one or a small handful of incumbent insurers.[40]
With these entry barriers, a key remaining potential source of new competition is established national insurers – such as Aetna and Humana. These insurers have national footprints and have sufficient resources to enter new insurance markets. Unfortunately, by merging, these insurers would be foreclosing the possibility of their own future entry into each other’s markets and improving competition. As noted by Professor Dafny, “consolidation even in non-overlapping markets reduces the number of potential entrants who might attempt to overcome price-increasing (or quality-reducing) consolidation in markets where they do not currently operate.”[41] Professor Greaney has further stated that the “lessons of oligopoly are pertinent here: consolidation that would pare the insurance sector down to less than a handful players is likely to chill the enthusiasm for venturing into a neighbor’s market... [o]ne need look no further than the airline industry for a cautionary tale.”[42]
VI. Health Insurance Merger Efficiencies are Unlikely in Illinois
As a general matter, one potential benefit of mergers is the enhancement of the new company’s ability to compete, by strengthening its capacity to bring down price, improve quality, enhance services, or create new products – collectively referred to as “efficiencies.”[43]
The insurers involved in the merger have argued that their merger would create substantial efficiencies leading to improved health care quality and lower costs.[44] But these kinds of efficiencies cannot help justify a merger unless (1) it is really necessary for the insurers to merge to achieve the stated efficiencies, and (2) the stated efficiencies will actually benefit consumers.[45]
The parties have claimed significant cost-savings. According to Aetna, its merger with Humana would create $1.25 billion in “synergy opportunities” and “operating efficiencies.”[46] However, while the merging insurers have offered little details about these supposed savings, the bigger question is if consumers would see any benefit themselves from these savings, if they do result, in the form of lower costs or greater value. There is no evidence or scholarly studies showing that insurance mergers lead to savings for consumers. In fact, as previously noted, evidence indicates that health insurance mergers lead to higher consumer costs, not increased consumer savings.[47]
A more abstract argument raised by the merging insurers is that the merger will allow them to improve innovation. Innovation in health care delivery is critical. For one thing, there is a need to change health care from the current volume-based system to a patient-oriented, value-based delivery model that incentivizes insurers and providers to improve care and lower costs. But we are concerned that, in Illinois, the merger would further entrench preexisting market power, reducing their incentives to compete and improve care. As noted by the American Antitrust Institute, excessive concentration created by the proposed merger is likely to reduce incentives for engaging in innovation.[48]
We urge the DOI to carefully examine whether these supposed efficiencies would in fact be realized, and if so, whether they can overcome the likely anticompetitive effects of the merger.
VII. Divestitures and Other Remedies
It is also important for the DOI to consider what actions would help properly protect consumers and ensure the proposed merger, if approved, is in the public interest. If the DOI and Director decide that a merger is not in the public interest, it has the power to simply disapprove the merger. Indeed, state insurance commissioners have disapproved health insurance mergers in the past, such as Pennsylvania’s 2009 decision to deny Highmark’s acquisition of Independence Blue Cross.[49]
In other cases, mergers have been approved conditioned on the imposition of specific remedies such as divestitures or additional conduct regulation. Both of these types of remedies have significant limitations and risks that should be carefully evaluated. In evaluating any proposed remedy, it is important to remember that the law requires that a remedy must restore the competition that would otherwise be lost, or must otherwise effectively prevent the harm that would otherwise result.
In nearly every health insurance merger enforcement action during the last two decades, DOJ has relied on the structural remedy of divestiture.[50] Divestitures require that the merging insurance companies spin off subscribers or operations to another, independent insurance company fully capable of restoring the same competition. Given the potential size and scope of divestitures that would be required, including those that would likely be required in Illinois, the American Antitrust Institute has come out against the mergers of both Aetna-Humana and Anthem-Cigna, urging the DOJ to “just say no.”[51] Recent economic research by Professor John Kwoka supports the concerns regarding the effectiveness of divestitures, finding that divestitures often fail to restore competition to the marketplace.[52] Indeed, skepticism regarding divestiture has led DOJ, the Federal Trade Commission (“FTC”), and the courts to reject divestitures as a remedy in other merger enforcement matters. In their reviews of the proposed mergers of Comcast-Time Warner Cable and Sysco-US Foods, the enforcement agencies rejected the divestitures offered as remedies, and instead blocked the mergers. When Sysco pursued its merger anyway, the court agreed with the FTC and enjoined the merger.[53]
Regarding health insurance markets, there is little evidence that the benefits of competition are effectively restored after divestitures. In fact, in the previously cited two retrospective studies on health insurance mergers, both matters involved divestitures of covered lives for different insurance products, but the merged companies were still able to raise premiums by significant margins.[54] Additionally, for any divestiture in these matters to be successful, the purchaser of the assets will need to have and maintain a cost-competitive and attractive network of hospitals and physicians; ensuring this will require scrutiny and continued monitoring from DOJ.[55] With the lack of competition in a number of Illinois markets already, it may be difficult to genuinely preserve the competitive benefits of the pre-merger market structure through divesting subscribers or operations to a competitor.
Most recently, the Florida Office of Insurance Regulation (“OIR”) disregarded divestitures as a potential remedy to health insurance mergers. In their consent order to the Aetna-Humana merger, the OIR noted that the divestitures were “not in the best interests of Florida policyholders and also may be short term in nature.”[56] The OIR noted that such divestitures may “result in unwanted changes in quality of services [and] benefits,” and furthermore, that policyholders can switch insurance every year, which would “lessen the effectiveness of divestitures as a means to manage market concentration.”[57]
While the DOJ (and the Illinois Attorney General’s Office, using its own antitrust authority) may be considering divestitures, the DOI and Director are also empowered to develop additional remedies for a health insurance merger. These remedies can be in addition to any remedies, including divestitures, ordered by the DOJ or the Illinois Attorney General. For example, in the 2008 acquisition of Sierra Health by UnitedHealth, the DOJ required divestiture of MA plans in Las Vegas,[58] but the Nevada Insurance Commissioner required additional remedies. In order for the merging companies to receive approval from the Commissioner, they had to agree that no acquisition costs would be passed along to consumers or providers, that there would be no premium increases, that there would be no scaling back of benefits, and that UnitedHealth would have to take specified actions to limit the number of uninsured within the state.[59]
Regulatory remedies also have their shortcomings for effectively protecting competition and consumers against the abuse of market power resulting from a merger.[60] Nevertheless, such remedies could play an important role in limiting harm to consumers and to the health care marketplace. In the event either merger is permitted to go forward, here is a short list of possible regulatory steps the Illinois Department of Insurance might consider, among others that could help limit the harm:
VIII. The Department Should Consider Holding a Public Hearing on the Merger
Given the significant competitive concerns involved, and the statutory authority afforded to the Illinois Department of Insurance and its Director, we believe the DOI should consider holding a hearing on the Aetna-Humana merger. The DOI’s review of this merger could benefit significantly from holding a public hearing. Public hearings not only offer the merging companies an opportunity to defend the merger, but also allow third parties and the public to raise concerns and enable the DOI to gather critical information, aired in an open forum. Furthermore, hearings could also provide additional useful information for federal and state antitrust investigators.
Conclusion
The undersigned organizations are concerned by the potential for this merger, between two of the largest, most dominant national health insurers, to substantially lessen competition for different insurance products in the State of Illinois and adversely impact price, access, and quality of care. Although the merging companies are claiming various supposed benefits associated with the merger, all scholarly evidence suggests that consumers will see limited to no benefits and instead will face higher costs, less innovation, and potentially lower quality of care.
With the prospect that the Aetna-Humana merger might go forward, and recognizing the shortcomings of divestitures as an effective remedy, we urge the Illinois Department of Insurance and the Director to carefully analyze this merger, and to consider holding a public hearing, and to be prepared to consider imposing additional requirements to better protect consumers from harm.
We would be happy to address any of the points raised in this comment. Please do not hesitate to contact us with any questions.
Respectfully submitted,
Consumers Union
U.S. PIRG
SEIU Healthcare Illinois and Indiana
Illinois PIRG
Health & Medicine Policy Research Group
Consumer Federation of America
Consumer Watchdog
Citizen Action of Illinois
Consumer Action
Citizen Advocacy Center
Sergeant Shriver National Center on Poverty Law
Counsel of record for this comment is:
David A. Balto
James Kovacs
The Law Offices of David A. Balto
1325 G. St.
Suite 500
Washington, DC 20005
202-577-5424
David.balto@dcantitrustlaw.com
James.kovacs@dcantitrustlaw.com
[1] The other three national insurers are UnitedHealthcare, Anthem, and Cigna. Anthem and Cigna have also proposed a merger that is currently pending and under review.
[2] 215 Ill. Complied Stat. § 5/131.8(1)(b).
[3] Id. at § 5/131.12(a)(4).
[4] The National Association of Insurance Commissioners’ Model Insurance Holding Company System Regulatory Act provides detailed analysis of the “Competitive Standard” that can be used to investigate if a health insurance merger is anticompetitive. Model Ins. Holding Co. Sys. Regulatory act § 440-1 (Nat’l Ass’n of Ins. Comm’rs 2015).
[5] 215 Ill. Complied Stat. § 5/131.8(1)(d).
[6] See generally Model Holding Act, supra note 4.
[7] See 215 Ill. Complied Stat. § 5/131.8(2).
[8] Id. at § 5/131.8(1)(d).
[9] We further discuss remedial provisions in Section VII.
[10] United States Government Accountability Office, Private Health Insurance: Concentration of Enrollees among Individual, Small Group, and Large Group Insurers from 2010 through 2013 (Dec. 1, 2014), available at http://goo.gl/eYS4Ir.
[11] American Medical Association, Markets where an Aetna-Humana merger warrants antitrust scrutiny (Sept. 8, 2015).
[12] Aetna owns Coventry who sells individual insurance plans under the Coventry Health Care of Illinois and Coventry Health & Life Insurance Company.
[13] See 2016 Analysis of Illinois Exchange Rates, available at http://goo.gl/sCd8Kb.
[14] Gretchen Jacobsen, Anthony Damico, & Tricia Neuman, Data Note: Medicare Advantage Enrollment, by Firm, 2015, Kaiser Family Found. (July 14, 2015), http://goo.gl/gJ1xnz.
[15] Id.
[16] See Topher Spiro, Maura Calsyn, and Meghan O’Toole, Bigger is Note Better: Proposed Insurer Mergers Are Likely to Harm Consumers and Taxpayers, Ctr. for AM. Progress (Jan. 21, 2016), available at https://goo.gl/1Aa70h.
