January 25 2013
This week, the House voted to suspend the debt limit and passed a measure called “No Budget No Pay.”. As a result, the debt limit will not need to be reconsidered until May, leaving the House and Senate room to debate spending cuts in March and April without compromising our credit rating.
While No Budget No Pay does not accomplish much policy wise, politically it has the potential to accomplish a lot.
No Budget No Pay states that if a chamber does not pass a budget, its members cannot receive their pay. The problem is that it may not be constitutional. The 27th amendment states, “No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”
In other words, the Wall Street Journal’s Jess Bravin reports, “lawmakers can't raise—or, apparently, lower—their own pay, but only revise it for members of the succeeding Congress.” Proponents argue that the bill does not reduce pay, it withholds it, and is therefore constitutional.
However, many believe the bill is not constitutional. According to Talking Points Memo:
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.”
The Wall Street Journal’s Bravin explains:
Harvard law professor Laurence Tribe said that when the text is clear, "speculation about the objectives of those who drafted or ratified the provision is beside the point." The House legislation "quite clearly falls afoul of the express language of the 27th Amendment," he said, because the term the framers chose—vary—covers any change in compensation, not simply a self-serving pay raise.
Regardless of the bill’s constitutionality, it will have very little policy impact. The bill only penalizes members if either chamber cannot pass a budget, but does not penalize members if they fail to enact a budget. That means each chamber could pass a budget, but not matching budgets, and we would still be without any plan for fixing our fiscal mess.
At best, this measure will pressure the Senate to go on the record as supporting and opposing fiscal policies. The Senate has gone nearly four years without passing a budget, because its members fear political consequences of making their spending intentions known. It’s a sad statement about our political culture that representatives need to be threatened with docking their pay in order to do their jobs, but that may be the reality of where we are today.