Earlier this week Darryl Perry wrote here at Hammer of Truth that the No Budget, No Pay Act (H.R. 325) was an unconstitutional measure, and a sure sign of Republican weakness to boot:
The 27th Amendment reads, in part, “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.”
Despite the fact that the compensation is not changing, the bill could still be unconstitutional as it alters the scheduled dates of pay, which would be “varying the compensation.” It is unlikely any of the Republicans will challenge the bill, and the Democrats reportedly see “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.”
On Tuesday, Justin Amash — a second-term, libertarian-leaning, Republican Congressman from Michigan — posted his take on facebook:
I voted no on H R 325, No Budget, No Pay Act of 2013. The bill has two parts.
First, the bill suspends the debt ceiling through May 18, 2013. In other words, it allows the government to operate as though there is no debt ceiling. On May 19, the debt ceiling will automatically increase by the amount borrowed during the suspension. Because the government borrows about $4 billion per day, this bill will likely increase the debt ceiling by $400 billion or more, without any cuts or reforms to reduce future spending.
This marks the first time Congress has suspended the debt ceiling, and it’s a significant step toward abolishing the debt ceiling, as some Democrats have demanded. Suspending the debt ceiling (instead of raising it) gives Members of Congress cover, because they can essentially vote for a massive debt ceiling increase now (without a particular dollar figure attached) and later claim they had no idea how much of an increase they were voting for.
Second, the bill includes the misguided and unconstitutional “No Budget, No Pay” provision. If either the House or Senate doesn’t pass a budget by April 15 of this year, that chamber’s respective members will have their paychecks withheld until the chamber passes a budget or until the last day of the 113th Congress, whichever comes first. Current law requires that U.S. Representatives be paid on the last day of each month, so withholding payment is unconstitutional under the 27th Amendment, which prohibits any law “varying the compensation” for current Members of Congress. An important policy behind the 27th Amendment is limiting the power of congressional leadership (and the President) to bribe or blackmail Members of Congress to vote a particular way.
And we can see the importance of that policy here. Contrary to popular assertions, the “No Budget, No Pay” provision doesn’t encourage Members of Congress to “do their job,” it encourages them to vote yes on a particular bill or resolution—in this case a particular budget—even if that legislation is bad for the American people. If they don’t vote yes, then they might not be paid. What’s next? “No Gun Control, No Pay”? “No Tax Increase, No Pay”? “No NDAA, No Pay”? This bill blackmails Members of Congress and sets a dangerous precedent, punishing them for representing their constituents.
Strangely enough, my own Congressman Scott Tipton (R-CO) has come out in support of the bill late last week, stating in part:
This week we passed a measure in the House to temporarily suspend the debt ceiling for four months with the requirement that members of Congress pass a budget, or not be paid. Under this measure the United States will be able to continue to pay its bills on time without risk of default. In the meantime members of Congress will have their feet held to the fire to come together and pass a responsible budget with spending reforms. If you fail to do your job in the private sector, you don’t get paid. The same should be true for Congress, and that’s what this commonsense bill does. It gives Congress three months to pass a budget or else members will not be paid.
Congressman Tipton is mistaken here.
I’ve been in the private sector most of my life, as an employee, contractor and as an employer. In the private sector, if an employee or contractor doesn’t perform their job according to my liking, I’m not allowed to simply withhold payment while demanding they continue working. I would get sued for sure. My only legal recourse is to fire them (if an employee) or halt relations claiming breach of contract.
Now, I’m totally for my government to balance our budgets and spend within its means (that means without borrowing one red cent), but I won’t advocate throwing the constitution under the bus in order to get to there. After all, Amash has a good point that this amounts to blackmail. It punishes less wealthy freshmen representatives until they capitulate to a budget they haven’t even seen. I expect the issue will ultimately be resolved in the courts.
The “commonsense” thing here is for congressmen and congresswomen to uphold the “job contract” they have with voters called the constitution and pass a balanced budget. If they refuse to do that job without flagrantly violating their constitutional oaths, I recommend voters line up at voting booths come November 2014…
…and fire them.
UPDATE: The No Budget, No Pay Act of 2013 just passed the Senate by a vote of 64-34. Obama is expected to sign it. The debt ceiling will officially be non-existent. And a game of “Pass this porky pork pork budget or we’ll hate you because we won’t get paid” AKA “Waaah, this guy is not working” is expected to ensue between now and April 16th.
UPDATE (2/1): Vikram Amar at the law review blog Justia has smartly tackled the issue and put in his verdict:
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.
[...] 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.