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Press Release

Study: 25 Congress Members Flouted Law by Taking Taxpayer-Funded Salary for Unexcused Absences

January 26, 2005

(Alexandria, VA) – Even though President Bush took the oath of office last week, taxpayers still have one piece of unfinished business from the election: some federal lawmakers – including many seeking higher office – received thousands of dollars in salary overpayments for being away from their jobs during 2003 and 2004. According to a study released today by the 350,000-member National Taxpayers Union (NTU), an obscure federal statute still on the books requires Congressional absentees to forfeit their pay unless they or a family member are ill; but leaders have failed to enforce the law while rank-and-file lawmakers seem reluctant to voluntarily comply.

“Members of Congress claim they follow the laws that apply to everyone else, but our research shows that many Senators and Representatives won’t even follow laws that apply explicitly to themselves,” said NTU President John Berthoud. “Worse, taxpayers covered the bill for several Members of Congress who were trolling for votes at the polls instead of casting votes in Washington.” Among NTU’s findings:

  • The chronically absent list is filled with Presidential and Vice Presidential candidates, including John Kerry (D-MA), John Edwards (D-NC), Bob Graham (D-FL), Joe Lieberman (D-CT), Richard Gephardt (D-MO), and Dennis Kucinich (D-OH). But House Members bidding for Senate seats were also prominent on the list, including 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).
  • From January 2003 to the October 2004 recess, John Kerry missed 146 days of votes without being granted leave. Total salary overpayment: $90,932.68. His running mate, John Edwards, compiled 102 days of unexcused absences during that period, for an overpayment of $63,543.16. Both Senators missed every vote during the months of July, September, and October.
  • On the House side, Dick Gephardt’s failed bid for the Presidency cost taxpayers $81,362.53 in excessive pay. Gephardt was absent for 85 of the 109 days the House cast votes in the year 2003 alone. Combined with 2004, Gephardt had the highest unexcused absence rate in the House, at 131 days – still short of Kerry’s record total.
  • Then-Rep. Jim DeMint’s successful 2004 bid for South Carolina’s Senate seat could help to explain some or all of his 37 unexcused absences, and an apparent $23,305.56 salary overpayment. In 2003, now Kentucky Governor and former Rep. Ernie Fletcher (R) missed 27 session days, for a total salary overpayment of $16,640.91. Three Georgia lawmakers who were locked in tight contests – Collins, Isakson, and Majette – racked up 55 days of unexcused absences and $34,643.40 of potentially illegal salary among them during 2004.

According to 2 U.S. Code 39, “The Secretary of the Senate and the Chief Administrative Officer 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.” Under 2 U.S. Code 48, the President of the Senate and the Speaker of the House are responsible for certifying the salary accounts of their respective chambers, and so must make an inquiry into whether Section 39 deductions are in order.

NTU’s study was based on missed-vote data compiled by Congressional Observer Publications. NTU identified Senators and Representatives who missed over 15 percent of all roll call votes during either 2003 or 2004. The analysis only counted absences if every floor vote was missed during a day. Researchers then examined the Congressional Record to determine whether any 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. Only lawmakers with more than 10 full days of unexcused absences were subsequently included in the report.

NTU sent letters to each of these lawmakers, asking them to review NTU’s record of their own absences, make any corrections, and inform NTU of how they intended to comply with the law. They were also provided with a memorandum authored by attorney Bruce Fein, which discussed the validity and requirements of the statute. Fein’s research determined that enforcement of 2 U.S. Code 39, originally enacted in 1856, has been “erratic,” but the fact that it was amended in minor respects as recently as 1996 “reaffirm[s] a Congressional belief in its continued legal vitality.”

In response to a letter from NTU regarding administration of the law, the Secretary of the Senate responded that due to the “growth of legislative and representational duties” and “[T]he century of desuetude attending this provision, the Secretary is not in a position to apply section 39 to the disbursement of Members’ salaries.”

NTU is recommending that if Congressional leaders won’t institute procedures to implement the law, then rank-and-file Members should do so on their own, by voluntarily requesting a salary deduction or by writing a check to the Treasury equal to the cost of unexcused absences. The group suggests that for 2003, an amount of $616.33 per day is appropriate (reflecting that year’s Congressional salary divided by 251 workdays, not counting 10 federal holidays). The 2004 amount would be $629.88, to account for a pay hike, the leap year, and an 11th federal holiday in memoriam to former President Ronald Reagan.

While compliance with 2 U.S. Code 39 has been sparse, neither has it been non-existent. In 1971 Representative Edwin Edwards, no stranger to ethics problems, nonetheless abided by the no work, no pay law while running for Louisiana Governor. Federal law does not require Presidents to forfeit their pay while seeking re-election (although George W. Bush voluntarily relinquished his Governor’s salary for days spent outside Texas campaigning for President in 2000).

“Incumbent politicians already enjoy too long a list of taxpayer-financed perks,” Berthoud concluded. “Ignoring the law shouldn’t be one of them, and lack of enforcement in the past is no excuse.”

NTU is a non-partisan citizen group working for lower taxes, smaller government, and more accountability from elected officials at all levels. Note: The NTU study of Congressional absentees, the letter NTU sent to Senators and Representatives (listing recipients at the end), and Bruce Fein’s legal memorandum, are all available online at

National Taxpayers Union recommends that those seeking to comment on this issue contact:

Contact information for all Representatives and Senators can be found at the websites: and, respectively.