On Pay and Protections, Constitution, Article 1 §6.1

On Wednesdays we study the Constitution.

I am currently reading Article 1 (there are seven), and today I will begin Section 6 (of 10 in this section). For those of you just tuning in, Article 1 is all about the legislative branch of government. Section 5 has been reading a lot like what people who make the introductory speeches at conferences call “housekeeping.” It has dealt with scheduling and quorums, discipline, and last week, keeping records.

Here it is, Article 1 §6.1

The 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. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Congressional Pay

Let’s break it down:

The Senators and Representatives shall receive a Compensation for their Services

It stands to reason that a person should be paid for work they do, but there is a moralistic strain of thought that says people should do important things for their own sake. I actually know a person who thinks school teachers should not be paid a living wage because teaching should be something people do for love not money. This person seems to be completely oblivious to the fact that such a scenario would limit teaching to the independently wealthy and spouses of people with high-paying jobs – a population that may not overlap perfectly with the population of people with a passion for teaching. (Nevermind that teaching is already so dramatically underpaid that no one would enter the field for financial reasons.) We know from the Constitutions itself, which says Congress can’t skip a year, that the Framers were not thinking of national government as a full-time job. And however progressive they were for their time, they probably didn’t imagine tradesmen serving even in the House of Representatives. But it’s nice that they at least thought to look out for the small farmers who were respectable enough to serve but maybe couldn’t afford to take a few months off from the business of making a living to represent the people. Paying elected for their service just makes sense.

Of course, the question of how much to pay electeds is much thornier than the question of whether to pay them. It should be enough to live on, because it’s a hard job and needs their full attention; but it shouldn’t be enough to attract people to the job just for the money. It should be enough to make bribery less appealing, but it shouldn’t be so much that salaries detract from the government’s ability to take care of its other business.

Compensation for their Services, to be ascertained by Law

Then there’s the issue of who decides how much to pay. By law means the legislative branch decides. What could go wrong?

Something did, because Amendment XXVII changed it.

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

That probably would have helped a lot more when politicians were expected to serve for one or two terms and then go back to private life. Now that politics is a career, it just means elected need to plan ahead a term. Even so, the amendment took 202 years, 7 months, and 10 days to be ratified. But that is another story…

Long before the 27^th Amendment finally passed, other changes were made to way Congressional salaries are determined. From the Annotated Constitution (p 138):

from the founding to 1967, congressional pay was determined directly by Congress in specific legislation setting specific rates of pay. In 1967, a law was passed that created a quadrennial commission with the responsibility to propose to the President salary levels for top officials of the Government, including members of Congress. In 1975, Congress legislated to bring Members of Congress within a separate commission system authorizing the President to recommend annual increases for civil servants to maintain pay comparability with private-sector employees.

Then

the Ethics Reform Act of 1989, altered both the pay-increase and the cost-of-living-increase provisions of law, making quadrennial pay increases effective only after an intervening congressional election and making cost-of-living increases dependent upon a specific congressional vote

Did it work? Well, since 2012, the base salary for Congress has been $174,000 per year, plus a sweet benefits package, which seems reasonable to me, since most lawyers make more than that. Salaries rise with seniority, so the highest salaries go to the Speaker of the House at $223,500. The president pro tempore of the Senate and the majority and minority leaders in the House and Senate make $193,400. The also get an automatic COLA each year, and there seems to be enough confusion over whether the COLA is always inflationary or a disguised pay raise to merit a research deep dive some other time. I also could have sworn that in the middle of all the ACA wrangling last summer, I read that Congress slipped through a big fat raise for themselves, but Google fails me and I can find no mention of it now.

Electeds are allowed to make money from other jobs, but it’s capped at 15% of their Congressional salary and there are all sorts of limitations on what kind of work they can do and some things they can do but not be paid for. Somehow, I suspect that many members of Congress are raking in a lot more than $256,000 a year though, and it would be a worthwhile research project to dig into some of those financials to see just how it all works. But I’m not going to do it. I’m going to stick with figuring out what the Constitution says, and maybe when I’m an expert I can dig deeper into Congressional ethics laws.

Privilege from arrest

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same

Well, this post is getting long, so I’ll just refer to the Annotated Constitution (p 138) for explanation:

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. It does not apply to service of process in either civil or criminal cases. Nor does it apply to arrest in any criminal case. The phrase “treason, felony or breach of the peace” is interpreted to withdraw all criminal offenses from the operation of the privilege.

Privilege of Speech

and for any Speech or Debate in either House, they shall not be questioned in any other Place.

It’s funny how we tend to disregard things we don’t understand. I glossed over this phrase the first several times I read this clause. It sounded like a work/government parallel to the separation of church and state. But the Annotated Constitution talks about it from page 138-145 in tiny print. It’s worth reading the whole history, but Justice Harlan (the second one) summed it up pretty nicely in 1966. He said that this clause represents:

the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.

I think a lot of the time we forget that the Framers were not inventing a new type of government from scratch. Really, they were British subjects during a time period that revered ancient Rome. They were basically shooting for “English, but cool like the Romans.”

So this clause traces back to the English Bill of Rights of 1689 and the history of which traces back almost to the beginning of the development of Parliament as an independent force, and now in American government is one more check against the influence of the executive branch on the legislative.

Whew! That’s a lot of words to get only a cursory understanding of a clause that’s only 80 words long. Thanks for sticking with me. See you next with Article 1 §6.2!