in fact. Under the Salary Act and the Adjustment Act the status quo as to congressional salaries may be altered without affirmative action by both Houses of Congress. While salaries may be changed in the traditional fashion, the availability of the procedures created by the statutes under attack make the vote of any single affected Congressman somewhat less efficacious.
In 1969, congressional salaries were raised by the new process for the first time. But Mr. Pressler was not yet a member of Congress and cannot claim his vote was impaired. In 1975, a proposed salary increase was vetoed by a Senate Resolution. The status quo was unaltered and we can see no injury to Mr. Pressler, though he was then a Congressman. While the next Commission should report to the President shortly, any injury from this action is far too speculative to support standing.
However, in October, 1975, congressional salaries, including Mr. Pressler's, were raised under the Adjustment Act. This change was effected without action by the House and Senate. This circumvention of the traditional legislative process impaired the efficacy of Mr. Pressler's vote. He has, therefore, standing to challenge the Adjustment Act. But that Act increases, on a percentage basis, the compensation as determined by Salary Act procedures. For this reason, Congressman Pressler has standing to challenge both pieces of legislation. Accordingly, standing will be afforded under the unique circumstances of this particular case.
II. Ascertainment Clause
Turning to the merits, the Court is asked to interpret the meaning and effect of the ascertainment clause in Article I, Section 6, of the Constitution. This is a matter of first impression.
Plaintiff contends that the phrase "to be ascertained by Law" constitutes an explicit mandatory requirement that whenever the compensation of members of Congress is redetermined it must be fixed at that time by a law that specifically states the amount to be paid and that the proposal, like any law, should then be open for debate and vote by the members of each House. Plaintiff urges, in short, that Congress is required itself to fix its pay and that that responsibility in this regard cannot, in effect, be delegated or by-passed in the fashion provided by the Salary Act and the Adjustment Act which allows periodic pay increases to take effect without affirmative congressional action.
For the reason set forth below, it appears to the Court that plaintiff's grievance is directed to what is essentially a matter of form rather than substance, and that Congress has established its compensation "by law" within the requirements of Article I, Section 6, when that section is read, as it must be, against accepted principles governing interpretation of the Constitution as a whole.
At the outset it should be noted that when Congress passed the Acts governing its compensation it acted "by law," as plaintiff himself concedes. The suggestion is, though, that the ascertainment is by others, not by the Congress. However, not only does the Commission which recommends pay levels contain members representing each House of Congress, but even in this circumstance the delegation is not absolute. When the President submits recommendations either House, acting alone, can by negative vote prevent the recommendations from taking effect. And Congress has not stopped here. In the Salary Act it has explicitly reserved the right to enact legislation fixing congressional compensation regardless of what recommendation it receives from the President. As already noted, it also retains this right under the Adjustment Act by the use of its appropriation powers. Congress, by law, recently rejected an Adjustment Act pay increase by asserting its continued authority always to fix its own pay.
Thus, it only remains to consider whether or not the verb "ascertain" has such a narrow and limiting effect that, as a matter of constitutional law, it was intended to prevent the Congress from developing rational procedures of this type for fixing congressional compensation by means other than enacting a specific statute fixing each pay change. Unfortunately no light is thrown on this subject by The Federalist Papers or the constitutional debates. As plaintiff's own research shows, there was much discussion of whether the states or the Congress itself should establish the level of congressional compensation. Various formulas were suggested, including fixing the amount in the Constitution itself, having it fluctuate depending on the average market value of a bushel of wheat, or determined by a special jury panel. None of this discussion, however, throws any significant light on the meaning of the word "ascertain." The most these historical sources reflect is that the Founding Fathers felt that the Congress should have ultimate responsibility for determining by law what the compensation of its own members should be, as opposed to the suggestion that this final responsibility be delegated to others. It was the eventually accepted view that if Congress acted irresponsibly in setting salaries, members would be held responsible by the voters. Congress has retained this ultimate responsibility and indeed has asserted it on more than one occasion.
Congress continues to be responsible to the public for the level of pay its members receive. There is no concealment; indeed publication of the suggested rate of pay occurs in advance of the pay level taking effect. Moreover, with the growing complexity of all governmental functions a reasonable effort to coordinate congressional pay with pay in the Executive and Judicial branches was certainly not intended to be foreclosed by the ascertainment phrase. Congress must always account to the people for what it pays itself, but the Founding Fathers did not contemplate the inflexibility and rigidity which plaintiff seeks.
Repeatedly during the discussions preceding its adoption, our founders sought to preserve in the Constitution a flexible approach to government that would facilitate accommodation to changing conditions and experience. The Constitution is not to be parsed in the narrow, rigid, pedantic manner of a statute. It must remain flexible and adaptable, placing reliance upon the checks-and-balances built into our tripartite format and the sound attitude of voters expected at the polls. The "necessary and proper" clause of Section 8 of the same Article is but one expression of this sound approach. McCulloch v. Maryland 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819).
The Salary Act and the Adjustment Act fix congressional compensation by law and these statutes are not prohibited by Article I, Section 6. Neither of these Acts insofar as they govern ascertainment of congressional compensation contravene the Constitution. Accordingly, plaintiff's motion for summary judgment is denied and the complaint is dismissed.