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Numerous Congress Members May Have Received Illegal Congressional Pay in 2003-2004
January 26, 2005
Many current or former Senators and Representatives appear to have taken illegal Congressional salary payments during the current Congress, prior to the October recess.
The chronically absent list is well-represented by candidates who ran for higher office, including those who ran for President or Vice President: Senators John Edwards (D-NC), Bob Graham (D-FL), John Kerry (D-MA), and Joseph Lieberman (D-CT), and Congressmen Richard Gephardt (D-MO) and Dennis Kucinich (D-OH). Senate candidates Brad Carson (D-OK), Mac Collins (R-GA), Jim DeMint (R-SC), Pete Deutsch (D-FL), Joseph Hoeffel (D-PA), Johnny Isakson (R-GA), Chris John (D-LA), Denise Majette (D-GA), George Nethercutt (R-WA), and Patrick Toomey (R-PA), who have served in the House during 2003 – 2004, also had numerous unexcused absences. In 2003 now-Kentucky Governor and former Representative Ernie Fletcher (R) missed 27 session days.
Federal law requires Members of Congress to forgo Congressional pay for days missed due to campaign appearances or other unexcused absences. In June 2003 National Taxpayers Union wrote to each of the six Presidential candidates serving in Congress to ask whether they planned "to voluntarily follow this law during your campaign." None of the candidates replied.
Here are the estimated salary overpayments made to each of the six Presidential and/or Vice Presidential candidates:
All Members of Congress who are included in this report are noted in the table below:
According to 2 U.S. Code 39, "The Secretary of the Senate and the Chief Administrative Officer of the House of Representatives (upon certification by the Clerk of the House of Representatives), respectively, shall deduct from the monthly payments (or other periodic payments authorized by law) of each Member or Delegate the amount of his salary for each day that he has been absent from the Senate or House, respectively, unless such Member or Delegate assigns as the reason for such absence the sickness of himself or of some member of his family."
In 1981, and again in 1996, this provision in the law was amended in unimportant respects, thus reaffirming a Congressional belief in its continued legal vitality. It therefore seems indisputable that Section 39 is binding on all Members of Congress.
The candidates have a duty to comply with this law. The Code of Ethics for Government Service says, "Any Person in Government service should ... uphold the Constitution, laws, and legal regulations ... and never be party to their evasion." The House Ethics Manual also notes that if a Member violates any "provision of statutory law, a Member or employee may also violate these provisions of the House rules and standards of conduct."
House Rule 23, clauses 1 and 2 state:
Both House and Senate ethics rules contain strict prohibitions against the use of official resources for campaigns.
Paying Congress Members to miss work is unfair to other candidates who usually campaign without pay. If any of the other candidates worked for a corporation that gave a paid leave of absence for campaigning for President, the Federal Election Commission would impose a stiff fine for an illegal corporate contribution.
The records of the House show that in 1971 then-Congressman Edwards of Louisiana, someone not known for high ethical standards, took action to ensure that he was in compliance with this law when he did not attend House sessions during his campaign for Governor.
We studied those Members of Congress who were absent for a high percentage of votes, over 15 percent, for 2003 and 2004. Each year's absences were studied independently; thus, in order for a Member to have absences noted for both 2003 and 2004, they would need to exceed the study's threshold each year.
If a lawmaker was 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 candidates 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. Senators' requests for leave are not stated in the Congressional Record.
We also inquired with the offices of each absent Senator and Representative to determine which, if any, days were for absences provided by the law. We updated our records to reflect any information from lawmakers who replied. Furthermore, we conducted independent research of online media sources for each lawmaker to ascertain whether illness or surgery may have accounted for any absences. Those lawmakers who still had more than 10 days of absences remaining after these examinations are included in this report.
To estimate the amount of salary to deduct for each day missed, we divided the 2003 annual Congressional salary of $154,700 by 251, since there are 261 weekdays per year, and 10 federal holidays. That calculation yields a Congressional salary of $616.33 per day. In 2004, a leap year with an added workday, an added holiday for Ronald Reagan's funeral, and a higher salary of $158,100, the per-day deduction was $629.88.
