08 January 2010

Why isn't this a law?

"Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators or Representatives, and Congress shall make no law that applies to the Senators or Representatives that does not apply equally to the citizens of the United States."

That (via JWT) would be the 28th Amendment to the US Constitution. Good idea?

21 comments:

  1. What would that do for health care? Would that mean I'd get the same plan they get?

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  2. I'm confused--what laws have members of Congress exempted themselves from? Or are planning to exempt themselves from?

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  3. @Raodrunner -- like healthcare, from which they exempt themselves (right, Josh) and other employee "rights."

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  4. Possibly not a good idea because of private bills that can be used to help folks. I also think most of this is already taken care of under the Equal Protection Clause.

    I also see a distinct potential problem with transparency laws like the Freedom of Information Act. Some things Congress learns or is briefed on do need to remain classified, and it would be tough to carve out maximally transparent laws that still let Congress keep important state secrets.

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  5. @RV -- this is more about employee rights, etc. If there was a private bill, then it would apply to all 300 mil of us! Secrecy is NOT the same issue...

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  6. What would this do to the minimum wage?

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  7. Congress isn't exempted (whatever that means) from health care--they're eligible for employer-based health care just like the majority of Americans. They're on the same health care plan as every other federal employee, from park rangers to FBI agents, they pay the same premiums, and get the same benefits. Yeah, it's a great plan (actually a set of plans from about 8 different insurance companies, each of which usually offer two or three plan options) but that's because it's a pool of 2 million people, most of which is unionized. A Congressman's health insurance plan depends more on the bargaining power of AFSCME than on the fact that he's a member of Congress.

    So, since members of Congress are on the same private insurance plan as 2 million Americans, you can't mean "insurance" when you say they're exempted from "health care". The individual mandate included in the legislation under consideration? Nope, they'll be subject to that as well. So what do you mean when you say they're "exempted from health care"?

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  8. And what do you mean by "employee rights"? Labor laws, worker safety? I have an explanation of that, but don't want to go into it if you mean something else.

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  9. @Josh, it wouldn't do anything to the minimum wage. Well, I suppose it would stipulate that no member of Congress could make less than the federal minimum wage. But that wouldn't change much on the ground, as I'm sure Congressional salaries have exceeded the minimum wage since the min. wage was instituted. Perhaps you're forgetting that we're talking about a *minimum* not a *maximum* and many employers pay more than the minimum wage?

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  10. They are exempt from having to obey wage and hour regulations (overtime, etc.) and I think they are also exempt from discrimination/ADA/harassment suits. If the latter were the case the 2/3 of those who don't deserve to be in the pokey already would soon be on their way. They also do not have to pay social security taxes on their salary. All those things re for the little people to have to deal with.

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  11. @Mister Kurtz: They do indeed pay Social Security taxes on their salaries, and are eligible for benefits just like everyone else. Until the early 1980s, all federal employees didn't pay SS taxes because they had a separate pension system and weren't eligible for benefits. That changed decades ago, and members of Congress have been paying SS taxes ever since.

    As far as labor laws, here's the situation: Members of Congress are subject to any law that governs individuals, but the House of Representatives (or Senate), as an employer, is not subject to the usual labor laws. This is because things like OSHA are enforced by the Executive Branch, which can't enforce laws against the institution of Congress because it's a separate and equal branch. There are separate, nearly identical, labor laws that apply to Congressional employees, but they're enforced by offices within the House of Representatives and the Senate, not the Department of Labor.

    But, for members of of Congress, they're just as subject to sexual harassment or discrimination suits as an individual boss is. If harassment is a cause of action for a civil suit against a supervisor in the private sector, it's a cause of action for a suit against a member of Congress, too. Law enforcement agencies can, and do, enforce laws against members of Congress as individuals--the FBI investigates corruption, and federal prosecutors prosecute such cases. But, the Department of Labor couldn't fine the House of Representatives for not complying with the Americans with Disabilities Act (which Congress is subject to, but enforcement is handled by a legislative branch agency.)

