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Attendance Optional? Senate Erases Pay Rule

As some party leaders are cracking down on absenteeism among their respective rank and file, a provision included in the Senate version of the legislative branch appropriations bill passed out of committee last week strangely enough makes it financially easier for Members to miss work.

Of course, nobody obeyed the old law anyway.

The proposed measure seeks to strike Title 2 Section 39 from the U.S. Code, a rarely used and mostly forgotten provision dating back to the pre-Civil War years that directs the Secretary of the Senate and Clerk of the House to deduct pay for each day a Member is absent from work except for illnesses.

Explaining that the 150-year-old measure hasn’t actually been enforced since the 1860s, Jenny Manley, press secretary for Appropriations Chairman Thad Cochran (R-Miss.), called the effort to strike the provision as it applies to the Senate “a clean-up provision. More of a technical provision than anything else.”

Jim Specht, press secretary for House Appropriations Chairman Jerry Lewis (R-Calif.), said although the committee had not considered whether a similar provision could be worked out on the House side, it would be an item to be discussed in conference.

The original stipulation was added to the U.S. Code in the Pay Act of 1856 when Congress changed from an $8 per diem pay rate to a $3,000 annual salary. The provision was intended to be used as a disciplinary measure discouraging absenteeism in both chambers, one less severe than censure or expulsion.

“I’m not aware the deduction was taken very seriously throughout the whole history,” Senate Historian Richard Baker said, explaining that Members very quickly realized that not being on Capitol Hill didn’t necessarily mean a Member wasn’t working. Baker did note, however, that in the years leading up to and during the Civil War, the provision was enforced by the Secretary of the Senate and the Clerk of the House, mostly against Members from Southern states.

“It’s a question of what constitutes the work of a Member of Congress,” said Mary Baumann, a historical writer for Baker’s office. The question arose, she said, if a Member needed to be in his home state with constituents on a day that Congress is in session, would that mean he’s not working?

But though the 1856 Pay Act provision has rarely been enforced — the last time portions of Members’ salaries were withheld under the provision was 1867 in the Senate and 1914 in the House — the disciplinary measure has caused headaches for Members in other ways over the years.

According to the Senate Historical Office there have been at least two attempts to repeal the act, one in 1894 and the other in 1975.

The 1894 repeal effort came after the House of Representatives began requiring the enforcement of the then-40-year-old law but still failed to discourage absenteeism. The 1975 repeal effort actually passed in the Senate, but was deleted from the Legislative Appropriations Act that year when it went to conference with the House.

The provision has also been the basis of at least one federal lawsuit. In 1980, a man named Don Hammitt filed a complaint against the House Sergeant-at-Arms and the Secretary of the Senate on behalf of a class of “all federal United States taxpayers” alleging “tax money paid by the named plaintiff and other class members and placed in the United States Treasury is being and has been used to pay salaries of the Members and Delegates of Congress in violation of federal law.” The suit was dismissed.

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