Friday, August 5, 2011

Congressional Reform Act of 2011

A few months ago, one of my cousins sent me an email in which he expressed frustration with our current political system. One part of his email included something identified as the Congressional Reform Act of 2011:

  1. No Tenure/No  Pension. A Congressman collects a salary while in office and receives no pay when they are out of office.
  2. Congress (past, present & future) participates in Social Security. All funds in the Congressional retirement fund move to the Social Security system immediately. All future funds flow into the Social Security system, and Congress participates with the American people. It may not be used for any other purpose.
  3. Congress can purchase their own retirement plan, just as all Americans do.
  4. Congress will no longer vote themselves a pay raise. Congressional pay will rise by the lower of CPI or 3%.
  5. Congress loses their current health care system and participates in the same health care system as the American people.
  6. Congress must equally abide by all laws they impose on the American people.
  7. All contracts with past and present Congressmen are void effective 1/1/12. The American people did not make this contract with Congressmen. Congressmen made all these contracts for themselves. Serving in Congress is an honor, not a career. The Founding Fathers envisioned citizen legislators, so ours should serve their term(s), then go home and back to work.

Subsequent to that email, I’ve received several other emails or messages about the Congressional Reform Act of 2011. One of the other versions that I’ve seen included the following:

Term Limits. 12 years only, one of the possible options below:

A. Two Six-year Senate terms
B. Six Two-year House terms
C. One Six-year Senate term and three Two-Year House terms

There are two important things to keep in mind here. First, there is no such thing as the Congressional Reform Act of 2011. It is simply another viral chain email. Perhaps the suggestions are a good idea (see below), but in point of fact, this so-called “Act” does not exist (and has not been proposed in Congress).

Second, and perhaps more important, several of the concepts in the “Act” are premised on false claims. When I received the initial email from my cousin, I realized very quickly that the underlying premises were false, but when I got to #4, I realized that the author had no idea what he (or she) was really talking about. Here’s was my original response:

1) Though I like the idea of reducing costs, why shouldn’t we give pensions? I think that the better discussion would be the amount of the pension and under what circumstances, if any, the pension benefit is lost.

2) Congress should participate in Social Security, but I’m pretty sure that they do. But if you and I can have employer-based retirement funds (401k, for example), then why shouldn’t Congress be able to have a similar program? Again, so long as the rules are the same, then it should be OK.

3) I agree with this, but again, to the extent that the rules are the same. Many employers offer retirement plans as part of the compensation package. So again, why shouldn’t Congress be able to have a retirement plan. The better question, I think, is “what is retirement”? If a Congressman is voted out after 1 term, is that a retirement? What if the Congressman resigns in a scandal? Should there be a minimum length of service?

4) This is both bad and unnecessary. First, the 27th Amendment to the Constitution already provides that no Congressional pay raise is effective until after a subsequent election. Thus, if voters don’t approve of a pay raise, they can “vote out the bums”. The “lower of” cap is also a bad idea because it could cause real problems in an inflationary economy. Perhaps the better way to address that would be that salaries can’t increase by more than the COLA adjustment for Social Security (or something similar).

5) This sounds good on its face, but again remember that most Americans that have health insurance receive it through their employer.

6) Generally, they do. This is a common claim, but for the most part it’s bunk.

7) This would violate the Constitution (Article 1, Section 10 [the “Contract Clause”]: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” (Emphasis added.)

After I received the subsequent references to this “Act” I decided to look into the proposals (and underlying concepts) in a bit more detail. To that end, I found an excellent analysis from Here are a few of the highlights:

