The “no budget, no pay” provision in the House-passed debt limit bill headed to the Senate floor this week is running into strong criticism from legal experts and government watchdog groups that contend it almost certainly violates constitutional protections aimed at shielding members of Congress from outside influence.
But leaders of several watchdog groups across the political spectrum say members of Congress are unlikely to raise legal challenges on their own behalf against a proposal that’s been included as a kind of political cudgel, with House Republicans using it to criticize Senate Democrats for not passing a budget resolution in recent years.
Such a challenge, if sustained in court, would not affect the main provision in the bill (HR 325) to remove the $16.4 trillion limit on federal borrowing authority through May 18. But it could make it harder for Congress to put similar restrictions on other hard-to-pass legislation.
“The question is, will any member of Congress challenge this?” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, a nonprofit ethics advocacy group. “They won’t want to be perceived as making a vote just for their own pocketbook.”
Majority Whip Richard J. Durbin of Illinois, a senior member of the Judiciary Committee, said he also doubted the provision would be challenged in court, regardless of whether it is constitutional.
One reason is that the provision may soon be largely irrelevant as both chambers try to finish budget resolutions before the target date. But Durbin and others say it also could encourage members to include pay provisions in other legislation to create political talking points.
“I don’t think it’s a good policy measure to make the actions of Congress contingent on their pay. That wouldn’t stop with the debt ceiling,” he said.
House Republicans sought to get around the 27th Amendment to the Constitution, which bars a sitting Congress from enacting laws affecting members’ compensation, by having their provision not eliminate pay but order salaries of members in either chamber diverted into an escrow account if their chamber fails to adopt a budget resolution by April 15.
Despite reservations by lawmakers and critiques by constitutional experts such as Laurence H. Tribe, a professor at Harvard Law School, the measure appears on a fast track for final action in the Senate this week. The White House has signaled that President Barack Obama would not oppose the bill, which would eliminate the borrowing limit through May 18 and then immediately raise it to match the debt accumulated to that point.
Amid the debates over the nation’s deficit and the debt ceiling, the pay provision seems something of a sideshow, and Democrats, including Senate Majority Leader Harry Reid of Nevada, have derided the language as “a gimmick.”
But several legal experts say it’s a more serious matter not only because it violates the clear language of the 27th Amendment but also because it ties compensation to specified congressional action.
“In the words of the 27th Amendment, the law would ‘vary the compensation’ of members in Congress in the same two-year period in which it was enacted,” said Charles Tiefer, a law professor at the University of Baltimore and former deputy House counsel. “That renders the provision unconstitutional on its face.”
Supporters of the provision, such as House Administration Chairwoman Candice S. Miller, R-Mich., argue the salaries will not be changed, only held in escrow until either chamber adopts a budget resolution or until the end of the 113th Congress.
Former Rep. Bob Edgar, D-Pa., president of Common Cause, a government watchdog group, said the provision would set a troubling precedent and prompt similar measures tying salaries to policy bills. And, he said, it could discourage citizens of modest means from running for the House and the Senate.
“We are electing House and Senate members to serve the public interest, not their personal interest,” Edgar said.
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.