Is It Constitutional To Withhold Congressional Pay?

House Speaker John Boehner (R-OH)
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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.”

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.

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