  • Congress has participated in Social Security since 1984.
  • Since  passage of the Congressional Accountability Act in 1995, Congress has been obligated to abide by the same laws as other Americans (prior to that date, 13 civil rights, labor, and workplace safety and health laws didn’t apply to Congress). Note, however, that pursuant to Article I Section 6 of the Constitution, members of Congress do have limited immunity: “They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” This provision was intended to prevent a member of Congress from being arrested on the basis of viewpoints expressed or on trumped up charges in order to keep that member of Congress from voting on a particular issue. Most states have a similar provision in their state constitutions. (Did you ever wonder why Indiana’s legislators have special license plates? They can’t be fined [i.e., traffic tickets] while on their way to or from the Statehouse during a legislative session.)
  • With regard to pay raises, it turns out that the current law, passed by Congress, does what I suggested above. Pay raises are currently linked to cost of living adjustments. In the last several years, Congress has voted to deny itself pay raises.
  • As to healthcare, members of Congress are eligible to participate in the Federal Employees Health Benefits Program — just like millions of other federal employees. As FactCheck notes, it may be that the author of the “Act” was thinking of the spurious claim that the recent federal healthcare law (note that I continue to refuse to call it “Obamacare”) exempted members of Congress; however that claim has also been debunked.

Do some of the ideas expressed in this “Act” have merit? Perhaps. Certainly term limits are worth discussing (though I’m generally unconvinced that this would make for a good change). But, as in so many other areas, it is absolutely impossible for the American electorate to make good, informed decisions — and to tell our elected representatives what we’re thinking — if we don’t make those decisions on good, solid facts.

The Internet has provided fertile ground for people to express their ideas and for others to respond and debate those ideas. And that is obviously a good thing. But the Internet is unfiltered. Anyone can post anything, without regard to truth and accuracy. We owe it to ourselves, to those with whom we might communicate, and to our country, to stop and think carefully about random proposals and ideas that we encounter online, especially when they include “facts”. It isn’t very hard to fact check these sorts of things so that we can be sure that our decisions are sound.

After completing the foregoing, but before posting (I was proofing and trying to verify a point…), I came across yet another, and far more detailed version of the so-called Congressional Reform Act of 2011 (specifically intended to be adopted as the 28th Amendment to the Constitution). This proposal is not likely to go anywhere. At all. Ever. Nevertheless, I thought some of the points raised were interesting enough to comment on below (the text of the proposed Amendment is in blue; my comments follow in black), especially to demonstrate just how difficult it can be to write good legislation (especially an amendment to the Constitution) and how poorly this proposed amendment was thought through (it’s almost as if the author thought that length made up for poor design). One of the biggest challenges to crafting a law, especially an amendment to the Constitution, is to analyze the unintended consequences of the proposed law or amendment and how it might be either taken advantage of, skirted, or abused. The other reason to go through the exercise of analyzing this proposal is to demonstrate just what we all should be doing with any of the slew of amendments to either the Federal or our state Constitutions, whether it be an amendment banning same-sex marriage or requiring the government to balance the budget.

So, let’s look at this more detailed version of the so-called Congressional Reform Act of 2011:

Article 1. No member of Congress shall serve a period of more than a total of six years in office, regardless of position, party affiliation or circumstance. As I said above, I’m not sold on the idea of Congressional term limits. Sure there are plenty of bad members of Congress who should be shown the door after a term or two. But there are other members who have shown their value over an extended time. Moreover, there is something to the argument that only by spending time in Congress, do members really learn how to legislate effectively. One other point worth noting: Were this to be enacted, presumably nobody would ever be willing to fill the seat of a Senator who died or resigned mid-term, because the replacement Senator would not be eligible for re-election, even if the replacement term was only a few months (because that would render the term longer than six years). So, for example, Scott Brown, who was elected to fill the vacancy left by Sen. Kennedy in early 2010, would be ineligible to run for re-election in 2012 (when Sen. Kennedy’s term expires) because, were Brown to win re-election, he would serve 8 years in the Senate.

