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Friday, January 18, 2013

It's no surprise that they're giving none away

So this happened:

The plan, as House Republican leaders described it Friday afternoon, would authorize a three-month debt limit increase in exchange for an ultimatum: Congress either passes a budget or congressman and senators have their pay withheld until they do.

But there is some doubt among constitutional scholars reached by TPM shortly after the GOP proposal was made public about whether it passes muster under the 27th Amendment.

Then the Rocket Scientist weighed in (twice!):

After initially declaring his own party’s debt ceiling proposal unconstitutional, according to one report Friday afternoon, House Oversight and Government Reform Chairman Darrell Issa (R-CA) quickly clarified his position in a statement issued by his office to TPM.

“I strongly support the House Republican leadership’s proposal to link the debt ceiling increase to passage of a budget by the Senate which has gone 1360 days without passing a blueprint for federal spending,” Issa said. “While the 27th Amendment prohibits Congress from varying its own pay within a given Congress, as I noted in my interview it can certainly withhold pay.”
...
Issa gave a nod to the constitutional complexities in his statement: “I have not read the legislative text of the ‘No Budget, No Pay’ proposal and how it approaches historically difficult questions about Congressional compensation. I would note that there has even been legal action taken challenging the current system that gives Members of Congress an automatic pay-raise.”

Mr Buckenburger always said in 7th grade science class, "go with your first instinct."

Look, if I sign a contract that says my school is going to pay me every other Friday for the semester, then decides they want to pay monthly, that's a variation.  It impacts my cashflow and decisions on how to meet bills.  Similarly, if, say...Representatives are entitled to monthly pay, changing that may impact their financial situation: lost savings interest, late penalties, etc.  And it makes the payment conditional in that if Congress doesn't do X, Members won't get paid.  It's an incentive, sure, but still doesn't guarantee behavior or outcome while varying compensation.

It's true that Madison's stated original intent with his proposed amendment was about pay increases:

There are several minor cases enumerated in my proposition, in which I wish also to see some alteration take place. That article which leaves it in the power of the Legislature to ascertain its own emolument, is one to which I allude. I do not believe this is a power which, in the ordinary course of Government, is likely to be abused. Perhaps of all the powers granted, it is least likely to abuse; but there is a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets; there is a seeming indecorum in such power, which leads me to propose a change.

We have a guide to this alteration in several of the amendments which the different conventions have proposed. I have gone, therefore, so far as to fix it, that no law, varying the compensation shall operate until there is a change in the Legislature; in which case it cannot be for the particular benefit of those who are concerned in determining the value of the service.

But note that while NY's ratification of the Constitution suggested a clause explicitly mentioning a "rate of compensation", Madison's own state had proposed (as did NC):

That the laws ascertaining the compensation to Senators and Representatives for their services be postponed in their operation, until after the election of Representatives immediately succeeding the passing thereof...

Which suggests ANY law that changes compensation cannot be effective until an election has passed.  And it's curious that he didn't think to say "no raises" or "level of compensation" or "on good behavior" or anything other than simply a general restriction against varying pay, as though he didn't want anybody to tinker with transfer of taxpayer dollars without taxpayers getting a chance to weigh in.

Issa is right on one thing, though.  There has been legal action to challenge Congress' COLAs that are ascertained by law.  No SCOTUS ruling on the issue, but DC District Court ruled in Boehner v Anderson (1992) that the automatic increases do not violate the 27th, and the 10th Circuit ruled in Schaeffer v Clinton (2001) that Members of Congress have no standing on that matter.

So COLAs work because they are established by law that hasn't changed.  Withholding payment from this Congress by changing the law means it cannot take effect until the 114th Congress, which one hopes has a solid Dem majority in both chambers...

ntodd

PS--CRS notes:

Members were initially paid per diem [6 bucks]. The first annual salaries, in 1815, were $1,500. Per diem pay was reinstituted in 1817.

Apparently there was a great deal of public outcry about the change, so per diem returned for almost 40 years.  I am trying to find record of the reaction...

January 18, 2013 in Constitution, Schmonstitution | Permalink

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