Late last month, Republican presidential candidate and former Florida Governor Jeb Bush cast the Constitution’s model for separation of powers to the winds with a 15 second video centered around one proposal — “If Congress skips votes or hearings Jeb will cut their pay.”
Bush’s proposal to unilaterally cut lawmakers’ pay is unconstitutional. The 27th Amendment provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened,” so any law changing congressional pay would not take effect until after the next congressional election. More importantly, the Constitution provides that “Senators and Representatives shall receive a compensation for their services, to be ascertained by law,” so Congress itself would have to acquiesce in Bush’s proposal for it to ever become law. “Jeb” does not have the power to “cut their pay” on his own, even if he is elected president.
There is a very good reason, moreover, why the President of the United States does not have this power. As James Madison wrote in the Federalist Papers, “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Yet Bush’s proposal comes close to accumulating both executive and legislative power into one person’s hands. If the president had the power to impose financial sanctions upon lawmakers — even for seemingly legitimate reasons — that power could easily be abused to coerce those lawmakers into supporting an agenda they would otherwise oppose. In our system of government, elected officials are accountable to the voters for their jobs and the benefits that come with that job, they are not accountable to a single man.
It should be noted that Bush’s proposal is somewhat vague. What does it mean, for example, for “Congress” to skip a vote? During the 113th Congress, which completed its final session in January of 2015, members of the House introduced a total of 5884 bills. That suggests that the House would have needed to vote on nearly 20 different bills every single day that it was in session to avoid skipping a vote on one of those bills. It would have been physically impossible for every member of Congress to research each of these bills and cast an informed vote if Congress tried to complete such a task.
In a conversation on Twitter, Vox’s Matt Yglesias suggests a more likely interpretation of Bush’s proposal — that this is really an “effort to squeeze [Sen. Marco] Rubio & [Sen.] Rand [Paul].” Yglesias suggests that Bush may be proposing that individual members of Congress — not Congress as a whole — should have their pay docked if they miss a vote or a hearing in order to campaign. Thus, “poor Rubio will have to stand on stage and explain that casting votes isn’t an important part of his job.”
This interpretation of Bush’s proposal has some intuitive appeal, although some of that appeal may diminish if voters understand just how often hearings are convened for parochial or even partisan purposes. Should a member of Congress really face personal sanctions, for example, if they fail to attend yet another hearing attempting to transform the tragic deaths of four Americans in Benghazi, Libya into a political liability for Democratic presidential candidate Hillary Clinton?
In any event, the Constitution contemplates a very explicit sanction for lawmakers deemed inexcusably absent: those lawmakers will have to stand for election and could be tossed out of office if their constituents are dissatisfied with their performance. Unlike Bush’s proposal, allowing voters to judge their own representatives also does not raise the specter of a president taking financial retribution against lawmakers that displease him.