Courts asked to make ruling on latest federal pay raises

Now it's up to the courts, and perhaps the American public, to decide whether members of Congress and top officials of federal agencies get to keep their much-criticized pay raises. In court proceedings the issues are expected to revolve around the highly controversial procedure by which the raises were granted, rather than whether the increases are deserved.

For the public, the issue may be as much whether Congress is worth more money as it is the way it was obtained. Recent polls show considerable public opposition to Congress giving itself a raise when the federal deficit is a major concern and public programs to benefit poor and middle-income Americans are being trimmed.

The raises took effect at midnight on Tuesday, after the House adjourned without voting on whether to overturn them. Salaries for members of Congress then rose, at least temporarily, from $77,400 to $89,000 a year, with pay for other top government members similarly higher.

It is widely believed here that federal judges will continue to receive their higher salaries, which vary according to position, irrespective of the outcome of court suits or future congressional action. The Constitution prohibits the salaries of judges from being reduced, to provide independence from political pressures. Chief Justices Warren Burger and William Rehnquist have held that many judges have had to leave the judiciary for the often far higher salaries they can earn as lawyers.

Three specific legal issues have emerged in the battle of legislative and executive salaries:

Did the procedure by which the raises came about violate the US Constitution? Sen. Gordon Humphrey and Rep. Robert Smith, both New Hampshire Republicans, and the National Taxpayers Union think so. They have filed suit to overturn the raises.

They say the procedure used to provide the raises violates the Constitution, which says congressional pay is ``to be ascertained by law.'' The suit holds that this phrase means both houses of Congress must approve a pay bill, to be signed by the president. In 1985, Congress asked that a federal commission be established to recommend to the President salary levels for top federal employees, with the President then setting salary levels. The new salaries were to take effect unless both houses vetoed them within 30 days of the presidential action.

Would the raises be canceled if Congress passed a resolution disapproving them after the 30 days had expired? As of this writing the House appeared poised to vote such disapproval, but many say they think the 30 days already have expired.

When should the 30-day clock have started? At least one suit charges that the time does not expire for at least another day; if that were so, a congressional rescission would be legal if it came before midnight Wednesday.

The ultimate judge may be the public. Several bills have been introduced in Congress to rescind these raises or change the way future hikes are provided. But their backers admit that they will become law only if strong public pressure forces Congress to pass them.

Rep. Connie Mack (R) of Florida, for instance, proposes a three-section bill. It would roll back congressional salaries to the level of the election of last November, require a recorded vote be held in both Senate and House for all future pay raises, and forbid any future congressional pay hike from taking effect until after the next election.