The sixth section of Article I addresses three somewhat complex issues.
First, according to this section, Congresspeople get paid for their work and their pay is set by law. Meaning, according to the original Constitution, it is Congress that decides how much Congress gets paid. Obviously, there is something of a conflict of interest in this arrangement. Concern for corruption spurred a constitutional amendment to change it. This 27th Amendment is unique for several reasons. Certainly, any constitutional amendment is rare. But not only was this amendment the last to be passed in the United States (in 1992), it was first proposed over 200 years earlier. The precise language of the amendment was actually suggested in the late 1700s, and ratified by half a dozen states then. Almost a century later, it was ratified by another state in protest to Congress giving itself a substantial raise. As it turned out, the amendment had no time limit placed on its ratification. So when the movement to curb Congress’ ability to give itself instant raises was revived in the 20th century, there was already a partially ratified amendment. It just needed to be passed by additional states, which it eventually was. The new constitutional requirement is that, though Congress still sets Congress’ pay, any raise it gives itself only takes affect after the next election. Meaning, a Senator or Representative may no longer be in Congress by the time the raise is actually put in place.
The second issue addressed by this section concerns what is known as the Speech or Debate Clause
. This controversial provision affords immunity from arrest to members of the Senate or House of Representatives (and their staff members) for things said or done during a speech or debate in Congress, attendance in Congress, or going to or from Congress (except for the most serious of charges like treason or some felonies). This clause, modeled after a similar provision in place in the British Parliament, was designed to protect the independence of the legislature in the face of other branches of government. For example, in Doe v. McMillan
(1973) the Supreme Court rejected a lawsuit filed against members of the House and their staff members by parents alleging that the dissemination of a congressional report about the D.C. school system violated students’ privacy. The Court held that the clause protects “anything generally done” in the business of Congress, whether by a member or an aide. However, in the famous Gravel v. U.S.
(1972), the Court did not allow the invocation of the privilege by a Senator who arranged for the publication of the Pentagon Papers, classified documents relating to the Vietnam War. The Senator had read some of these documents directly into the congressional record; and that was protected. But his involvement with a private publisher was held not to be sufficiently related to congressional business to afford him the protection of the clause.
The third issue addressed by this section concerns what is known as the Emoluments Clause. In actuality, this clause addresses two issues. First, a person cannot simultaneously serve as both a member of Congress and as some other government official. This provision has been relatively uncontroversial. The second provision, the one that deals with emoluments, however, has been somewhat contentious since the founding. In this context, an “emolument” is an employment-related benefit. The clause prohibits a member of Congress from leaving his elected post early to take up a position in the government that, during his or her time in Congress, was either newly created or given a pay increase. In other words, Congressman X cannot vote to create the “Office of More Money” and then leave Congress early to assume that office. Obviously, this is designed to limit possible corruption. But occasionally, when there is no assumption of corruption, Congress uses a workaround to install a member (whose term is not complete) into a position whose salary was increased when that member was in office. This is known as a “Saxby Fix,” named after a member of Congress that was appointed to the office of U.S. Attorney General by President Nixon. Senator Saxby had participated in an earlier vote to increase the salary of the Attorney General; and his term was not yet complete when President Nixon sought him for that office. So the President and Congress proceeded to pass legislation that reduced the salary for the office to the level it was at before the increase. Though this remains a controversial procedure, it has been used with relative ease by subsequent administrations, including when outgoing President George W. Bush and the then-Congress passed a Saxby Fix to get around Senator Hillary Clinton’s ineligibility for the office of the Secretary of State in the Obama administration (her Senate term was not complete and she had participated in a vote to increase the salary for the office in an earlier year).