Article 2. Congress shall be subject to — without exception — all laws enacted within the United States of America, regardless of circumstance or intent. Congress shall neither receive nor be afforded any dispensation, immunity, excuse or recusal from the penalty of law in all cases relating to their individual behavior, indiscretion and/or participation in or knowledge of an act that is deemed illegal. First, consider how this would impact the purposes of Article I Section 6 referenced above. Second, what if a state were to pass a law designed to have an effect solely upon members of Congress (i.e., imagine Virginia passing a law that says “any member of Congress maintaining a residence in the Commonwealth of Virginia shall cast votes in Congress as directed by the Governor of the Commonwealth of Virginia”). Would that make sense? Yet under this proposal, not only could a state presumably do so, but the members of Congress would be required to conform to that law; remember that the proposal specifically notes “regardless of circumstance or intent”.

Article 3. All members of Congress shall collect a salary of no more than $125,000 per year while serving in office and receives no pay, benefits or incentives when not serving in office. Is it wise to put the salary amount in the Constitution? If we enter an inflationary economy, should we have to amend the Constitution each time that we deem a pay increase appropriate? And does the prohibition on benefits when not serving in office preclude pensions? Would the prohibition on benefits “when not serving” apply to a member of Congress on vacation or while Congress was in recess? Would that include healthcare?

Article 4. Other than Congressional salary, no member of Congress shall be allowed or able to personally or peripherally profit from the activities of Congress at any time before, during or after their period of service. Any action resulting from personal profit through either knowledge of or involvement in the activities of Congress by a member of Congress shall be inarguably construed as profiteering and shall be subject to the full weight of applicable law without exception or interpretation — as determined in Article 3 of this Amendment. This provision seems really poorly thought out. If it is aimed at lobbying, I might understand, though it would seem that a time limit might make more sense rather than a future blanket prohibition. But as I read this proposal, a member of Congress (or even a former member of Congress) couldn’t even write a memoir about time spent in Congress unless no personal profit was derived from the book. Similarly, a former member of Congress couldn’t accept honoraria to speak about Congress. Forget the conflict with the First Amendment for a moment, and ask whether we want current and former members of Congress to be prohibited from writing or speaking about their time in Congress unless they were to do so gratis. I’m also really concerned with the phrase “inarguably construed”. As a lawyer, I read that to mean that the accused member of Congress could not offer any defense to a charge of profiteering if any profit were obtained. Don’t we like the concept of … oh, I don’t know … fairness? You know, like a jury of peers and all that? Somehow putting this in a strict liability category seems wrong (one of the few other categories of strict liability crime is child porn; this seems a wee bit different…) And finally, ask yourself what is meant by “peripherally profit”. Say that a law is passed, after the member of Congress leaves office, that provides a federal pension benefit to school crossing guards. And say that the wife of the former member of Congress was a school crossing guard. Hasn’t the former member of Congress now obtained a peripheral profit that is “inarguably construed” as profiteering in violation of the Constitution? Ouch. And people would want to serve in Congress why, exactly?

Article 5. Congress shall not have the ability to increase Congressional pay or benefits. Congressional pay will rise only upon approval by a simple numerical majority of citizens of the United States via full public disclosure prior to implementation of any financial adjustment. With a citizen majority approval, Congressional pay and/or incentives shall only increase by either 3% or the federal Cost of Living Allowance, which ever is lower. Any adjustment to Congressional compensation shall be merit-based, and in no way automatic, obligatory or expected as an entitlement of Congress. Congressional pay and/or benefits shall not be increased more than one time in any four-year period. Didn’t we already determine Congressional pay back in Article 3? Anyway, what does the author mean by “simple numerical majority of citizens”? Are we supposed to have a national referendum to increase Congressional pay? That seems … um … silly? But more importantly, the phrase doesn’t say something like “a simple numerical majority of voting citizens”? In Presidential elections, we get less than 60% of registered voters (in 2008, we got 56.8%, which was the highest percentage since 1968). And obviously not all citizens are registered voters (just think about this: children are counted as citizens, but are ineligible to vote; so by the very language of this poorly drafted amendment, to pass, there would automatically have to be enough additional “yes” votes to offset the total number of children who would be ineligible to vote). So, if this Article were in effect, virtually all of those voting would have to vote in favor of the pay increase (and that still might not be enough…). And what is meant by “full public disclosure”? Is saying, “Let’s raise Congressional pay by 5%” good enough? Where must that disclosure be made to be “full” and “public”? Furthermore, if citizens are voting, why are we limiting the increase to the lesser of 3% or COLA? What if citizens want to raise it more? And given the limits on maximum increases and the further limit on increases no more often than once every four years, it seems likely that Congressional pay will very quickly lag far behind other salaries (if COLA is 3.5% per year but Congress is, at best, eligible for 3% every four years, then in just a few years … you can do the math). Finally, and perhaps most worrisome, what is meant by “compensation shall be merit-based”? Is there going to be some kind of commission to decide which members of Congress are good and which are bad, who deserves a raise and who doesn’t (even after the raise is authorized by citizens)? Does it matter if the member is in the majority or minority? Whether they were able to get bills that they sponsored passed? Whether TV networks like to interview them? What?

