But some constitutional law experts say that the law, as drawn up, works in reverse as well. They point out that taking money out of congressional pockets counts is “varying” just as much as putting money in would be.
Thus, the no pay provision of the bill “is (almost certainly) blatantly unconstitutional,” Michael Foomkin, a professor at University of Miami School of Law, on his Discourse.net blog.
If the House had passed this a few days ago, prior to the beginning of the new Congress, that would be OK. But now it can’t take effect until after the 2014 midterms, according to this analysis.
This is not simply a liberal’s way of looking at the wording, either. The conservative group American Majority Action issued a statement on Jan. 18 calling the legislation unconstitutional.
Not surprisingly, House Republican leaders saw this mini-flap coming. They have attempted to defuse it by simply inserting language within the bill stating that the bill passes muster. Section 2 of the legislation says this: “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-seventy 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.”
In other words, it isn’t really a “no pay” bill. It’s a “delayed pay” bill. Even if the Senate doesn’t pass a budget, senators would get their full pay at the end of the session.