House Speaker John Boehner

When House Republicans decided to fold on the debt limit they concluded that they need something to help them save face. What they wanted was to adopt a requirement that Congress must approve a non-binding budget or risk losing their pay. The problem is that such a provision would have clearly violated the 27th Amendment so the GOP come up with possible work around.

Their solution in H.R. 325 is to merely put members’ pay into escrow accounts until a budget is approved at the end of the Congressional term. When either of those happen the members get all of their back pay. This way their overall amount of compensation will not change. It is not clear though that this work around is constitutional. The 27th Amendment simply says:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Any member who has had their pay withheld for over a year would have a very strong case that their compensation had been “varied.” A plain reading would indicate the House bill is unconstitutional.

It is important to remember that budgets are not law. They have no legal authority and do not even need to be approved. They are basically just non-binding political documents. So this means House Republicans will knowingly potentially violate the Constitution simply to try to force a few Senate Democrats to take a meaningless, but politically awkward vote.