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BOEHNER v. ANDERSON

December 16, 1992

JOHN BOEHNER, et al., Plaintiffs,
v.
DONNALD K. ANDERSON, et al., Defendants.



The opinion of the court was delivered by: STANLEY SPORKIN

 I. Standing

 As the Court finds that at least some of the parties have standing in this case, the Court will address the merits of this case.

 II. Validity of ratification of 27th Amendment

 Because this issue was raised only by Common Cause, as amicus curiae, and not by any of the defendants in this case, any determination of this issue will have to await another case.

 III. Constitutionality of Challenged provisions of Ethics Reform Act of 1989

 Plaintiffs challenge two provisions of the Ethics Reform Act of 1989 (ERA) as violating the 27th Amendment *fn1" to the U.S. Constitution: (1) the automatic pay increases (or "COLAs") and (2) the quadrennial pay increases.

 A. Quadrennial Commission Pay Raises. ERA provides for the establishment of a Citizens' Commission on Public Service and Compensation. This Commission is to make recommendations to the president every four years regarding the pay level of high-level Government officials, including Members of Congress. After receiving the Commission's recommendations, the President, in turn, is to submit a recommendation concerning the pay levels to Congress. To become effective, the President's recommendations must be approved by a recorded vote and enacted into law. The first Citizens' Commission is to be convened in fiscal year 1993; its first report to the President is due by December 15, 1993. The President is scheduled to transmit his first recommendation under the Ethics Reform Act to Congress in January 1994. Should the President recommend a pay increase and should the Congress approve it, the first Congressional quadrennial pay raise under the Act would come into effect January 1995. Ethics Reform Act of 1989, Pub. L. 101-194, § 701, 103 Stat. 1763-1767.

 It is worth noting that the Ethics Reform Act of 1989 was not the first piece of legislation to create such a commission. The quadrennial review process extends back to the Postal Revenue and Federal Salary Act of 1967, 81 Stat. 642, which established a Commission on Executive, Legislative, and Judicial Salaries to review the salaries of high-level Executive, Legislative, and Judicial officials every four years. This Commission also was directed to make recommendations to the President concerning salary adjustments of high-level Government officials, and the President would in turn submit recommendations to Congress. If both Houses approved a salary adjustment recommended by the President, such adjustment would take effect soon thereafter. The Ethics Reform Act of 1989 abolished this Commission, and replaced it with the Citizens' Commission, which is to have a different composition than its counterpart under the Salary Act.

 B. COLA's.

 Congress first provided for automatic annual adjustments to its Members' pay in the Executive Salary Cost-of-Living Act of 1975, Pub. L. 94-82. The Ethics Reform Act of 1989 (ERA) simply establishes a different methodology for calculating the automatic annual adjustments, called COLAs. Under ERA, the COLA is calculated by comparing the percentage change in the Employment Cost Index and subtracting one-half of one percent. P.L. 101-194, § 704. The purpose of using this index is to maintain some comparability between governmental and private-sector salaries. See 5 U.S.C. § 5301(3). The first COLA under the ERA went into effect on January 1, 1991. P.L. 101-194, § 704(b).

 The Court finds both challenged provisions--the 3.2% cost-of-living adjustment and the quadrennial review--to be lawful in every respect. Before explaining the Court's reasoning behind this conclusion, some background to the Ethics Reform Act of 1989 is in order.

 C. Background.

 We live in a truly great society. We have a system of government that is unmatched. An examination of our 200 year old Constitution and the history that surrounded its adoption has left me awestruck. I often wonder what absolute geniuses Madison, Hamilton, Jefferson and the others who wrote the Constitution must have been. It is an incredible document. The concept of a tripartite government with a system of checks and balances was an ingenious idea; history has proven that point. We owe it to our founding fathers and to the citizenry our Constitution protects to provide the most robust and effective government possible.

 It clearly could not have been the concept of our founding fathers to provide government "on the cheap." This Court agrees with President Bush, whose letter supporting the 1989 Ethics Reform Act stated, "The skills of these individuals [that is, representatives and senators] are essential to the quality of service government provides to the American people." 135 Cong. Rec. at H8745.

 If we want good government, we must pay for it. Like any other commodity in a free enterprise society, the cost of government has its price. While it may be a cliche, it is often the fact that you only get what you pay for.

 If there was one failing of our founding fathers, it is that they did not spell out with sufficient clarity how important it was to pay our government leaders a decent and adequate compensation. That question was, by and large, left to future generations.

 For many years little was done to remove governmental pay levels from the arena of "politics for hire". As a result many practices arose that were deleterious to our society. For years at a time, Congressional pay raises were not forthcoming. And Congress dealt with this problem, in part, by allowing its Members to accept money from special interest groups--money which would, in effect, be "off the books."

 It was in this context that the concept of honoraria crept into the pay system. Because Congress was unwilling to bite the political bullet and provide its members a living wage, members supplemented their salaries by taking fees from outside sources as compensation for so-called private speech making and for attending meetings of various special interest groups. Initially there was no control over the amount of fees a Representative or Senator could receive, or what services she or he was to perform for the fee. Often, after attending a private interest group, an envelope with a check or cash would be slipped to the member. Since he or she did not want to bite the hand or hands that were feeding him or her, the member would make a speech to suggest he or she was in the group's "pocket."

 This is not ancient history. This was the practice until just a few years ago when Congress, realizing the appearance of this "off the books" pay system did not pass the "perception of propriety" test, decided to change the system. *fn2"

 The Ethics Reform Act of 1989 was the culmination of this long-overdue and well-motivated Congressional desire to change the system. This Act is a comprehensive piece of legislation which links pay provisions to substantive changes in the ethical rules governing Members of Congress, Executive and Judicial Branch officials.

 The Ethics Reform Act of 1989 does a number of things. It restored several previous COLA's which in the past Congress had denied its members. It authorized a one-time pay increase of 25% for Representatives, effective January 1, 1991. It altered the composition of the quadrennial review Commission, and requires that any future pay raises stemming from the Commission's recommendations become effective only upon a recorded vote of Congress and only after an intervening election. It phased in a prohibition on honoraria and tightens up rules on gifts and travel and other forms of compensation. And the Act imposes limits on post-Government employment of Members and high-ranking legislative staff.

 The interplay of these provisions accomplishes a critical task--namely, the reestablishment of the important principle that public officials should be paid by the public only, while simultaneously ensuring that our public officials are paid a decent wage. Because inflation could threaten to upset the balance struck by this important piece of legislation, as the last piece of the puzzle its drafters ...


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