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Numerous Congress Members May Have Received Illegal Congressional Pay in 2003-2004

November 8, 2004

ATTN: Chief of Staff
Press Secretary/Communications Director

Dear Congress Member:

We plan to publish a report indicating that you took thousands of dollars of Congressional salary during the current Congress in conflict with a little known law. Over 20 other Members of Congress have also apparently been overpaid and are noted in the forthcoming study.

Before releasing the report publicly, we wanted to give you an opportunity to review our calculations and either correct any errors in our report, inform us how you have complied with the law, or ensure compliance by announcing you intend to follow the law.

Although you may be unaware of it, there is an obscure law that links the compensation of Members of Congress to their attendance. This long-standing statute requires Members of Congress to forgo pay for days missed due to unexcused absences, including but not limited to making campaign appearances, pursuing other opportunities, or preparing for retirement.

According to 2 U.S. Code 39, “The Chief Administrative Officer of the House of Representatives ... shall deduct from the monthly payments (or other periodic payments authorized by law) of each Member … the amount of his salary for each day that he has been absent from the House ... unless such Member ... assigns as the reason for such absence the sickness of himself or of some member of his family.”

Under 2 U.S. Code 48, the Speaker is responsible for certifying the salary accounts of Representatives. To discharge that responsibility, the Speaker must make a good faith inquiry into whether any salary deductions under Section 39 are in order.

We believe Congress should institute procedures to implement this law, which, unfortunately, has been largely ignored for decades. For example, if you are absent for a reason other than that provided by 2 U.S. Code 39 during a day the Congress is in session, we recommend that you implement the law on your own by asking the appropriate official to make the required salary deduction. Alternatively, you could write a check to the U.S. Treasury for the amount equal to the cost of unexcused absences.

To determine the amount to deduct for each day missed during this Congress, we suggest simply dividing the 2003 Congressional salary by 251, since there are 261 weekdays per year, and 10 federal holidays. For the second session, the leap year of 2004 should likewise be divided by 251, to reflect 262 workdays and 11 federal holidays. The results would amount to $616.33 per day in 2003, and $629.88 in 2004.

I have enclosed with this letter a printout reflecting our calculations of the number of days of possible unexcused absences. If you were present for even one floor vote during a session day, credit for full attendance that day was assumed. The study only counted absences if every floor vote was missed during a day.

We performed a computer search of the Congressional Record to determine whether any of the House Members had received a leave of absence for any reason, even those not authorized by law. If a leave was granted, no salary overpayment was calculated for the study.

The data sheet also includes our estimate of the salary reimbursement that would need to be made in order to fully comply with 2 U.S. Code 39. I encourage you to review this information and contact us if you have any comments or corrections.

After revealing the existence of this law a few years ago, we found that many citizens agreed that it is unfair to subsidize the salaries of Members of Congress who have a large number of unexcused absences.

I have enclosed additional information on this law, including a legal memorandum written by attorney Bruce Fein that discusses the validity and requirements of 2 U.S. Code 39 and 2 U.S. Code 48.

Please let me know in writing whether we have incorrectly attributed to you any days of unexcused absences or you have already complied with or plan to voluntarily follow this law. We plan to publish a report on how Members of Congress with unexcused absences intend to comply with this law. If, however, you believe that your absences were excused under 2 U.S. Code 39, please notify us so we may promptly correct our records. Our fax number is 703-683-5722.


John Berthoud

House cc:
The Honorable J. Dennis Hastert, Speaker, U.S. House of Representatives
The Honorable Bob Ney, Chairman, Committee on House Administration
James M. Eagen III, Chief Administrative Officer
Jeff Trandahl, Clerk of the House

Senate cc:
The Honorable Richard Cheney, President of the Senate
The Honorable Trent Lott, Chairman, Rules Committee
Emily J. Reynolds, Secretary of the Senate