Yes Congress Is Still Getting Paid, You Can Thank The Constitution

Congress is still getting paid during the shutdown, and there's nothing that can be done about that.

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As many observers have noted, while some 800,000 Federal Government employees are furloughed and facing the possibility that they might not get paid for the period during which the government is shut down, Members of Congress are still getting paid, and the reason can be found in the Constitution:

In an extended shutdown, most of the federal workforce would go without pay, but the checks will keep coming to the 533 current members of Congress.

“That is disgraceful in my view,” said freshman Rep. Tulsi Gabbard, D-Hawaii, told CNN. “Basically the only people who get paid in a shutdown are members of Congress, and that is irresponsible.”

Gabbard plans to send any pay she receives during a shutdown back to the Treasury. The combat veteran said she was shocked to find out recently that members’ pay is protected.

It is — by the Constitution.

The 27th Amendment to the Constitution restricts any Congress from changing its own pay. The measure was proposed in the first days of the Republic but was not ratified until 1992, after a grass-roots movement promoted the idea and the necessary number of state legislatures approved it.

While many may have wanted to restrain Congress from increasing its pay, the amendment also blocks Congress from freezing or cutting its compensation.

The result? Congress gets paid no matter what. Gabbard is not the only member surprised.

The wording of the 27th Amendment is pretty simple, but it’s meaning is exceedingly clear:

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

What this means is that, absent a law that says otherwise (and there is none), Congress will continue to get paid during a shutdown and that a law that attempted to restrict Congressional pay during a shutdown would not take effect until the next Congress takes office in January 2015. As a matter of policy, I’m not sure that such a law really matters one way or another given that they amount of money that pays Members is a relatively partial portion of the Federal Budget as a whole, but the symbolism of such a law, and the act that Congress is continuing to get paid now, is rather apparent. That’s why you see some Congressman and Senators over the past several days who have announced that they would donate their salary during a shutdown to charity, or ask that the monies be withheld during the time that the government is shutdown.

There’s an obvious populist argument here, but it can easily be a distraction. We’re not in the situation that we’re in because the Constitution prevents Congressional salaries being withheld during a shutdown. Indeed, even if the 27th Amendment did not exist, or if there was a law that mandated that Congressional pay be withheld during a shutdown, it’s pretty clear that we’d be in this same situation and that the odds of it being resolved quickly would be just as long. We’re hear because a minority in the House and Senate have decided to use something that ought to be rather mundane like the budget process as a bludgeon to make ideological points using a strategy that, in the end, cannot possibly succeed and will likely end up damaging their own political party. I sincerely doubt that the prospect of a couple weeks without pay would change their motivations very much.

Of course, while Members continue to get paid, not all of their staff will enjoy that privilege:

While members will get paid, they must decide which of their own office staff have to go home.

Members of Congress run their own office payroll and will decide who is essential and non essential. But even congressional staff members who work during a shutdown would not get paid until later — only their bosses will get paid on time.

Boy I’d hate to be the Congressman or Senator who tells his staff that they’re considered essential but that they aren’t going to get paid, all the while collecting my own paycheck and blithely doing nothing but grandstanding as the shutdown drags on.

FILED UNDER: Congress, Deficit and Debt, Quick Takes, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. PD Shaw says:

    Illinois lawmakers and the governor haven’t received pay since July and there is no evidence that its helped with the fiscal crisis.

  2. john personna says:

    I think it would be particularly frustrating for staff in the majority opinion:

    Nearly 6 in 10 Americans disapprove of trying to stop the law by cutting its financing. Even among those who don’t like the law, less than half want their representatives in Congress to try to make it fail.

    You know you are representing the will of the people, and suffer no pay even so.

  3. john personna says:

    I just had a flashback … remember when the Republicans started calling the Democratic Party the “Democrat Party” instead?

    The theory was that hey, the were both “democratic” so it was hubris on the Democrats side.

    Except now it’s not.

    The GOP does not believe in democracy.

  4. gVOR08 says:

    @john personna: And isn’t calling it the “Democrat” Party just about the most trivial, petty thing you’ve ever heard of? Republicans.

  5. Jenos Idanian #13 says:

    @gVOR08: It’s right up there with Repukelicans and Rethuglicans. Just plain stupid. The only reason I can see anyone doing it is that it gets a cheap rise out of the targets, and I don’t care for that. There are far better ways, far more legitimate ones.