[17] See infra Leemore Dafny et al., Paying a Premium on Your Premium? Consolidation in the US Health Insurance Industry, 102 AM. ECON. REV. 1161 (2012); see also infra Jose Guardado et al. The Price Effects of a Large Merger of Health Insurers: A Case Study of United-Sierra, 1(3) HEALTH MANAGEMENT, POL’Y & INNOVATION 1 (2013).
[18] Wes Venteicher & Ameet Sachdev, Some steep increases in health premiums expected in Illinois in 2016, Chicago Tribune (June 1, 2015 7:53 PM), available at http://goo.gl/IgDtlt.
[19] Id.
[20] See Leemore Dafny, Are Health Insurances Markets Competitive?, 100 Am. Econ. Rev. 1399 (2010).
[21] David Lazarus, As Health insurers merge, consumers’ premiums are likely to rise, L.A. Times (July 10, 2015 4:00 AM), http://goo.gl/nF7HRS.
[22] See Leemore Dafny et al., Paying a Premium on Your Premium? Consolidation in the US Health Insurance Industry, 102 AM. ECON. REV. 1161 (2012).
[23] Jose Guardado et al. The Price Effects of a Large Merger of Health Insurers: A Case Study of United-Sierra, 1(3) HEALTH MANAGEMENT, POL’Y & INNOVATION 1 (2013).
[24] Eugene Wang and Grace Gee, Larger Insurers, Larger Premium Increases: Health insurance issuer competition post-ACA, TECH. SCI. (Aug. 11, 2015), available at http://goo.gl/918ULo.
[25] See generally Leemore Dafny, Evaluating the Impact of Health Insurance Industry Consolidation: Learning from Experience, Commonwealth Fund (Nov. 20, 2015), http://goo.gl/xRYb5x; see also Korin Miller, 6 Ways the Big Health Insurance Mergers Will Affect Your Coverage, Yahoo Health (July 24, 2015), https://goo.gl/qLioCy (noting that “out-of-pocket payments could increase” because insurance coverage could limit certain services or number of visits forcing patients to pay more).
[26] See Topher Spiro, Maura Calsyn, and Meghan O’Toole, Bigger is Note Better: Proposed Insurer Mergers Are Likely to Harm Consumers and Taxpayers, Ctr. for AM. Progress (Jan. 21, 2016), available at https://goo.gl/1Aa70h.
[27] Id.
[28] Id. at 15.
[29] See generally Effects on Competition of Proposed Health Insurer Mergers: Hearing before Comm. on the Judiciary Subcomm. on Regulatory Reform, Commercial and Antitrust Law, 114th Cong. (Sept. 29, 2015) (testimony of Mark T. Bertolini, Chairman & CEO of Aetna, Inc.), available at http://goo.gl/TokebO (noting that the merger will lead to “lower costs”).
[30] See Victoria R. Fuchs and Peter V. Lee, A Health Side of Insurer Mega-Mergers, WALL ST. J. (Aug. 26, 2015, 6:36 PM), http://goo.gl/hMhuzI.
[31]See Thomas Greaney, Examining Implications of Health Insurance Mergers, HEALTH AFFS. (July 16, 2015), http://goo.gl/ETT1DB.
[32] See Health Insurance Industry Consolidation: Hearing before the Sen. Comm. on the Judiciary, Subcomm. on Antitrust, Competition Policy, and Consumer Rights, 114th Cong. (Sept. 22, 2015) (testimony of George Slover, Consumers Union), available at http://goo.gl/s16PSj (“[b]ut a dominant insurer could force doctors and hospitals to go beyond trimming costs, to cut costs so far that it begins to degrade the care and service they provide below what consumers value and need”).
[33] Letter from the American Antitrust Institute, Thomas Greaney, and Diana Moss, to William J. Baer, Assistant Attorney General Dep’t of Justice (Jan. 11, 2016), available at http://goo.gl/BD1zTL.
[34] E.g., Bertolini, supra note 29.
[35] Effects on Competition of Proposed Health Insurer Mergers: Hearing Before Comm. on the Judiciary Subcomm. on Regulatory Reform, Commercial and Antitrust Law, 114th Cong. (Sept. 29, 2015) (testimony of Jamie S. King, Professor University of California, Hastings College of Law), available at http://goo.gl/Gje3Ci.
[36] U.S. Dep’t. of Justice & Fed. Trade Comm’n, Horizontal Merger Guidelines at § 9 (2010), available at https://goo.gl/Hh3dks.
[37] Christine A. Varney, Assistant Attorney Gen., Antitrust Div., U.S. Dep’t of Justice, Remarks as Prepared for American Bar Association/American Health Lawyers Association Antitrust Healthcare Conference (May 24, 2010), available at http://goo.gl/rzPC0G.
[38] Horizontal Merger Guidelines, supra note 36 at § 9 (emphasis added).
[39] U.S Dep’t of Justice & Fed. Trade Comm’n, Improving Health Care: A Dose of Competition at 254 (2004), available at http://goo.gl/GzIuvL.
[40] See Varney, supra note 37.
[41] Health Insurance Industry Consolidation: Hearing before the Sen. Comm. on the Judiciary, Subcomm. on Antitrust, Competition Policy, and Consumer Rights, 114th Cong. 15 (Sept. 22, 2015) (testimony of Professor Leemore Dafny, Professor Northwestern University), available at http://goo.gl/mhExI6.
[42] The State of Competition in the Health Care Marketplace: The Patient Protection and Affordable Care Act’s Impact on Competition, Comm. on the Judiciary Subcomm. on Regulatory Reform, Commercial and Antitrust Law, 114th Cong. (Sept. 10, 2015) (testimony by Professor Thomas Greaney, Saint Louis University School of Law), available at http://goo.gl/bceVxi (citation omitted).
[43] Horizontal Merger Guidelines, supra note 36 at § 6.4.
[44] See Bertolini, supra note 29 (section labeled “Benefits of the Acquisition for Consumers and Providers.”).
[45] Horizontal Merger Guidelines, supra note 36 at § 10 (to rebut a presumption of competitive harm, efficiencies must be merger-specific, cognizable, and substantiated); St. Alphonsus Med. Ctr. v. St. Luke’s Health Sys., 778 F.3d 775, 789 (9th Cir. 2015) (efficiencies must demonstrably prove “that a merger is not, despite the evidence of a prima facie case, anticompetitive”).
[46] Press Release, Aetna, Aetna to Acquire Humana for $37 Billion, Combined Entity to Drive Consumer-Focused, High-Value Health Care (July 3, 2015), available at https://goo.gl/dktKof.
[47] See Section III.
[48] Greaney & Moss, supra note 33 (emphasis added).
[49] See Highmark Merger Timeline, Pennsylvania Insurance Dep’t, http://goo.gl/0b6827 (last visited Jan. 8, 2015).
[50] See, e.g., Revised Final Judgment, United States v. Aetna Inc. and Prudential Insurance Co. of Am., No. 3-99-cv-1398-H (N.D. Tex. Dec. 7, 1999); Final Judgment, United States v. UnitedHealth Group Inc. and Sierra Health Servs. Inc., No: 1:08-cv-00322 (D.D.C. Sept. 24, 2008); Final Judgment, United States v. Humana Inc., No. 1:12-cv-00464 (D.D.C. March 27, 2012).
[51] Greaney & Moss, supra note 33.
[52] John Kwoka, MERGERS, MERGER CONTROL, AND REMEDIES: A RETROSPECTIVE ANALYSIS OF U.S POLICY, MIT PRESS (2015).
[53] Press Release, DOJ, Comcast Corporation Abandons Proposed Acquisition of Time Warner Cable After Justice Department and Federal Communications Commissions Informed Parties of Concerns (Apr. 24, 2015), available at http://goo.gl/msZq6f; see also Press Release, FTC, Following Sysco’s Abandonment of Proposed Merger with US Foods, FTC Closes Case (July 1, 2015), available at https://goo.gl/XfwPsW.
[54] Dafny, supra note 17; Guardado, supra note 17.
[55] See Greaney, supra note 42.
[56] Consent Order at 8, In the Matter of Application for the Indirect Acquisition of Humana by Aetna, No. 125926-16-C0 (Feb. 15, 2016), available at http://goo.gl/AvXzED.
[57] Id. at 9.
[58] Final Judgment, UnitedHealth Inc. and Sierra Health Servs., No: 1:08-cv-00322.
[59] Healthcare Check-Up: The UnitedHealth Group Acquisition of Sierra Health Services, Nevada Bus. (Nov. 1, 2007), http://goo.gl/Uztt13.
[60] Dep’t of Justice, Antitrust Division Policy Guide to Merger Remedies (2011), available at http://goo.gl/cm0gBI (conduct remedies can be “too vague to be enforced, or that can easily be misconstrued or evaded, fall short of their intended purpose and may leave the competitive harm unchecked”); see also Deborah L. Feinstein, Editor’s Note: Conduct Remedies: Tried But Not Tested, 26 Antitrust at 5, 6 (Fall 2011) (“Divestitures continue to be the remedy of choice—and with extremely rare exceptions—the only remedy for horizontal mergers at both the FTC and DOJ.”).
Acting Director Anne Melissa Dowling
Illinois Department of Insurance
122 S. Michigan Ave. 19th Floor
Chicago, Illinois 60603
Re: Aetna-Humana Merger
Dear Director Dowling:
The undersigned organizations represent a wide variety of consumers across the state and have long been concerned with the competitive landscape in the health care industry. We believe competition within different health care markets that offers ample choice, high quality, and transparency is essential to ensuring accessible and affordable care to patients. We also believe competition between health insurers is essential to ensuring lower premiums, improving quality of care, and promoting access and choice.
We write to bring to your attention our concerns over the further consolidation in Illinois’ health insurance markets that would result from the proposed merger of Aetna and Humana. The proposed merger would combine two of the nation’s five largest insurers.[1] We are concerned that the merger of these large insurers could substantially lessen competition for consumers in Illinois. We write to ask that the Illinois Department of Insurance (“DOI”) and the Director carefully review this merger, and consider holding a public hearing, to thoroughly evaluate the impact of the merger in Illinois, and to take appropriate action under its authority to protect competition and consumers.
Under Illinois law, the Director is authorized to disapprove any merger of insurers that would substantially lessen competition in insurance.[2] In assessing if a health insurance merger substantially lessens competition, Illinois law applies the “competitive standard”[3] adopted by the National Association of Insurance Commissioners in its Model Act.[4]
Our comment discusses (1) the DOI’s extensive review powers, (2) the high concentration and potential anticompetitive impact of this merger, (3) the likely impact of the merger on consumer costs, (4) the possible adverse effects on network adequacy, (5) why new entry and potential competition are not likely to alleviate these concerns, (6) the relevance of possible efficiencies, (7) whether there are any remedies that can adequately protect consumers and the public interest if this merger goes forward, and (8) why public hearings could be helpful to a thorough evaluation.
