One of the least known constitutional amendments is getting a lot of publicity as a wild card in the ongoing budget battle in Washington.
The 27th Amendment is the most recent amendment, and there are many people who probably don’t remember what it stands for: congressional pay raises.
“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 amendment reads, as approved in 1992.
In short, the amendment states that a sitting Congress can’t change its pay while it is in session.
It’s not a new idea. The amendment was proposed back in 1789 by Founding Father James Madison along with other amendments that became the Bill of Rights, but it took 203 years for it to become the law of the land. In 1982, a college undergraduate student, Gregory Watson, discovered that the proposed amendment could still be ratified and started a grassroots campaign.
In 1992, Alabama became the 38th state to sign off on the 27th Amendment, making it a law.
Since then, the 27th Amendment has gotten very little publicity, expect for the occasional news story about Watson’s personal quest to get it passed.
That is, until late last week, when GOP House leaders proposed linking congressional pay to the budget debate. It didn’t take long for journalists and academics to recall the 27th Amendment.
On Monday, the House Rules Committee published its proposed bill, about one hour before President Barack Obama’s inauguration. House GOP leaders seemed convinced the proposed bill didn’t violate the 27th Amendment.
According to section 2 of the bill, a payroll administrator would withhold Congress’ pay after April 15, 2013, if it couldn’t agree on a fiscal year 2014 budget. The money would be held in an escrow account and given back to Congress members when a budget was passed or at the end of the current 113th Congress in January 1, 2015.
In exchange, Congress would suspend the debt ceiling until May 18, 2013.
Initially, House Oversight Committee chair Darrell Issa, a Republican, said he thought the bill was unconstitutional, according to a report on the website Roll Call. The site said Issa’s office quickly issued a statement, saying that “the final proposal brought before the House will have resolved any constitutional questions and that it will have my support.”
Others were quick to point out that withholding pay, even temporarily, would “vary” the compensation for Congress members, and in their opinion, presented a direct violation of the 27th Amendment.
Among the critics was UCLA law professor Adam Winkler, who gave a detailed explanation on the website Talking Points Memo.
“The answer is unclear because the 27th Amendment has never been authoritatively interpreted by the Supreme Court,” Winkler said in an email to the website. “Yet it seems almost certainly unconstitutional. Withholding pay effectively ‘var[ies] the compensation’ of lawmakers.”
Almost a year ago, the bipartisan political group No Labels said that a “No Budget No Pay” plan was constitutional, as long as the pay withholding took place in the Congress after the one that passed the plan.
“If Congress doesn’t act in 2012, a No Budget, No Pay law could not take effect until 2015 at the earliest—meaning we’re more likely to have another three years of budgetary dysfunction,” the group said as part of a lengthy explanation on its blog.
The House will vote on the measure on Wednesday and if approved, it will head to the Democrat-controlled Senate.
There was one clue this weekend that Senate Democrats will pursue their own budget for the first time since 2009, and may not have a lot to lose by passing the debt-ceiling bill.
Chuck Schumer, the third-ranking Democrat in the Senate, said not only will his caucus pursue a budget, but it will also seek to add more tax hikes in addition to spending cuts desired by Republicans.
And on Tuesday, a White House statement said the President Barack Obama wouldn't oppose the bill.
The GOP House debt-ceiling plan also doesn’t address the issue of the sequestration, a forced $1.2 trillion in government spending cuts that will now go into effect in March.
If the 27th Amendment doesn’t get in the way and the debt ceiling is postponed until May, then the sequestration will become a key political issue. The steep sending cuts would likely lead to job losses in the private and defense sectors.
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