Congressmen Paid Salary for Unexcused Absences

A cursory mention was made last night on “Fox Special Report” that The National Taxpayers Union released a study yesterday entitled, “25 Congress Members Flouted Law by Taking Taxpayer-Funded Salary for Unexcused Absences.” They found that,

[A]n obscure federal statute still on the books requires Congressional absentees to forfeit their pay unless they or a family member are ill; but leaders have failed to enforce the law while rank-and-file lawmakers seem reluctant to voluntarily comply.

“Members of Congress claim they follow the laws that apply to everyone else, but our research shows that many Senators and Representatives won’t even follow laws that apply explicitly to themselves,†said NTU President John Berthoud. “Worse, taxpayers covered the bill for several Members of Congress who were trolling for votes at the polls instead of casting votes in Washington.†Among NTU’s findings:

* The chronically absent list is filled with Presidential and Vice Presidential candidates, including John Kerry (D-MA), John Edwards (D-NC), Bob Graham (D-FL), Joe Lieberman (D-CT), Richard Gephardt (D-MO), and Dennis Kucinich (D-OH). But House Members bidding for Senate seats were also prominent on the list, including Brad Carson (D-OK), Mac Collins (R-GA), Jim DeMint (R-SC), Pete Deutsch (D-FL), Joseph Hoeffel (D-PA), Johnny Isakson (R-GA), Chris John (D-LA), Denise Majette (D-GA), George Nethercutt (R-WA), and Patrick Toomey (R-PA).

* From January 2003 to the October 2004 recess, John Kerry missed 146 days of votes without being granted leave. Total salary overpayment: $90,932.68. His running mate, John Edwards, compiled 102 days of unexcused absences during that period, for an overpayment of $63,543.16. Both Senators missed every vote during the months of July, September, and October.

* On the House side, Dick Gephardt’s failed bid for the Presidency cost taxpayers $81,362.53 in excessive pay. Gephardt was absent for 85 of the 109 days the House cast votes in the year 2003 alone. Combined with 2004, Gephardt had the highest unexcused absence rate in the House, at 131 days — still short of Kerry’s record total.

* Then-Rep. Jim DeMint’s successful 2004 bid for South Carolina’s Senate seat could help to explain some or all of his 37 unexcused absences, and an apparent $23,305.56 salary overpayment. In 2003, now Kentucky Governor and former Rep. Ernie Fletcher (R) missed 27 session days, for a total salary overpayment of $16,640.91. Three Georgia lawmakers who were locked in tight contests — Collins, Isakson, and Majette — racked up 55 days of unexcused absences and $34,643.40 of potentially illegal salary among them during 2004.

According to 2 U.S. Code 39, “The Secretary of the Senate and the Chief Administrative Officer of the House of Representatives, respectively, shall deduct from the monthly payments (or other periodic payments authorized by law) of each Member or Delegate the amount of his salary for each day that he has been absent from the Senate or House, respectively, unless such Member or Delegate assigns as the reason for such absence the sickness of himself or of some member of his family.†Under 2 U.S. Code 48, the President of the Senate and the Speaker of the House are responsible for certifying the salary accounts of their respective chambers, and so must make an inquiry into whether Section 39 deductions are in order.

NTU contacted the errant members. Further:

They were also provided with a memorandum authored by attorney Bruce Fein, which discussed the validity and requirements of the statute. Fein’s research determined that enforcement of 2 U.S. Code 39, originally enacted in 1856, has been “erratic,†but the fact that it was amended in minor respects as recently as 1996 “reaffirm[s] a Congressional belief in its continued legal vitality.†In response to a letter from NTU regarding administration of the law, the Secretary of the Senate responded that due to the “growth of legislative and representational duties†and “[T]he century of desuetude attending this provision, the Secretary is not in a position to apply section 39 to the disbursement of Members’ salaries.â€

This is more amusing than scandalous. Clearly, the law has hardly ever been enforced in recent decades. In 1856, being a Member was very much a part-time job. In an era with year-round sessions and multi-million dollar re-election campaigns for some Senate seats, it would be rather unreasonable to expect Members to be docked for missed work days. My guess is that the Members involved were unaware of the law; I certainly was.

Still, this gets to an issue with which I’ve long wrestled without reaching any satisfactory conclusion. Given the grueling nature of modern campaigns, what duty do elected officials have to their constituents? Have many missed votes or work days are too many? I tend to think there is a threshhold but am not sure where it is. Further, is campaigning for re-election to one’s current post different than seeking elevation to another office serving a different constituency? Again, I think so but am not sure there’s a rational reason that I could articulate.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Tom Royce says:

    I would like to be in that position. Sorry for missing 146 days last year. I was out looking for a new job. Don’t you dare dock my pay.

    If one is running for office, I would think honorably and politically the proper thing to do would be to proclaim the lost pay and make it an example.


  2. McGehee says:

    If one is running for office, I would think honorably and politically the proper thing to do would be to proclaim the lost pay and make it an example.

    Yup. It would be the politically advantageous thing to do even if there weren’t a law. The fact John Kerry drew full Senate pay in 2004 despite missing the majority of votes was irritating. The fact he had also done so in 2003 when the rigors of presidential campaigning had not yet set in, was downright offensive.

  3. caltechgirl says:

    I totally agree. I mean, I work in an industry where time cards are useless, but there is still a reasonable expectation of productivity to get a paychek, you know? How’s this: If the staffers of these absentee representatives missed the same number of days from the office, how would they react? I think it’s absolutely hypocritical for these folks to draw pay for missed work while still requiring their own employees to show up in order to get paid. Some leeway should be given for campaigning, especially if one is trying to regain one’s current position, but missing every single day for 3 months is just too much.

  4. LJD says:

    “This is more amusing than scandalous.”

    It is? I think it’s an outrage. Why doesn’t Dan Rather do a story on The Fleecing of America?

    “Clearly, the law has hardly ever been enforced in recent decades.”

    Why not? Is the same legislature that is guilty of the abuse also responsible for policing themselves?

    “In an era with year-round sessions and multi-million dollar re-election campaigns for some Senate seats, it would be rather unreasonable to expect Members to be docked for missed work days.”

    Why? Does the involvement of millions in election campaigns somehow justify wasting tens of thousands of taxpayer dollars?

    If I took an unexcused sick day, I would be fired. Period. Let alone embezzling nearly $100k for services not rendered. As public servants, our lawmakers should be held to a much higher standard.

    No surprise that most on the list have a (D)next to their name. I don’t see them offering up this money to reduce the deficit, or fund programs for prescription drugs, health care,etc. that they beligerantly blame the Bush administration for not funding.