I. The Illinois Department of Insurance Has Extensive Powers to Review the Aetna-Humana Merger
Illinois has granted the DOI and Director extensive powers to review mergers between insurers and to disapprove those that are “unfair and unreasonable to policyholders of the domestic insurer and not in the public interest.”[5] This is consistent with the standards adopted by the National Association of Insurance Commissioners (“NAIC”) in its Model Act.[6] This authority is in addition to, and goes beyond, the authority of federal and state antitrust enforcers.
Illinois law gives the DOI and the Director broad powers to fully investigate an insurance merger to determine its effects on competition, including holding public hearings where that would be beneficial.[7]
The DOI process adds importantly to that of the federal and state antitrust enforcers in a number of respects. First, the Director has the broad mandate to ensure that a proposed health insurance merger is in the “public interest,”[8] while the antitrust enforcers have a more limited review that focuses solely on whether there is a reduction of competition under antitrust law precedents. Second, the DOI, as the key regulator of health insurance, brings specific and extensive expertise in health insurance market review. Third, the DOI proceedings are public and enable a significant level of transparency and citizen participation, and the creation of a public record; antitrust investigations are confidential, with limited opportunities for public input. Finally, the DOI has broader powers to fashion and monitor remedies to protect consumers from the harms these proposed mergers could cause.[9]
II. The Merger of Aetna-Humana Will Have a Significant Impact on Illinois Health Insurance Markets
Prior to the announcement of these mergers, the vast majority of insurance markets within Illinois were already highly concentrated leaving limited options for consumers and employers. A 2014 report by the United States Government Accountability Office found that the three largest commercial insurers for individual, small group, and large group enrolled 83 percent of all Illinoisans.[10]
Data analyzing market share and concentration levels show that the merger of Aetna and Humana would result in concentration levels beyond the thresholds that trigger significant concerns under both federal antitrust law and Illinois’ antitrust and insurance statutes. According to figures compiled by the American Medical Association, the Aetna-Humana merger would result in concentration beyond those thresholds for different commercial insurance products in metropolitan statistical areas of Kankakee-Bradley, Bloomington-Normal, Lake County-Kenosha County, and Peoria.[11] Moreover, the merger will also impact the Illinois Exchange for individual consumers. Both Aetna and Humana offer competing insurance products on the exchange.[12] As a result of the merger, the Illinois Exchange would only have three insurers in three separate rating areas: Rockford (area 5), Bloomington (area 8), and Springfield-Decatur (area 10).[13]
Along with commercial insurance, the merger also raises concerns in Medicare Advantage (“MA”) markets. According to the Kaiser Family Foundation, the combined Aetna-Humana company would have a 37 percent market share in MA for Illinois.[14] In Winnebago County, the combined Aetna-Humana company will control 76 percent of the MA market, or roughly just over 15,000 lives.[15] In total, the two companies compete in 56 different counties throughout Illinois, meaning thousands of elderly consumers would lose access to a competitive MA plan.[16]
III. The Mergers are Likely to Result in Higher Consumer Costs Throughout Illinois
Studies of past health insurance mergers have documented that mergers harm consumers by leading to higher premiums and reduced service.[17] There are no studies demonstrating that health insurance mergers benefit consumers. Consumers are rightly very concerned that these proposed mergers would lead to the same harm – rising costs, i.e. higher premiums and out-of-pocket charges. In Illinois, from 2015 to 2016, insurers raised premium rates by double digits.[18] In fact, Coventry Health Care of Illinois, an Aetna owned company, sought a rate increase of 15 percent for its preferred provider organization plan, and Humana sought a 19.1 percent increase for its health maintenance organization plan.[19] With prices steadily increasing in highly concentrated Illinois insurance markets, this proposed merger could exacerbate this trend, leading to even higher consumer costs.
There is little dispute that there is a direct correlation between health insurer concentration and higher premiums.[20] According to one health economics expert at the University of Southern California’s Schaeffer Center for Health Policy and Economics, “when insurers merge, there’s almost always an increase in premiums.”[21] Two separate, retrospective economic studies on health insurance mergers found significant premium increases for consumers post-merger. One study found that the 1999 Aetna-Prudential merger resulted in an additional seven percent premium increase in 139 separate markets throughout the United States. [22] Another study found that the 2008 United-Sierra merger resulted in an additional 13.7 percent premium increase in Nevada.[23] There is also economic evidence that a dominant insurer can increase rates 75 percent higher than smaller insurers competing in the same state.[24] Moreover, an anticompetitive insurance merger could also impact out-of-pocket costs as consumers see increases in deductibles or other insurance-related costs.[25]
Most recently, the Center for American Progress (“CAP”) released findings on Medicare Advantage that demonstrated the key importance of competition. According to the CAP report, in counties where Humana and Aetna compete with each other on MA plans, both Aetna’s and Humana’s average premiums are lower. [26] Specifically, Aetna’s average annual premiums are $302 lower in counties where Humana also offers a MA plan.[27] In Illinois, Aetna and Humana offer MA plans that compete with each other in 56 separate counties.[28] The clear implication of this evidence is that a merger between Aetna and Humana would likely raise prices for MA plans throughout Illinois.
In contrast, there are no economic studies or evidence indicating that insurance mergers lead to lower prices for consumers. However, that has not prevented the merging companies from suggesting that their merger will create cost savings which they will pass along to consumers.[29] Much of these supposed savings are attributed to the new merged firm’s expected greater buying power, also known as monopsony power. According to proponents of these health insurance mergers, a dominant insurer can use monopsony power to lower provider reimbursement rates and pass the savings along to consumers.[30] But there is no evidence consumers actually receive any of these potential savings. In fact, Professor Thomas Greaney, a leading health antitrust scholar, has noted that there is actually “little incentive [for an insurer] to pass along the savings to its policyholders.”[31] More likely, the now-dominant insurer would exploit its monopsony power to benefit only itself, closing off choices, and pressuring providers to cut corners on quality of care in order to meet its demands – the opposite of what consumers need.[32] As the American Antitrust Institute, the leading non-profit antitrust think tank, recently concluded, economic studies and evidence indicate that “consumers do not benefit from lower healthcare costs through enhanced bargaining power.”[33]
Current market regulations will not deter an insurer from raising consumer costs. Some supporters of this merger have argued that the medical loss ratio (“MLR”) “directly limits the level of insurer profits,” thus protecting consumers from price increases.[34] While MLR is an important tool that requires health insurers spend 80 to 85 percent of net premiums on medical services and quality improvements, it will not adequately protect consumers from anticompetitive harm. Along with MLR not applying to self-insured plans, and the potential for MLR to be gamed by insurers to reduce consumer welfare, MLR, as health antitrust expert Professor Jamie King has observed, “does not guarantee that dominant insurers will not raise premiums and as such, it is not a substitute for the pressures toward lower costs and higher quality created by a competitive market.”[35]
IV. There are Significant Concerns over Network Adequacy
Another focus of review should be the impact of the merger on provider network adequacy. For many consumers, the provider networks offered in a plan are as important a consideration as cost. The merging insurance companies have claimed that the merger will expand access for consumers by allowing for a more extensive network of hospitals, physicians, services, and health care professionals. We are concerned, however, that the opposite could actually result, that consumers could find their options limited to plans with overly restrictive provider networks.
Narrower insurance networks are intended to give consumers the option of lower-cost insurance in exchange for limiting the number of providers. Offering the choice of narrower-network plans, assuming they meet network adequacy standards and contain providers of good quality, can be consumer-friendly, since these plans will likely cost consumers less. But if the market becomes so concentrated that dominant insurers are able to eliminate or unduly restrict broader-network options, that would be harmful for consumers who are willing to pay more and want a broader network – and it could even potentially lower quality of care, for example if higher quality providers are excluded.
We are concerned that the proposed Aetna-Humana merger and the resulting increase in market concentration could lead to narrower networks. We urge your careful attention to network adequacy in analyzing this proposed merger and as part of any public hearing; we also urge you, in the event the merger is permitted, to consider the undertakings we suggest in Section VII to help ensure maintenance of adequate network choices for consumers.
V. Difficulty of New Entry by Competitors, and Loss of Potential Competition
The likely prospect of new competitive entry into a market can potentially “alleviate concerns about a merger’s adverse competitive effects.”[36] However, as the former Assistant Attorney General of the Justice Department Antitrust Division has observed “entry defenses in the health insurance industry will be viewed with skepticism and will almost never justify an otherwise anticompetitive merger.”[37]
Entry will only alleviate concerns if the entry “will deter or counteract any competitive effects of concern.”[38] It is not enough that new firms might emerge; those firms must be forceful and committed enough to successfully constrain anticompetitive conduct. Indeed, in the mergers studied and discussed above, there was new entry, but that entry did not prevent significant harm to competition from resulting from those mergers.
In Illinois, entry either on the Exchange or within the Medicare Advantage markets has been limited and has not offset anticompetitive harm. Additionally, there is no evidence of entry in small group, large group, or the ASO markets. As previously noted, Illinois insurance markets remain highly concentrated and prices continue to rise in a number of insurance markets. Along with a further reduction in current competition, this merger may result in a significant loss of potential competition. As the Department of Justice (“DOJ) has found, entry into a new health insurance market requires “a large provider network to attract customers, but they also need a large number of customers to obtain sufficient price discounts from providers to be competitive with incumbents.”[39] This “Catch 22” makes it nearly impossible for new, competitive entry to occur, particularly in markets dominated by one or a small handful of incumbent insurers.[40]
With these entry barriers, a key remaining potential source of new competition is established national insurers – such as Aetna and Humana. These insurers have national footprints and have sufficient resources to enter new insurance markets. Unfortunately, by merging, these insurers would be foreclosing the possibility of their own future entry into each other’s markets and improving competition. As noted by Professor Dafny, “consolidation even in non-overlapping markets reduces the number of potential entrants who might attempt to overcome price-increasing (or quality-reducing) consolidation in markets where they do not currently operate.”[41] Professor Greaney has further stated that the “lessons of oligopoly are pertinent here: consolidation that would pare the insurance sector down to less than a handful players is likely to chill the enthusiasm for venturing into a neighbor’s market... [o]ne need look no further than the airline industry for a cautionary tale.”[42]
VI. Health Insurance Merger Efficiencies are Unlikely in Illinois
As a general matter, one potential benefit of mergers is the enhancement of the new company’s ability to compete, by strengthening its capacity to bring down price, improve quality, enhance services, or create new products – collectively referred to as “efficiencies.”[43]
The insurers involved in the merger have argued that their merger would create substantial efficiencies leading to improved health care quality and lower costs.[44] But these kinds of efficiencies cannot help justify a merger unless (1) it is really necessary for the insurers to merge to achieve the stated efficiencies, and (2) the stated efficiencies will actually benefit consumers.[45]
The parties have claimed significant cost-savings. According to Aetna, its merger with Humana would create $1.25 billion in “synergy opportunities” and “operating efficiencies.”[46] However, while the merging insurers have offered little details about these supposed savings, the bigger question is if consumers would see any benefit themselves from these savings, if they do result, in the form of lower costs or greater value. There is no evidence or scholarly studies showing that insurance mergers lead to savings for consumers. In fact, as previously noted, evidence indicates that health insurance mergers lead to higher consumer costs, not increased consumer savings.[47]
A more abstract argument raised by the merging insurers is that the merger will allow them to improve innovation. Innovation in health care delivery is critical. For one thing, there is a need to change health care from the current volume-based system to a patient-oriented, value-based delivery model that incentivizes insurers and providers to improve care and lower costs. But we are concerned that, in Illinois, the merger would further entrench preexisting market power, reducing their incentives to compete and improve care. As noted by the American Antitrust Institute, excessive concentration created by the proposed merger is likely to reduce incentives for engaging in innovation.[48]
We urge the DOI to carefully examine whether these supposed efficiencies would in fact be realized, and if so, whether they can overcome the likely anticompetitive effects of the merger.
