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Is the GOP's Debt-Ceiling Proposal Constitutional? Is the GOP's Debt-Ceiling Proposal Constitutional?

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Is the GOP's Debt-Ceiling Proposal Constitutional?

27th Amendment poses challenges to congressional-pay provision.

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House Ways and Means Committee Chairman David Camp, R-Mich., authored the Republican debt-ceiling proposal that includes a "No Budget, No Pay" section.(AP Photo/Pablo Martinez Monsivais)

A House Republican proposal to suspend the debt limit until mid-May will take worries of a potential default off the table for a while. But for lawmakers, there's a catch. If they fail to pass a budget this spring, they will not get paid.

When the House GOP first floated the idea of withholding lawmakers' pay, constitutional scholars raised concerns about whether this might violate the 27th Amendment, which addresses the procedures for changes in compensation for members of Congress. Republican House leaders may have found a way around the problem, although some scholars still have concerns.

 

Finally ratified in 1992, the 27th Amendment says that a change in lawmakers’ pay can only apply to the next session of the Congress. The amendment reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

The authors of the debt-ceiling legislation say they have found a way around the constitutional question.

Lawmakers wouldn't permanently forfeit their pay. Instead, the money would be set aside in an escrow account. At the end of the 113th Congress, lawmakers would then collect their salaries, regardless of whether they passed a budget.

 

Akhil Amar, a constitutional-law expert at Yale University, says that because the members eventually get paid, the legislation does not violate the Constitution.

“It’s not really varying the compensation,” he said. “If a budget is not passed and they actually never get paid for the session, that is varying the compensation.”

Still, Amar has questions about whether the provision is good policy. Such an amendment was first proposed by James Madison to prevent middle-of-the-night pay increases. At the time of the Constitution's signing, the idea of congressional compensation was radical, given that Great Britain didn’t pay its members of Parliament until 1911. But since this compensation is such a fundamental element of U.S. government, Amar recommended caution on the issue.

By putting their salaries on the line, Amar drew a parallel to the practices of poll taxes. “It hurts the poorest representatives and senators," explains Amar, the author of America’s Unwritten Constitution.

 

The idea for the “No Budget, No Pay” proposal was inspired by No Labels, a bipartisan group that has gained steam in Washington in recent years with its calls for compromise and reform. Bill Galston, one of its cofounders, said the proposal was designed to bring regular order back to the budget process by “making it more painful for members of Congress to evade” their duties as lawmakers.

“‘No Budget, No Pay’ was designed very simply as a way of altering the incentive structure of Congress,” said Galston, a senior fellow at the Brookings Institution.

Both chambers of Congress are required by law to pass a budget every year by April 15, which essentially serves as a blueprint for later appropriations negotiations for several different sectors of the federal government. The Senate has not passed a budget in nearly four years.

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House Republicans have criticized Senate Majority Leader Harry Reid for his chamber's failure to pass a budget, accusing him of trying to shield members of his caucus from taking difficult votes. But Democrats have signaled receptivity to a return to a regular budget process.

Sen. Chuck Schumer, D-N.Y., said on Sunday that Senate Democrats would pass a budget this year, promising to include both tax reforms and further revenues. And Democrats, energized after Obama’s Inaugural Address championing liberal priorities, might be eager to vote for a plan that reflects a reinvigorated agenda for their party.

“This may be a variant on the children’s story, where the wolf huffs and puffs and before he has a chance to blow the house down the door opens and he’s invited in,” Galston said.

And while the proposal is different than the one No Labels introduced—seeing the 27th Amendment as a barrier, the group planned for the no-pay provision to take effect in the next Congress—Galston says it’s “still a useful step and better than nothing.” The group endorsed the House Republican plan on Tuesday.

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