April 2013: The Rise of Paycheck Politics

Washington Watch | April 2013
By Bruce Moyer

The use of pay as a political weapon has risen to a new level in Congress. It has moved beyond skirmishes over whether Members of Congress deserve an annual pay raise. Paycheck politics has escalated to whether lawmakers should even be paid at all for their action, or inaction. The issue poses Constitutional dimensions as well, and has implications for the pay of federal judges too.

Over the past two decades, paycheck politics in Washington has gravitated around the politically dicey vote by lawmakers to deny themselves a statutorily-permitted annual pay raise, set according to a cost-of-living formula under a 1989 law. Many members of Congress, whose pay now stands at $174,000, have viewed the political cost of taking the raise as simply too great to take the money and run (for reelection, that is). As a result, Congressional pay has faltered and failed to keep up with inflation. And it has collaterally damaged the pay of all life-tenured federal district and appellate judges, whose pay is statutorily linked to the pay rate of Members of Congress.

The Latest Version: No Budget, No Pay
More recently, good intentions on Capitol Hill have been the driver behind a new form of paycheck politics—one that punishes Congress collectively for inaction. The “no budget, no pay “ provisions contained in the debt ceiling extension law, signed into law by President Obama in late January, contains a provision that will cause members of Congress to not be paid, at least temporarily, if they fail to discharge their responsibility to pass a budget resolution by April 15, 2013. (A budget resolution is a nonbinding blueprint that guides Congressional funding decisions to be made by Congress on all federal agencies and programs.) Under the new law, paychecks for the members of the House and Senate will be held in escrow until their respective chamber has passed a budget resolution—or the end of the Congressional session has been reached, even if a budget resolution has not been passed.

The “no budget, no pay” legislation is the brainchild of Rep. Jim Cooper (D-Tenn.), a budget hawk, who introduced similar bills in past Congresses. Cooper’s original proposal sought to withhold a lawmaker’s pay forever, even after the end of a Congressional session, if his chamber failed to produce a budget for the coming year. But Constitutional concerns reared their head as House Republicans prepared to elevate Cooper’s proposal into one of the signature pieces of their 2013 deficit reduction effort.

Constitutional concerns are implicated because the 27th Amendment prohibits Congress from passing a law “varying” the compensation of Senators and Representatives in between elections. Permanently withholding a federal lawmaker’s pay arguably could conflict with the 27th Amendment, although the Amendment has never been tested before the Supreme Court. That Constitutional concern prompted House Republicans to revise the bill and only withhold a lawmaker’s pay temporarily during the Congress, arguably staying within the bounds of the Constitution.

Paycheck Politics and the Judiciary
Interestingly, timing considerations also have been part of paycheck political battles between Congress and the federal judiciary. In fact, they are alive today and lie at the core of an important case awaiting review before the Supreme Court. The case invites the High Court to reexamine its rationale in United States v. Will, 449 U.S. 200 (1980), which permitted Congress to withhold annual pay raises for federal judges. Will relies upon the view that the Congressionally granted entitlement of every federal judge to a pay raise is only ephemeral because Congress is free to change its mind and snatch a pay raise away before the raise actually takes effect, or vests with the judge.

At this moment, the Will case is under challenge to the Supreme Court by the government’s request for review of the Federal Circuit’s potentially landmark decision, issued last fall, in Beer v. United States, Fed. Cir. No. 2010-5012, Oct. 5, 2012. In Beer, the Federal Circuit swept aside the vesting doctrine and ruled that the contested salary adjustments for judges were automatic, as intended by the Salary Reform Act of 1989, a law different than the one under consideration in Will. Most important, the circuit court declared that Congress violated the Compensation Clause of the Constitution when it blocked on multiple occasions those adjustments from taking effect between 1997 and 2009. The Compensation Clause bars Congress from diminishing the salary of the federal judiciary.

If the Supreme Court denies certiorari review, or upon review upholds the Federal Circuit’s decision, the consequences could be significant. Federal judges could stand to gain approximately $30,000 in their base salary, through restoration of the adjustments they were denied by Congress in the past. Most significant, the Constitution will have trumped paycheck politics, at least as applied to the federal judiciary.

Bruce Moyer is government relations counsel for the FBA. © 2013 Bruce Moyer. All rights reserved.

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