Senate pay escrow plan could be tricky

Republican leadership in the U.S. House of Representatives volleyed a threat at Senators this past week by passing a bill to raise the nation’s debt ceiling for three months. The legislation, which passed 285-144, included a “no budget no pay” provision that states the Senate has to pass a budget by April 16 or senators have their pay placed in escrow. The Senate has not passed a budget since 2009.

This almost sounds like an exasperated parent telling his child, “Clean your room or you won’t get your allowance this week.” And it will probably work as well because just like your children can melt your heart and get a partial allowance for partially cleaning the room, Congress has the benefit of the 27th Amendment.

The 27th amendment of the Constitution was passed in 1992, almost 203 years after James Madison proposed it. It states, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.”

This is the 113th Congress and it began in January 2013. In January 2013, this piece of legislation withholding the pay for members of the Senate and House was proposed in January 2013. It hasn’t been voted on yet.

Since we just had an election in 2012, this legislation, according to the 27th amendment couldn’t possibly take effect until after the 2014 elections. This is just one interpretation of the statute.

Or, it could be the key word in the legislation is “withhold.” That’s how Republican legislators interpret the legislation. They are not docking anyone’s pay; they are withholding it until the legislation is passed.

However, the phrase, “varying the compensation” in the middle of the 27th Amendment seemingly dictates that withholding someone’s pay varies his or her compensation.

Federal District Courts and the Courts of Appeals have heard a few cases involving the 27th Amendment and cost of living (COLA) raises for legislators that are automatically passed each year. If one looks at the plain meaning of the statute, surely this would violate the 27th Amendment every other year because it would vary Senators’ and Representatives’ compensation for services in at least one year when an election of representatives had not intervened. So far, courts have ruled the COLA raises are within the law.

In Boehner v. Anderson, which was decided in 1994 by the United States Court of Appeals for the District of Columbia Circuit, the court held a COLA was constitutional under the 27th Amendment because when Congress passed the COLA provision in 1989, there was an intervening election in 1990. Yes, Boehner is Rep. John Boehner, R-Ohio, the current House Majority Leader.

The opinion also held Congress could use the COLA formula for convenience, and that this did not have to be approved every year. Instead it was approved once and its formula continued. The court also interpreted Congress foregoing a COLA does not violate the 27th Amendment because, “they are extending the period during which their compensation remains unchanged.”

In Schaffer v. Clinton, a 1999 case alleging COLA raises violated the 27th Amendment, the United States District Court for the district of Colorado held COLAs were not independent acts under laws of the Amendment because they were not “discretionary acts of Congress.” The court further stated the goal of the Amendment was to eliminate the possibility Congress would grant itself a new pay raise during its current session.

Since the House’s proposed legislation is not a pay raise, it will be interesting to see how the court would interpret a withholding of pay. This interpretation will depend upon on which court a lawsuit (if one is brought) will be filed and whether that court decides to hear the case.

Should this legislation pass, and if Washington reaches this deadline without the Senate passing a budget, which one has to admit seems likely in today’s political climate, then I would look for one or more senators to bring a lawsuit challenging this action of withholding pay.

House Republican leaders have seemingly not thought through their demand that the Senate pass a budget by April 16 or else. It is silly the House would hinge its bet on the judicial branch’s interpretation of a constitutional amendment that took 203 years to get the required votes for passage, and Boehner and other Republicans could not even halt a COLA raise that clearly varies congressional pay “before an election of representatives has intervened.”

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