VII. Divestitures and Other Remedies
It is also important for the DOI to consider what actions would help properly protect consumers and ensure the proposed merger, if approved, is in the public interest. If the DOI and Director decide that a merger is not in the public interest, it has the power to simply disapprove the merger. Indeed, state insurance commissioners have disapproved health insurance mergers in the past, such as Pennsylvania’s 2009 decision to deny Highmark’s acquisition of Independence Blue Cross.[49]
In other cases, mergers have been approved conditioned on the imposition of specific remedies such as divestitures or additional conduct regulation. Both of these types of remedies have significant limitations and risks that should be carefully evaluated. In evaluating any proposed remedy, it is important to remember that the law requires that a remedy must restore the competition that would otherwise be lost, or must otherwise effectively prevent the harm that would otherwise result.
In nearly every health insurance merger enforcement action during the last two decades, DOJ has relied on the structural remedy of divestiture.[50] Divestitures require that the merging insurance companies spin off subscribers or operations to another, independent insurance company fully capable of restoring the same competition. Given the potential size and scope of divestitures that would be required, including those that would likely be required in Illinois, the American Antitrust Institute has come out against the mergers of both Aetna-Humana and Anthem-Cigna, urging the DOJ to “just say no.”[51] Recent economic research by Professor John Kwoka supports the concerns regarding the effectiveness of divestitures, finding that divestitures often fail to restore competition to the marketplace.[52] Indeed, skepticism regarding divestiture has led DOJ, the Federal Trade Commission (“FTC”), and the courts to reject divestitures as a remedy in other merger enforcement matters. In their reviews of the proposed mergers of Comcast-Time Warner Cable and Sysco-US Foods, the enforcement agencies rejected the divestitures offered as remedies, and instead blocked the mergers. When Sysco pursued its merger anyway, the court agreed with the FTC and enjoined the merger.[53]
Regarding health insurance markets, there is little evidence that the benefits of competition are effectively restored after divestitures. In fact, in the previously cited two retrospective studies on health insurance mergers, both matters involved divestitures of covered lives for different insurance products, but the merged companies were still able to raise premiums by significant margins.[54] Additionally, for any divestiture in these matters to be successful, the purchaser of the assets will need to have and maintain a cost-competitive and attractive network of hospitals and physicians; ensuring this will require scrutiny and continued monitoring from DOJ.[55] With the lack of competition in a number of Illinois markets already, it may be difficult to genuinely preserve the competitive benefits of the pre-merger market structure through divesting subscribers or operations to a competitor.
Most recently, the Florida Office of Insurance Regulation (“OIR”) disregarded divestitures as a potential remedy to health insurance mergers. In their consent order to the Aetna-Humana merger, the OIR noted that the divestitures were “not in the best interests of Florida policyholders and also may be short term in nature.”[56] The OIR noted that such divestitures may “result in unwanted changes in quality of services [and] benefits,” and furthermore, that policyholders can switch insurance every year, which would “lessen the effectiveness of divestitures as a means to manage market concentration.”[57]
While the DOJ (and the Illinois Attorney General’s Office, using its own antitrust authority) may be considering divestitures, the DOI and Director are also empowered to develop additional remedies for a health insurance merger. These remedies can be in addition to any remedies, including divestitures, ordered by the DOJ or the Illinois Attorney General. For example, in the 2008 acquisition of Sierra Health by UnitedHealth, the DOJ required divestiture of MA plans in Las Vegas,[58] but the Nevada Insurance Commissioner required additional remedies. In order for the merging companies to receive approval from the Commissioner, they had to agree that no acquisition costs would be passed along to consumers or providers, that there would be no premium increases, that there would be no scaling back of benefits, and that UnitedHealth would have to take specified actions to limit the number of uninsured within the state.[59]
Regulatory remedies also have their shortcomings for effectively protecting competition and consumers against the abuse of market power resulting from a merger.[60] Nevertheless, such remedies could play an important role in limiting harm to consumers and to the health care marketplace. In the event either merger is permitted to go forward, here is a short list of possible regulatory steps the Illinois Department of Insurance might consider, among others that could help limit the harm:
- (1) Requiring premium stability or heightened rate control for a number of years post-merger.
- (2) Requirements ensuring that the merged company cannot scale back plan benefits and options.
- (3) Improving access to providers throughout the state and within local areas.
- (4) Ensuring that the merged company continues to provide the differentiated insurance products offered previously by the two companies, within the state and local areas, for a number of years.
- (5) Ensuring that consumer access to adequate networks and network options is preserved and strengthened, including in rural and underserved areas.
- (6) Requiring that the merged company pass along any cost savings associated with the merger to consumers, in the form of lower premiums and deductibles.
VIII. The Department Should Consider Holding a Public Hearing on the Merger
Given the significant competitive concerns involved, and the statutory authority afforded to the Illinois Department of Insurance and its Director, we believe the DOI should consider holding a hearing on the Aetna-Humana merger. The DOI’s review of this merger could benefit significantly from holding a public hearing. Public hearings not only offer the merging companies an opportunity to defend the merger, but also allow third parties and the public to raise concerns and enable the DOI to gather critical information, aired in an open forum. Furthermore, hearings could also provide additional useful information for federal and state antitrust investigators.
Conclusion
The undersigned organizations are concerned by the potential for this merger, between two of the largest, most dominant national health insurers, to substantially lessen competition for different insurance products in the State of Illinois and adversely impact price, access, and quality of care. Although the merging companies are claiming various supposed benefits associated with the merger, all scholarly evidence suggests that consumers will see limited to no benefits and instead will face higher costs, less innovation, and potentially lower quality of care.
With the prospect that the Aetna-Humana merger might go forward, and recognizing the shortcomings of divestitures as an effective remedy, we urge the Illinois Department of Insurance and the Director to carefully analyze this merger, and to consider holding a public hearing, and to be prepared to consider imposing additional requirements to better protect consumers from harm.
We would be happy to address any of the points raised in this comment. Please do not hesitate to contact us with any questions.
Respectfully submitted,
Consumers Union
U.S. PIRG
SEIU Healthcare Illinois and Indiana
Illinois PIRG
Health & Medicine Policy Research Group
Consumer Federation of America
Consumer Watchdog
Citizen Action of Illinois
Consumer Action
Citizen Advocacy Center
Sergeant Shriver National Center on Poverty Law
Counsel of record for this comment is:
David A. Balto
James Kovacs
The Law Offices of David A. Balto
1325 G. St.
Suite 500
Washington, DC 20005
202-577-5424
David.balto@dcantitrustlaw.com
James.kovacs@dcantitrustlaw.com
[1] The other three national insurers are UnitedHealthcare, Anthem, and Cigna. Anthem and Cigna have also proposed a merger that is currently pending and under review.
[2] 215 Ill. Complied Stat. § 5/131.8(1)(b).
[3] Id. at § 5/131.12(a)(4).
[4] The National Association of Insurance Commissioners’ Model Insurance Holding Company System Regulatory Act provides detailed analysis of the “Competitive Standard” that can be used to investigate if a health insurance merger is anticompetitive. Model Ins. Holding Co. Sys. Regulatory act § 440-1 (Nat’l Ass’n of Ins. Comm’rs 2015).
[5] 215 Ill. Complied Stat. § 5/131.8(1)(d).
[6] See generally Model Holding Act, supra note 4.
[7] See 215 Ill. Complied Stat. § 5/131.8(2).
[8] Id. at § 5/131.8(1)(d).
[9] We further discuss remedial provisions in Section VII.
[10] United States Government Accountability Office, Private Health Insurance: Concentration of Enrollees among Individual, Small Group, and Large Group Insurers from 2010 through 2013 (Dec. 1, 2014), available at http://goo.gl/eYS4Ir.
[11] American Medical Association, Markets where an Aetna-Humana merger warrants antitrust scrutiny (Sept. 8, 2015).
[12] Aetna owns Coventry who sells individual insurance plans under the Coventry Health Care of Illinois and Coventry Health & Life Insurance Company.
[13] See 2016 Analysis of Illinois Exchange Rates, available at http://goo.gl/sCd8Kb.
[14] Gretchen Jacobsen, Anthony Damico, & Tricia Neuman, Data Note: Medicare Advantage Enrollment, by Firm, 2015, Kaiser Family Found. (July 14, 2015), http://goo.gl/gJ1xnz.
[15] Id.
[16] See Topher Spiro, Maura Calsyn, and Meghan O’Toole, Bigger is Note Better: Proposed Insurer Mergers Are Likely to Harm Consumers and Taxpayers, Ctr. for AM. Progress (Jan. 21, 2016), available at https://goo.gl/1Aa70h.
[17] See infra Leemore Dafny et al., Paying a Premium on Your Premium? Consolidation in the US Health Insurance Industry, 102 AM. ECON. REV. 1161 (2012); see also infra Jose Guardado et al. The Price Effects of a Large Merger of Health Insurers: A Case Study of United-Sierra, 1(3) HEALTH MANAGEMENT, POL’Y & INNOVATION 1 (2013).