    Complicated, I know. But I still haven't heard an example of a law members of Congress are exempted from.

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  12. Thank you for the correction, RR

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  13. @RR -- thanks indeed.

    Here's the original "exemption" that I got in an email. Not the same, I agree, but it does reflect a certain asymmetry of suffering :)

    U.S. House & Senate have voted themselves $4,700 and $5,300 raises.
    1. They voted to not give you a S.S. Cost of living raise in 2010 and 2011.
    2. Your Medicare premiums will go up $285.60 for the 2-years and you will not get the 3% COLA: $660/yr. Your total 2-yr loss and cost is
    -$1,600 or -$3,200 for husband and wife.
    3. Over 2-yrs they each get $10,000
    4. Don't you feel SCREWED?
    5. Will they have your cost of drugs - doctor fees - local taxes - food, etc., increase?
    NO WAY . They have a raise and better benefits. Why care about you? You never did anything about it in the past. You obviously are too stupid or don't care.
    6. Do you really think that Nancy, Harry, Chris, Charlie, Barnie, et al, care about you?

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  14. @RR -- thanks indeed.

    Here's the original "exemption" that I got in an email. Not the same, I agree, but it does reflect a certain asymmetry of suffering :)

    U.S. House & Senate have voted themselves $4,700 and $5,300 raises.
    1. They voted to not give you a S.S. Cost of living raise in 2010 and 2011.
    2. Your Medicare premiums will go up $285.60 for the 2-years and you will not get the 3% COLA: $660/yr. Your total 2-yr loss and cost is
    -$1,600 or -$3,200 for husband and wife.
    3. Over 2-yrs they each get $10,000
    4. Don't you feel SCREWED?
    5. Will they have your cost of drugs - doctor fees - local taxes - food, etc., increase?
    NO WAY . They have a raise and better benefits. Why care about you? You never did anything about it in the past. You obviously are too stupid or don't care.
    6. Do you really think that Nancy, Harry, Chris, Charlie, Barnie, et al, care about you?

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  15. @RR

    Good comments. Does the Executive Branch/Legislative Branch separation also appply to EEO reporting and other similar issues?

    While the independence of the three branches of federal government is a necessary condition, it is interesting to me that 1) The situation is not more widely known and publicized, and 2) Congress and the executive branch do not go out of their way to create transparent rules and enforcement so they each do not appear to be like privileged aristocracies.

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  16. Roadrunner, thanks for some clarifications. As to my minimum wage comments, you are only talking about half of the proposed Constitutional amendment here. The second half, that, "Congress shall make no law that applies to the Senators or Representatives that does not apply equally to the citizens of the United States", could be interpreted to mean that whatever salary Congress gets would apply equally to U.S. citizens.

    As for health care, Congress differs from civil service agents in this: Whereas civil service agents are granted a health package from their employers (the federal government), Congress gives themselves a health package, and doesn't go through their employers (the voters).

    In fact, where else can you find an employer giving a better deal to employees than they, themselves, receive?

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  17. Thanks everyone, we're getting into some better issues. I'll answer over several comments:

    @David Zetland:
    1. Members of Congress did indeed receive an automatic raise in January 2009, based on the COLA increase for federal employees. However, this is automatic, there was no vote taken. Moreover, the controversy of that raise led Congress to vote in March 2009 that they would not receive a cost of living increase in 2010. Accordingly, members' pay is the same this year as last.

