A Pay Variance By Any Other Name: Why The Congressional Mask Mandate Violates the 27th Amendment
On March 9, 2022, a federal district court ruled that the Speaker of the House did not violate the Constitution when she imposed a “fine” against members of Congress Thomas Massie of Kentucky, Ralph Norman of South Carolina, and Marjorie Taylor Greene of Georgia.[i] This controversy arose when, on May 20, 2021, Representatives Massie, Norman, and Greene were fined five-hundred dollars for removing their masks with several other members of Congress in an act of protest the day before.[ii]
While there are several issues presented in Massie v. Pelosi, this article will focus on whether the penalties Massie, Greene, and Norman faced violate the Twenty-Seventh Amendment of the U.S. Constitution. This article will argue that, despite the court’s holding, how the “fine” was collected makes the penalty a fine in name only. Rather, this fine is a pay variance, meaning, since there was no intervening election between the penalty’s adoption and enforcement, this penalty violates the plain language and legislative spirit of the Twenty-Seventh Amendment.
Background
House Resolution 38 § 4(a)(1) reads as follows: “the Sergeant-at-Arms is authorized and directed to impose a fine against a Member, Delegate, or the Resident Commissioner for the failure to wear a mask in contravention of the Speaker's announced policies of January 4, 2021.”[iii] The Members filed Massie v. Pelosi, alleging that, in relevant part, H. Res. 38 § 4(a)(1) violates the Twenty-Seventh Amendment of the Constitution.
The Twenty-Seventh Amendment Reads as follows: “No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.”[iv] While the court held that the enforcement of H. Res. 38 did not violate the Twenty-Seventh Amendment, this article will maintain that the court erred in this decision.
Argument
The meaning of “compensation” seems to have influenced the court in its decision. The court reasoned “the ‘compensation’ received by Members in return for their ‘services[,]’… is the compensation set by the most recent applicable statute prescribing congressional pay, thus comporting with the Ascertainment Clause's requirement that such compensation be ‘ascertained by [l]aw[,]’ ….”[v] This holding ties the meaning of compensation as “ascertained by Law” purely to statute, thus shielding the House Rules entirely from Twenty-Seventh Amendment review (or any other constitutional provision that entails “law”).
This shield, however, violates past case law where it has been previously held that the constitution applies to “all government action.”[vi] By defining “compensation” as the statutory salary for a member of Congress, this holding contradicts more than a century of the court applying constitutional restraint to all government action, including the Congressional rules.[vii] To hold that the Twenty-Seventh Amendment can only be invoked against a statutory change in the salary of a member of Congress is to redefine the Twenty-Seventh Amendment to say “no statute” instead of “no law.”
Further, the court cites to United States v. Sprague, explaining “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition.”[viii] The court then uses multiple dictionaries from the time of the founding to further extrapolate the meaning of “compensation.”[ix] While none of the dictionaries cited to in the opinion mention salary, every definition is linked to that which one receives in return for another. Based on these definitions, the actual payment the members receive is their “compensation.”
While the court maintains that “although the plaintiffs refer to their ‘actual compensation[,]” …, the term ‘actual’ is not found in either the Twenty-Seventh Amendment or the Ascertainment Clause … and accordingly has no relevance to the Court’s analysis of the amendment’s language….”[x] If an appeals court accepts this argument, combined with the notion that the Twenty-Seventh Amendment is only enforceable when the “law” is a statute, then the House could theoretically adopt a rule that uniformly lowers the amount of money paid out to members. While this would violate any plain reading of the Twenty-Seventh Amendment and, as explained infra, the spirit of the Amendment, the district court’s interpretation would allow for such conduct because the House Rule is not statute and the salary of the members remains constant de jure.
