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The Emoluments Clause and the “Saxbe Fix”

          The Emoluments Clause of the Constitution, art. I, § 6, cl. 2, provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time.”  In plain English, this means that if Senator X is elected in 2006 for a term to run from 2007-2013, and the salary or benefits for a federal office are increased during that term (say in 2008), he or she cannot thereafter (say in 2009) be appointed to that office until the expiration of the term (i.e., in January 2013). 

            From time to time, however, it transpires that a President would like to appoint to federal office a Senator or Representative who, on the face of it, would appear to be disqualified from appointment under the Emoluments Clause.  Naturally, in such situations the President, having taken a solemn oath to protect and defend the Constitution, will regretfully select another well-qualified nominee for the position. 

            Just kidding.  What most presidents have done in that situation is to employ something called the “Saxbe fix,” so-called after Senator William Saxbe, who was appointed by President Nixon as Attorney General in 1973.  The Saxbe fix is legislation that repeals the pay raise (or other benefit increase) for the office in question so that the appointee will receive the same emoluments as the office provided at the beginning of his or her congressional term.  This roll-back provision, it is argued, satisfies the literal requirement of the Emoluments Clause because the emoluments are now the same as they were at the beginning of the time for which the appointee was elected and thus have not, in a sense, increased. 

            Certainly there are contexts in which this construction of the term “increased” would be perfectly reasonable.  For example, if one were asked if the stock of IBM increased today, one would reasonably construe the question to mean whether the closing price was higher than the opening price, rather than whether the price rose at any point during the day (to which the answer would certainly be yes). 

            Yet there are other contexts in which this construction seems unreasonable.  For example, Article II (section 1, clause 7) of the Constitution provides that the President shall receive “a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected.”  Surely this provision would be violated if the President’s compensation were both increased and decreased during his term, even though the compensation rate at the beginning and end were identical. 

            One might say that the presidential compensation clause is ambiguous but must be read in light of its purpose (presumably to prevent manipulation of the president’s compensation for political purposes).  Yet this does not seem quite right.  Even without knowing the specific rationale behind the clause, it is reasonably apparent that it does not permit a series of increases and decreases that cancel each other out.  For one thing, if the Framers had so intended, they could have simply provided that the compensation at the commencement of the period for which the president was elected would be identical to the compensation at the conclusion of such period.  Thus, the presidential compensation clause unambiguously prohibits offsetting increases and decreases.

           

The Emoluments Clause presents a similar structural issue. If the Framers had intended merely to ensure that the emoluments of the executive office in question were no greater at the time of appointment than they were at the time of commencement of the appointed Member’s term, the Clause could have, for example, stated “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time unless said Emoluments shall subsequently have been decreased by at least an equivalent amount.”

The hypothetical language above was suggested by Professor Larry Tribe, a supporter of the Saxbe fix, who acknowledges that the absence of such an “escape clause” in the Constitution poses some difficulties for his position. Professor Tribe writes that “[s]omewhat troublesome for [supporting the constitutionality of the Saxbe fix] is the absence of any constitutional proviso for annulling what would otherwise be a violation of the Emoluments Clause by decreasing a salary hike at some later time.” In contrast, Tribe notes, the constitutional prohibition on accepting gifts or emoluments from foreign states “includes within its text [an] escape clause” allowing Congress to give its consent to the gift or prohibition. However, Tribe argues that this constitutional silence is of limited significance to the Emoluments Clause because the wording of the needed escape clause would be “singularly peculiar.”

However, if the Framers were concerned merely about the possibility that a Member might benefit (or expect to benefit) from a pay raise enacted during his congressional term, the most direct and intuitive way to address the problem would be simply to prohibit the Senator or Representative from receiving the increase. The Clause would thus read something like this: “No Senator or Representative who shall, during the Time for which he was elected, be appointed to any Civil Office . . . shall receive any encrease in Emoluments which have happened during such Time.”

There is nothing “peculiar” about such a direct prohibition on receipt of a financial benefit. Indeed, when the Framers wanted to place direct limitations on compensation or emoluments, they were well aware of how to do so. The presidential compensation clause is one example. Another is the 27th Amendment (which, while not ratified until 1992, was proposed in 1789). This amendment provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” The fact that the Emoluments Clause is structured as a disability or disqualification to office, rather than simply a limitation on the emoluments that a Member can receive, hardly seems likely to be the result of mere inadvertence

Of course, no one can say for sure whether the Framers considered or even thought of the idea of structuring the Emoluments Clause in a way that would explicitly permit a Member to be appointed despite a prior increase in emoluments. One can say with a fair degree of certainty, however, that such an alternative structure would have been vigorously objected to by at least a significant number of those who debated, drafted and ratified the Constitution.

The initial proposal at the Constitutional Convention was to prohibit Members of Congress from being appointed to any civil offices during the time for which they were elected (and for a one-year period thereafter). This provision was supported by anti-Federalists such as George Mason and Elbridge Gerry on the theory that the prospect of such appointments would cause Members of Congress to become more oriented toward expanding the scope and power of the federal government, and less toward protecting the interests of their states. These delegates were particularly, but not exclusively, concerned with the possibility that the executive would use the power of appointment to corrupt Members of Congress.

Other delegates, such as James Madison, believed that the costs of a total prohibition on appointment of Members outweighed the benefits. Madison acknowledged that allowing such appointments had the potential for conflict of interest and exercise of undue influence by the executive, but felt that these concerns were not sufficient to justify a total ban on appointments, which he believed would be a disincentive to service in the federal legislature. Instead, he proposed a compromise to bar appointments only for offices that had been created or for which the emoluments had been increased during the time for which the member in question had been elected. Madison argued that the “unnecessary creation of offices, and increase of salaries, were the evils most experienced & if the door was shut agst. them, it might properly be left open for the appointt. of members to other offices as an encouragmt. to the Legislative service.” Although some anti-Federalists thought Madison’s proposal did not go far enough to prevent corruption, the Convention adopted his amendment.

As John F. O’Connor demonstrates in his article, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, the fact that the Emoluments Clause is a disability to appointment, rather than a mere prohibition on increased emoluments, better serves the Anti-Federalist purpose of minimizing the growth of government. This is because a disability tends to encourage Members of Congress (to the extent that they hope to be appointed to federal offices) to vote against any pay raise, while a mere prohibition on receiving increased emoluments does not. The structure of the Clause as a disability, rather than a limitation on compensation, therefore must be viewed as integral to the compromise that was struck, rather than as simple inadvertence or peculiarity or phrasing.

For this reason the Emoluments Clause cannot be circumvented by means of the Saxbe fix. While in hindsight it may be apparent that the Clause has not been an effective tool for limiting the size and cost of the federal government, the appropriate “fix” for this problem is to repeal the Clause (or, better yet, to substitute more effective constitutional limitations on the growth of government). It is not justification for ignoring the Clause’s express dictates.

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