- The Washington Times - Tuesday, January 22, 2013

House Republicans will force a vote Wednesday on a plan to stave off a debt-ceiling crisis for three months, but it’s the rest of their plan — to hold lawmakers’ pay hostage to their ability to pass a budget — that is testing the limits of the Constitution.

After two years of fighting with President Obama over debt, congressional Republicans decided to punt. The bill they will power through the House will temporarily waive the $16.39 trillion debt ceiling, allowing more debt to accumulate through May 18 and delivering at least a short-term win to the White House.

In exchange, though, House Republicans want to try to force Senate Democrats to write a budget for the first time in four years, and want to withhold part of their $174,000 salaries if they don’t.

If the Senate doesn’t pass a budget before April 15, the bill would stick each member’s pay in escrow either until they do pass one, or until the end of Congress, when all the money would be paid out no matter what. The same rules would apply to the House and its own ability to pass a budget.

“Americans believe if you don’t do your job, you shouldn’t get paid,” said House Speaker John A. Boehner, Ohio Republican. “It’s time for the Senate to act.”

The problem is the 27th Amendment, proposed in 1789 and ratified in 1992, which says Congress cannot pass a law “varying” their pay in that same Congress. That means any pay increase or decrease can take effect only after an ensuing election.

“If I get a paycheck in my account every month, and now I don’t get that paycheck in my account, whatever may come at the end of the year, that’s varying,” said Rep. Robert A. Brady, Pennsylvania Democrat and the ranking member on the House Administration Committee, which oversees pay issues. “That could violate the 27th Amendment.”

He pleaded for more time to let lawyers take a look at it, and some Republicans said they, too, have “constitutional questions” about the measure.

But Republican leaders said they have studied the issue and that putting the money in escrow and making sure everyone gets paid by the end of a Congress meets the test.

“Varying the compensation is really the operative phrase. So our attorneys agree there is no violation of the 27th Amendment as long as you pay members by the end,” said Rep. Candice S. Miller, Michigan Republican and chairwoman of the Administration Committee.

The courts have never grappled with this specific question on what “varying” would mean, but Republicans were laying the groundwork for a defense this week.

In the constitutional authority statement that House Ways and Means Committee Chairman Dave Camp submitted with the bill, he cited powers in Article I, Section 8, clauses 1, 2 and 18 — the taxing and spending, borrowing and necessary and proper clauses, respectively. He did not mention the 27th Amendment.

The committee also released a statement from David B. Rivkin Jr. and Lee A. Casey, two lawyers who served in Republican administrations and who said the bill passes muster.

“It does not vary members’ compensation; instead holding it in escrow until such time that a budget is passed or, at the latest, this Congress comes to an end,” the two lawyers said. “This mechanism is a model for the way that Congress ought to work: It is creative, it is fiscally responsible, and it is attentive to the text and structure of the Constitution.”

The 27th Amendment has a curious history, having been one of the original 12 amendments sent to the states for ratification. Of those, only 10 were ratified initially and they became the Bill of Rights.

Story Continues →