Is the GOP Debt Ceiling Proposal Constitutional?

Over the weekend, House Republicans unveiled a debt ceiling proposal that’s the subject of some controversy.  Shocking, I know.  The controversy hinges on the fact that, while Republicans tout themselves as defenders of the Constitution, their plan contains a constitutionally questionable provision. The House Republican proposal calls for a 3-month extension of the federal government's statutory borrowing limit, a significant moderation from the GOP's earlier debt ceiling rhetoric.  In exchange, the text of the bill requires the House and Senate to pass budget resolutions by April 15th.  This seems like a constructive step toward a "grand bargain" and a move that probably lowers the probability of a costly and embarrassing default. However, the agreement also contains language that if Congress does not pass a budget resolution by the April 15th deadline, lawmakers will not get paid for their services. This provision mirrors the so-called "No Budget, No Pay" proposal advocated by the group "No Labels."  But is it Constitutional?

A number of commentators have opined on this matter, with most citing the proposal as lacking constitutional muster.  This includes some prominent conservatives.  I initially agreed with this view.  However, yesterday the text of the proposal was made public by the House Rules Committee.  The committee will vote today on the rule attached to the proposal with a vote on the full bill scheduled for Wednesday.  There are some interesting points in the plan.

A little background first.  During the Constitutional Convention the issue of compensating members of Congress was debated.  The most famous opponent of paying lawmakers was Benjamin Franklin.  During the convention the arguments in favor of paying lawmakers were (1) that paying elected officials enhances representation by increasing the likelihood that less financially well-off individuals serve and (2) that a competitive salary would ensure the “wisest” citizens would choose a career in politics and make Congress an institution of considerable political ambition.  During the Convention the final votes were 8-3 in favor of paying representatives and 7-3 in favor of paying senators.  Thus, Article 1, Section 6, Clause 1 of the Constitution states:

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.

And while this clause clearly gives Congress the power to determine its own pay, the 27th Amendment prevents pay increases or decreases during a concurrent term:

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

On its face, the 27th Amendment would seem to invalidate the House proposal.  But the text of the bill released yesterday (as as of this time, an unnumbered House bill) addresses this issue explicitly:

In order to ensure that this section is carried out in a manner that shall not vary the compensation of Senators or Representatives in violation of the twenty-seventh article of amendment to the Constitution of the United States, the payroll administrator of a House of Congress shall release for payments to Members of that House of Congress any amounts remaining in any escrow account under this section on the last day of the One Hundred Thirteenth Congress.

Clever.  Under the proposal lawmakers will not “lose” their pay per se, rather, their pay is temporarily “withheld” (in escrow) until the close of 113th Congress (or the date a budget resolution is passed, whichever comes first).  While I’m not a Constitutional law expert, and I'm largely speculating here, I suspect this passes Constitutional scrutiny (but see an actual Constitutional law professor, Adam Winkler, who disagrees).  Article 1 clearly gives Congress the statutory authority to determine its own pay and, presumably, this vests in Congress the power to determine the amount of pay as well as the manner of its administration.  Indeed, the proposal does not technically vary the amount members receive in compensation (at least least as I understand the word "vary"),  just the timing of its disbursement.  I have to imagine Congress, like any employer, has made occasional changes over the years to how lawmakers literally receive their pay.  For example, Cost of Living increases were deemed Constitutional under the 27th Amendment by a lower court.  I just don’t see this as a distinction without a difference; it's a political question in an area where Congress is granted explicit power.  It’s certainly gimmicky and probably ineffective in terms of pressuring Congress to act (see below), but Constitutional nonetheless.

A few interesting points about the bill.  The section quoted above clearly puts the pressure to pass a budget resolution on the individual chambers, not Congress.  In other words, if the House passes a budget resolution and the Senate cannot, senators’ pay will be placed in escrow but not the pay of representatives’.  In other words, Congres--as a whole--can fail to pass a budget resolution and lawmakers will still receive their compensation so long as the two chambers pass competing proposals.  This would seem to undermine the proposal’s effectiveness by not requiring the two chambers agree to a single budget resolution.  It also puts disproportionate pressure on the Senate, as legislating is significantly more difficult in the upper chamber.  But second, if members know they will be paid in January of 2015, where’s the threat?  Indeed, many (most?) members of Congress are independently wealthy.  I’m just not sure this is going to alter the behavior of the John Kerrys, Darrel Issas, and Jay Rockefellers.  In short, I don't think this proposal makes a budget resolution more likely.

As an aside, the history of the 27th amendment is quite interesting.  The 27th amendment was finally ratified in 1992, making it the most recent successful amendment.  However, the 27th amendment was originally passed by the House and Senate in September of 1789.  At that time, ten amendments to the Constitution were summarily ratified by the requisite states, becoming the Bill of Rights.  The 27th amendment, by contrast, languished in a state of constitutional purgatory.  By 1791, only six states had ratified the 27th amendment.  In 1983, Main became the 10th state to ratify after an undergraduate at the University of Texas wrote a college paper on the defunct amendment and began lobbying state legislatures for it's ratification.  Nearly a decade later, the 38th state--Michigan--ratified the amendment.