This is a conservative estimate of the overpayment. Others have suggested that the docking of congressional pay should be based on the number of session days. Such a calculation would yield a substantially higher overpayment estimate for each candidate. For example, under such a formula, Representative Gephardt's overpayment would have exceeded $122,000 in 2003.
Data citing missed votes that was used to perform the calculations was obtained from the respected Congressional Observer Publications (http://www.proaxis.com/cop/), a Congressional vote data service widely used by educational institutions and media outlets. Individual reports, detailing the dates on which a Member missed every vote, are available upon request.
This memorandum was written by attorney Bruce Fein.
Re: Responsibility of the Speaker of the House of Representatives and the President of the Senate to Enforce 2 U.S. Code 39 Requiring Salary Deductions for Absenteeism
Pursuant to 2 U.S. Code 39, Members of the House and Senate forfeit an amount of salary for each day of absenteeism not ascribable to "the sickness of himself or of some member of the family." The Section 39 deduction mandate seems clearly a binding law, as its evolution corroborates.
Its purpose was to insure a quorum to do business, as explained by its author, Rep. James L. Orr:
The necessity for such a provision is imperious, as our experience at the present session fully attests. The House is composed of two hundred and thirty-four Members, and the number attending its sittings has been frequently less than one hundred and fifty—often times from seventy to one hundred absentees—and to the serious detriment of the public business, when the Committee of the Whole has been broken up, when considering the appropriation bills, for want of a quorum. If the House adopts the substitute, we shall, in the future, have a smaller number of absentees, and thereby cure a great and increasing evil.
Enforcement of the provision was to be through a Congressional honor code, as the following colloquy discloses:
Mr. Orr. The provision is simply this: that when a Member goes to the Sergeant-at-Arms at the end of each month for his salary, he shall report to the Sergeant-at-Arms the number of days he has absented himself from the House.
In 1894, the provision was debated at length on the House floor in the context of a chair ruling on a point of order. The Chair assumed that the statute was valid despite a long period of unenforcement. That conclusion accorded with the majority of the House Judiciary Committee. It found that the statute was still in force, and recommended a resolution directing the Sergeant-at-Arms to enforce it. It does not appear that this resolution was actually adopted by the House, but the Speaker and the Sergeant-at-Arms proceeded to enforce the statute and deductions were made from the pay of absent Members. A provision reimbursing these deductions was stricken from an appropriation bill introduced in the subsequent Congress.
The enforcement of the provision thereafter has been erratic. According to Robert Luce's Legislative Assemblies, it fell into disuse until 1914 when deductions from Members' salaries were ordered, but Members were reimbursed by a unanimous vote in the subsequent session.
At present, Congressional pay officials withhold remuneration when Members voluntarily certify their absence. Mr. Edwards, for example, certified absenteeism to campaign for Governor of Louisiana in 1971 and accordingly was not paid for those days of the session he did not attend.
In 1975, the Senate inserted a provision in the fiscal year 1976 legislative branch appropriations bill that would have repealed Section 39, but it was deleted from the final version of the law. In 1981 and again in 1996, the section was amended in unimportant respects, thus reaffirming a Congressional belief in its continued legal vitality. It thus seems indisputable that Section 39 is binding on all Members of Congress.
An effort by a California taxpayer to compel Congressional enforcement of Section 39 was dismissed for want of standing in 1981 by U.S. District Judge Spencer Williams (N.D. Calif.). Williams observed that it would be "inappropriate for the courts to inquire into or supervise the attendance of members of a coordinate branch of government." In a similar 1972 suit, a federal judge had dismissed a suit seeking recovery of salaries and allowances paid several Members who were absent from Washington campaigning for the presidency.
In sum, Section 39 is legally binding on Members, even if enforcement by the House and Senate in lieu of the judiciary is required. And the Speaker of the House and the President of the Senate are saddled with a special duty on that score.
Under 2 U.S. Code 48, the Speaker and the President are responsible for certifying the salary accounts of Representatives and Senators. To discharge that responsibility, the Speaker and the President must make some good faith inquiry into whether any salary deductions under Section 39 are in order. If no inquiry is made, then Section 48 would be an empty formality. Laws should be more than ornamental.
At present, it appears that salary certificates of Members seem to be routinely signed in willful ignorance of whether Section 39 obligates an absenteeism deduction.