May 1, 1980
Page 9594
S. 2637 — COMPENSATION OF THE SECRETARY OF STATE
Mr. RIBICOFF. Mr. President, on behalf of myself, Senators CHURCH, GLENN, JAVITS, PERCY, PRYOR, and STEVENS, I send a bill to the desk and ask unanimous consent that it lay on the desk pending further disposition today.
Mr. STEVENS. Mr. President, I have no objection to it being at the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. STEVENS. Mr. President, may I inquire of the distinguished Senator from Connecticut, as chairman of our committee, is this the bill that deals with the problem relating to Senator MUSKIE's appointment and the salary question? Is it identical to the provisions that the Senate adopted at the time of the Saxbe nomination as Attorney General?
Mr. RIBICOFF. We have followed the Saxbe precedent. The salary provisions are completely identical. It has the agreement of Senator CHURCH who asked me to present this matter and submit a statement in his behalf.
Mr. STEVENS. Mr. President, on behalf of the minority leader and myself, we are pleased to cosponsor this arrangement. We think it is fair, providing it is identical to the treatment we gave to Senator Saxbe at the time he took similar action to resign from the Senate to take an appointment to the Cabinet. And we are prepared to act on it now if the Senate wishes to do so.
Mr. ROBERT C. BYRD. Mr. President, will the Senator yield?
Mr. RIBICOFF. I am pleased to yield.
Mr. ROBERT C. BYRD. Mr. President, I hope the Senate can act very shortly on this matter. I do have to clear it with a Senator who had asked to be notified before it is called up.
Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of the bill Mr. RIBICOFF introduced.
The PRESIDING OFFICER. Is there objection to the request of the Senator from West Virginia?
There being no objection, the Senate proceeded to consider the bill (S. 2637) , to insure that the compensation and other emoluments attached to the office of Secretary of State are those which were in effect January 1, 1977, which was read the first time by title and the second time at length.
Mr. CHURCH. Mr. President, I welcome the nomination of Senator MUSKIE to be Secretary of State.
He has been a close friend and colleague for many years, and I consider him superbly equipped to direct our Nation's foreign affairs, in these difficult times.
I am very pleased that the President has reached out to the Senate for his new Secretary of State. Senator MUSKIE has been a statesman in the Senate — a man of intellect, wisdom, perseverance, and strong leadership. The President could not have made a better choice.
I fully support the bill now under consideration and urge its passage. The rest of my statement deals with the constitutional aspects, of this legislation.
Mr. President, we are today considering a bill which would reduce the compensation and other emoluments attached to the office of the Secretary of State to those which were in effect on January 1, 1977. The necessity for this measure arises as a result of the President's announced intention to appoint our distinguished colleague from Maine, ED MUSKIE, to be the Secretary of State. However, since the compensation of the Secretary of State was increased by Congress during his current term in office, Senator MUSKIE is presently ineligible for appointment under the terms of article I, section 6, clause 2 of the Constitution. That provision reads:
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 increased 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 simple effect of this bill is to lift the technical disqualification from office holding imposed by the clause in a manner which is in total conformity with the purpose and spirit of the constitutional provision and consonant with unchallenged past practices of the Congress.
No one denies the impeccable credentials and long record of distinguished public service that qualifies Senator MUSKIE for the office of Secretary of State. Nor is there any question that when Senator MUSKIE participated in the process of raising executive compensation in 1977 he had any thought whatsoever that he might one day benefit from that action. In these circumstances, then, can it seriously be contended that if Congress now strips the office in question of all material enhancements since the beginning of Senator MUSKIE's term, that his appointment would still offend either the letter or spirit of the Constitution? I think not and I believe a close historical analysis of the adoption of article I, section 6, clause 2 bears me out.
The debates in the Convention of 1787 reveal that there was a twofold purpose in rendering Members of Congress ineligible to hold offices which either were created during the time for which they were elected or whose emoluments were increased during such period. This provision was designed, first, to protect the people from such Senators or Representatives who might be willing to create offices or increase salaries in order that they might enjoy them; and, second, to remove an obvious enticement by which an executive might gain unwarranted advantage over the legislative branch of the Government. Confirmation of this purpose is to be found in Joseph Story's "Commentaries on the Constitution of the United States" (Da Capo Press Reprint Edition, 1970) , where he states (Section 864, p. 330):
The reasons for excluding persons from offices, who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the Representative, and to secure to the constituents some solemn pledge of his disinterestedness.
On its face, therefore, it seems clear that the very statement of the purposes of the provision support the remedial legislation now proposed. For if the object was to prevent Members from increasing the salaries of offices and then becoming beneficiaries of such increase by executive appointment, it obviously follows that the repeal of the law which increased the salary of the Secretary of State would remove the case of Senator MUSKIE from the reason of the rule, and I think it is plain that it would remove his case from the operation of the rule as well.
