Congressional Overpay Raise

“If they will only do their job that is all that they are being overpaid for.”

David O. Selznick, on actors and actresses

As the economy caves in, our elected officials will soon be cashing in. Their pay raise, that is. It seems small, a 2.8 percent increase in pay next year, equal to about $4,700, but at a full salary of $174,000 could we be overpaying just a bit? Congresspeople would likely, if asked, say “yes, my friend.” After all, these days national politicos of all persuasions seem particularly unglued by the spectre of overpayments everywhere. My gosh, those unions! That gets Republicans of all stripes into a raging maniacal hurly burly. And those Wall Street and Big 3 executives – that gets my beloved Democrats equally undone.

But, yet they are strangely silent about their own salaries. As Daniel O’Connell, chairman of the Senior Citizens League said recently, “As lawmakers make a big show of forcing auto executives to accept just $1 a year in salary, they are quietly raiding the vault for their own personal gain” via the annual Congressional pay raise. Mr. O’Donnell suggests, “the money would be much better spent helping the millions of seniors who are living below the poverty line and struggling to keep their heat on this winter.” And for a million other things . . . I’m wondering. Perhaps our elected reps just don’t realize they have a raise in the pipeline. They’ve been pretty busy, for sure, looking under every desk and in every closet for union folks and welfare queens and those pesky Wall Street fat cats. I’m thinking they’ve just not been informed. Let’s let them know!

Seriously, Though. As movie mogul David Selznick said of actors and actresses, “If they will only do their job that is all that they are being overpaid for.” Sound familiar? Members of Congress currently make an annual salary more than double the median household income of $78,978 for the Washington, D.C. metro area., in the top three of expensive areas in the U.S. This doesn’t include taxpayer funding of very generous “platinum parachutes” (pensions), health plans, allowances for travel, staff, and office expenses, including franking privileges (free mailings).

Well, most voters hold Congress in particularly low esteem these days, somewhere between roadkill and Nazis. You’d think salt-of-the-earth Congressfolks would be looking for ways to pump up their standing, at least to overtake roadkill. We know how they feel about the nasty bail out “symbolism” that the loan package for the Big 3 brings with it. Isn’t it time for Congress to aim its always wagging fingers at itself and vote to say no to their automatic (not voted upon) 2009 pay raise. In fact, for this Congress, it’s way past time to do so. Doing so must be their first article of business on the first day of the 111th Congress, January 3, 2009.

Don’t Cry For Me, My Beloved Constituent. They cannot with a straight face blame anyone but themselves. Our Constitution provides that Congress set its own salaries. “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.” U.S. Constitution, Article 1, Section 6. Clause 1. (The so-called “ascertainment clause” is in italics.) It’s that simple, and it’s rarely been challenged, and when challenged, the courts have stepped aside in deference to the legislative branch.

A February 2008 Congressional Research Service report, Salaries of Members of Congress: A List of Payable Rates and Effective Dates, 1789-2008, provides a summary of the historical and legislative background:

Prior to 1969, Congress [determined its own pay] by enacting stand-alone legislation. From 1789 through 1968, Congress raised its pay 22 times using this procedure. Congressional salaries initially were $1,500. By 1968, they had risen to $30,000. Stand-alone legislation may still be used to raise Member pay, as it was most recently in 1982, 1983, 1989, and 1991, but two other methods — including an automatic annual adjustment procedure and a commission process — are now also available. Under the annual adjustment procedure, Members are scheduled to receive a 2.8% adjustment in January 2009. . . By law, Members may not receive an increase greater than the increase in the base pay of GS [General Schedule, federal] employees.

Note that their pay raises (what they strategically and euphemistically call “cost of living adjustments” (COLA)) are granted without an affirmative vote of either chamber. Indeed, to their credit, they have from time to time refused their own pay raise, as recently as 2007. They generally, however, just let the COLA take effect on the down low.

Some members of Congress and others have argued that the automatic system of COLAs violates the “ascertainment clause” of Article 1. Reasoning that the Founders intended that Congress operate in clear view of the public, the thinking in their legal challenges is that the ascertainment clause requires Congress to vote affirmatively on its own salary via legislation, not on auto pilot. Courts, however, have not been sympathetic since they’ve determined, for example, COLAs are not “pay raises,” and Congress has a vast legislative tool box that it can use to vote against its automatic pay raise, if it only will.

Generally note that courts, for separation of powers reasons, do not like crafting solutions to these kinds of problems when the legislative branch has its own constitutional methods of doing so. In one of the the lead cases on this matter, Humphrey vs. Baker, the D.C. Circuit Court of Appeals, in 1988, stated it this way (and the Supreme Court declined to review it), “Congress retained ultimate power to set its pay through the already mentioned devices, such as rejection of the President’s recommendations. In short, those devices, in varying degrees, remain efficaciously available to Congress.” In English: Congress can vote to deny itself a pay raise, er, I mean, COLA.

Have A Nice Cool COLA. One good thing that has occurred in the pay raise (er, I mean, “COLA”) area is called the 27th Amendment: “No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.” This was proposed in 1789(!), and finally ratified in 1992(!), and is intended to serve as a restraint on the power of Congress to set its own salary during the session it sits. But, remember the use of the term “COLA” as a stand-in for “pay raise”? Why do that? Well, now you know why: since its 1992 adoption the 27th amendment has not stopped Congresspersons (MCs) from receiving nearly annual pay raises because, legally, a COLA is not a pay raise.

