Friday, January 9, 2009

Fixing the Saxbe Fix

Say, as long as we're amending the Constitution, how about doing something about the Saxbe Fix?

Back in 1787, when the Constitutional Convention was monkeying up our current form of government, Robert Yates had a bright idea: why not make it unconstitutional for legislators to hold government offices? One of the main sources of corruption within Britain's parliamentary form of government at the time was that the Crown would create salaried government positions (or "places" as they were known), and award them to MPs as a way to bribe them into voting the Crown's way. To prevent the United States Congress from being similarly corrupted with "placemen", Article I, Section 6 of the Constitution stated:

no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Yates also proposed that members of Congress also be barred from holding appointed offices for a year after leaving Congress, but Alexander Hamilton opposed this. James Madison finally came up with a compromise: members of Congress could not be appointed to offices that were created or augmented while they were serving in Congress until one year after they left Congress. During the debate that followed, "augmented" was defined as an increase in the position's emoluments (salary, fees, etc.) and the one year time limit was dropped, so the full clause read:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time: and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The effect of these changes was to make it unconstitutional for a member of Congress to be appointed to any office that underwent a salary increase while he was serving in Congress. Furthermore, even if the member resigned from Congress, he was still barred from appointment to that office for as long as his term would have lasted.

Thus, for instance, when Barack Obama wanted to appoint Senator Hillary Clinton to the office of Secretary of State, he couldn't, because the salary for the Secretary of State was increased while Clinton was a senator, so she was barred from holding the office until after her term as senator ran out in January 2013.

President William Howard Taft had run into this same problem in February 1909 after he nominated Senator Philander C. Knox for Secretary of State. Knox had been elected in 1904, so his term would run until March 3, 1911. Meanwhile, in 1908 Congress had passed legislation increasing the salary of the cabinet from $8,000 to $12,000. When the constitutional problem was noted, the Senate Judiciary Committee ruled that Knox could be appointed as long as the Secretary of State's salary was returned to $8,000.

Sixty-four years later, when President Richard Nixon nominated Senator William B. Saxbe to be Attorney General, the same problem arose, since Saxbe had been in the Senate when Congress increased cabinet salaries from $35,000 to $60,000. Again, Congress avoided the problem by reducing the salary of the Attorney General to $35,000, and the constitutional work-around became known as the Saxbe Fix.

The Saxbe Fix was used again in 1980 to allow President Jimmy Carter to appoint Senator Edmund Muskie as Secretary of State, and again in 1993 to allow President Bill Clinton to appoint Senator Lloyd Bentsen as Secretary of the Treasury. Finally, on December 10, 2008, Congress passed another Saxbe Fix to allow Clinton to become Secretary of State. Since then, President-elect Obama has nominated Senator Ken Salazar and Representative Hilda Solis for cabinet positions (as Secretary of the Interior and Secretary of Labor, respectively), and they too will require Saxbe Fixes.

Since the constitutionality of the Saxbe Fix is still disputed, the best solution would be a permanent solution: amending the Constitution to remove the emolument clause from Article I, Section 6.

How about it?

1 comment:

Bill Walker said...

Mr. Pez's presents an interesting constitutional question. If Congress can simply reduce the pay back to what it was and this nullifies the clause then how is this accomplished. The vote increasing the pay is a matter of public record. It is a fact. Does the Constitution allow and state "unless Congress shall reduce the pay to what it was before..." No. It makes it a one way street and gives Congress no option in the issue. Hence, the fix Mr. Pez clearly is unconstitutional.

There is another example of Congress doing this with another part of the Constitution that bears directly on amending the Constitution. Article V and the Article V Convention. Article V states that if 34 states apply for a convention (a numeric count of applying states) Congress must call a convention to propose amendments, commonly referred to as an Article V Convention.

The public record is clear. All 50 states have submitted over 650 applications for an Article V Convention. The applications can be viewed at . So, maybe in another column Mr. Pez should address this issue: what gives Congress the right to disobey the Constitution and refuse to call a convention when the document clearly states it must do so.

Short answer: The same reason they can do the fix Mr. Pez discusses in this column. Because they don't care about the Constitution or obeying it and as long as they get away with it, they will continue to do so.