Margin of Σrror

Margin of Σrror -

Bill and Claire’s Unconstitutional Adventure

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

-The 27th Amendment to the U.S. Constitution (1992)

Senators Bill Nelson (D-FL) and Claire McCaskill (D-MO) introduced a bill today that would force members of Congress to take pay cuts equal to the cuts affecting other government agencies under sequestration. This proposal is likely to be hugely popular with the American people. What’s the problem with this plan? It’s clearly unconstitutional, as well as simply being a bad idea.

The 27th Amendment to the U.S. Constitution (posted above) makes it unconstitutional for congressional pay to be changed until an election has taken place. While ratified in 1992, this amendment was originally proposed as part of the Bill of Rights and was supported by James Madison.

Madison supported this amendment because he did not want members to vote themselves a huge pay raise before the voters were allowed a chance to register their approval or disapproval of Congress. To quote Madison, “there is a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets.”

This amendment also protects members of Congress who express minority opinions on legislation or nominations. Imagine this scenario: The majority in Congress wants to pass a bill that it has the votes for, but it wants to look bipartisan in passing the bill. The speaker goes to the minority leader and says, “Have your members vote yes on my bill or we will vote to cut the pay of minority party members by half.” Seem implausible? Maybe, but the 27th Amendment is an important protection against the tyranny of the majority.

In addition to being unconstitutional, cutting the pay of members of Congress is a misplaced (albeit popular) reform. While the $174,000 salary that members of Congress receive is certainly a decent salary, it is not excessive if one considers the other potential job options for members of Congress. Who can forget the million dollars that former-Senator Jim DeMint (R-SC) has been offered to run the Heritage Foundation? Dozens of other examples exist of members getting huge pay raises to work as lobbyists or other positions in the private sector after leaving Congress.

As the old saying goes, “You get what you pay for.” If you offer second rate pay to members of Congress, you will get second rate members. (Yes, even worse than now!) In other words, there needs to be a competitive salary for members of Congress in order to maximize the probability of attracting high quality individuals to the job.

Furthermore, if the pay of members of Congress is cut too much, then serving in Congress will become even more difficult for middle and lower income Americans than it is now. Members of Congress have to maintain two residences and must have an extensive professional wardrobe (among other living expenses beyond that of the average American). This isn’t a problem if you are one of the 50 richest members of Congress, but if you are a clean energy expert/advocate,  high school teacher, or farmer/gospel music singer then a drastic pay cut might make it financially difficult to serve in Congress. At the very least, such an individual would be unable to build a financial nest egg in case of an election loss, which would disincentivize them from running in the first place.

All in all, a substantial pay cut for members of Congress would serve to make the membership of Congress even less economically representative of the country as a whole than it is now. While some people might be willing to take significant financial sacrifices to serve in Congress, enlightened statesmen will not always be at the helm.

In conclusion, even if you don’t agree that Mr. Nelson and Ms. McCaskill’s proposal is a bad idea, it is clear that it is unconstitutional. And when laws are legitimately unconstitutional, the Supreme Court has a way of striking that whole thing down.

[Note: The title of the article is a pun on the movie“Bill and Ted’s Excellent Adventure.” The final line of this piece is a (hopefully satirical) reference to Rep. Todd Akin’s disastrous comments about “legitimate rape” in the 2012 election.]