[18] Wes Venteicher & Ameet Sachdev, Some steep increases in health premiums expected in Illinois in 2016, Chicago Tribune (June 1, 2015 7:53 PM), available at http://goo.gl/IgDtlt.
[19] Id.
[20] See Leemore Dafny, Are Health Insurances Markets Competitive?, 100 Am. Econ. Rev. 1399 (2010).
[21] David Lazarus, As Health insurers merge, consumers’ premiums are likely to rise, L.A. Times (July 10, 2015 4:00 AM), http://goo.gl/nF7HRS.
[22] See Leemore Dafny et al., Paying a Premium on Your Premium? Consolidation in the US Health Insurance Industry, 102 AM. ECON. REV. 1161 (2012).
[23] Jose Guardado et al. The Price Effects of a Large Merger of Health Insurers: A Case Study of United-Sierra, 1(3) HEALTH MANAGEMENT, POL’Y & INNOVATION 1 (2013).
[24] Eugene Wang and Grace Gee, Larger Insurers, Larger Premium Increases: Health insurance issuer competition post-ACA, TECH. SCI. (Aug. 11, 2015), available at http://goo.gl/918ULo.
[25] See generally Leemore Dafny, Evaluating the Impact of Health Insurance Industry Consolidation: Learning from Experience, Commonwealth Fund (Nov. 20, 2015), http://goo.gl/xRYb5x; see also Korin Miller, 6 Ways the Big Health Insurance Mergers Will Affect Your Coverage, Yahoo Health (July 24, 2015), https://goo.gl/qLioCy (noting that “out-of-pocket payments could increase” because insurance coverage could limit certain services or number of visits forcing patients to pay more).
[26] See Topher Spiro, Maura Calsyn, and Meghan O’Toole, Bigger is Note Better: Proposed Insurer Mergers Are Likely to Harm Consumers and Taxpayers, Ctr. for AM. Progress (Jan. 21, 2016), available at https://goo.gl/1Aa70h.
[27] Id.
[28] Id. at 15.
[29] See generally Effects on Competition of Proposed Health Insurer Mergers: Hearing before Comm. on the Judiciary Subcomm. on Regulatory Reform, Commercial and Antitrust Law, 114th Cong. (Sept. 29, 2015) (testimony of Mark T. Bertolini, Chairman & CEO of Aetna, Inc.), available at http://goo.gl/TokebO (noting that the merger will lead to “lower costs”).
[30] See Victoria R. Fuchs and Peter V. Lee, A Health Side of Insurer Mega-Mergers, WALL ST. J. (Aug. 26, 2015, 6:36 PM), http://goo.gl/hMhuzI.
[31]See Thomas Greaney, Examining Implications of Health Insurance Mergers, HEALTH AFFS. (July 16, 2015), http://goo.gl/ETT1DB.
[32] See Health Insurance Industry Consolidation: Hearing before the Sen. Comm. on the Judiciary, Subcomm. on Antitrust, Competition Policy, and Consumer Rights, 114th Cong. (Sept. 22, 2015) (testimony of George Slover, Consumers Union), available at http://goo.gl/s16PSj (“[b]ut a dominant insurer could force doctors and hospitals to go beyond trimming costs, to cut costs so far that it begins to degrade the care and service they provide below what consumers value and need”).
[33] Letter from the American Antitrust Institute, Thomas Greaney, and Diana Moss, to William J. Baer, Assistant Attorney General Dep’t of Justice (Jan. 11, 2016), available at http://goo.gl/BD1zTL.
[34] E.g., Bertolini, supra note 29.
[35] Effects on Competition of Proposed Health Insurer Mergers: Hearing Before Comm. on the Judiciary Subcomm. on Regulatory Reform, Commercial and Antitrust Law, 114th Cong. (Sept. 29, 2015) (testimony of Jamie S. King, Professor University of California, Hastings College of Law), available at http://goo.gl/Gje3Ci.
[36] U.S. Dep’t. of Justice & Fed. Trade Comm’n, Horizontal Merger Guidelines at § 9 (2010), available at https://goo.gl/Hh3dks.
[37] Christine A. Varney, Assistant Attorney Gen., Antitrust Div., U.S. Dep’t of Justice, Remarks as Prepared for American Bar Association/American Health Lawyers Association Antitrust Healthcare Conference (May 24, 2010), available at http://goo.gl/rzPC0G.
[38] Horizontal Merger Guidelines, supra note 36 at § 9 (emphasis added).
[39] U.S Dep’t of Justice & Fed. Trade Comm’n, Improving Health Care: A Dose of Competition at 254 (2004), available at http://goo.gl/GzIuvL.
[40] See Varney, supra note 37.
[41] Health Insurance Industry Consolidation: Hearing before the Sen. Comm. on the Judiciary, Subcomm. on Antitrust, Competition Policy, and Consumer Rights, 114th Cong. 15 (Sept. 22, 2015) (testimony of Professor Leemore Dafny, Professor Northwestern University), available at http://goo.gl/mhExI6.
[42] The State of Competition in the Health Care Marketplace: The Patient Protection and Affordable Care Act’s Impact on Competition, Comm. on the Judiciary Subcomm. on Regulatory Reform, Commercial and Antitrust Law, 114th Cong. (Sept. 10, 2015) (testimony by Professor Thomas Greaney, Saint Louis University School of Law), available at http://goo.gl/bceVxi (citation omitted).
[43] Horizontal Merger Guidelines, supra note 36 at § 6.4.
[44] See Bertolini, supra note 29 (section labeled “Benefits of the Acquisition for Consumers and Providers.”).
[45] Horizontal Merger Guidelines, supra note 36 at § 10 (to rebut a presumption of competitive harm, efficiencies must be merger-specific, cognizable, and substantiated); St. Alphonsus Med. Ctr. v. St. Luke’s Health Sys., 778 F.3d 775, 789 (9th Cir. 2015) (efficiencies must demonstrably prove “that a merger is not, despite the evidence of a prima facie case, anticompetitive”).
[46] Press Release, Aetna, Aetna to Acquire Humana for $37 Billion, Combined Entity to Drive Consumer-Focused, High-Value Health Care (July 3, 2015), available at https://goo.gl/dktKof.
[47] See Section III.
[48] Greaney & Moss, supra note 33 (emphasis added).
[49] See Highmark Merger Timeline, Pennsylvania Insurance Dep’t, http://goo.gl/0b6827 (last visited Jan. 8, 2015).
[50] See, e.g., Revised Final Judgment, United States v. Aetna Inc. and Prudential Insurance Co. of Am., No. 3-99-cv-1398-H (N.D. Tex. Dec. 7, 1999); Final Judgment, United States v. UnitedHealth Group Inc. and Sierra Health Servs. Inc., No: 1:08-cv-00322 (D.D.C. Sept. 24, 2008); Final Judgment, United States v. Humana Inc., No. 1:12-cv-00464 (D.D.C. March 27, 2012).
[51] Greaney & Moss, supra note 33.
[52] John Kwoka, MERGERS, MERGER CONTROL, AND REMEDIES: A RETROSPECTIVE ANALYSIS OF U.S POLICY, MIT PRESS (2015).
[53] Press Release, DOJ, Comcast Corporation Abandons Proposed Acquisition of Time Warner Cable After Justice Department and Federal Communications Commissions Informed Parties of Concerns (Apr. 24, 2015), available at http://goo.gl/msZq6f; see also Press Release, FTC, Following Sysco’s Abandonment of Proposed Merger with US Foods, FTC Closes Case (July 1, 2015), available at https://goo.gl/XfwPsW.
[54] Dafny, supra note 17; Guardado, supra note 17.
[55] See Greaney, supra note 42.
[56] Consent Order at 8, In the Matter of Application for the Indirect Acquisition of Humana by Aetna, No. 125926-16-C0 (Feb. 15, 2016), available at http://goo.gl/AvXzED.
[57] Id. at 9.
[58] Final Judgment, UnitedHealth Inc. and Sierra Health Servs., No: 1:08-cv-00322.
[59] Healthcare Check-Up: The UnitedHealth Group Acquisition of Sierra Health Services, Nevada Bus. (Nov. 1, 2007), http://goo.gl/Uztt13.
[60] Dep’t of Justice, Antitrust Division Policy Guide to Merger Remedies (2011), available at http://goo.gl/cm0gBI (conduct remedies can be “too vague to be enforced, or that can easily be misconstrued or evaded, fall short of their intended purpose and may leave the competitive harm unchecked”); see also Deborah L. Feinstein, Editor’s Note: Conduct Remedies: Tried But Not Tested, 26 Antitrust at 5, 6 (Fall 2011) (“Divestitures continue to be the remedy of choice—and with extremely rare exceptions—the only remedy for horizontal mergers at both the FTC and DOJ.”).
Release Date: January 25, 2016
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Start Date: Immediately upon hire: The Elmhurst-based Citizen Advocacy Center is a more than 20-year old, dynamic, award-winning, nonprofit organization dedicated to building democracy in the 21st century by strengthening the public’s capacities, resources, and institution. CAC is seeking an energetic person who is able to advance our mission by using legal advocacy skills, including public speaking/media relations, writing, and litigation. Lawyers with excellent research, writing, speaking, advocacy, mentoring and litigation skills are encouraged to apply.
Responsibilities of this position are set forth in the attached job description. The ideal candidate will have had at least two years of litigation and advocacy experience and want a long-term career in public interest legal advocacy. Lawyers with less experience but with long-term public interest dedication may apply.
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CITIZEN ADVOCACY CENTER FOR COMMUNITY ACTIVISM AND
BEING CATALYSTS FOR DEMOCRATIC PARTICIPATION
ELMHURST – On December 8, 2015 Citizen Advocacy Center (CAC) will recognize its 2015 Citizen Initiative Award recipients. CAC created the Citizen Initiative Awards in 1997 to recognize local community activists who are catalysts for democratic participation and use civic, legal, and community organizing tools to advocate for a self-identified issue of public concern. “Recipients of the Citizen Initiative Awards are those that have identified an issue of public concern and have taken it upon themselves to organize, advocate, and make a difference in their communities. They care about their communities and are engaged. While some government entities welcomed informed civic engagement, others are less inviting of those who stand up to the status quo and question government decision-makers, often being labeled as “troublemakers” or “disruptive.” The CAC award recognizes the essential and unique role these individuals play in a participatory democracy. Because of their activism, democracy thrives, even in the face of adversity,” said Ms. Maryam Judar, CAC’s Executive Director.
The presentation ceremony will be held at 7:00 p.m. on December 8, 2015 at Citizen Advocacy Center, 182 N. York St. in Elmhurst. It is open to the public and free of charge with a $10 suggested donation. Those interested in attending can call CAC at 630-833-4080 or email CAC@CitizenAdvocacyCenter.org to reserve a space.