To affirm the holding of the District Court would violate the legislative intent of the Twenty-Seventh Amendment’s framers as well. At the time of the Founding, the British Parliament was experiencing a turbulent period of corruption, particularly through members of Parliament selling their vote to financiers and rejecting salaries from their actual constituency. This led to a relationship where a member of Parliament jeopardized their financial wellbeing when they voted in a way that the power brokers disapproved.[xi] Despite other reforms to allow people of modest means to join Parliament, this financial retaliation proved to be too powerful for anything else to protect the independence of members.[xii]
The Founders were aware of the flagrant corruption in Parliament and sought to prevent this in the new nation.[xiii] Even before discussion on the Twenty-Seventh Amendment in Congress, the Framers sought to preserve independence of members of Congress by ensuring that members were paid by the Federal government, not their state governments.[xiv] During the Congressional Debates on James Madison’s proposed amendments to the Constitution, the First Congress noted,
they might reduce the wages very low, much lower than it was possible for any gentleman to serve without injury to his private affairs, in order to procure popularity at home, provided a diminution of pay was looked upon as a desirable thing; it might also be done in order to prevent men of shining and disinterested abilities, but of indigent circumstances, from rendering their fellow citizens those services they are well able to perform, and render a seat in this house less eligible than it ought to be.[TB2] ”[xv]
Based on the legislative history and the plain text of the Compensation Clause and the Twenty-Seventh Amendment, the Framers not only intended to constitutionally protect the financial independence of members of Congress from the pressure of power brokers, but they did establish such protections if one faithfully applies the Twenty-Seventh Amendment.
The Court then refers to Congress’s authority to make rules and to punish violations of said rules.[xvi] The court claims “this authority extends to fining Members.”[xvii] The court then cites to other precedent from the House, including instances in 1969 and in 2012 when members were fined for violations of the House Rules.[xviii] The court errs in using these sources, however. First, Kilbourn v. Thompson was decided in 1880, more than a century before the Twenty-Seventh Amendment was ratified. While it does indeed affirm the power to fine members, Kilbourn’s dicta is very likely superseded by the Twenty-Seventh Amendment.[xix] The one instance the district court cites that occurred after the ratification of the Twenty-Seventh Amendment holds completely different facts.[xx] Congresswoman Laura Richardson agreed to a fine for violating legislative ethics (she made congressional staff campaign for her reelection campaign).[xxi] This fine was not deducted from Congresswoman Richardson’s paycheck. Rather, she agreed to pay it out of her personal finances.[xxii] Method matters. A “fine” paid directly out of one’s paycheck is not a fine. It is a pay deduction.
Whereas Richardson’s fine was from personal funds, which she personally turned over to the treasury, H. Res. 38 directs the fines against Massie, Greene, and Norman to be deducted directly from their pay. While Richardson could have paid this fine from any source beyond her congressional salary, H. Res. 38 offers no such option to members of Congress. It is, on its face, a pay variance.
The court claims “Rather, the fines are independent ‘deduct[ions] ... from the net salary otherwise due the Member[,]’ …, triggered by the plaintiffs’ non-compliance with the House's Rules and policies regarding decorum.”[xxiii] If anything, this claim proves the point of the Plaintiffs. Because the “fine” is an automatic deduction from the means by which members of Congress are paid, it is a variance in congressional compensation without an intervening election.
The House Rules and the Court may call this a fine, but it “looks like a [pay variance] in many respects.[xxiv] In Sebelius, Chief Justice Roberts upheld the Affordable Care Act Individual Mandate penalty largely due to the fact that the penalty for violating the mandate came in the form of a payment “to the IRS when [the violator] pays his taxes.”[xxv] It was particularly relevant that the penalty was “collect[ed] … ‘in the same manner as taxes.’”[xxvi] As a result, the Supreme Court held this penalty was, based on the manner by which it is collected, a tax.
Likewise, the penalty for violating the mask mandate looks like a pay cut. It is removed from the pay of the member of Congress like a pay cut. The collection of this so-called fine has an outcome where the paycheck the member of Congress receives is lower than what they would otherwise receive. This mandate was enforced “in the same manner as” a pay cut.
