No-Budget-No-Pay: Cooper v. Constitution

When U.S. House Republicans used their Williamsburg retreat last week to retreat from an economic hostage-taking strategy and allow a three-month rise in the debt limit, they adopted a version of Democratic Rep. Jim Cooper’s “no budget no pay” scheme as an element of their new strategy. Republicans plan to include in the debt ceiling bill a provision that withholds pay from members if their chamber of the Congress fails to pass a budget by April 15.

Cooper first introduced no-budget-no-pay in late 2011 as a bill that would dock members’ pay for each day past Sept. 30 (the end of the fiscal year) that they fail to pass budget and spending bills. Lamar Alexander and Bob Corker have co-sponsored a similar measure in the Senate. But Cooper isn’t so thrilled (outwardly, anyway) to see his idea co-opted in this very public way by House Republicans. “I am sorry that it is being used now as a political weapon,” he said late last week, adding that a rise in the debt limit “should be longer than 3 months and unconditional.”

The idea may be, as Cooper has suggested, a novel and potentially effective way for Congress to take responsibility for its own bad behavior. But is it a constitutional one? With no-budget-no-pay suddenly elevated from quixotic notion to serious negotiating gambit, questions are being raised about whether it runs afoul of the 27th Amendment, which reads (in its entirety):

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Simply put, a Congress (that is, the sitting body for a given Congressional session) cannot alter its own pay. Does withholding pay amount to “varying the compensation” of members of Congress? Talking Points Memo put this question to UCLA constitutional law professor Adam Winkler, who believes it does indeed:

The answer is unclear because the 27th Amendment has never been authoritatively interpreted by the Supreme Court. Yet it seems almost certainly unconstitutional. Withholding pay effectively “var[ies] the compensation” of lawmakers. The amendment doesn’t say only raises in pay are invalid. It refers to “varying the compensation.” Just as a “bonus” would vary lawmakers’ compensation, so does withholding money. This logic applies even if the pay is ultimately delivered to lawmakers. By outlawing “varying the compensation,” the 27th Amendment prohibits laws that change when lawmakers receive pay, not just the amount they receive.

TPM quotes a House GOP leadership aide defending its constitutionality with an appeal to semantics: “The legislation does not change members’ pay. It does not reduce it.” The truth of that assertion may depend on how the thing is written. In Cooper’s original no-budget-no-pay measure (HR 3643 introduced December 2011), Congressional pay withheld could not be recouped retroactively.

So with House Republicans desperate for a way to put some fiscal heat on Senate Democrats, no-budget-no-pay may finally be poised to have its day in the sun. Alas, it may first need to have its day in court.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.