Congress is a notorious nest of lawyers, so it's not surprising that it is now embroiled in a legal controversy that would delight Charles Dickens, but cause most Americans' eyes to glaze over. Maybe that's the point.
The issue being thrashed out is the generous pay raise that Congress cleverly engineered for itself a few months ago by voting against a pay raise. (They're lawyers, remember?)
The Senate first voted down a pay raise by an overwhelming majority. Then the House voted down the raise, also by a substantial vote. But thanks to a tricky law that both chambers had approved years earlier, the House rejection of the pay raise occurred one day too late to prevent automatic enactment of the pay raise.
The hypocrisy of the whole deal didn't escape public attention, but Congress figured -- perhaps correctly -- that the aroma of rotting fish will have dissipated by the next election.
Unfortunately, a cantankerous group of conservative taxpayers and renegade members of Congress have challenged the pay raise in court. Fearful that these pesky critics of the system may actually have a case, the Senate and House leadership have trotted out their official attorneys to oppose the heresy. The case will be argued in the U.S. District Court in Washington next Monday.
The current anomaly was not lost on Sen. Gordon J. Humphrey (R-N.H.), one of the tiny band that has challenged the pay raise in court. In a letter to Senate Majority Leader Robert C. Byrd (D-W.Va.), obtained by our associate Stewart Harris, Humphrey pointed out that 88 senators had voted against the raise.
"It is not the Senate counsel's role to contest the validity or efficacy of legislative action taken by the Senate itself," Humphrey wrote.
Byrd replied with an equally cogent legal argument, noting that the secretary of the Senate had been named a defendant in the suit filed by Humphrey et al.
"As much as you are entitled to bring these issues to court," Byrd wrote, "the secretary of the Senate, whom you name as a defendant, is entitled to a defense against your claim that he is disbursing funds unlawfully."
Senate Counsel Michael Davidson, whose authority to go to court was granted by a Senate resolution, told us his briefs do not argue the merits of the pay raise. Instead, he said, they explain why the secretary acted legally in disbursing the raises.
Similarly, the House counsel got involved as defense attorney for the sergeant-at-arms, who was accused of illegally disbursing the pay raises. In addition, House Counsel Steven Ross said, the pay raise dispute was "internal" and was decided on the floor of the House. Traditionally, he said, the House has opposed any member's attempt to contest a congressional action in court.
It is this last point that bothers the plaintiffs' lawyers, William Lane and William Strauss. They argue that the right of a member of Congress to sue the federal government is at stake. They contend that this is a right that other members have fought long and hard to establish.