When I first heard about the inclusion of “no budget, no pay” in the recent debt-ceiling deal, I paid little attention. The notion of “suspend[ing] the salaries of members of the House or the Senate if either chamber does not adopt a budget resolution by the April 15 deadline” was far less interesting to me than topics like the Fourteenth Amendment and the Emancipation Proclamation.
A little while later, however, however, I stumbled across this post by Eugene Volokh, which suggested that “no budget, no pay” might violate the Twenty-Seventh Amendment. For those who are unfamiliar, that amendment provides:
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
Volokh’s post, in turn, referred me to this one by Michael Froomkin, who made the same argument in greater detail:
Does [“no budget, no pay”] comply with the 27th Amendment? I don’t think this is even a close question: in my view the escrow provision [for enforcing the pay suspension] clearly does not. The prohibition on “varying the compensation” seems pretty clear to me: it means no changes in amount, and no changes in time of payment because there is a time value to money. Anyone who gets a salary would think it a very material change in the terms if the money were escrowed for more than a year and a half instead of being made available to pay the mortgage.
Froomkin also suggested that “no budget, no pay” might not be severable from the debt-ceiling deal; in other words, a court striking down the “no budget, no pay” provision would also have to deep-six the debt-ceiling suspension statute of which that provision was a part. I found that possibility slightly worrisome; but then a follow-up post by Froomkin pointed to this “elegant formulation” by Seth Barrett Tillman:
It seems to me, given the language of Amendment XXVII, that if a statute purports to vary the compensation of members before the next election, that it will not be declared void or struck down or declared unconstitutional, and therefore severability does not become an issue.
The effect of varying compensation by statute prior to an election is to enjoin enforcement of the statute until after the next election. If, as a result, the statute has no practical effect, then it has no effect. But, there is no reason to declare the statute void for inconsistency with the Constitution.
Does not that result flow from the text’s plain meaning?
Later, I started wondering whether supporters of “no budget, no pay” had a rejoinder to the aforementioned constitutional argument. Some brief Google searching coughed up this RedState post, which noted Rep. James Lankford’s view that “no budget, no pay” “does not actually violate the 27th Amendment, on the grounds that it’s merely putting the Members’ pay in escrow until the budget is passed.” There was also the January 23, 2013 issue of the Congressional Record Daily Edition, which reprinted several members’ speeches in favor of the provision’s constitutionality. For instance, Rep. Pete Sessions argued:
This bill upholds both the letter and the spirit of the 27th Amendment. It would not change a Member’s rate of compensation in any way; they just don’t get to collect it until they do their jobs.[1]
Similarly, Rep. Candice Miller contended,
There is no requirement in the 27th Amendment which states that Members have to be paid weekly, biweekly, monthly, or bimonthly or what have you, only that the pay that they receive will not vary.[2]
So it appears the key issue is whether or not the Twenty-Seventh Amendment requires that the time-value of money be taken into account for the purposes of determining whether or not a statute “var[ies] the compensation” of congress-critters. I don’t know the answer to this question. (When Volokh & Froomkin first raised the constitutional question, I started reading Richard Bernstein’s very thorough article on the Twenty-Seventh Amendment’s drafting and ratification,[3] but wasn’t able to finish before other, more urgent matters distracted me. Maybe some other time . . . .) I’m actually kind of hoping that the enactment of “no budget, no pay” yields some court cases regarding the Twenty-Seventh Amendment. Given my interest in obscure constitutional provisions, that would definitely make my day.
MI: to your credit, you put a lot of time and effort into researching this issue.Now, if only our elected representatives would devote as much time and effort to actually doing their jobs, instead of concocting meaningless (and possibly unconstitutional) gimmicks like “no budget no pay”. In the wake of this bold precedent, I can’t wait for all the follow-up legislation: “No peace no pay,” “No GDP growth no pay,” and “No entitlement reform no pay”.
