Sahil Kapur

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

Articles by Sahil

The GOP's latest debt ceiling proposal to withhold pay for lawmakers if their chamber does not pass a budget may face a tricky hurdle: the Constitution.

The plan, as House Republican leaders described it Friday afternoon, would authorize a three-month debt limit increase in exchange for an ultimatum: Congress either passes a budget or congressman and senators have their pay withheld until they do.

But there is some doubt among constitutional scholars reached by TPM shortly after the GOP proposal was made public about whether it passes muster under the 27th Amendment.

The 27th Amendment to the Constitution 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."

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House Oversight Chairman Darrell Issa (R-CA), after initially declaring the GOP's debt limit plan "unconstitutional," clarified to TPM late Friday that he "strongly support[s]" the proposal, which would withhold lawmakers' pay if their chamber does not pass a budget.

He said he believes the constitutional questions over the 27th Amendment, which Republican leadership aides say won't be a problem, will be resolved in the legislation.

"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 said in a statement to TPM sent via his office. "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. I have not read the legislative text of the ‘No Budget, No Pay’ proposal and how it approaches historically difficult questions about Congressional compensation. I would note that there has even been legal action taken challenging the current system that gives Members of Congress an automatic pay-raise. I have been an advocate for the strategy of linking a debt ceiling increase to passage of a budget as an effective way of forcing President Obama to focus on our nation’s long term fiscal situation. I expect the final proposal brought before the House will have resolved any constitutional questions and that it will have my support."

Earlier Friday, Issa told Roll Call of the proposal, "That's unconstitutional."

President Obama's second-term ambitions include beefing up guns laws, reforming the country's immigration system and curbing greenhouse gas emissions, but he's stuck at least for now with House of Representatives controlled by Republicans who remain hostile to his agenda -- which is why the upcoming fight over increasing the country's borrowing authority is so crucial.

If Obama successfully defuses a debt ceiling standoff, which is looking increasingly likely, he will at least provide himself and Congress some running room to debate other major issues. But if he fails -- if he accedes to GOP demands -- it will reinvigorate the conservative wing of the GOP and encourage them to pursue the same do-or-die strategy every time must-pass legislation is on the docket. Obama's second term will become bogged down in battles over basic government functions, squeezing out gun, immigration, and energy legislation.

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House Minority Leader Nancy Pelosi (D-CA) criticized the House GOP's new debt ceiling proposal via a statement from her spokesman, Drew Hammill.

“We need a clean debt ceiling increase and a bipartisan and balanced budget that protects Medicare and Social Security, invests in the future, and responsibly reduces the deficit. 

“This proposal does not relieve the uncertainty faced by small businesses, the markets and the middle class.  This is a gimmick unworthy of the challenges we face and the national debate we should be having.  The message from the American people is clear: no games, no default.”

The Senate's No. 2 Republican is walking back his threat to use the debt ceiling and other fiscal deadlines to force President Obama to accede to deep spending cuts.

"We will raise the debt ceiling. We're not going to default on our debt," Senate Minority Whip John Cornyn (R-TX) said in an interview with the Houston Chronicle editorial board published Thursday. "I will tell you unequivocally, we're not going to default."

That's a dramatic change in tone from just two weeks ago, when Cornyn wrote an op-ed in the Houston Chronicle pointedly threatening not to raise the debt limit or fund the government unless Obama agrees to scale back Medicare, Medicaid and Social Security.

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After House Republicans unveiled their new strategy to use the debt ceiling as leverage to force Senate Democrats to pass a budget, Senate Minority Leader Mitch McConnell (R-KY) backed up their call for Democrats to do so.

He said in a Friday statement that the debt ceiling debate is "the perfect time" to address the "out-of-control Washington spending."

“For nearly four years, the Senate Democrat leadership has prevented this body from performing its most basic of duties: passing a federal budget. That is a shameful record that needs to end this year. It’s time to stop governing by crisis and stop-gap measure; the American people expect the Senate to finally pass a budget. Moreover, instead of hiding from tough votes, Senate Democrats should also return to regular order and transparency in the legislative process by allowing committees and the public the opportunity they rightly deserve to properly scrutinize legislation before it comes to a vote.

“It’s not the discussion about the debt and budget failures that has put our nation’s credit rating at risk—it’s the unsustainable debt, the out-of-control Washington spending, and the failure to budget that got us here. It’s time to change, and the debt ceiling discussion is the perfect time for that debate.”

The White House is "encouraged" by signs that Republicans are moving away from their debt ceiling demands and called on Congress to cleanly authorize an increase in the nation's borrowing limit, said spokesman Jay Carney.

"The President has made clear that Congress has only two options: pay the bills they have racked up, or fail to do so and put our nation into default," Carney said in a statement. "We are encouraged that there are signs that Congressional Republicans may back off their insistence on holding our economy hostage to extract drastic cuts in Medicare, education and programs middle class families depend on. Congress must pay its bills and pass a clean debt limit increase without further delay. And as he has said, the President remains committed to further reducing the deficit in a balanced way."

The Senate filibuster has been used sparingly throughout most of U.S. history. But several times when the minority has abused the tool, the majority has responded by changing the rules. History may soon repeat itself.

The filibuster, as originally designed, did not allow the majority party to call for a motion to end debate -- senators could obstruct endlessly. That changed early in the 20th century, after the minority escalated its use of the filibuster toward the end of congressional sessions, running out the clock when the majority did not have the luxury of waiting.

In 1917, a Senate majority changed the rules to make it possible for the majority to end debate. The new rule set "cloture" at 67 senators.

In the 1960s, around the time of civil rights legislation, the minority began to use the filibuster with increased frequency. In 1975, a frustrated Senate majority again responded by changing the rules, lowering the cloture threshold to 60 votes -- where it has remained ever since.

Nearly four decades later, the minority's use of the filibuster has risen to previously unimaginable levels, growing under both Democratic and Republican majorities.

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