Finally, the court makes the claim that the deduction is conditional upon conduct instead of the members services.
In response, the defendants argue that ‘House Resolution 38 does not vary Member ‘compensation’ within the meaning of the Twenty-Seventh Amendment’ because it ‘affects Member salary only conditionally and indirectly based on the Member's own behavior’ and ‘does not change [a] Member[’s] ‘compensation’ for [his or her] ‘services.’ Defs.’ Reply at 8. For the following reasons, the Court concludes that the plaintiffs’ compensation, as the term is used in the Twenty-Seventh Amendment, is not varied by the deduction of disciplinary fines from the plaintiffs’ paychecks.”[xxvii][TB3]
In the context of H. Res. 38, the mask mandate was only enforced in televised areas of the House, such as the Floor. In order to perform one’s services without a pay deduction, a member of Congress must wear a mask. But perhaps even more importantly, to contrast a member’s conduct from their services is often drawing a distinction without a difference. Thomas Massie, Marjorie Taylor Greene, and Ralph Norman all represent deep red districts.[xxviii] A mid-2021 poll shows that an overwhelming majority of Republicans support mask mandates.[xxix] Massie, Greene, and Norman's defiance of the mask mandate, given the lack of support for mask mandates in general among Republicans, was a decision by which the members arguably served their constituents by expressing their voters’ dissatisfaction with the state of COVID-19 mandates.
The Twenty-Seventh Amendment, H. Res. 38 imposes a “fine” against members of Congress that is a pay variance. Through the appellate process, the higher courts are likely to examine the plain language and legislative history behind the Twenty-Seventh Amendment and hold that the manner by which Thomas Massie, Marjorie Taylor Greene, and Ralph Norman were “fined” actually constitutes an unconstitutional pay variance under the Twenty-Seventh Amendment.
[i] Massie v. Pelosi, No. 21-2023, 2022 WL 703942 (D.D.C. Mar. 9, 2022).
[ii] Morgan Watkins, Kentucky Rep. Thomas Massie Fined $500 for Refusing to Wear Mask on House Floor, Louisville Courier-Journal (May 20, 2021), https://www.courier-journal.com/story/news/politics/2021/05/20/rep-thomas-massie-fined-500-refusing-wear-mask-house-floor/5190914001/.
[iii] H.R. Res. 38 § 4(a)(1), 117th Cong. (2021).
[iv] U.S. Const. amend XXVII.
[v] Massie, 2022 WL 703942, at *17 (D.D.C. Mar. 9, 2022) (citing U.S. Const. art. I, § 6, cl. 1 and U.S. Const. amend. XXVII).
[vi] Watkins v. United States, 354 U.S. 178, 188 (1957).
[vii] U.S. v. Ballin 144 U.S. 1, 5 (1892) (“Congress may not by [their] rules ignore constitutional restraints or violate fundamental rights”) (reaffirmed in Exxon Corp. v. FTC, 589 F.2d 582, 590 (1978)).
[viii] Massie, 2022 WL 703942, at *16 (citing United States v. Sprague, 282 U.S. 716, 731 (1931)).
[ix] Id. at 16 (citing Samuel Johnson, Dictionary of the English Language 181 (6th ed. 1785; Thomas Dyche, A New General English Dictionary 169 (14th ed. 1771); John Ash, The New and Complete Dictionary of the English Language 111 (2d ed. 1795).
[x] Id. at *17 (citations omitted).
[xi] Edward Porritt & Annie G. Porritt, The Unreformed House of Commons: Parliamentary Representation Before 1832, 163 (1909).
[xii] Id. at 156.
[xiii] Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 502 (1992) (“Americans in the 1770s and 1780s, fascinated by the apparent and real corruption of the British constitution, were aware that members of the House of Commons often played these artful political games to win and secure their seats-including, ultimately, the purchase and sale of constituents' votes.”).