But further investigation into the evolution of the provision during the early debates reveals a concurrent consideration of the delegates that sheds additional informative light on the intended scope of the prohibition. A preliminary draft of article I, section 6, clause 2 provided that Members of Congress would be ineligible for any State or Federal office during their term of service, and, with respect to Federal offices, for an additional year, whether or not there had been an increase in an emolument. "Farrand, Records of the Federal Convention" (hereafter referred to as "Farrand") , volume 1, pages 20-21, 217, 228-229. Thereafter several attempts to remove the disqualification clause in its entirety, or to modify it, were defeated. Farrand, volume 1, pages 275-377, 379-382, 386-390, 391-394. The leading proponent of modification was James Madison. He proposed that disqualification attach only where an office was created or the compensation of an old office was increased, arguing, with the support of several others, that while it was necessary to guard against office seeking and executive influence, too broad a bar would discourage the most capable men in the nation from seeking election to the national legislature, which would be a natural training ground for future members of the executive branch.
Madison's position is described as follows:
Mr. Madison had been led to this motion as a middle ground between an eligibility in all cases, and an absolute disqualification. He admitted the probable abuses of an eligibility of the members, to offices, particularly within the gift of the Legislature. He had witnessed the partiality of such bodies to their own members, as had been remarked of the Virginia assembly by (his colleague) (Col. Mason) . He appealed however to (him) in turn to vouch another fact not less notorious in Virginia, that the backwardness of the best citizens to engage in the legislative service gave but too great success to unfit characters. The question was not to be viewed on one side only. The advantages and disadvantages on both ought to be fairly compared. The objects to be aimed at were to fill all offices with the fittest — characters, and to draw the wisest and most worthy citizens into the Legislative service. If on one hand, public bodies were partial to their own members; on the other they were as apt to be misled by taking characters on report, or the authority of patrons and dependents. All who had been concerned in the appointment of strangers on these recommendations must be sensible of this truth. Nor wd. the partialities of such Bodies be obviated by disqualifying their own members. Candidates for office would hover round the seat of Govt. or be found among the residents there, and practise all the means of courting the favor of the members. A great proportion of the appointments made by the States were evidently brought about in this way. In the general Govt. the evil must be still greater, the characters of distant states, being much less known (throughout the U. States) than those of the distant part of the same State. The elections by Congress had generally turned on men living at the seat of (the fedl) Govt. or in its neighbourhood. — As to the next object, the impulse to the Legislative service, was evinced by experience to be in general too feeble with those best qualified for it. This inconveniency wd. also be more felt in the Natl. Govt. than in the State Govts as the sacrifices reqd. from the distant members wd. be much greater, and the pecuniary provisions, probably, more disproportiate, It wd. therefore be impolitic to add fresh objections to the (Legislative) service by an absolute disqualification of its members. The point in question was whether this would be an objection with the most capable citizens. Arguing from experience he concluded that it would. The Legislature of Virga. would probably have been without many of its best members, if in that situation, they had been ineligible to Congs. to the Govt. & other honorable offices of the State.
My wish is that the national legislature be as uncorrupt as possible. I believe all public bodies are inclined, from various motives, to support its members; but it is not always done from the base motives of venality. Friendship, and a knowledge of the abilities of those with whom they associate, may produce it. If you bar the door against such attachments, you deprive the government of its greatest strength and support. Can you always rely on the patriotism of the members? If this be the only inducement, you will find a great indifferency in filling your legislative body. If we expect to call forth useful characters, we must hold out allurements; nor can any great inconveniency arise from such inducements. The legislative body must be the road to public honor; and the advantage will be greater to adopt my motion, than any possible inconvenience. (Far-rand, Vol. 2, pp 489-492).
Mr. Pickney also made the argument that congressional ineligibility was:
Inconvenient because the Senate might be supposed to contain the fittest men. He hoped to see that body become a School of Public Ministers, a nursery of statesmen(Farrand, Vol. 2, p. 283).
Although Madison's proposal was initially rejected, it was subsequently reintroduced, debated again, and carried on a close vote. The reasons stated by the proponents of the change were exactly the same as those that Madison had previously advanced. Farrand, volume 2, pages 489-492.
Thus it is apparent that the compromise ultimately reached adds a dimension of meaning and scope to the prohibition. It may now be seen as a provision aimed not simply at guarding against office seeking and executive influence but also at preserving the opportunity of Members of Congress for public service in appointive civil offices. Seen in this light, then, this bill would at once overcome the evil regarding emoluments by preventing Senator MUSKIE from obtaining the benefit of the 1977 salary increase and any other emoluments, without at the same time wastefully barring him from offering his services to the country in an appointive office.
