By Pete Kasperowicz - 04/02/13 09:00 AM EDT
One small group is curiously immune from the sequester and the related furloughs that are about to become a fact of life in Washington: Congress.
Hundreds of thousands of federal employees will take a pay cut because of this year's $85 billion in automatic spending cuts, including about 750,000 at the Pentagon alone. Air traffic control towers are being closed, unemployment benefits are being reduced, and the White House has even cancelled tours.
But lawmakers themselves won't take a pay cut because member pay is completely exempted from the sequester.
The mystery of why Congress is excluded can be explained by a close reading of the 1985 Gramm-Rudman-Hollings Balanced Budget Act, which first introduced the concept of a sequester.
The Reagan-era law exempted some programs from the sequester, including elements of Social Security, interest on the debt and federal Pell grants. (The law also exempts the president’s pay, which is the reason President Obama’s pay won’t be hit by the sequester.)
Congressional salaries are not explicitly exempted, but according to experts familiar with the issue, the law was written in way that makes them exempt. For example, the law says federal “accounts” are subject to the sequester, and defines “accounts” as items that are appropriated by Congress.
Lawmaker salaries are not appropriated by Congress, so they don't get treated as an account for the purposes of sequestration. And while items found in presidential budgets are subject to the sequester, member salaries are not found in the presidential budget either.
For these reasons, the Office of Management and Budget has not applied any sequester to members of Congress since the law was put in place.
When the Budget Control Act (BCA) was passed in 2011, it called for the implementation of the sequester according to the 1985 law. As a result, the current sequester also won't affect member salaries.
There is something of an underground debate on how easily Congress could change current law so sequesters can apply to member pay.
Some say it could be difficult, since congressional pay is required by Article I of the Constitution, which to some makes these salaries "mandatory," not discretionary. Sequestration is aimed much more at discretionary spending items.
But others say it should be easy for Congress to amend the 1985 law to ensure that member pay is cut, and could have done so in the 2011 budget bill if it wanted.
Regardless, Congress did not appear to try to amend the way the sequester works when it passed the Budget Control Act, probably because few thought the sequester would happen.
There have been some efforts to address the discrepancy since then.
Reps. Ron DeSantis (R-Fla.) and Ami BeraAmi BeraClinton makes new push to win the House Overnight Healthcare: Flint fight drags on | House passes exemption for ObamaCare mandate | Feds looking for healthy millennials House passes bill exempting some from ObamaCare mandate MORE (D-Calif.) have proposed a bill that would apply an 8.2 percent cut to member pay, starting in the next Congress.
The delay reflects a hurdle posed by the 27th Amendment to the Constitution, which prevents lawmakers from changing their pay immediately. The amendment is widely seen as something meant to prevent Congress from moving too quickly to give itself a raise, but today, it prevents Congress from quickly cutting its pay.
Rep. John BarrowJohn BarrowDem files Ethics complaint on Benghazi panel Barrow thanks staff in farewell speech The best and the worst of the midterms MORE (D-Ga.) has proposed legislation that would tweak the 27th Amendment so that only efforts to increase member pay would be delayed until the next Congress, while efforts to cut pay could take effect right away.
“The 27th Amendment to the Constitution was written to prevent members of Congress from giving themselves pay increases, but lately it's been used as a shield to prevent a congressional pay cut,” Barrow said in a March speech.
But Barrow's answer would take even longer to fix the problem than the DeSantis-Bera bill, given how long it takes to ratify amendments to the Constitution.
The 27th Amendment itself is a perfect example — it took more than 200 years before it was finally ratified.