Article 6. No member of Congress shall, under any circumstances, accept or receive any form of payment, gift, compensation, remuneration, incentive or offering — regardless of amount — from any individual or group that has any business, concern or proposal — past, present or future — under consideration or proposed for action by any element or component of the United States Congress. Violations of this amendment shall never, under any circumstances, be treated as other than a violation of law(s), and shall therefore be subject to the full penalty of applicable law(s) without equivocation. This proposal is a perfect example of what I meant when I suggested that it’s hard to write good legislation. I think that we can all probably agree that the purpose of this Article is to prevent a member of Congress from receiving a bribe or a “gift” that, for all intents and purposes, is no different than a bribe. I think that we can all probably get behind the idea that a member of Congress ought not to have dinner paid for by a lobbyist or be flown to a plush Caribbean vacation by a corporation with legislation pending before a committee on which that member servers. Now go back and read the proposal again. Done? OK. So consider the following. Sally is a citizen and a taxpayer. She has an interest in whether her income taxes rise, whether her taxes are used to pay for a war against Bumfukistan, whether her Medicare benefits will be cut or the eligibility age raised, whether Congress will enact a law that prohibits her from getting her ears pierced on Tuesdays, and a whole host of other things. Her father was a member of Congress when she was a child. Sally gives her father a tie for his birthday. BAM! Her father, the former member of Congress, received a gift from an individual that has a “concern” (present or future) in Congress. Is that really the harm this is supposed to address? But it must be treated as a violation and be subject to the full penalty “without equivocation”. “But,” you cry, “that’s not what the law meant.” No. It isn’t. But that is what it says.

Article 7. Congress (past, present & future) shall participate in the United States Social Security program with no alternative or opt-out option unless such an option is available to all American citizens. All funds in the current Congressional retirement fund and accounts shall be moved into the Social Security system immediately. All members of Congress are taxed equitably by the Social Security system. No cap or restriction of any kind shall be imposed on the amount of income that is subject to the existing Social Security tax rate. Social Security funds shall never, under any circumstances, be used for any purpose other than the payment of benefits to legitimate, tax-paying Social Security recipient citizens of the United States. Again, as mentioned above, Congress does participate in Social Security. In addition, including references to Social Security in the Constitution seems wrong, given that Social Security is not a program created in the Constitution. Also, note the phrase “[n]o cap or restriction … shall be imposed on the amount of income that is subject to the existing Social Security tax rate.” That appears to be making a change to the existing Social Security law which does have a cap above which income is not taxed for Social Security. While I think that is probably a good change to Social Security, does that kind of change belong (a) in the Constitution and (b) in an amendment designed to reform Congress?

Article 8. No member of Congress shall have access to any form of tax reduction, exemption or deduction that is not available to any American citizen, regardless of income or position. I think that I understand what this provision is attempting to do, but it doesn’t seem to achieve that goal. Let’s say, for example, that Congress passes a law that provides a tax credit of $1,000 per minor child. Obviously, only taxpayers with minor children are eligible for this credit. Is a member of Congress with a minor child eligible? It would appear not because the credit is not available to “any American citizen, regardless of … position.” I can think of example after example after example of tax reductions, exemptions or deductions that are not universally available. It seems, however, that the intent of this provision, that is, to be sure that members of Congress are treated the same as citizens in a similar position (other than status as a member of Congress), is a good one. This proposal just doesn’t accomplish its intended goal.