About 15 years ago none other than lovable wingnut Rep. John Boehner (R-Ohio), 27 additional MCs, and other interested parties brought suit (Boehner vs. Anderson) to determine the constitutionality of the COLA index, arguing, among other things, that it violated the ascertainment clause because it didn’t require separate legislation for each COLA adjustment. In other words, it was a self-perpetuating formula. Boehner maintained that violated the 27th Amendment because it permitted what were in reality pay raises to occur annually without a House election intervening. However, the court rebuffed this claim for a variety of reasons, most importantly:

Neither of Mr. Boehner’s arguments that the COLA provision is unconstitutional draws any support from either the original Constitution or from the twenty-seventh amendment. The Constitution does not define a law except to say (at least implicitly) that it is the product of the legislative process.
. . .

We see no reason whatsoever why the Congress cannot, for convenience, instead specify an index or formula with the same effect. In sum, it has been the law since 1989 that a COLA would be made on January 1, 1991 and each year thereafter pursuant to a specified formula.

As the 1988 Baker case (above) had held, “the Ascertainment Clause was not to be read inflexibly so as to require Congress to establish specific figures in specific legislation. Rather, it sufficed that the procedures eventuating in the specific figures were set, i.e., ascertained, by law.” So, as the British say, “Bob’s your Uncle” target=”‘_blank”: “Just pass a self-perpetuating law, craftily define a ‘pay raise’ as a ‘COLA’ to bypass the 27th Amendment, and Bob’s your Uncle!”

Never Go Begging. One question I’ve begged thus far, and an important one: Do we want a system whereby MCs are paid a minimal salary, and where they have to cover their own office expenses, etc.? I think it’s a relatively easy “No.” Unless we want all our MCs to come from substantial wealth, or, on the other hand, to have even more incentive to play the “pay to play” game, we are best served by a relatively well paid Congressional class. They presently receive nearly $170,000 per year, with substantial other benefits. That, to me, seems a relatively high salary, a bit too high for a public service job; after all, it’s more than double the median salary of the relatively well off D.C. area. I’d think $120,000 would, these days, be enough to both compensate handsomely and provide incentive to honesty, particularly considering the exceptional benefits they receive. That’s subject to debate, but what isn’t is that we don’t want an impoverished Congressional class bent upon enriching itself simply due to salary restraints. They’ve got enough temptations already, and the indictments to prove it.

Do We Have the Constitution for a New Amendment? So what to do? There are a few legislative proposals still hanging around in the 110th Congress that would prevent the $4,700 COLA taking effect in 2009, but let’s face it, the prospect of Congress returning to Washington between now and its next session to alter its pay downward approaches zero . . . O.K., it is z.e.r.o. It’s actually laughable.

The solution lies in the upcoming 111th Congress. You can view the proposals introduced (and going nowhere) in the 110th Congress both for text and to see which Members sponsored or cosponsored them, i.e. primarily Ron Paul Lites and wingnuts (where are our guys on this?). Some, the wingnut proposals, try to tie Congressional salaries to deficit reduction, yet the sponsors are often the very ones who time and again voted lock step for Bush policies that ballooned the deficit with, well, you know. Remember when reading these proposals that President Clinton left office in 2000 with a rather nifty budget surplus. Other proposals simply state, in effect: “let’s not take the COLA this year.” The courts are a definite non-starter, as we’ve seen.

A long term solution is needed, however. I propose a new constitutional amendment that repeals the 27th Amendment and replaces it with a stronger one, making the pay raise “dance” visible to the American public. Visibility requires affirmative Congressional legislation requiring action rather than a self-perpetuating indexed system inviting inaction:

Join Me in “Something Else” I know my proposal needs work, and as the chart shows, it’s longer than a long shot, but it’s a start. For example, the proposed role of the OPM, an executive branch agent, is replete with separation of powers and comity issues, inviting principled objections from all sides. Perhaps the designation of the Government Accountability Office, a legislative agency, is a possible solution, yet, it too, as a legislative agency, is clearly subject to possible (probable?) and direct improper influence by Congress. The better suggestion would likely be an independent commission; however, politically, who today wants to set up another independent commission? This and other possible objections aside, the proposal does bring more “sunshine” to the process. The pay raise process would become a feature of national discourse, not an aside, and would gain the attention of the public, particularly, I believe, with the requirement of a recorded vote for pay raises that would prevent your Congressional delegation hiding within “voice vote” invisibility (although it would not prevent “absences” from the vote). So join the “Proud Four Percenters” and tell your MCs you want to support “something else,” like a Congressional Pay Amendment.

For Now, Two Things to Try. (1) Should you want to contact your Representative or Senators regarding this issue, their contact e-mails, etc. may be found at the official House site and the official Senate site. As we’ve seen, the only pressure that can be brought to bear is the good old-fashioned politics of yelling.

And (2), from Advertising Age, Jen Wheaton, 12-17-08, PR Challenge of the Day: Congressional Pay Raises, do ahead, give it a try! (I failed miserably.) “Pretend you work for Congress, are upset by [an] interest group’s press release and have to spin Congressional pay raises in a positive light. No cheating: You can’t have your pretend client opt out of the pay raises.”

See, those Press Secretaries do not have easy jobs . . . they definitely deserve a pay raise, if only there wasn’t all that constant lying . . .