Statement on H R 1255, Government Shutdown Prevention Act

April 1, 2011 at 1:19pm

Democrats are wrongand so are Republicans


The House just passed H R 1255, the Government Shutdown Prevention Act of 2011. The bill does two things.


First, H R 1255 directs that H R 1 become law if the Senate has not passed a long-term budget resolution by April 6. The House passed H R 1 in February. It funds the government through the end of the fiscal year and cuts $100 billion annualized from current spending levels. I support H R 1 as a first step toward putting our budget on a sustainable path. The Senate has been unwilling to pass H R 1 or any other long-term budget resolution. House and Senate leadership have been in continuing negotiations on a compromise. In the meantime, to avoid a government shutdown, Congress has passed a series of short-term budget resolutions, the latest of which expires on April 8.


Second, if the government does shut down because Congress hasn't passed a budget resolution or the government is unable to pay its debts because the debt limit has been exceeded, H R 1255 directs the authorities "not [to] disburse to each Member or Delegate the amount of his or her salary for each day" that the government is shut down or unable to pay its debts. It does the same with respect to the President.


Democrats claim H R 1255 is unconstitutional because it violates the Constitution's presentment requirement. Republicans respond that the bill complies with presentment and is otherwise constitutional. They're both wrong.


The Constitution's presentment requirement is found in Art. I, Sec. 7: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President . . . ." Democrats incorrectly assert H R 1255 violates presentment because the bill somehow will become law without the President's signature. It can't. Like any other bill, H R 1255 must be passed by the Senate and signed by the President before it becomes law. There simply is no presentment violation.


The Democrats' (and media's) confusion on this issue may stem from a misunderstanding of H R 1255's form. As The Washington Post misreported, some believe H R 1255 is a resolution—requiring a simple majority of the House without the Senate's passage or the President's signature—instead of a bill. Resolutions are often used to express the "sense of Congress" or to alter the internal rules of the House or Senate. That is, simple resolutions are not used to make law. In the House, resolutions are written as "H Res"; bills are written as "H R." H R 1255 is a bill, not a resolution. If it weren't already clear from its title, the text of H R 1255 calls itself an "Act," which is another name for a bill. If passed by the Senate, H R 1255 will be presented to the President. So Democrats' presentment argument is baseless, and seasoned legislators who make the argument should know that.


The Democrats are half right, however: H R 1255 is unconstitutional, but for a different reason. The bill states congressional authorities shall not "disburse to each Member or Delegate the amount of his or her salary for each day" that the government is shut down or unable to pay its debts. The bill has a similar provision for the President's salary.


Amendment XXVII to the Constitution states: "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened." Similarly, Art. II, Sec. 1, states: The "President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected." The Constitution is clear: The compensation of Members of Congress and the President cannot change mid-term.


There was confusion among those pushing H R 1255 as late as yesterday regarding what the bill does. The latest argument is that H R 1255 doesn't reduce the President's or Members' pay; it merely delays the disbursement of pay until the government comes back from a shutdown. The logic and the plain language of H R 1255, however, suggest the bill reduces pay rather than delays it. The bill blocks pay "for" the days the government is shut down—not "on" the days of a shutdown. Besides, what purpose would blocking disbursement "on" the days of a shutdown have? Representatives are paid once per month; Senators are paid every two weeks. Unless the government just happens to be shut down on payday, the bill would have no effect. And even if a shutdown occurs on payday, under the proponents' reading of the bill, Representatives' and Senators' subsequent paychecks would just increase to make up for the delayed payment.


The bill is confusing largely because its proponents have an incentive to make two conflicting arguments at the same time. They gain politically by saying their bill cuts congressional pay. But to square their bill with the Constitution—and to appease those who care about following the Constitution—they have to argue their bill doesn't cut congressional pay.


The bottom line: H R 1255 reduces pay mid-term for Members of Congress and the President. That's unconstitutional. Representatives, Senators, and the President swear an oath to support and defend the Constitution. Regardless of what one thinks about their pay, Representatives are bound to uphold the Constitution by voting against unconstitutional legislation. That is why I voted against H R 1255.