Why Policitians Should--Have To--Be Paid During A Shutdown

You've probably heard by now that one of the weird and outrageous little quirks of a government shutdown is that, while hundreds of thousands of public servants struggle to make ends meet, paychecks for members of Congress will still arrive right on time.

Why does this happen? More importantly, why is this allowed to happen? Why on Earth hasn't Congress passed a bill ensuring that senators and representatives--earning $174,000 a year--are in the same boat as rank-and-file employees.

You'd agree with that law. I agree with that law. I have a hard time imaging any sort of argument against that law. But it turns out writing a law like that is surprisingly difficult, and would likely be more trouble than it's worth. For better or worse, it's preferable to keep the paychecks for politicians coming.

First of all, the reason why. Others have already done a great job explaining this, so I'll just give the quick Reader's Digest version.

A shutdown is a failure of the government to pass a yearly appropriations bill. But congressional pay isn't part of the yearly appropriations bill. This is for two reasons:

1) The constitution says that members of Congress cannot raise (or lower) their own pay during their own term. So, constitutionally, it can't be part of the annual appropriations. And,

2) Even if that weren't true, it's probably a good thing that Congressional salaries aren't part of the yearly budget wrangling. It'd be a never-ending spiral.

So, why hasn't someone written a bill which just says, "If there's a shutdown, Congressional pay stops?" Actually, someone has. Sen. Barbara Boxer (D-Calif.) in January introduced S. 55, which blocks Congressional pay in such a situation.

The bill doesn't show signs of being put through a judicious review. It's less than 250 words. The relevant portion reads:

(a) In General- Members of Congress and the President shall not receive basic pay for any period in which--
(1) there is more than a 24-hour lapse in appropriations for any Federal agency or department as a result of a failure to enact a regular appropriations bill or continuing resolution;

Just running this through my mind, some problems occurred to me. It's easy enough to define a regular appropriations bill--there's a Congressional apparatus for that. But what's the definition of a continuing resolution?

According to the Senate website's glossary, it's:

Legislation in the form of a joint resolution enacted by Congress, when the new fiscal year is about to begin or has begun, to provide budget authority for Federal agencies and programs to continue in operation until the regular appropriations acts are enacted.

Is that definition set in law? I'm not sure. And I'm not sure if what we often call continuing resolutions would meet that definition. For instance, sometimes they aren't passed at the beginning/end of the fiscal year.

If you cut out all of the gobbley-gook, a CR is basically a law that funds stuff but is outside the formal budget process. But the thing is, there are lots of other laws which fund stuff outside the formal budget process. There's a law that funds Social Security. There's a law that funds Obamacare. Is there a fair way to determine which things are CRs and which things aren't, other than looking at whether or not they are called CRs?

For instance, if Congress votes to eliminate a federal agency, would that trigger Boxer's bill? That agency is not getting funded because Congress failed to pass a CR funding it. That's obviously not the intent of the bill, but laws, once enacted, can have lives of their own.

And it's not like Congresspeople could write some exemption to the Boxer bill when that issue comes up--they can't raise or lower their own salaries until the next term, remember?

This could have problems the other way around, too. For instance, on the eve of this shutdown, Obama signed a bill ensuring that service members and Department of Defense employees would still get paid. Obviously, that means he's funding their paychecks. Would that count as a continuing resolution? From a purely legal standpoint, what's the difference between our current shutdown and a situation where the government decided it wanted to end all federal departments except for the Department of Defense?

OK, so Boxer's bill isn't very well-written. What's a better way to write it?

I've been batting this idea around in my head for a while, and I can't come up with a good way. A shutdown isn't something happening--it's the failure of something else (federal funding) to happen. How do you write a law with a trigger tied to a negative?

You could write something which ties member pay to the formal budget process. In fact, Congress did just that earlier this year, to the "no budget, no pay" act. It was likely unconstitutional, but as a concept it might work.

The problem is, Congress hasn't been following the normal appropriations process for years now. Maybe they should, but I don't think it's a good idea to try to use their paychecks to force them to. This stuff is complicated enough as it is.

Maybe there are details that I'm missing. The federal budget is a bizarre, baroque, arcane process, and I am in no way an expert. There's the authorization/appropriation two-step, something I've never quite gotten my head around and might be a way to make a distinction.

And at a certain point, you realize that this isn't really necessary. Who cares if members see their pay docked by a few extra hundred dollars? I can guarantee you, it won't affect their behavior much. These guys are driven by votes, not bucks.

And they'd have little motivation to monkey around with these rules. They certainly value their seats more than a little extra pocket change.

The only reason I'm writing this is to demonstrate how something which sounds like the simplest, easiest idea in the world turns out to be a gigantic mess when you look at it closely.

From my own brief, modest experience covering Capitol Hill, I've found out that so much of what's important comes down to things like this. So many important things come down to rules, norms, and procedures so arcane and pedantic no regular citizen in his or her right mind would try to understand them.

"Dammit Alex! You've got a great story, and you're getting stuck on the details!" an old-school newspaper editor once yelled at me. On that particular story--I don't remember which one it was--he was probably right. But I can't help it. I get stuck on details. It's one of the reasons I cover international taxes now.

Nobody is interested in details. And often, we can't understand them. We typically try to view politics through things we do understand--greed, corruption, ideology, cowardice. And those things are all there. Human nature doesn't suddenly disappear when you step enter the Senate or House chambers. But often, it's impossible to understand what goes on in Washington unless you understand the specific ways a complex and often arbitrary system herds those human desires.

This is one example of this, that's relatively meaningless. It's just one little example of how, as our Constitutional system seem to be careening out of control and citizen disgust with Congress is at an all-time high, what looks like craven depravity is actually just the product of several random rules.

Believe me, it's just the tip of the iceberg.