In my column today, I explore what might be learned from the decision by the House of Representatives last week and the seemingly imminent (as of this writing) decision of the Senate this week to pass a bill that seems on its face to directly violate the clear text of the Constitution.
The No Budget, No Pay Bill and the Text of the Twenty-Seventh Amendment
The bill, one part of which temporarily suspended the debt ceiling, included another part referred to as the “No Budget, No Pay Act of 2013.” (I shall refer to it here as the “NBNP bill” or “NBNP proposal”). This latter part of the bill, which kicks in on April 16, prevents any member of Congress in a House of Congress (i.e., the House of Representatives or the Senate) from receiving her or his federal salary until the House of which s/he is a member adopts a budget, or until the last day of the 130th Congress (January 3, 2015), whichever comes first. In essence, the bill withholds salary from all members of a House during the time the house has failed to produce a budget.
On the face of it, the idea has some appeal. Why should federal legislators get paid until they do what most everyone would think is one of their most important parts of their jobs? Of course, some critics will say it is unfair or unwise to punish all members of a legislative body if only some members are causing an impasse. And withholding salary creates disparate impacts along class lines (independently wealthy legislators don’t rely on their salary for living expenses anyway) and also perhaps (because class and race are correlated) racial lines. But no punishment/incentive-creation is perfect, and this legislative proposal is certainly in the American mainstream as concerns precision.
But here’s the problem: The Twenty-Seventh Amendment (proposed in 1789, but not ratified until 1992) says: “No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election for Representatives shall have occurred.” That is, no law changing the compensation of members of Congress can be put into operation until after the next Congressional election has taken place.
At first blush, the textual argument against the NBPA bill seems to be a slam dunk. But what about the provision that gives all House and Senate members all of their withheld salary on the last day of the 130th Congress (January 2015), even if no budget has been passed by then? This provision was included, according to the text of the bill itself, “to ensure that this [law] is carried out in a manner that shall not vary the compensation of Senators or Representatives in violation of the twenty-seventh” amendment. Does it save the Act from 27th Amendment challenge?
I don’t see how it could. Assuming that federal legislators are currently paid bi-weekly or monthly, the NBNP proposal could mean a delay of almost two years for receipt of the salary earned in spring of 2013 (from April 2013 until January 2015). Given the time-value of money, such a delay would seem to change, or vary, the compensation a person receives. We all know that when it comes to paying or receiving cash, the “when” is an important factor in determining the “how much.” (For instance, if a person were due $150,000 in December 2013 and did not receive the money until April 2015, she would have lost, even in the current low-inflation, low-interest-rate environment, something more than $2,000.) Even if there is no constitutional entitlement of members of the House and Senate to be paid pursuant to any particular pay-period timeline, there is already a statutory prescription of a certain pay period in place, and changing that pay-period so drastically has to be understood as “varying the compensation.”
Indeed, if deferring the compensation by almost two years is not “varying” it, then why couldn’t Congress defer members’ compensation for 20 years? There is nothing magical, within the words of the 27th Amendment, about the expiration of the 113th Congress. Either changing the pay period and altering in a non-trivial way the date on which the money is received is varying compensation, or it is not. And yet who among us would deny that if the NBNP proposal had deferred compensation for 20 years if a budget was not passed by a certain deadline, such an approach would run afoul of the 27th Amendment?
Perhaps a few other hypotheticals will drive the point home. Imagine that Congress at the end of 1980 (when interest rates were well into the double-digits) amended then-current law to say that all pay for an entire session of Congress (two years’ worth) shall be received by each federal legislator on the first day of the new Congress? Does anyone think that this effective increase in pay (accomplished by giving legislators access to the money earlier, rather than later) would not constitute a compensation increase that would trigger the 27th Amendment?
Or imagine that Congress passed a law providing that, going forward, federal judges have to wait for 20 months to be paid for judicial services rendered. Would anyone doubt that such a law violates Article III, which says that “[c]ompensation [for federal judges] shall not be diminished during their Continuance in Office.” Indeed, even a statutory discontinuance of yearly cost-of-living adjustments for judges might constitute a change in compensation, whether or not cost-of-living adjustments are constitutionally required in the first place.