Jack Shifflett – Thanks for the kind words, but in all honesty, researching this issue didn’t really require very much time & effort. The hardest part was locating arguments defending the constitutionality of “no budget, no pay”; hence those quotations from the Congressional Record. (I’m wondering if I might’ve been using the wrong keywords.)
Jack, what other method would force Harry Reid to adopt a budget?
HA: beats me–a gun to his head? You may be right, HA, but I’m guessing Harry has enough of a financial cushion to endure the threat of his pay being put in escrow for two years; as do pretty much all of our Senators, who are, by and large, millionaires.
Maybe we should cut Obama’s trips to play golf – one day for every day he is late submitting a budget. That would allow him to give back to community, won’t it?
HA: that might help, though it’s my understanding that Obama’s submitted his budgets on time every year–which is pretty amazing, given all the time he spends skeet shooting.
“though it’s my understanding that Obama’s submitted his budgets on time every year”
No, not really. He already missed deadlines for 4 years straigh. And since 2009, we did not have a budget, and the Reid occupied Senate could not vote for a single budget. Ph, and yes, he is late this year too.
HA: You are correct that the President is again laggardly on this year’s budget, but he’ll get it there, don’t worry. His record so far, according to The Hill: first one late by months, then one on time and two a little late–well, now three late. Given that no Republican has yet voted for an Obama budget proposal anyway, whether he gets them in punctually or a couple of weeks late doesn’t seem to make much difference, especially since (as you know) it’s up to Congress to pass budgets anyway. The President’s budget is more like “show and tell” than actual fiscal policy. Anyway, I’m all for your “cut one day from Presidential vacations for every day late submitting a budget”; sounds fine to me.
http://thehill.com/blogs/on-the-money/budget/276969-obama-budget-delayed-again-white-house-tells-paul-ryan
“Given that no Republican has yet voted for an Obama budget proposal anyway, whether he gets them in punctually or a couple of weeks late doesn’t seem to make much difference, especially since (as you know) it’s up to Congress to pass budgets anyway.”
I don’t remember when was the last time a single Democrat voted fors his budget. 4 years ago? It’s customary for a president to propose his budget and try to get it through the Congress, and it seems like Obama is the first president who really does not care for the budget. I believe it could be because he never had any experience in the real world – all that community organizing, and the like. I guess he probably sees budgets as a white man’s game, and he is above this tricky money-counting business.
You may be right, HA. I’ve never met the President, and have no idea whether he “sees budgets as a white man’s game”; I mean, I kind of doubt that, but how would I know? Personally, I think that “community organizing” qualifies as a “real world” activity, but you may have a definition of “real world” from which community organizing is excluded, in which case I defer to your wisdom.
First of all, I am glad that our discussion about Obama and his budgetary debacles is ending so peacefully. Yes, the poor chap is always late, and no one likes hid budgets… He is the uniter, not the divided. ;)
“I’ve never met the President, and have no idea whether he “sees budgets as a white man’s game”; I mean, I kind of doubt that, but how would I know?”
You don’t really have to meet the man and spend years talking to him to learn some things about him. In my case I did something which very few people did – I actually read Obama’s memoirs “Dreams from my father”, so I believe I know the man reasonably well….
And speaking of “community organizing” – even in his memoirs it’s unclear what the hell he was doing there. So, I hope you don’t judge me too harshly for relying on Obama’s own words.
I don’t judge you at all, HA–much less harshly. And I’ll the first to admit that I haven’t read “Dreams of My Father,” so again you are one step ahead of me in having some knowledge of the subject. If you believe that book gave you sufficient insight into Barack Obama–and one assumes that such was, at least in part, the author’s purpose–and if that insight suggests to you that Obama thinks in terms of budgets being a white man’s game: I’m in no position to dispute that assertion. In fact, I bet he thinks the same of skeet shooting; though, oddly, not of playing golf, or so the evidence seems to indicate). I guess people are just complicated like that.
Eliminating the filibuster.
Steve
Okay, Steve, I’ll bite. What’s the connection between filibuster and Reid’s unwillingness to vote for a budget?