Judges, Congress and the Salary Link

For the past 20 years, members of Congress have linked their salaries to those of federal judges as a strategy to avoid the wrath of voters who think lawmakers are overpaid and do not deserve an annual raise.

But the practice has not always led to a pay raise for Congress and has probably held down raises for judges and government executives, according to a study sponsored by the Brookings Institution and the American Enterprise Institute for Public Policy Research.

While the study makes no recommendations on what judges and lawmakers should be paid, scholars pulled together a history of the salary linkage to assist a group of former members of Congress who are preparing to urge their peers to end the practice.

"The concerns are that it is really starting to impact seriously on the judges," said Leon E. Panetta, former Democratic representative from California. "People that are qualified and have the experience and would make fine judges aren't even considering that opportunity anymore because of the salary levels. . . . We are hurting ourselves."

The group forming to "delink" the judges is to include former Republican senator John C. Danforth of Missouri, a spokeswoman said.

Questions about the pay practice have been repeatedly raised in recent years, including by the National Commission on the Public Service, chaired by Paul A. Volcker, a former chairman of the Federal Reserve. The commission found that the buying power of judges has fallen behind inflation and that many law school deans, for example, earn more than federal judges.

The issue received renewed attention this year after U.S. Chief Justice John G. Roberts Jr. urged a pay raise for judges. Last week, a House Judiciary subcommittee, chaired by Rep. Howard L. Berman (D-Calif.), heard from Samuel A. Alito Jr. and Stephen G. Breyer, associate justices on the Supreme Court.

Alito and Breyer said they thought more judges were leaving the bench because they could earn more elsewhere. Alito said increased workloads, and concerns about security and privacy, also were factors in decisions to leave.

Judicial salaries range from $70,166 or less for magistrate and part-time judges to $212,100 for the chief justice. Judges at the district court level receive $165,200. Since 1987, Congress has matched its salaries with district judges, according to the Brookings-AEI study.

While Congress has maintained a link to district judges, it has freed a number of federal agencies to pay more than $165,200 for some jobs, said the study's authors, Russell Wheeler and Michael S. Greve.

Job advertisements by the Department of Veterans Affairs list maximum salaries for dentists and physicians in the range of $175,000 to $255,00, they found. The Commodities Futures Trading Commission recently sought a deputy general counsel for a position that pays up to $208,994. Job notices at the Securities and Exchange Commission offered salaries of $175,384 for a trial attorney and $185,393 for a supervisory attorney-adviser.

In their research, Wheeler and Greve found that the pay linkage "has no bearing on the question of what salaries should be." In particular, the data were "at best inconclusive on whether linkage serves the practical justification offered for it -- that it provides members greater salary increases than they could otherwise achieve."

Congress has been inconsistent in matching salaries. Until 1964, Congress linked its salaries with those of district judges about two of every three years. After 1964 until 1986, Congress matched its salaries with circuit judges or district judges roughly two of every three years. Only in 1987 did a firm member-judge linkage take hold, the study said.

Congress also rejected proposed salary increases in 1995, 1996, 1997 and 1999. Wheeler and Greve said Congress created a citizens' commission on compensation in 1989, "but it has never functioned."

This year, Congress appears likely to skip an annual raise, which members sometimes call a cost-of-living adjustment, that would have increased their salaries by 1.7 percent. Congress also has not acted on a raise for judges, although the Senate has sent a pay bill to the House. Most other federal employees received their 2007 raises in January.

"We will be trying to see if we can bring some pressure on the Congress to delink this process, to see if there isn't a better way to get this done," Panetta said.