Those who would contend that the repeal of the law increasing the salary of the Secretary of State will not render Senator MUSKIE eligible might base their contentions on the clause which declares, "or the emoluments whereof shall have been increased during such times." Reading that language in the light of the aforementioned purposes, it seems plain to me that it contemplates a continuing condition, and applies, therefore, in a case only where an officer would enjoy the increased emoluments. In the event of the enactment of this bill and the appointment of Senator MUSKIE, he will not "be appointed to any civil office . . . the emoluments whereof shall have been increased." This bill does not attempt to repeal a fact, but seeks to repeal a condition created by a legislative enactment, and there is no gainsaying that if Congress has created such a condition it can remove it as well.
Indeed, Congress has done this very thing several times in the past virtually without challenge.
The first such instance involved the appointment of Senator Lot M. Morrill as Secretary of Treasury. Senator Morrill was elected to the Senate in 1871 for a term ending in 1877. In 1873, Cabinet officers' salaries were raised from $8,000 to $10,000, but then reduced to $8,000 in 1874.
Nevertheless, Senator Morrill's nomination was confirmed by the Senate without any challenge based on article I, section 6, clause 2.
A second instance involved the appointment by President Taft of Senator Philander Knox as Secretary of State. A measure with the same purpose as the bill under consideration today was passed by the Congress in February 1909 in order to permit Senator Knox's appointment in March to the incoming administration of President Taft without offending the purpose of the Emoluments Clause (35 Stat. 626). Senator Knox had been elected in 1905 for a term expiring on March 3, 1911. In 1907 the compensation of the Secretary of State had been increased from $8,000 to $12,000. The bill passed the Senate without debate (43 CONGRESSIONAL RECORD 2205), although debated at some length in the House (42 CONGRESSIONAL RECORD 2390-
2402, 2403, 2408-2415) . An unofficial opinion of Assistant Attorney General Russell (commenting on the bill reducing the Secretary of State's compensation to $8,000) reasoned that because the sole purpose of the prohibition was to destroy the expectation a Representative or Senator might have that he would enjoy the newly increased emolument, that purpose would be fully satisfied. He argued, that, "if the increase is made . . . and then unmade, he cannot get, or hope for, anything more than if there had been no such increase." (43 CONGRESSIONAL RECORD 2403). This reasoning prevailed. After passage of the remedial legislation, Senator Knox was nominated and confirmed as Secretary of State. Further, the precedent established by the appointment of Senator Hugo Black to the Supreme Court is worthy of some consideration.
During Senator Black's term of office, Congress strengthened the retirement benefits of Supreme Court justices. During that same term, the Senator was nominated to the Court. At the time, there was considerable discussion whether that increase in retirement benefits constituted an increase in the emoluments of that office within the scope of the Emoluments Clause. The Senate confirmed the nomination, apparently agreeing with the Attorney General that Senator Black was nevertheless eligible because the purpose of the clause was served since "inasmuch as Mr. Black was only 51 years old at the time and so would be ineligible for the 'increased emolument' for 19 years, it was not as to him an increased emolument." See Corwin, Annotated Constitution at 133, New York Times, August 14, 1937, page 1, column 3.
Finally, and most recently, I may point to the precedent of the appointment of Senator William Saxbe to be Attorney General in 1973, under circumstances exactly similar to the present situation. In the same manner proposed today, Senator Saxbe's salary was reduced for the remainder of his Senate term while he occupied that office.
These precedents support an interpretation of article I, section 6, clause 2, which consistent with the intent of the Framers, permits a Member of Congress who does not receive any prohibited benefits to accept an office in the United States.
Finally, a word may be said on the proper construction of this particular constitutional provision.
I have heard a great deal lately on strict or liberal interpretations of clauses of the Constitution. I am well aware of the facile ability of learned advocates to turn up precedents for rules of construction to fit almost any situation. But I view the Constitution as a practical instrument of government, meant by its Framers to endure for ages.
Thus far it has served us well for over 180 years primarily because its interpreters have sought to avoid constructions which would yield pernicious results, particularly in cases for which the Constitution does not explicitly provide. Chief Justice Marshall was well aware that many Federal constitutional provisions do not spell out contingencies in great detail, requiring that a court deduce or infer a great deal from the general object of the provisions. In McCulloch v. Maryland, 17 U.S. 316 (1819), Marshall stated the principle from which all constitutional construction must begin:
A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced, from the nature of the objects themselves. . . . (W)e must never forget that it is a constitution we are expounding. 17 U.S. 316, 406 (1819).
