A 28th Amendment to Dock Congress’ Pay During a Shutdown

By Steve Klepper (Twitter: @MDAppeal)

I am far from the first to observe the injustice that members of Congress continue to draw salary during the present shutdown of the federal government. See, e.g., Patricia Murphy, How Congress Will Still Get Paid in a Government Shutdown, The Daily Beast (Sept. 20, 2013). This situation is an unintended consequence of the Twenty-Seventh Amendment, which provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” The amendment’s drafter, James Madison, and the states ratifying the amendment—which was submitted to the states in 1789 but was not ratified until 1992—were targeting congressional pay raises. But, under the amendment’s plain language, no law varying congressional pay, whether upward or downward, can take effect until after an intervening election.

The present shutdown merely highlights Madison’s failure to draft the amendment narrowly to affect only pay raises. Say, for instance, members of Congress voted right now to raise their annual salaries to $1 million per year, effective January 2015. And say that the public took the Twenty-Seventh Amendment’s opportunity to punish incumbents at the polls in November 2014. Any legislation by the 114th Congress in 2015 to roll back those increases could not be effective until January 2017.

We should amend the Twenty-Seventh Amendment to correct this anomaly. And, while we’re at it, we should insert a hammer-clause to ensure that those responsible for a government shutdown share the pain felt by ordinary federal workers. A Twenty-Eighth Amendment could provide:

Section 1. Nothing in the twenty-seventh article of amendment to the Constitution of the United States shall prevent a Law diminishing the compensation for the services of the Senators and Representatives from taking immediate effect.

Section 2. Senators, Representatives, and the President shall not receive compensation for their services for any time that no Law or Resolution is in effect to fund the operations of the government of the United States.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Why include the President in Section 2? First, any amendment affecting only congressional pay would be viewed as partisan and therefore could not command the necessary two-thirds majority of each house of Congress. Second, even if the Framers did not envision the President playing an active role in budgeting or other legislation, the fact is that Presidents now do play a very active role. Yes, some blameless federal office-holders may lose their pay. But blameless federal workers across the country are going without pay right now.

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