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.
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.
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, 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.