In the same vein, the Chief Justice, in a case decided the same year, commented on the instances when a strict literal approach would be inappropriate:
But although a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the. American people when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution in making it an exception, Dartmouth College v. Woodward, 17 U.S. (4 Wheat) 644 (1819) (emphasis supplied) .
I am of the firm belief that a reading of the emoluments clause which would deny the effectiveness of this bill in removing the current disqualification of Senator Saxbe would be, in Marshall's words "obviously absurd," "mischievous," and "repugnant to the general spirit" of the clause: This provision was not intended, as its history plainly demonstrates, to effect a wholesale disqualification of an entire Congress from appointive office. The compromise which was effected from an earlier proposal which would have absolutely barred Members during their term plus 1 year clearly indicates that no such result ,was intended.
Further, the prohibition finally adopted the limit to three narrowly defined circumstances. We do no injustice to the Framers or damage to the constitutional instrument by reading the emoluments prohibited in a manner consistent with reality and reason, in a manner consistent with the preservation of the orderly processes of government.
I therefore urge the Senate to pass this bill and cause no further delay in rendering Senator MUSKIE the greatly deserved honor of appointment as Secretary of State.
Mr. RIBICOFF. Mr. President, the bill which has been sent to the desk would reduce the salary and other emoluments of the Secretary of State to that which was in effect on January 1, 1977. I am introducing this bill on behalf of myself and Senators CHURCH, GLENN, JAVITS, PERCY, PRYOR, and STEVENS. The legislation provides that this reduced rate of pay shall be effective through noon on January 3, 1983, or until a successor to the individual who next holds the office of Secretary of State is appointed.
In addition, the legislation provides that any person aggrieved by an action of the Secretary of State may bring an action to contest the constitutionality of the appointment and that the courts shall give such suits expedited consideration.
The President has announced his desire to appoint our friend and colleague, Senator MUSKIE, to be Secretary of State. However, the Constitution prohibits any Member of Congress from taking a position in the executive branch if the salary for that job "shall have been" increased during the Congressman's term. Under the Constitution and the precedents, the administration believes Senator MUSKIE's nomination may not be made until this problem is resolved.
Therefore, I urge the Senate to act immediately to consider this bill so that the Senate may quickly proceed to consider the nomination. Under the circumstances, I believe it is vital that there be no delay in the submission of this nomination.
Mr. President, I move the passage of the bill.
Mr. STEVENS. Mr. President, on the understanding which I have previously stated that this measure is identical in its treatment to Senator MUSKIE that which was accorded to Senator Saxbe, I join on behalf of Senator BAKER and myself in supporting the measure and urge its adoption.
Mr. RIBICOFF. Mr. President, may I assure the acting minority leader that it is on all fours and we followed completely the procedures in the Saxbe proceeding.
Mr. STEVENS. I appreciate that, and I am grateful to the Senator from Connecticut for stating it.
The PRESIDING OFFICER. The bill is open to amendment. If there be no amendment to be proposed, the question is on the engrossment and third reading of the bill.
The bill (S. 2637) was ordered to be engrossed for a third reading, read the third time, and passed, as follows.
S. 2637
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) the compensation and other emoluments attached to the office of Secretary of State shall be those in effect January 1, 1977, notwithstanding any increase in such compensation or emoluments under (1) the Federal Salary Act of 1967 (Public Law 90-206; 81 Stat. 642) or the Executive Salary Cost-of-Living. Adjustment Act (Public Law 94-82; 89 Stat. 419) taking effect during the period beginning at noon of January 3, 1977, and ending at noon of January 3, 1983, or (2) any other provision of law, or provision which has the force and effect of law, if such increase becomes effective during that period.
(b) Subsection (a) of this section shall be effective during the period beginning on the enactment of this Act and ending the earlier of noon of January 3, 1983, or the date on which the first individual appointed to the office of Secretary of State after the enactment of this Act ceases to hold that office.
SEC. 2. (a) Any person aggrieved by an action of the Secretary of State may bring a civil action in an appropriate United States district court to contest the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article 1, section 6, clause, 2, of the Constitution. The United States district courts shall have exclusive jurisdiction, without regard to the sum or value of the matter in controversy, to determine the validity of such appointment and continuance in office.
(b) Any action brought under this section shall be heard and determined by a panel of three judges in accordance with section 2284 of title 28, United States Code. Any review of the action of a court convened pursuant to such section shall be by petition of certiorari to the Supreme Court.
(c) Any judge designed to hear any action brought under this section shall cause such action to be in every way expedited.
(d) This section applies only with respect to the Secretary of State who is first appointed to that office after the enactment of this Act.
Mr. ROBERT C. BYRD. Mr. President, I move to reconsider the vote by which the bill was passed.
Mr. RIBICOFF. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.