Article 9. No member of Congress shall have access to or the ability to obtain any health care options and services that are not available to the common individual citizen, regardless of income level. All members of Congress shall obtain their health insurance coverage and services from the commercial industry market as available to all common American citizens. No member of Congress shall have access to any health care insurance or service that is not available to an American taxpayer at the lowest income level. You know me. I supported single payer. And I support equality of treatment. But this provision seems to miss its mark pretty wildly. Consider this: Can a wealthy member of Congress buy high cost, high benefit private insurance? It would appear not (“obtain … health insurance coverage … from the commercial market as available to all common American citizens”). Could a member of Congress choose elective surgery and pay for it out of his or her pocket? It would appear not (“obtain health care … services that are not available to the common individual citizen, regardless of income level” and “access to health … service that is not available to an American taxpayer at the lowest income level”). And what if we choose to enact more government-sponsored insurance programs? Where would members of Congress get their insurance? And what about a member of Congress who was a veteran and was therefore also eligible for veterans’ benefits? It would seem that this provision would nullify that eligibility. For that matter, unless aspirin is suddenly provided free to everyone, wouldn’t this provision prohibit a member of Congress from purchasing aspirin because it might not be “available” to “an American taxpayer at the lowest income level”? Again, perhaps good intentions, but poor execution.

Article 10. No member of Congress shall, under any circumstances, introduce or include any legislation, amendment, consideration or proposal into any bill that does not directly and clearly relate to the primary subject and focus of said bill. The applicability of all secondary proposals, amendments, riders and additional legislation presented for inclusion in any given bill shall not be subject to the interpretation, will or intent of the member of Congress proposing it. All issues, singular or otherwise, shall be acted upon as separate and distinct legislation of its own merit and accord. Indiana has a constitutional provision much like this, often referred to as the “germaneness” provision. And year after year, members of Indiana’s General Assembly play political games with whether a particular amendment is germane. On the whole, I like the idea, but the problem comes in enforcing it. Query, for example, whether deficit reduction was germane to a bill dealing with the debt ceiling. As it just so happens, usually the majority will conclude that a favored amendment is, indeed, germane, while an amendment offered by the minority, is often ruled out of order. Hmm. Imagine that. Politics. And if a bill passes, with provisions that are not germane, do we really want the courts to strike down those provisions, not because they are inherently problematic but just because the provision wasn’t germane? I suppose that a better version of this could be written, but I’m not sure how.

Article 11. All members of Congress shall conduct themselves in accordance with the stated will of the electorate as a whole. No member of Congress shall ever act or perform on behalf of any specific sub-group or segment of the electorate, or by dictation of the statistical or implied will of any representative of any individual or group who does not represent the United States of America as a unified entity. I’m really not sure what the author’s intent was in this provision. All I know is that it is a truly frightening concept (were it to have any hope, whatsoever, of passing). Read the provision again very carefully. Now, let’s say that Indiana’s 2nd Congressional District elects a Democrat, but that only 2 of Indiana’s 9 representatives are Democrats, both Senators are Republicans, the governor is a Republican, and both houses of the Indiana General Assembly are controlled by Republicans. Can that Democrat representing the 2nd District vote in favor of a bill opposed by Republicans (or vote against a bill favored by Republicans)? Remember: According to this proposal, the member of Congress must conduct himself/herself “in accordance with the stated will of the electorate as a whole”. Does that mean all of the voters of the 2nd District (but even then, the “whole” didn’t elect him/her, only a majority [or even plurality] did) or does that mean all of the voters of the State of Indiana? And what if, even though Indiana is currently Republican, it voted for a Democrat for President, or if one of the two houses of Congress is controlled by Democrats, or if during the most recent national election, a majority of votes were cast for a Democrat. Ask now whether those Republican members of Congress from Indiana can vote for a Republican-sponsored bill if it is opposed by Democrats (who represent a majority nationally, at least as of the most recent presidential election). As if that wasn’t complex enough, the proposal then gets worse by prohibiting a member of Congress from acting “on behalf of any specific sub-group or segment”. By this language, it would appear that a member of Congress could not represent the majority that voted him/her into office; nor could that member of Congress vote in favor of a bill that might only directly benefit citizens of a particular state or district. Could the member of Congress vote in favor of a bill that might grant a particular civil right to a sub-group or segment of the electorate that had previously been denied that right? Could a member of Congress even arrange for a tour of Congress for a group of visiting high school students from the member’s district. But wait! If you act now, you can also get the provision that provides that, even though the member was elected by a particular state or district within a state, the member must still act only on behalf of the “United States of America as a unified entity”. What the fuck does that even mean? I guess that advocating secession is out (but if that’s the point we’re at, will a provision like this even be meaningful?), but short of that, I have no clue.

