In the Loop: The legal niceties of cutting off congressional pay during a shutdown


Sen. Barbara Boxer (D-Calif.) questions witnesses from National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling at a hearing on Capitol Hill on March 16. (Brendan Hoffman/GETTY IMAGES)

Sen. Barbara Boxer (D-Calif.) introduced a bill in mid-February to bar members from being paid. That passed the Senate without objection a couple of weeks later. She’s repeatedly called on House Speaker John Boehner (R-Ohio) to pass a bill in the House.

The House hasn’t moved on Boxer’s bill. But Boehner told ABC News chief political correspondent George Stephanopoulos on Wednesday that he agreed with Boxer.

“No, they shouldn’t be getting paid,” he told Stephanopoulos, who tweeted the exchange early Thursday. “Just like federal employees shouldn’t be getting paid.” (Of course federal employees who are considered “essential” will be getting paid, but it’s hard to imagine any member of Congress pretending to be deemed essential to anything.)

So looks like there may be some House action soon on this and, one would assume, with the active support of the Tea Party, the bill will pass.

Granted, as soon as the measure passes, some legal nitpickers will argue it’s unconstitutional, under Article I, Section 6 of the Constitution, which reads: “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.”

The sainted Founders, though many of them slaveholders, weren’t idiots. They obviously envisioned someone trying to cut off congressional pay. Iif the pay level is “ascertained by law,” then Congress might be allowed to ascertain it down from the current $174,000 a year to zero or perhaps a couple bucks.

The Constitution, former acting solicitor general Walter Dellinger said, has “no provision that any member of Congress be paid at all, just that if they’re paid, it has to be ascertained by law,” meaning “they can’t just dip into a pot of money.”

The XXVII amendment, however, might be a bigger obstacle, since that says, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect until an election of Representatives shall have intervened.”

But the measure’s unconstitutionality might be irrelevant as a practical matter. The only people who would have legal standing to sue would be, yes, aggrieved — and courageous — members of Congress.Those members may win in court and thus continue enjoying their paychecks — until the recall election or January 2012, whichever comes first.

Al Kamen, an award-winning columnist on the national staff of The Washington Post, created the “In the Loop” column in 1993.

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