Skip to content

An obscure constitutional provision is likely to force the House and Senate to take up one or more pieces of legislation to cut the pay for Sen. Hillary Rodham Clinton (D-N.Y.), Rep. Xavier Becerra (D-Calif.) and any other Members of either chamber who are nominated by President-elect Barack Obama for executive branch positions, Democrats said Wednesday. According to one Democratic leadership aide, Senate Majority Leader Harry Reid (D-Nev.) could look to deal with the issue as early as next week’s lame-duck session. Reid has broached the idea of moving a legislative fix with Republican leaders, the aide said, although it is unclear if Republicans will agree to move it quickly. Clinton has been nominated to head up the Department of State, while Becerra has been rumored to be the top candidate to serve as Obama’s U.S. trade representative. Additionally, Rep. Jane Harman (D-Calif.) is viewed as a leading candidate for one of Obama’s intelligence nominations. Under the Constitution, Members of the House and Senate are barred from serving in a confirmable position within the executive branch if that position has had its pay increased while they were serving in Congress. Traditionally, the Department of Justice has interpreted that rule to mean that Congress must reduce the pay of the executive branch post to the level it was before the last pay increase. Questions about the constitutionality of appointing Clinton as the secretary of State have swirled on blogs and in legal circles for days. On Wednesday, the conservative organization Judicial Watch — which rose to fame in the 1990s with its near constant attacks on the Clinton family’s official actions and business dealings — took up the question. Although former President Richard Nixon and a number of other presidents have used the process of reducing a position’s pay to get around the Constitutional issue, Judicial Watch President Tom Fitton argued Wednesday such an action is unconstitutional and that Clinton cannot serve. “There’s no getting around the Constitution’s Ineligibility Clause, so Hillary Clinton is prohibited from serving in the Cabinet until at least 2013, when her current term expires,” Fitton said in a statement. One source close to the Obama transition team dismissed Judicial Watch’s complaints, noting that the organization’s repeated lawsuits against Clinton and her husband during the 1990s were ultimately fruitless and were often thrown out of federal and state courts. The source also dismissed any concern that Clinton would have voted for a pay increase to enrich herself in the off chance that she would ultimately become secretary of State. This source also noted that the dollar amount in question is negligible. “The amount in question is $4,700 a year, which works out to $12.87 a day. I don’t think this is a grand scheme by Obama and Sen. Clinton to enrich her by that amount,” the source said. Philippe Raines, Clinton’s Senate spokesman, agreed, saying: “This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset. But putting frivolous lawsuits by fringe groups aside, this issue has been resolved many times over the past century involving both Democratic and Republican appointments and we’re confident it will be here, too.” Reid spokesman Jim Manley said that given the numerous instances in which Congress has worked around the constitutional problem, the Majority Leader sees little reason a solution cannot be found. “There is nothing new here. The fact is, this has happened several times before, most recently with former Sen. Lloyd Bentsen [D-Texas] in 1993. Sen. Reid intends to introduce a resolution similar to those used in those earlier situations to address this issue based on the ample precedent that has been set. Sen. Reid believes a resolution can be reached,” Manley said.

Recent Stories

Kim launches primary challenge after Menendez refuses to quit

Four spending bills readied for House floor amid stopgap uncertainty

Menendez rejects New Jersey Democrats’ calls to resign after indictment

Photos of the week ending September 22, 2023

Dressing down — Congressional Hits and Misses

Menendez indictment comes with Democrats playing 2024 defense