Article 12. No legislation, regardless of intent or content, shall be debated or delayed for longer than 30 calendar days. Upon the 30th day, if passage has not been achieved, a simple numerical majority up-or-down vote shall be implemented and voted upon on that day and shall not be postponed or delayed further for any reason. Any request or attempt to delay legislation must be fully disclosed to the American public immediately on that 30th day or before. Another one of those interesting ideas that is really poorly implemented. I presume that the author is trying to prevent bills from being filibustered, held up, or tabled via parliamentary means to keep them from coming to a vote. And in that idea, the author may be on to something. Maybe. But it just so happens that some legislation is very, very complex. Often it takes a long, long, loooooong time, to work through the details of a particularly complex piece of legislation, to allow the various committees having an interest in the bill to hold the appropriate hearings and discuss possible amendments to the bill. So trying to prohibit bills from being held up for ulterior motives is not properly addressed by simply adopting arbitrary time limits that may have the result of preventing legislation from being improved or made better. In fact, the opposite may happen. Legislation won’t be introduced publicly until Congress has finished “fixing” it in private so as not to start the clock running. Alternately, potentially good legislation would likely fail if it was forced to a vote before it was ready. And, perhaps most importantly, because the proposal only speaks to “legislation”, it would not have any impact upon filibusters or “holds” on judicial or executive branch nominations, none of which are legislation. Oh, and what happens if the 30th day is during a recess, national holiday, or blizzard?

Article 13. No legislation shall be presented or acted upon that has an implementation or effective date that exceeds five calendar years from the date of the legislation becoming law. I’m not quite sure what the goal of this one is. I’m perplexed by the “presented or acted upon” language; why not just say “shall not be valid” or “shall not be adopted”? But it seems to me that this isn’t really a very good idea at all. Here’s an example: Let’s say that Congress thinks that we should require car manufacturers to build cars that can get 50 miles per gallon. And let’s say that the industry agrees with this requirement, but says that they won’t be able to do so for 15 years. This proposal would prohibit Congress from passing a law that says, commencing in 15 years, cars must average 50 miles per gallon. Or what if Congress wanted to extend the eligibility age for Medicare? This bill would prohibit that extension from commencing more than five years from the date enacted. And what about laws that automatically end (sunset) after a given number of years? Would those laws be unconstitutional if the sunset date was more than five years from enactment?

