“No Budget, No Pay” proposal comes under Constitutional scrutiny

The Republicans’ idea to link Congressional pay to passage of a budget has come under fire as a potential violation of the 27th Amendment, which states: “No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

House Majority Leader Eric Cantor (R-VA) explained the plan as follows: “We will authorize a three-month temporary debt limit increase to give the Senate and House time to pass a budget.  Furthermore, if the Senate or House fails to pass a budget in that time, members of Congress will not be paid by the American people for failing to do their job.”

That does appear to threaten Congress with a reduction in pay, which would run afoul of the 27th Amendment.  Unlike certain other Amendments, this one apparently means what it says.  The intention, of course, was to thwart Congress from voting itself big pay raises, but the language of the Amendment rules out “varying compensation,” not just increasing compensation.  It took two hundred years to ratify the 27th Amendment (proposed 1789, ratified 1992.)  We must not part with it easily!

It’s not just Democrats questioning the constitutionality of the “no budget, no pay” proposal, as Fox News reports:

“I understand the sentiment behind ‘no budget, no pay,’” Rep. Hakeem Jeffries, D-N.Y., said Monday, but “it appears that the 27th Amendment does not permit Congress to alter its pay in the midst of a current session.”

“We just started the 113th Congress, effectively meaning that we would not be able to alter our pay or wouldn’t be able to take effect until 2015,” Jeffries told Fox News. “Even if this was presented, it would render it meaningless in terms of the effect it’s intended to have.”

Rep. Darrell Issa, R-Calif., was quoted as saying the plan is “unconstitutional” in an article published Friday by Roll Call. But in a subsequent statement sent to Fox News, the Republican lawmaker clarified his position, saying, “I strongly support the House Republican leadership’s proposal to link the debt ceiling increase to passage of a budget by the Senate, which has gone 1360 days without passing a blueprint for federal spending.”

Issa then noted something about the “no budget, no pay” plan that might alleviate Constitutional concerns, but also makes its name appear somewhat deceptive:

“While the 27th Amendment prohibits Congress from varying its own pay within a given Congress, as I noted in my interview it can certainly withhold pay,” said Issa, who presides as chairman of the House Oversight and Government Reform Committee. “I expect the final proposal brought before the House will have resolved any constitutional questions and that it will have my support.”

In other words, the GOP proposal doesn’t dock the pay of representatives for failing to comply with the law and produce a budget.  It merely delays their pay until a budget is produced.  They don’t really lose any money.  Of course, if it all comes down to a court challenge, opponents of the “no budget, no pay” rule will likely argue that withholding pay inflicts financial damage on representatives – they would, in theory, have to borrow money to pay their bills, and repay the funds with interest.

The political usefulness of this rule is as debatable as its legality.  Democrats are already howling that it’s a “gimmick,” while accusing Republicans of “playing games” with the debt ceiling.

And it sets up a political showdown that Democrats can win fairly easily… provided there is no requirement for the budget they eventually produce to balance.  It’s really not that hard to excrete a “budget” that spends a trillion dollars more than the government actually has, every year, forever.  It’s embarrassing and offensive that Democrats haven’t been able to manage even that sort of ratty old budgetary scam for the past four years, and Republicans are correct to view a return to actual budgeting as an important step toward fiscal sanity, but they seem poised to invest great political capital in securing a fairly minor victory.

Also, what does it say about the utter lawlessness and arrogance of our government, that we must threaten the ruling class with arcane, possibly unconstitutional penalties for failure to obey the law?  It would seem that “tax penalties” for disobedience are only directed at the Little People.

On the other hand, the basic premise of “no budget, no pay” is likely to resonate with many voters.  Even if the measure is not actually passed, the terms of the debate are not favorable to the big spenders.  Most people will nod agreeably at the suggestion that if Congress doesn’t fulfill its duties, its pay should be docked.  Once they’re nodding along with that idea, Republicans can ask if they think “budgets” padded with a trillion dollars of imaginary money are reasonable.