House passes 'no budget, no pay' bill, but is it unconstitutional?

The House on Wednesday passed its “no budget, no pay” bill, which suspends the debt ceiling for three months and calls upon both chambers of Congress to pass a budget resolution for fiscal year 2014 by April 15. Under terms of the legislation, if lawmakers miss that deadline their salaries are withheld. That’s where the “no pay” part of the thing kicks in.

Sounds like a logical way to pressure members of Congress, doesn’t it? If you don’t produce in the private sector, you can lose both pay and your job, after all. By law, Congress is supposed to pass an annual budget resolution. But the Senate, for its part, hasn’t done so in any of the past three years.

“With the passage of this bill today it’s pretty clear that we’re sending a message to the Democrat-controlled Senate: it’s time to do your job,” said House Speaker John Boehner after the legislation’s passage.

But there is one minor problem here: It is quite possible that the “no pay” part of the bill is unconstitutional.

Why is that? Because of the 27th Amendment to the Constitution, that’s why. (Submitted to the states in 1789, this amendment was not ratified until 1992, which is an interesting story unto itself.)

Congressional pay is the 27th’s subject. Among other things, it says, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of the Representatives shall have intervened.”

The main point of that wording is to keep lawmakers from voting themselves a fat pay raise and pocketing the cash ASAP. If they did that, they would at least have to face the voters once prior to buying those Bahamian condos. So it’s a check on congressional largesse.

But some constitutional law experts say that the law, as drawn up, works in reverse as well. They point out that taking money out of congressional pockets counts is “varying” just as much as putting money in would be.

Thus, the no pay provision of the bill “is (almost certainly) blatantly unconstitutional,” Michael Foomkin, a professor at University of Miami School of Law, on his Discourse.net blog.

If the House had passed this a few days ago, prior to the beginning of the new Congress, that would be OK. But now it can’t take effect until after the 2014 midterms, according to this analysis.

This is not simply a liberal’s way of looking at the wording, either. The conservative group American Majority Action issued a statement on Jan. 18 calling the legislation unconstitutional.

Not surprisingly, House Republican leaders saw this mini-flap coming. They have attempted to defuse it by simply inserting language within the bill stating that the bill passes muster. Section 2 of the legislation says this: “In order to ensure that this section is carried out in a manner that shall not vary the compensation of Senators or Representatives in violation of the twenty-seventy article of amendment to the Constitution of the United States, the payroll administrator of a House of Congress shall release for payments to Members of that House of Congress any amounts remaining in any escrow account under this section on the last day of the One Hundred Thirteenth Congress.”

In other words, it isn’t really a “no pay” bill. It’s a “delayed pay” bill. Even if the Senate doesn’t pass a budget, senators would get their full pay at the end of the session.

Not that most of them need it, since they’re pretty rich as a rule, right?

So it all comes down to the meaning of “vary.” Some experts say the language is clever and passes muster. “I suspect this passes Constitutional scrutiny,” writes Jordan Ragusa, associate professor of political science at the College of Charleston, at the Rule 22 congressional politics blog.

Others point out that money has a time value, and delayed payments are in essence smaller. Plus, it’s possible there are members of Congress who live paycheck to paycheck and need the money.

And “vary,” on the surface, seems to mean ... well, changing the pattern of. Which would seem to cover what’s happening.

In light of this, “the proposal would thus be unconstitutional,” writes Eugene Volokh, a law professor at the University of California at Los Angeles, on his Volokh Conspiracy blog.

Of course, in the real world this is probably a moot point. What member of Congress is going to sue to get their pay under these circumstances? This is especially true given that 86 House Democrats voted for the bill, as President Obama’s party sees the legislation as a white flag on the part of the GOP, something that allows Congress to skirt the debt limit issue and move on to other fiscal arguments.