Article 14. No member of Congress shall exclude or recess themselves from session when national legislation remains unresolved. No member of Congress shall recess for the purpose of delaying or politicizing any given issue or item of legislation. No member of Congress shall implement tactics or behavior that in any way impedes the completion of legislative action. No member of Congress shall engage in any activity that impacts legislation that occurs for any purpose of evasion or mental reservation. Failure to comply with this Article shall be cause for immediate and permanent removal from office. Welcome to either the land of make believe or a totalitarian nightmare. Frankly, I’m not sure which. First, note that the proposal talks about members of Congress rather than Congress itself. Can a member of Congress take an individual vacation even though Congress is in session? Probably not. What if, instead of a vacation, the member of Congress must go into the hospital? Think of Rep. Gabrielle Giffords. She “exclude[d] or recess[ed]” herself when legislation “remains unresolved”. According to the terms of this proposal, her absence from Congress is “cause for immediate and permanent removal from office”. Wow. No trial. No jury. Just immediate removal. Because she was shot in the head. Next, I would be willing to bet that there are literally hundreds of items of “national legislation” that remain unresolved. And each year, there are probably hundreds of bills introduced that go absolutely nowhere; often, the author of the bill had no intention of even pushing the bill (but appeased a constituent, donor, or lobbying group by introducing the legislation). But if this proposal were to pass, then so long as even one bill remains “open” then Congress couldn’t recess. Not for vacation, not for holiday, not for blizzard. And if Congress didn’t vote, would all of the members be “immediate[ly] and permanent[ly] remov[ed] from office”? But the proposal goes on. A member can’t recess to politicize an issue? What? Does that mean that a member of Congress couldn’t leave the Capitol building, walk over to a TV reporter, and do an interview in which the member explains why he or she thinks the bill is good or bad and why the “other side” is wrong? And member of Congress can’t “implement tactics or behavior” that impede the completion of legislation. Does voting against a bill impede its completion? Does talking to other members of Congress to get them to agree to oppose a bill impede its completion? Does asking voters to call other members of Congress to express opposition to a bill impede its completion? And can anyone explain what is meant by activity “for any purpose of evasion or mental reservation”? Finally, just who exactly decides whether a member of Congress has done one of these bad things for which he or she can be immediately and permanently removed from office? Is the Supreme Court supposed to watch out over Congress? Do we create a special Office of Congressional Referees and give them giant whistles? And I’m sure that party politics would have nothing to do with any of this, either. Nope. Not at all.

Article 15. No part or parcel of this Amendment shall be subject to interpretation or circumstantial revision by any individual or group without the expressed consent of a numerical majority of registered American voters. Well at least this time we talk about registered American voters instead of just citizens, but we’re still not recognizing that less than 60% of those registered voters vote. It also appears that the author simply doesn’t understand what courts (especially the Supreme Court) do. A core purpose of the judiciary is to interpret both legislation and the Constitution. Does the 4th Amendment prohibition on unreasonable searches prohibit a county sheriff from using commercially available GPS tracking equipment to follow a car without a warrant? Those are the sorts of questions courts have to answer; obviously “interpretation” is part of the process. And just what are the “individual or groups” that this proposal is talking about? It would seem that it isn’t really talking about Courts unless “individual” includes a judge. But as I read this proposal, it would appear that we would have to hold national referenda each and every time any question of interpretation arose as to the meaning of any word or provision in this amendment. Volumes and volumes can be filled just with legal analysis and court rulings regarding one small phrase from the 4th Amendment (and let’s not even start on 1st Amendment jurisprudence). Can you imagine how many questions of interpretation this sort of amendment might raise? And we’d have to have a vote on each one of those questions? When would we work? And, for that matter, who thinks that most American voters would even understand the issues?

Article 16. All existing or pending contracts with any and all members of Congress — past, present and future — are null and void, immediately and permanently upon passage of this Amendment. Great. Immediately upon passage, this provision is in conflict with Article I Section 10 of the Constitution. I guess we’ll have to have a vote (per Article 15) to decide how to interpret that conflict. But think about the breadth of this provision. It would certainly appear that any contract to provide a pension or healthcare benefit would be null and void. What about a pension or benefit for a member of Congress who was also a veteran? Think about a member of Congress who spent 20 years in Congress and was well-liked by his constituents. But now, 30 years after he retired, all contracts to which he is a party are suddenly null and void? Wow. But it gets even worse. The proposal isn’t limited to contracts entered into with the member of Congress as a result of being a member of Congress. In fact, if passed, this provision would invalidate the mortgages that members of Congress signed for their houses, their car leases, their pre-nuptial agreements, and any other contract into which that member of Congress had entered. And think about the reference to future members of Congress. A contract with a future member of Congress would suddenly be null and void. Um, just who are those future members of Congress. You might be. So is my contract with you null and void?