    2. The SS COLA this year, for the first year ever, was negative. However, the SS law doesn't allow negative COLAs, so the adjustment was simply zero. I'm betting a smart economist like you can figure out the relationship between very low/basically zero consumer inflation and the lack of an inflation-based cost of living increase. Unfortunately, medical inflation runs consistently higher than general consumer inflation, and so Medicare premiums were scheduled to go up. However (from http://www.socialsecurity.gov/cola/2010/factsheet.htm#effect):

    The Social Security Act includes a provision that holds certain Social Security beneficiaries harmless for increases in the Medicare Part B premium. The “hold harmless” provision protects about 93 percent of Social Security beneficiaries from paying a higher Part B premium, in order to avoid reducing their net Social Security benefit. Those not protected include higher income beneficiaries subject to an income-adjusted Part B premium and beneficiaries newly entitled to Part B in 2010.

    So, only 7% of beneficiaries will see a decline in their SS checks, mostly those with higher incomes. Not great, but not "everyone".


    3. However Congress didn't vote for any of this. This is all automatic in the SS/Medicare formulas. Congress is not dumb (usually). Many (including President Obama) support a one-time lump sum payment to SS beneficiaries as a form of economic stimulus and to make up for the lack of a COLA. I wouldn't be surprised if that's included in the next jobs bill.

    To conclude: 2009 - Congressional pay increase, SS COLA increase. 2010 - No Congressional pay increase, no SS COLA increase.

    Now, that's sort of coincidental; the congressional pay decision was made in March 2009, the SS COLA was release in October 2009.

    But, if someone were to propose that the Congressional cost of living increase should be tied to the SS COLA...well, that sounds like a decent thing to consider.

    DZ, does that cover the original email you got?

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  18. @Jay:
    Yes, EEO hiring falls under the same rules. It's not an ideal system (Hill employees could certainly use some stronger labor protections) but it's tough to get around the separation of powers issue. I can tell you that Congressional leadership, and employees, aren't really in love with the current solution, and if someone came up with something better, everyone (mostly) would jump at it.

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  19. @Josh
    As to my minimum wage comments, you are only talking about half of the proposed Constitutional amendment here. The second half, that, "Congress shall make no law that applies to the Senators or Representatives that does not apply equally to the citizens of the United States", could be interpreted to mean that whatever salary Congress gets would apply equally to U.S. citizens.

    That's remarkably...communist... But OK, I suppose. The Constitution requires Congress to set its pay (Article I, Section 6). Congress has chosen, since 1989, to automatically receive the same COLA as other federal employees, except for the few years when they've voted to not take a pay increase. Congress could choose another way to determine its pay, but this one seems decently fair and objective, since Congress doesn't actually determine that COLA. But, I won't argue that this is clearly the best option for setting salaries. But paying everyone the same salary seems...well, I just keep going back to communist...

    As for health care, Congress differs from civil service agents in this: Whereas civil service agents are granted a health package from their employers (the federal government), Congress gives themselves a health package, and doesn't go through their employers (the voters).

    This seems like an odd distinction--civil servants work for "voters" just as much as members of Congress do. Members' paychecks come from the House of Representatives or the Senate, not "the voters". Again, Congress could vote on their health care plans specifically--but choosing from the plans available to civil servants seems like a decent way to make sure their package is fair. They could choose to give themselves free health care, but they don't.

    Given that Congress has to set its compensation, it's chosen to follow what other federal employees get. How would you prefer they do it?

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  20. Roadrunner, it isn't Communist, but you get my point. It's not feasible.

    I agree that civil servants work for voters, but they do have a line of authority that goes up through Congress or the Administration or the Judiciary and to the Constitution, whereas Congress goes up through the voters and to the Constitution.

    Nobody's paychecks in government come from the House or the Senate, but from taxpayers.

    I'm saying that I understand the methods they've chosen, and that mandating complete equality of laws, to quote a famous President, "wouldn't be prudent."

    I'm also not very partial to short amendments, because the interpretation becomes a bugger... like the 2nd one, for example. Nukes? Okay then, personal weapons: anthrax? Riiight...

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  21. @Josh
    My apologies, I understood your comment as opposition to the minimum wage, rather than skepticism about the proposed amendment. I certainly agree about short amendments (and bills)--ambiguity is helpful to no one. Except lawyers.

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