The 2015 Citizen Initiative Award recipients are:
Paulina Jimenez, Villa Park
Ms. Jimenez is being recognized for her outstanding watchdog and community organizing efforts in Villa Park. Ms. Jimenez first became civically engaged when she became concerned about a marijuana dispensary proposed in Villa Park. With CAC’ assistance, Ms. Jimenez tackled wading through multiple zoning applications, learned how to read the village’s Zoning Code, acquainted herself with the nuts and bolts of the zoning relief application process, learned how to use public databases, gave public comment, petitioned her elected officials with questions and concerns, and advocated her stance on the application. Ms. Jimenez flagged inconsistencies between the proposed application and the village’s zoning code on issues such as proximity of the proposed business to a daycare facility and property ownership. After a long process, the Villa Park narrowly voted down the application, with the deciding vote being cast by the President. Ms. Jimenez’s advocacy made the difference.
Ms. Jimenez is also involved in creating an Art Center in Villa Park. Ms. Jimenez was part of a group who identified a need for an Arts Center in downtown Villa Park. She and other activists started a nonprofit entity to promote the arts in Villa Park. In the process of lobbying their local government to convert a former Post Office to the Arts Center, the group has used the Illinois and Federal Freedom of Information Acts to obtain documents to try to pursue the Arts Center. Despite the many obstacles before Ms. Jimenez and her group, Ms. Jimenez has been persistent and continues to work tirelessly to help bring art and culture to Villa Park and surrounding communities.
Ben Avery, Oak Park
Mr. Avery is being recognized for his outstanding efforts to implement policy changes affecting government contractors at the state level. Specifically, Mr. Avery has promoted equality for disadvantaged businesses in the construction and professional service sectors of Illinois through changes in policy.
Mr. Avery identified a problem with the Disadvantaged Business Enterprise (DBE) payment system of the Illinois Department of Transportation (IDOT). Mr. Avery found that second-tier subcontractors were not being paid through state contracts, and there was no process for second-tier subcontractors to seek recovery. He contacted CAC for assistance in drafting the legislation needed to institute change. Mr. Avery successfully lobbied a state representative to sponsor a subcontractor equality bill so that subcontractors would be included and receive payments directly. A bill based on Mr. Avery’s policy change was introduced in the spring 2015 General Assembly Legislative Session.
Mr. Avery conducted outreach to persuade others, including minority, women’s and general contractor groups, community organizations, and other officials, to speak out to IDOT on the effects of discrimination on opportunities for DBEs and the efforts to establish a level playing field for DBE participants.
Paul DeMichele, Bensenville
Paul DeMichele is being recognized for his long-term civic engagement and continued efforts in monitoring many local government entities throughout DuPage County. During his early years of being civically engaged, Mr. DeMichele collected 6,600 signatures in two weeks to place a question for referendum on the ballot to save a junior high school that was on the chopping block. The community showed overwhelming support to save the school, and the school still stands this day. Mr. DeMichele has been a trustee with the Elmhurst District 205 School Board, with Addison Township, and with Bensenville Fire Protection District, as well as a monitor of activities within the DuPage County Board, DuPage County Forest Preserve, and Bensenville Village Hall.
Mr. DeMichele has also been actively engaged in organizing Red Ribbon Breakfasts in Elmhurst to promote the need for drug free community, a director within the Elmhurst Chamber of Commerce, and a director of the nonprofit Life Education Center that focuses on substance abuse prevention training for K-8 students. One of Mr. DeMichele’s passions is financial accountability of the entities he monitors. Mr. DeMichele has extensively used the Freedom of Information Act to determine how public dollars are spent and has questioned public expenditures when he has identified issues of concern.
Mr. DeMichele also rallies other citizens to various causes through using community organizing tools and reaches out to individuals to invite them to be more civically engaged. Over these years, CAC has been a constant source of support for Mr. DeMichele’s civic activities.
Gaby Hernández Chico, Glendale Heights
Ms. Chico is being recognized for her continued dedication to organizing parents to advocate for children’s education. Ms. Chico contacted CAC about her involvement with the Marquardt School District’s Parent Advisory Board. The Parent Advisory Board (PAB) is an entity created to represent the interests of minority parents in the district with respect to transitional bilingual education, and Ms. Chico was appointed due to being an active parent volunteer. Ms. Chico questioned the process around the application for waiver/modification relating to transitional bilingual education, if children were receiving the bilingual education they were entitled to, and the limited scope of the PAB to participate in district decisions from the onset. An outspoken advocate, Ms. Chico raised issues of the inability of PAB members to place items on the agenda and her concern that PAB members were appointed primarily to support district decisions. Ms. Chico also attended meetings for the application for waiver/modification related to transitional bilingual education, spoke out about concerns related to the limited public participation in meetings and at a public hearing, and also questioned how the public was informed of their rights to participate. Many parents she talked with who were also concerned about bilingual education were not aware they had a right to speak at meetings or how to get involved. To educate parents about their rights and how to get involved Ms. Chico took the initiative and, in conjunction with Immigrant Solidarity DuPage, organized a forum at the library to inform parents about their children’s educational right to bilingual education. CAC assisted Ms. Chico by speaking about the Illinois Freedom of Information Act and the protections provided by the Illinois Open Meetings Act. Additionally, CAC assisted Ms. Chico with Illinois FOIA requests.
The Citizen Advocacy Center is a 501(c) (3), non-profit, non-partisan, community-based legal organization with a mission to build democracy for the 21st century. Recognition by CAC is not in any way an endorsement of any individual who is or may become a candidate for public office. Founded in 1994, CAC strengthens the citizenry’s capacities, institutions, and resources for self-governance. For more information about CAC or to make a contribution, visit us at www.CitizenAdvocacyCenter.org.
The presentation ceremony will be held at 7:00 p.m. on December 8, 2015 at Citizen Advocacy Center, 182 N. York St. in Elmhurst. It is open to the public and free of charge with a $10 suggested donation. Those interested in attending can call CAC at 630-833-4080 or email CAC@CitizenAdvocacyCenter.org to reserve a space.
The 2015 Citizen Initiative Award recipients are:
Paulina Jimenez, Villa Park
Ms. Jimenez is being recognized for her outstanding watchdog and community organizing efforts in Villa Park. Ms. Jimenez first became civically engaged when she became concerned about a marijuana dispensary proposed in Villa Park. With CAC’ assistance, Ms. Jimenez tackled wading through multiple zoning applications, learned how to read the village’s Zoning Code, acquainted herself with the nuts and bolts of the zoning relief application process, learned how to use public databases, gave public comment, petitioned her elected officials with questions and concerns, and advocated her stance on the application. Ms. Jimenez flagged inconsistencies between the proposed application and the village’s zoning code on issues such as proximity of the proposed business to a daycare facility and property ownership. After a long process, the Villa Park narrowly voted down the application, with the deciding vote being cast by the President. Ms. Jimenez’s advocacy made the difference.
Ms. Jimenez is also involved in creating an Art Center in Villa Park. Ms. Jimenez was part of a group who identified a need for an Arts Center in downtown Villa Park. She and other activists started a nonprofit entity to promote the arts in Villa Park. In the process of lobbying their local government to convert a former Post Office to the Arts Center, the group has used the Illinois and Federal Freedom of Information Acts to obtain documents to try to pursue the Arts Center. Despite the many obstacles before Ms. Jimenez and her group, Ms. Jimenez has been persistent and continues to work tirelessly to help bring art and culture to Villa Park and surrounding communities.
Ben Avery, Oak Park
Mr. Avery is being recognized for his outstanding efforts to implement policy changes affecting government contractors at the state level. Specifically, Mr. Avery has promoted equality for disadvantaged businesses in the construction and professional service sectors of Illinois through changes in policy.
Mr. Avery identified a problem with the Disadvantaged Business Enterprise (DBE) payment system of the Illinois Department of Transportation (IDOT). Mr. Avery found that second-tier subcontractors were not being paid through state contracts, and there was no process for second-tier subcontractors to seek recovery. He contacted CAC for assistance in drafting the legislation needed to institute change. Mr. Avery successfully lobbied a state representative to sponsor a subcontractor equality bill so that subcontractors would be included and receive payments directly. A bill based on Mr. Avery’s policy change was introduced in the spring 2015 General Assembly Legislative Session.
Mr. Avery conducted outreach to persuade others, including minority, women’s and general contractor groups, community organizations, and other officials, to speak out to IDOT on the effects of discrimination on opportunities for DBEs and the efforts to establish a level playing field for DBE participants.
Paul DeMichele, Bensenville
Paul DeMichele is being recognized for his long-term civic engagement and continued efforts in monitoring many local government entities throughout DuPage County. During his early years of being civically engaged, Mr. DeMichele collected 6,600 signatures in two weeks to place a question for referendum on the ballot to save a junior high school that was on the chopping block. The community showed overwhelming support to save the school, and the school still stands this day. Mr. DeMichele has been a trustee with the Elmhurst District 205 School Board, with Addison Township, and with Bensenville Fire Protection District, as well as a monitor of activities within the DuPage County Board, DuPage County Forest Preserve, and Bensenville Village Hall.
Mr. DeMichele has also been actively engaged in organizing Red Ribbon Breakfasts in Elmhurst to promote the need for drug free community, a director within the Elmhurst Chamber of Commerce, and a director of the nonprofit Life Education Center that focuses on substance abuse prevention training for K-8 students. One of Mr. DeMichele’s passions is financial accountability of the entities he monitors. Mr. DeMichele has extensively used the Freedom of Information Act to determine how public dollars are spent and has questioned public expenditures when he has identified issues of concern.
Mr. DeMichele also rallies other citizens to various causes through using community organizing tools and reaches out to individuals to invite them to be more civically engaged. Over these years, CAC has been a constant source of support for Mr. DeMichele’s civic activities.