[xiv] U.S. Const. art I. §. 6. cl.1; see Bernstein at 502 (The framers were well aware that “state legislatures continued the practice, honored by tradition, of using their control on the pursestrings to punish Congress for ignoring their state's interests, and this fiscal war of nerves extended to the pay of state delegations.”).
[xv] 1 Annals of Cong. 756 (1789) (Joseph Gales ed., 1834), https://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=379.
[xvi] Massie, 2022 WL 703942, at *14 (citing U.S. Const. art. I, § 5, cl. 2).
[xvii] Id. at *14 (citing Kilbourn v. Thompson, 103 U.S. 168, 190 (1880) (noting “the power of punishment in either House by fine”)).
[xviii] H. Doc. 94-661, 94th Cong., 2d Sess., Ch. 12 § 17 (1979) (noting that “[a] fine may be levied by the House against a Member pursuant to its constitutional authority to punish its Members”) (published in 1979); Jack Maskell, Expulsion, Censure, Reprimand, and Fine in the House of Representatives 14, Cong. Rsch. Serv., RL31382 (2016) (noting that the House “fined a Member in 1969 the sum of $25,000 to be repaid by automatically withdrawing a certain amount regularly from his pay, for various conduct offenses, including the misuse of official committee appropriations, payroll, and expenses” and fined a Member $10,000 as part of a reprimand “for misuse of official resources in compelling official congressional staff to work on political campaigns”) (emphasis added).
[xix] Since Kilbourn was a Supreme Court Case, it will likely require Massie v. Pelosi to be appealed to the U.S. Supreme Court for the conflict between Kilbourn’s dicta and the text of the Twenty-Seventh Amendment to be reconciled. This is likely the strategy of this lawsuit. Lucas Aulbach, Thomas Massie’s Lawsuit Against Nancy Pelosi Over House Mask Mandate, $500 Fine Dismissed, Cincinnati Enquirer (Mar. 10, 2022), https://www.cincinnati.com/story/news/politics/2022/03/10/thomas-massie-lawsuit-dismissed-against-nancy-pelosi-mask-mandate/9451003002/, (“Massie, in a statement, hinted that an appeal is likely. ‘The judge came to the tortured conclusion that collecting mask fines by direct reduction of members’ salaries did not constitute reductions in salary, which is otherwise prohibited by the Constitution,’ Massie wrote. ‘We are glad to have a ruling that gets us one step closer to the Supreme Court, where we believe a plain reading of the Constitution will clearly show Speaker Pelosi has violated the Constitution.’”).
[xx] H. R. Rep. No. 112-642, at 0920 (2012).
[xxi] Id.
[xxii] Id. (“to be paid out of personal funds to the U.S. Treasury.”).
[xxiii] Massie, 2022 WL 703942, at *17 (citing H.R. Rule II, cl. 4(d)(1)).
[xxiv] NFIB v. Sebelius, 567 U.S. 519, 563 (2012).
[xxv] Id.
[xxvi] Id. at 564.
[xxvii] Massie, 2022 WL 703942, at *15.
[xxviii] The Cook PVI of Kentucky’s 4th District is R+18. The Cook PVI of South Carolina’s 5th District is R+9. The Cook PVI of Georgia’s 14th District is R+27. PVI Map and District List, The Cook Political Report with Amy Walter (available at https://www.cookpolitical.com/pvi-map-and-district-list).
[xxix] Mark Caputo, Poll: Majorities Support Vaccine, Mask Mandates – But Not Republicans, Politico (Aug. 11, 2021), https://www.politico.com/news/2021/08/11/majorities-support-vaccine-mask-mandates-republicans-503506.
[TB1]Make sure your final draft has a title [TB1]
[TB2]May need to check and make sure this doesn’t cross into being a block quote. I don’t remember off the top of my head what the word count is for block quote. [TB2]