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Is It Constitutional To Withhold Congressional Pay?

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Two House Republican leadership aides insist that their proposed legislation would be permissible under the 27th Amendment.

"The legislation does not change members' pay. It does not reduce it," one leadership aide told TPM. "It withholds it until they pass a budget, which is permissible under the 27th Amendment."

Adam Winkler, a constitutional law professor at UCLA School of Law, told TPM that the proposal faces a serious hurdle because of the 27th Amendment.

"The answer is unclear because the 27th Amendment has never been authoritatively interpreted by the Supreme Court," Winkler said in an email. "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."

American Majority Action, a conservative grassroots group which isn't on board with the GOP's softened approach on the debt limit, contends that the final clause of the 27th Amendment means the bill, if it passes, could not take effect until next Congress.

"While most conservatives believe that Congress shouldn't be paid if they don't pass a budget, they also believe Congress shouldn't be paid unless they pass a responsible budget," AMA spokesman Ron Meyer said in a statement. "But mostly, they believe in following the Constitution."

Randy Barnett, a leading constitutional law scholar at Georgetown University, was not immediately ready to make a determination as to whether the legislation is valid or not.

"I would need to give it more thought and hear more arguments on both sides," Barnett told TPM in an email.