Gaby Hernández Chico, Glendale Heights
Ms. Chico is being recognized for her continued dedication to organizing parents to advocate for children’s education. Ms. Chico contacted CAC about her involvement with the Marquardt School District’s Parent Advisory Board. The Parent Advisory Board (PAB) is an entity created to represent the interests of minority parents in the district with respect to transitional bilingual education, and Ms. Chico was appointed due to being an active parent volunteer. Ms. Chico questioned the process around the application for waiver/modification relating to transitional bilingual education, if children were receiving the bilingual education they were entitled to, and the limited scope of the PAB to participate in district decisions from the onset. An outspoken advocate, Ms. Chico raised issues of the inability of PAB members to place items on the agenda and her concern that PAB members were appointed primarily to support district decisions. Ms. Chico also attended meetings for the application for waiver/modification related to transitional bilingual education, spoke out about concerns related to the limited public participation in meetings and at a public hearing, and also questioned how the public was informed of their rights to participate. Many parents she talked with who were also concerned about bilingual education were not aware they had a right to speak at meetings or how to get involved. To educate parents about their rights and how to get involved Ms. Chico took the initiative and, in conjunction with Immigrant Solidarity DuPage, organized a forum at the library to inform parents about their children’s educational right to bilingual education. CAC assisted Ms. Chico by speaking about the Illinois Freedom of Information Act and the protections provided by the Illinois Open Meetings Act. Additionally, CAC assisted Ms. Chico with Illinois FOIA requests.
The Citizen Advocacy Center is a 501(c) (3), non-profit, non-partisan, community-based legal organization with a mission to build democracy for the 21st century. Recognition by CAC is not in any way an endorsement of any individual who is or may become a candidate for public office. Founded in 1994, CAC strengthens the citizenry’s capacities, institutions, and resources for self-governance. For more information about CAC or to make a contribution, visit us at www.CitizenAdvocacyCenter.org.
CAC submits Public Comment to ISBE on Rulemaking for revised Illinois Social Science Standards
Illinois State Board of Education
100 North First St., Suite 493
Springfield, IL 62777
ATTN: Shelley Helton, Agency Rules Coordinator
VIA EMAIL
November 30, 2015
RE: Comments to the Illinois State Board of Education Regarding Notice of Proposed Rulemaking and Request for Comments on Proposed Amendments to Incorporate New Social Science Standards
To Whom It May Concern:
The Citizen Advocacy Center (“CAC”) respectfully submits the following in response to the Illinois State Board of Education’s (“ISBE”) request for comments on Proposed Amendments to Public Schools Evaluation, Recognition, and Supervision (23 Illinois Administrative Code 1) to incorporate new Social Science Standards. CAC’s comments aim to strengthen the proposed Inquiry and Civics Standards, which ultimately seek to implement the shared vision of the Illinois Social Science Standards Revision Task Force (“Task Force”). Comments are based on a review of the June 2015 Task Force Recommendations and the experience of CAC that provides unique insight into the gaps of Illinoisans’ capacities, resources, and institutions for self-governance. Such gaps directly affect the skills, knowledge, and desire of people to civically participate and their ability to be effective.
CAC is an award-winning, nonprofit, nonpartisan, community-based, legal organization with a mission to “Build Democracy for the 21st Century.” Since 1994, community lawyers have worked to build democracy by strengthening the citizenry’s capacities, resources, and institutions for self-governance. For over 20 years CAC has addressed the lack of institutional civic education and civic illiteracy among Illinoisans, both youth and adults. While based in the Chicagoland area, CAC is contacted from people all over Illinois; from Carbondale and Springfield, to East St. Louis, to Rockford and Chicago, for assistance in overcoming barriers to participating in the local government decision-making process on self-identified issues of public concern. CAC also facilitates a vibrant youth civic education program that promotes and provides hands-on civic engagement opportunities, which includes a rich history of successful collaboration with a diverse array of educators, youth, academics and public officials. CAC was recognized for our experience in promoting civic education and engagement with CAC’s executive director being a legislative appointee to the Illinois Task Force on Civics Education.[1] The primary recommendations by that task force to the Illinois General Assembly was a revision of Illinois Learning Standards for Social Science as well as the adoption of a law requiring civic education for high school graduation.[2]
CAC applauds ISBE’s collaboration with the Illinois Civic Mission Coalition (convened by the Robert R. McCormick Foundation) and the Midwest Comprehensive Center at American Institutes for Research in creating the Task Force to revise the Illinois Learning Standards for Social Science. CAC found the most significant elements of the Task Force’s recommendations to be the many references to “active” civic learning. For example, Task Force members believe that Illinois students need “to live a life of action--to engage in the workings of our democracy.”[3] CAC also supports the Task Force’s shared vision statement that expects “Illinois graduates [who] will be civically engaged, socially responsible, culturally aware, and financially literate [and] be civically responsible and environmentally, geographically, and historically literate.”[4] This vision statement implies that Illinois graduates will know how to use the tools of civic engagement sufficiently to be able to apply them to any issue of concern they identify.
CAC appreciates the difficulty faced by the Task Force in ensuring that “the focus of the work was to write standards; while keeping the curriculum and instruction in the backs of our minds, at the end of the day were tasked with writing standards, not a curriculum.”[5] In addition, CAC agrees with the Task Force’s decision to create standards that “allow for the diversity of each district or community to be honored and integrated into the curriculum” and that “focusing on information at the conceptual level minimize(s) the need for the identification of specific content.”[6] These decisions honor the diversity of individual districts, communities, and teachers to develop civic experiences for students that will be most relevant and meaningful.
CAC overall supports the Task Force’s recommendations and the Inquiry and Civic Standards; however, some areas require further definition to remove ambiguity. Policy advocacy, administrative appeals, and litigation comprise a large part of CAC’s work. As such, CAC routinely must address problems of a policy’s or standards’ interpretation and their ensuing implementation when the actual wording of the policy or standards does not fully embody the drafters’ intent. The issue is particularly pronounced when the policy or standards are viewed as the ceiling for attainment, as opposed to a baseline, by those responsible for execution. The Task Force’s shared vision and intent is shared in its full report to ISBE; the General Assembly’s intent is found in the new law requiring a stand-alone course in civic education as a high school graduation requirement. CAC favors adding language to the Proposed Standards that leaves no ambiguity in reflecting the central tenets of the Task Force’s recommendations and crucial elements within Illinois’ new civic education law.
Recommendation: The Inquiry and Civic Standards for every grade span should specifically include an “action” or “application of principle” standard. Healthy civic engagement is a habit that has to be developed early, just like personal healthy habits like brushing teeth or exercising. Civic habits not made in students’ formative stages affects those students’ future civic participation. The Proposed Standards should consistently focus on preparing students to “do” civics and get directly involved in civic life so to create habits that carry into their adult lives to act as productive citizens in American democracy.
Inquiry Standards provide emphasis on principles students can apply as engaged citizens, such as active listening and consensus building for improving the community; and the Civics Standards provide conceptual content for application. However, within both sets of standards there is not a consistent emphasis on the need for action and or application of these skills. The only grade span in which an application standard is specifically dictated is Grades 6-8. One of its Inquiry Standard reads “Apply a range of deliberative and democratic procedures to make decisions and take action in schools and community contexts.”[7] The same grade span for the Civics Standards includes “Apply civic virtues and democratic principles in school and community settings.”[8] All other grade spans (K-2, 3-5, and 9-12) are lacking the “action” or “application of principle” element. The void of an “action” or “application of principle” Inquiry and Civics Standard in three of the four grade spans is significant given the Task Force’s vision statement and emphasis on the College, Career, and Civic Life (C3) Framework[9] where “action” or “application of principle” were present in two of the four dimensions.
Recommendation: Specific inclusion that Inquiry Standards are to be used simultaneously to Civic Standards. The Task Force deliberately created “Inquiry Standards” and “Civics Standards”[10] to achieve multiple goals in revising the Illinois Learning Standards for Social Science. “Inquiry skills involve questions, investigating, reasoning, and responsible action while disciplinary concepts make use of social science ideas, principles, and content to pursue answers to the questions generated by student inquiries.”[11] The Task Force notes that although distinguished from one another, “it is expected that [the Inquiry Standards and the disciplinary standards] will be used simultaneously.”[12] As stated earlier, policy is implemented based on the specific wording used. To ensure that the expectation of the Task Force is effectuated, an explicit statement should be added regarding integration of the Inquiry Standards with the Civics Standards and other disciplinary standards.
Recommendation: Civic Standards should explicitly include reference to skill application within “school, civic society, or local, state or national government,” as appropriate for grade span, to ensure content development that achieves broad spectrum of civic engagement, as intended by the Task Force. The Task Force’s shared vision statement envisions Illinois graduates who can demonstrate “self, local, national and global awareness.’ The Civics Standards for the grades span of Grades 6-8 states, “Develop procedures for making decisions in historic and contemporary settings, such as the school, civic society, or local, state or national government.”[13] Notably, Grade 6-8 is the only grade span that emphasizes the importance of school and local government, the places where the relevance of citizenship and civic participation is most palpable. “School” and “local” as a concept does not appear elsewhere in the Civics Standards yet are critical concepts that should be present within each grade band and grade span. The explicit inclusion of “school” and “local” throughout the Civics Standards ensures that teachers are aware of the broad spectrum of opportunities wherein students may apply their knowledge and skills. Additionally, teachers will be better prepared to develop curricula that may include educating students about the important role they can play within institutions, on issues, and at places that directly affect their day to day lives.
Recommendation: Explicit Civic Standard for Grade Span 9-12 Regarding Current and/or Controversial Topics, Service Learning and Simulations of Democratic Process. The newly passed civics education law requires for high school graduation a stand-alone civics course that “shall focus on government institutions, the discussion of current and controversial issues, service learning, and simulations of the democratic process.”[14] As such, Civics Standards for the grade span of Grades 9-12 should include the following standards to ensure consistency between state law and the ensuing standards: evaluate or analyze current and/or controversial topics, develop service learning tied to the classroom curriculum, and develop simulations of the democratic process.
CAC believes that a healthy democracy relies on a balance between government accessibility, accountability, and transparency on one side, and citizen participation that is informed, active, effective, and sustained on the other. A democracy is only as strong as its participants, and that includes active civic participants on both sides of the equation. CAC overall endorses the Proposed Standards and applauds the transformation of the previous dry and dull standards into ones that are driven by inquiry, discussion, and debate; however we would also like to see the above recommendations incorporated so to ensure consistency among grades spans, reflection of the recently passed civics education bill, and more closer alignment of the Inquiry and Civics Standards with the overall intent behind the Task Force recommendations.
Thank you for the opportunity to provide commentary.
Sincerely,
Maryam Judar
Executive Director, Citizen Advocacy Center
[1] Public Act 98-0301.
[2] Public Act 99-0434.
[3] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 140.
[4] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 142.
[5] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 141.
[6] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 141.
[7] 39 lll. Reg. 13639 (October 16, 2015).
[8] 39 Ill. Reg. 13642 (October 16, 2015).