Whew. OK. Enough.

Well, I think you’ve probably got the idea by now. I do think that we need to discuss reforms for Congress. I think that we need to find ways to reduce the influence of money, especially unregulated corporate money. I think that we need to find ways to reform voting (i.e., what can be filibustered, if anything, and how and for how long). We may want to consider making it so that being a member of Congress is not viewed as lifelong employment or to reduce the electoral benefits of being an incumbent. But we also need to think these things through very carefully. We need to examine unintended consequences. We need to understand precisely what would result from a particular reform and how people or corporations might try to avoid the goals of the reform. And, most importantly, we need to be sure that we understand the core issues themselves. We can’t make informed decisions on the basis of faulty understanding, let alone lies. And we can’t presume to make things better without thinking through whether a particular remedy might, in fact, make things worse.

Updated October 25, 2016: Way, way too many typos! Corrected a bunch, but I’m sure I missed some.

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At Tuesday, August 16, 2011 11:28:00 AM , Anonymous Anonymous said...

Why shouldn't we give Congressmen/women pensions?

Because Congress was never created to be a "career" for anyone. That's why they used the term "compensation" instead of pay in the Constitution. "Compensation" was to reimburse them for losses incurred while serving their country in Congress.

In a way, it was kinda like military duty. You donate a few years, go do your duty, and then you go home again and resume "life."


At Tuesday, August 16, 2011 1:31:00 PM , Blogger MSWallack said...


Thanks for commenting. In all honesty, I'm not familiar with what the framers of the Constitution had to say about their expectations vis-a-vis the tenure of members of Congress. It seems to me that if they were particularly concerned about elected officials making a career out of public service, then it would have been easy to add a term limit provision to the Constitution. Was this discussed and discarded or not discussed at all? I hate to admit it, but I don't know.

With regard to the suggestion that the term "compensation" was used instead of "pay" because the two words were not deemed to be synonymous, again I must plead ignorance. However, when I review the text of Article 1, Section 6, it appears to me that compensation was, indeed, intended as remuneration for service in Congress, not for losses incurred while serving. Why do I say this? The text of Article 1, Section 6 provides that members of Congress "shall receive a Compensation for their Services". Note the "for their Services" portion of the clause. The text does not say, as you suggest, "for reimbursement for losses" or anything similar; rather, it links the compensation to the service of being a member of Congress.

I don't think that your comparison with military duty is wholly apropos, either. While it's true that members of the militia would do their duty (when called up), the standing army (and, in particular, the officer corps), became a professional army. As partial evidence for this, witness the creation of the military academies that turned out an officer corps.

But the crux of your comment is whether members of Congress should be entitled to a pension. As I said in my initial reaction to the so-called Congressional Reform Act of 2011: "I think that the better discussion would be the amount of the pension and under what circumstances, if any, the pension benefit is lost." Unfortunately, I don't know enough about how Congressional pensions work. I don't know, for example, if the amount of the pension is based upon years in Congress; nor do I know if the pension is cut off if a member of Congress is resigns or is removed. But these are just details. I think a discussion as to the nature and extent of Congressional pensions is appropriate. But I guess that I don't really have a problem with the core concept itself, so long as the pension is in an appropriate amount and with reasonable restrictions.

And think about the reasons why offering a Congressional pension might be a good idea. Perhaps we don't want our members of Congress to think of Congress as a career. But, on the other hand, don't we want good members of Congress to stick around? Moreover, we don't want to limit Congress to those who can afford to be away from their principal careers because that might inverse effect of making it a near requirement to be rich before serving in Congress.

So, rather than getting worked up about Congressional pensions, I'd much rather focus my attention on reducing the influence of corporate money on our political system.


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