    But on topic… yes, the Constitution makes it clear that the government has to pay them. But they are under no obligation to accept it, and it’s a decent PR move to refuse the money or pass it along to some charity. And if enough do refuse, then I wouldn’t want to be one of those who took the money and have to explain it to the voters — say, in a debate with a political opponent.

  6. Jenos Idanian #13 says:

    Hmm… my comment was withheld, probably because I cited a couple of derogatory terms towards the GOP. Funny that those were in the filters…

    Anyway, I’ll quote it here, with the terms edited out, to get the gist across.

    …..

    @gVOR08: It’s right up there with X and Y. Just plain stupid. The only reason I can see anyone doing it is that it gets a cheap rise out of the targets, and I don’t care for that. There are far better ways, far more legitimate ones.

    But on topic… yes, the Constitution makes it clear that the government has to pay them. But they are under no obligation to accept it, and it’s a decent PR move to refuse the money or pass it along to some charity. And if enough do refuse, then I wouldn’t want to be one of those who took the money and have to explain it to the voters — say, in a debate with a political opponent.

  7. al-Ameda says:

    I’d say that the party that instigated, caused, and supports this Shutdown should not be paid, and should in fact be sanctioned for this bulls***. That said, the 27th Amendment is fine with me.

  8. john personna says:

    Martin Wolf:

    Is the US a functioning democracy? This week legislators decided to shut down a swath of the federal government rather than allow an enacted health law go into operation at the agreed moment. They may go further; if they do not vote to raise the so-called “debt ceiling”, they risk triggering default…. If the opposition is prepared to inflict such damage on their own country, the restraint that makes democracy work has gone. Why has this happened? What might be the result? What should the president do? The first question is the most perplexing. The Republicans are doing all of this in order to impede a modest improvement in the worst healthcare system of any high-income country.

    If you are a Republican legislator, you can get paid for that.

  9. James Joyner says:

    Even though I’m personally impacted by the shutdown and think the path that got us here is disgraceful and stupid, I’m befuddled by the argument that Congress should shut down and/or not get paid. Who else is going to pass a budget/continuing resolution if Congress isn’t in session?

  10. gVOR08 says:

    @Jenos Idanian #13: Well, you force me to guess at X and Y, but have you heard them used regularly by national Democratic officials? Boehner religiously says “Democrat Party”. I’ve taken to calling him Boner, promising to learn to say his name properly when he learns to say Democratic Party”. Yes, it gets a rise, the stupid grates. He enjoys being seen as stupid?

  11. john personna says:

    @James Joyner:

    The point is it is NOT “shut down and/or not get paid.”

    Very specifically “essential” staff have to stay WHILE not getting paid.

    I haven’t seen anyone suggest that you can shut down Congress until Congress does such and s such, no.

  12. Jenos Idanian #13 says:

    @gVOR08: I see Boehner’s use of that as stupid, but I dunno if he enjoys it or not.

    And the two terms involved changing the second syllable, one involving “thugs” and the other a slang term for vomit. I’m sure you’ve heard them.

  13. LC says:

    Boy I’d hate to be the Congressman or Senator who tells his staff that they’re considered essential but that they aren’t going to get paid, all the while collecting my own paycheck and blithely doing nothing but grandstanding as the shutdown drags on.

    Since when? That seems to be your entire economic philosophy in a nutshell…

  14. PD Shaw says:

    @James Joyner: As I think JP is saying, the legislature does not need to get paid to do their job. Some are not accepting their paychecks while the shutdown continues, though I don’t know if that means anything more than not cashing their paychecks. Others are proposing a law to stop pay of future legislators, which would work around the Constitutional issue Doug identified.

    In Illinois, the governor followed through on his threat to line item veto legislative pay if a pension reform wasn’t passed by the end of the session. A very popular move. The legislature has ostensibly been working on a pension reform measure for the fall session ever since without pay, until a judge ruled the action unconstitutional a week or so ago. The order is being appealed.

  15. James Joyner says:

    @john personna: But I don’t think Congress is actually being paid any more than the others are being paid. That is, they’ll likely miss paychecks if the government is closed when their pay is processed because those doing the processing are unessential. But they’ll get paid, like everyone else, for time worked once processing resumes.

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