Now the NBNP bill might be more defensible if the money in the escrow account were earning interest that was also supposed to be given to each legislator when the salary payment was ultimately made. If so, the key questions would include whether the interest that each legislator ultimately received fully compensated him or her for the inability to use the money earlier—for example, whether the interest earned made up for any interest that the legislator might have had to incur on a loan taken out to pay living expenses during the interim. Even then, the hassle of a legislator who was not wealthy having to procure an alternative cash flow on which to live until the escrow funds were paid may constitute a variance in compensation. But we needn’t even consider such complexities because the bill does not provide that the funds in escrow can earn any interest to be paid to the legislators, and indeed says that the “remittance with respect to a [salary] payment deposited in [the] escrow account” shall be the “same [as] would apply . . . if the payment were not” ever placed in escrow, suggesting that only the salary itself (and no earnings on it) can be distributed to the legislator down the road.
Let me proceed on the view (whether or not I have convinced everyone that this view is correct) that the NBNP bill violates the plain terms of the 27th Amendment. What does it mean, about the Congress or about constitutional interpretation more generally, that federal legislators would pass this bill?
A (Hypocritical) Rejection of Textualism
Last week’s House vote may tell us that many conservative members of that chamber (and conservatives voted for the bill in much higher numbers than liberals) are somewhat hypocritical in their views on constitutional interpretation. Although each member of Congress certainly has his or her own nuanced understanding of the Constitution, the model for constitutional interpretation for many conservatives on Capitol Hill is Justice Scalia, who is well known for his commitment to textualism—to applying the text of the document as “intelligent and informed people of the time” of the document’s enactment would have. Under Scalia’s approach, the meaning that counts is “the original meaning of the text”—“how the text of the Constitution was originally understood” by interpreters of the day. What the original draftsmen (that is, the people who actually wrote the words) subjectively intended might be evidence of what the words meant at the time, but any divergence between the drafters’ subjective intentions and the most likely understandings of those words at the time of enactment would be resolved in favor of the latter.
It’s hard to imagine that the word “vary” meant anything different to intelligent readers in 1787 than it does today—to change or alter in any direction. Indeed, the 27th Amendment is one of the most textually straightforward provisions in the Constitution, unlike provisions such as those guaranteeing “due process” or concerning the”taking” of property, which appear to use terms of art.
To be sure, someone might argue that “varying” really should be understood to mean “increasing,” because the primary concern on the minds of the framers was preventing Congress from increasing its own salary and benefitting from that increase before the voters could throw the bums out. But the Constitution uses (a form of) the word “vary,” rather than the word “increase.” And the framers knew how to specifically describe salary raises. In Article I, Section 6, for example, the Constitution refers to offices “the emoluments thereof [which] shall have been increased. . .” Thus, the choice of the word “vary” in the 27th Amendment seems quite deliberate, and quite clear.
I should note also that one could easily imagine why the 27th Amendment’s framers wanted to safeguard against certain salary decreases as well as increases. Suppose, right after an election, a lame-duck Congress run by one party rams through a law drastically cutting Congressional salaries because the opposing party will be taking over Congress in a few weeks and the outgoing party wants to deprive the newcomers of money on which they can live while governing. The new Congress would be put in the awkward position of having to “increase” their own salaries right after they take office, simply to restore the salaries to their previous, unmanipulated, levels. Let us put aside the political difficulties of the new members of Congress trying to increase their salaries to the former levels (and we saw in the fiscal cliff machinations earlier this year that it matters, politically and rhetorically, whether someone is technically “raising” taxes—or salaries—even if the raise is simply a restoration). If the 27th Amendment used the word “increasing,” rather than “varying,” the unfair actions of the lame-duck Congress would be permitted, and any attempted restorative increase by the new Congress (even if politically viable) would not be able to take effect for two years because it would technically be an increase; as a result, the newcomers in Congress would be deprived of a fair wage for at least two years. By using the word “varying,” the 27th Amendment prevents this—and other partisan or discriminatory—salary reductions in the first place.
And in any event, such arguments about legislative purpose that are in tension with the clear text take us far away from the anchor of the words that Justice Scalia and other textualists (rightly) argue must constrain us. (In a similar fashion, arguing that a 30-year old should be eligible for the Presidency today because Article II’s requirement that Presidents must be at least 35 was included simply to ensure that Presidents are mature, and 30-year olds are mature today, would have little traction in light of the clarity of Article II’s words.)
