Politico’s Katherine Tully McManus broke the story that four current and former Members of Congress are suing for back-pay and benefits using a novel Twenty-Seventh Amendment theory. They argue:
“For 21 of the 32 calendar years since the Twenty-Seventh Amendment’s 1992 ratification, Congress and the President have unconstitutionally suppressed COLAs that should have been applied to congressional pay. In each case, the suppression of the statutory COLAs was enacted and implemented without an intervening election, as required by the Amendment’s plain terms.”
They want the courts to certify a class action suit for themselves and all who served as Members of the House and Senate since January 1, 1994 (which they estimate to include approximately 1,800 current and former Members of Congress).
As I understand their argument, there are two key facts. First, Members of Congress used the annual appropriations bill to prevent the automatic cost of living increase they would otherwise receive under the previously enacted law. Second, the Twenty-Seventh Amendment says any law that increases or decreases the salary of Members of Congress can only take effect after the next election of the House of Representatives.
That’s pretty clever, right? It makes my head spin a bit, especially when I start to think about how Congress uses multiple calendars, the impact of continuing resolutions, and so forth, but I think the math generally works.
The former Members of Congress brought the lawsuit on behalf of themselves and other current and former lawmakers, claiming damages exceeding $5 million.
The pay for House Members has not been adjusted for the cost of living since 2009. Most Members of Congress currently earn $174,000 annually, although a handful, such as the Speaker of the House, earn more. If you use the Consumer Price Index inflation calculator from the Bureau of Labor Statistics, that salary in 2009 is equivalent to approximately $256,000 today. Don’t forget to account for lost pension benefits and retirement matches, which would also adjust.
A decade ago, I urged Congress to provide Members of Congress “a big fat raise.” Based on the hate mail and the questions I received on C-SPAN, this idea isn’t all that popular among some folks. The most common complaint was that they don’t like what Congress is doing, thus members should be paid less — or not get paid at all — until they straighten up and fly right. It doesn’t take a lot of analysis to realize a punitive, collective punishment approach has not yielded the results people want.
But let’s look at this a bit differently. Should an employee earn less this year than what they earned the previous year? How would that affect your motivation if you were in their shoes? Most people, especially those who have options, would leave a job that cuts their pay and go elsewhere.
Like any institution, Congress runs on expertise. The people who serve in Congress are not interchangeable with any person whose name is chosen out of the proverbial phone book. It’s why we have elections. Moreover, the longer a person serves in Congress, the greater expertise they gain at lawmaking, which is a real skill that takes time and hard work to acquire.
In the last fifteen years, Members of Congress have taken an effective $82,000 cut to their salaries. Many must also maintain a residence in their district and in Washington, DC. This giant pay cut affects who can afford to serve in Congress and the incentives of those who run for the office.
Most members know this. It’s why Congress created a system under which Members automatically receive annual COLAs, although it’s been blocked by appropriations riders. It’s why members of both parties have worked together to keep that rider out of appropriations bills. But a handful of Members have opportunistically blown up that effort, or sought to undo COLAs entirely. Unfortunately, they’re thinking like politicians who want to score political points and not like institutionalists who want a Congress that works for everyone. In Congress, like in life, you get what you pay for.
While I would like to hope that Congress will simply pass legislation to allow Member pay to be reset at $256,000, or perhaps higher, the incentive for a few Members to serve as spoilers to any such effort is almost irresistible, even if the political rewards are modest at best and they will deserve any opprobrium they garner from their colleagues. Showing political courage is expensive, and opposition is an easy cheap shot.
What I wonder, then, is this: can the House (and Senate) settle the lawsuit? Can they decline to contest the complaint or otherwise agree to make all the members whole who were impacted by the withholding of the COLA? Can Congress agree to reset the pay rate for members going forward without having to pay a law? The intersection of the Twenty-Seventh Amendment and Member pay is unusual, perhaps unique. And the result would be good. So why not consider a settlement agreement?