[9] The Task Force divided the social science standards into two complementary categories: inquiry skills and disciplinary concepts. The Inquiry Standard is comprised of three of the four dimensions of the College, Career, and Civic Life (C3) Framework. They are: Dimension 1: Developing questions and planning inquiry; Dimension 3: Evaluating sources and using evidence; and Dimension 4: Communicating conclusions and taking informed action.” The remaining dimension, “Applying disciplinary concepts and tools” is to be reflected in the subject matter standards, including the Civic Standards, but straddles both Inquiry and subject matter standards. ISBE Board Meeting Plenary Packet, June 17, 2015, p. 143-144.
[10] The other disciplinary standards are Economic, Geography, and History Standards, for which CAC does not have any suggestions for improvement.
[11] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 132.
[12] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 140.
[13] 39 Ill. Reg. 13642 (October 16, 2015).
[14] Public Act 99-0434.
100 North First St., Suite 493
Springfield, IL 62777
ATTN: Shelley Helton, Agency Rules Coordinator
VIA EMAIL
November 30, 2015
RE: Comments to the Illinois State Board of Education Regarding Notice of Proposed Rulemaking and Request for Comments on Proposed Amendments to Incorporate New Social Science Standards
To Whom It May Concern:
The Citizen Advocacy Center (“CAC”) respectfully submits the following in response to the Illinois State Board of Education’s (“ISBE”) request for comments on Proposed Amendments to Public Schools Evaluation, Recognition, and Supervision (23 Illinois Administrative Code 1) to incorporate new Social Science Standards. CAC’s comments aim to strengthen the proposed Inquiry and Civics Standards, which ultimately seek to implement the shared vision of the Illinois Social Science Standards Revision Task Force (“Task Force”). Comments are based on a review of the June 2015 Task Force Recommendations and the experience of CAC that provides unique insight into the gaps of Illinoisans’ capacities, resources, and institutions for self-governance. Such gaps directly affect the skills, knowledge, and desire of people to civically participate and their ability to be effective.
CAC is an award-winning, nonprofit, nonpartisan, community-based, legal organization with a mission to “Build Democracy for the 21st Century.” Since 1994, community lawyers have worked to build democracy by strengthening the citizenry’s capacities, resources, and institutions for self-governance. For over 20 years CAC has addressed the lack of institutional civic education and civic illiteracy among Illinoisans, both youth and adults. While based in the Chicagoland area, CAC is contacted from people all over Illinois; from Carbondale and Springfield, to East St. Louis, to Rockford and Chicago, for assistance in overcoming barriers to participating in the local government decision-making process on self-identified issues of public concern. CAC also facilitates a vibrant youth civic education program that promotes and provides hands-on civic engagement opportunities, which includes a rich history of successful collaboration with a diverse array of educators, youth, academics and public officials. CAC was recognized for our experience in promoting civic education and engagement with CAC’s executive director being a legislative appointee to the Illinois Task Force on Civics Education.[1] The primary recommendations by that task force to the Illinois General Assembly was a revision of Illinois Learning Standards for Social Science as well as the adoption of a law requiring civic education for high school graduation.[2]
CAC applauds ISBE’s collaboration with the Illinois Civic Mission Coalition (convened by the Robert R. McCormick Foundation) and the Midwest Comprehensive Center at American Institutes for Research in creating the Task Force to revise the Illinois Learning Standards for Social Science. CAC found the most significant elements of the Task Force’s recommendations to be the many references to “active” civic learning. For example, Task Force members believe that Illinois students need “to live a life of action--to engage in the workings of our democracy.”[3] CAC also supports the Task Force’s shared vision statement that expects “Illinois graduates [who] will be civically engaged, socially responsible, culturally aware, and financially literate [and] be civically responsible and environmentally, geographically, and historically literate.”[4] This vision statement implies that Illinois graduates will know how to use the tools of civic engagement sufficiently to be able to apply them to any issue of concern they identify.
CAC appreciates the difficulty faced by the Task Force in ensuring that “the focus of the work was to write standards; while keeping the curriculum and instruction in the backs of our minds, at the end of the day were tasked with writing standards, not a curriculum.”[5] In addition, CAC agrees with the Task Force’s decision to create standards that “allow for the diversity of each district or community to be honored and integrated into the curriculum” and that “focusing on information at the conceptual level minimize(s) the need for the identification of specific content.”[6] These decisions honor the diversity of individual districts, communities, and teachers to develop civic experiences for students that will be most relevant and meaningful.
CAC overall supports the Task Force’s recommendations and the Inquiry and Civic Standards; however, some areas require further definition to remove ambiguity. Policy advocacy, administrative appeals, and litigation comprise a large part of CAC’s work. As such, CAC routinely must address problems of a policy’s or standards’ interpretation and their ensuing implementation when the actual wording of the policy or standards does not fully embody the drafters’ intent. The issue is particularly pronounced when the policy or standards are viewed as the ceiling for attainment, as opposed to a baseline, by those responsible for execution. The Task Force’s shared vision and intent is shared in its full report to ISBE; the General Assembly’s intent is found in the new law requiring a stand-alone course in civic education as a high school graduation requirement. CAC favors adding language to the Proposed Standards that leaves no ambiguity in reflecting the central tenets of the Task Force’s recommendations and crucial elements within Illinois’ new civic education law.
Recommendation: The Inquiry and Civic Standards for every grade span should specifically include an “action” or “application of principle” standard. Healthy civic engagement is a habit that has to be developed early, just like personal healthy habits like brushing teeth or exercising. Civic habits not made in students’ formative stages affects those students’ future civic participation. The Proposed Standards should consistently focus on preparing students to “do” civics and get directly involved in civic life so to create habits that carry into their adult lives to act as productive citizens in American democracy.
Inquiry Standards provide emphasis on principles students can apply as engaged citizens, such as active listening and consensus building for improving the community; and the Civics Standards provide conceptual content for application. However, within both sets of standards there is not a consistent emphasis on the need for action and or application of these skills. The only grade span in which an application standard is specifically dictated is Grades 6-8. One of its Inquiry Standard reads “Apply a range of deliberative and democratic procedures to make decisions and take action in schools and community contexts.”[7] The same grade span for the Civics Standards includes “Apply civic virtues and democratic principles in school and community settings.”[8] All other grade spans (K-2, 3-5, and 9-12) are lacking the “action” or “application of principle” element. The void of an “action” or “application of principle” Inquiry and Civics Standard in three of the four grade spans is significant given the Task Force’s vision statement and emphasis on the College, Career, and Civic Life (C3) Framework[9] where “action” or “application of principle” were present in two of the four dimensions.
Recommendation: Specific inclusion that Inquiry Standards are to be used simultaneously to Civic Standards. The Task Force deliberately created “Inquiry Standards” and “Civics Standards”[10] to achieve multiple goals in revising the Illinois Learning Standards for Social Science. “Inquiry skills involve questions, investigating, reasoning, and responsible action while disciplinary concepts make use of social science ideas, principles, and content to pursue answers to the questions generated by student inquiries.”[11] The Task Force notes that although distinguished from one another, “it is expected that [the Inquiry Standards and the disciplinary standards] will be used simultaneously.”[12] As stated earlier, policy is implemented based on the specific wording used. To ensure that the expectation of the Task Force is effectuated, an explicit statement should be added regarding integration of the Inquiry Standards with the Civics Standards and other disciplinary standards.
Recommendation: Civic Standards should explicitly include reference to skill application within “school, civic society, or local, state or national government,” as appropriate for grade span, to ensure content development that achieves broad spectrum of civic engagement, as intended by the Task Force. The Task Force’s shared vision statement envisions Illinois graduates who can demonstrate “self, local, national and global awareness.’ The Civics Standards for the grades span of Grades 6-8 states, “Develop procedures for making decisions in historic and contemporary settings, such as the school, civic society, or local, state or national government.”[13] Notably, Grade 6-8 is the only grade span that emphasizes the importance of school and local government, the places where the relevance of citizenship and civic participation is most palpable. “School” and “local” as a concept does not appear elsewhere in the Civics Standards yet are critical concepts that should be present within each grade band and grade span. The explicit inclusion of “school” and “local” throughout the Civics Standards ensures that teachers are aware of the broad spectrum of opportunities wherein students may apply their knowledge and skills. Additionally, teachers will be better prepared to develop curricula that may include educating students about the important role they can play within institutions, on issues, and at places that directly affect their day to day lives.
Recommendation: Explicit Civic Standard for Grade Span 9-12 Regarding Current and/or Controversial Topics, Service Learning and Simulations of Democratic Process. The newly passed civics education law requires for high school graduation a stand-alone civics course that “shall focus on government institutions, the discussion of current and controversial issues, service learning, and simulations of the democratic process.”[14] As such, Civics Standards for the grade span of Grades 9-12 should include the following standards to ensure consistency between state law and the ensuing standards: evaluate or analyze current and/or controversial topics, develop service learning tied to the classroom curriculum, and develop simulations of the democratic process.
CAC believes that a healthy democracy relies on a balance between government accessibility, accountability, and transparency on one side, and citizen participation that is informed, active, effective, and sustained on the other. A democracy is only as strong as its participants, and that includes active civic participants on both sides of the equation. CAC overall endorses the Proposed Standards and applauds the transformation of the previous dry and dull standards into ones that are driven by inquiry, discussion, and debate; however we would also like to see the above recommendations incorporated so to ensure consistency among grades spans, reflection of the recently passed civics education bill, and more closer alignment of the Inquiry and Civics Standards with the overall intent behind the Task Force recommendations.
Thank you for the opportunity to provide commentary.
Sincerely,
Maryam Judar
Executive Director, Citizen Advocacy Center
[1] Public Act 98-0301.
[2] Public Act 99-0434.
[3] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 140.
[4] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 142.
[5] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 141.
[6] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 141.
[7] 39 lll. Reg. 13639 (October 16, 2015).
[8] 39 Ill. Reg. 13642 (October 16, 2015).
[9] The Task Force divided the social science standards into two complementary categories: inquiry skills and disciplinary concepts. The Inquiry Standard is comprised of three of the four dimensions of the College, Career, and Civic Life (C3) Framework. They are: Dimension 1: Developing questions and planning inquiry; Dimension 3: Evaluating sources and using evidence; and Dimension 4: Communicating conclusions and taking informed action.” The remaining dimension, “Applying disciplinary concepts and tools” is to be reflected in the subject matter standards, including the Civic Standards, but straddles both Inquiry and subject matter standards. ISBE Board Meeting Plenary Packet, June 17, 2015, p. 143-144.
[10] The other disciplinary standards are Economic, Geography, and History Standards, for which CAC does not have any suggestions for improvement.
[11] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 132.
[12] ISBE Board Meeting Plenary Packet, June 17, 2015, p. 140.
[13] 39 Ill. Reg. 13642 (October 16, 2015).
[14] Public Act 99-0434.
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