Another Possible Inference: Congress Doesn’t View Its Job as Interpreting and Complying With the Constitution
Another reading of this episode may be that members of Congress do not view it as their jobs to decide constitutional interpretive questions when they pass laws; instead, that is for the courts to do. Certainly some other folks in the political branches seem to have taken that position in recent decades. Former President George Bush, for example, signed into law the McCain-Feingold Campaign Finance Reform Act, even though he thought the bill contained “provisions [that] present serious constitutional concerns” and “questions [that will] arise under the First Amendment,” and in spite of the fact that he had “reservations about the constitutionality of the broad ban on issue advertising.” In defending his decision to nonetheless sign the bill into law, President Bush said: “I expect that the courts will resolve the legitimate legal questions as appropriate under the law.”
Certainly not all Presidents think that constitutional interpretation is reserved only for the Courts. Andrew Jackson didn’t, Abraham Lincoln didn’t, and Barack Obama does not, as evidenced by his decision not to have his Justice Department defend the Defense of Marriage Act (DOMA) in federal court based on his belief that the statute is unconstitutional.
For me, it is hard to think that the job of a member of Congress does not include interpreting and complying with the Constitution. Every House member and Senator is required by the Constitution to take an oath to defend it as the Supreme Law of the Land, and many of the (compelling) arguments that Chief Justice John Marshall advanced in the famous Marbury v. Madison case justifying the power and duty of the federal courts to independently obey their understanding of the Constitution apply to the legislative branch as well.
A Protest Vote?
What if the folks in Congress know that the NBNP bill is unconstitutional, but do not care, because they want to send a political message? Sometimes it seems Congress does pass a law that it knows or expects that courts will not enforce, simply in order to express a particular view. For example, shortly after the Supreme Court struck down a Texas law banning flag burning as violative of the First Amendment in 1989, Congress passed a very similar federal ban on flag burning to show support for the flag. Although some members of Congress might have (wrongly) believed that the federal law was distinguishable from Texas’, others might simply have wanted to vent their strong feelings against a Supreme Court interpretation of the First Amendment with which they disagreed.
Even if venting one’s feelings against the Court’s judgment might make sense in some settings and at some level be legitimate, in the case of the NBNP proposal, the Congress – to the extent that it is venting its feelings here – would be venting against the words of the Constitution itself, rather than some judicial interpretation of them. Surely a more responsible form of protest would be a resolution decrying the limits of the 27th Amendment, or a well-crafted proposal to amend the 27th Amendment to permit (at least certain) immediate congressional pay decreases.
Where do things go from here? Assuming the Senate does pass the bill in its present form and it becomes law (either because the President signs it, or because his veto is overridden), someone in Congress who needs or wants her pay will likely bring suit. A legislator who has decided not to run for reelection in Congress in the future might be the ideal plaintiff; other plaintiffs may be deterred from suing for fear that their election opponents down the road can make use of their boldness in suing to be paid without having accomplished their job. Because the plaintiff’s personal paycheck would be affected, she would clearly have standing to sue in federal court (under the famous Powell v. McCormack case). It is an interesting question whether a legislator would have to wait until April 16 to sue. On the one hand, until we know whether each House has passed a budget as of that date, the injury and case are arguably unripe. On the other hand, a legislator might plausibly claim even before then that she does not want to feel influenced to vote for a budget bill simply to avoid losing some money to which she is constitutionally entitled.
Assuming that a federal court were to hear the case on the merits and agree with the straightforward reading of the 27th Amendment that I have advanced above, the real question would then come down to remedy. What should a court confronting the Act do? The bill in its present form does not seem to include a provision that provides for “severability,” that is, the idea that even if the NBNP part is invalid, the part suspending the debt ceiling still remains in force. Perhaps a court would find the two parts to be independent of each other, and save the debt-ceiling suspension, but it is remarkable that the House would not only pass a bill parts of which seem blatantly unconstitutional, but then also make no mention of whether the other parts should survive or not. One would hope for a more careful and serious job of drafting to have occurred when the stakes are so high.