How Nice For You

How Congress Will Still Get Paid in a Government Shutdown

Shutdown or no shutdown, the 27th Amendment protects the salaries of members of Congress.

Jacquelyn Martin/AP

Ted Cruz is leading the charge in the Senate (and apparently the House) to defund the Affordable Care Act, even as the strategy hurls the country toward a government shutdown on Tuesday. But on Friday night, Cruz told a Texas audience that he plans to keep his Senate paycheck during the shutdown while much of the rest of the government grinds to a halt and other federal employees go without pay. A handful of other senators and members of Congress have said they won't take a salary starting this week if they don't pass a continuing resolution to fund the government, but so far Cruz is the only one to say he has no plans to stop getting paid.

"At least at the current time, I have no intention to do so," Cruz said when an audience member at the Texas Tribune festival asked if he would forgo his Senate salary if Congress fails to reach an agreement this week to fund the federal government. Cruz added that he had not given much thought to the question before and reiterated that he doesn't think the government should shut down.

But no matter whether Cruz and others in Congress think the government should shut down, it is becoming abundantly clear that the government will shut down and that hundreds of thousands of federal employees around the country who are paid through annual appropriations will be furloughed without pay as long as it lasts. Millions more, including active-duty members of the military, will be required to report to work without a salary until the government goes back to regular operations. Although service members and other federal workers have been paid retroactively after past shutdowns, the House and Senate would have to approve the back pay, which is not guaranteed.

Members of Congress will have no such dilemma about the future of their own finances this week because the 27th Amendment to the Constitution specifically stipulates that the salaries of the House and Senate cannot change until a congressional election has come and gone. Members of both chambers currently make $174,000.

The 27th Amendment was originally hatched by the Founding Fathers and ratified in 1992 to prevent senators and House members from boosting their own salaries before an election. But the reality is that Congress is now the only class explicitly protected by the Constitution from financial pain in the event that they themselves fail to fund regular government operations. Even their own congressional staff members will be furloughed or go to work on Capitol Hill without the promise of getting paid once the dust settles.

A handful of Democrats and Republicans have stepped forward recently to say they will not accept their paychecks this week if a shutdown occurs. Alabama Republican Rep. Martha Roby has said she shouldn’t get paid if members of the military don't get paid. "This is Congress’s problem to fix," she said. Rep. Gary Peters (D-MI) says he'll donate his salary to charity if Congress can't agree on a continuing resolution. "Michigan families work hard and when they don’t go to work, they don’t get paid," Peters said. "The same should hold for Congress."

On Saturday, Rep. Pete Gallego (D-TX) introduced a bill to designate members of Congress as "non-essential employees," meaning they would be stop being paid along with the other federal employees starting on Tuesday.

Looking to take the decision out of individual members' hands, Sen. Barbara Boxer introduced legislation in January to prevent any member of the House or Senate from getting paid in the event of a government shutdown. A similar bill passed the Senate unanimously in 2011, but the House never voted on it. This year, as the likelihood of a shutdown looks more certain than ever, Boxer's bill has one co-sponsor, Sen. Bob Casey (D-PA).

"How is that Republicans who are urging a shutdown of the government are not co-sponsors of my bill?" Boxer said Friday. "They want to protect their own pay, they want to protect themselves and their families, but they don’t seem to care about the single mom who works as a custodian in one of our government buildings who is struggling to get by ... These Republicans are willing to put the livelihoods of millions of American workers at risk—but not their own."

Late Saturday night, just before the House passed the latest version of the latest funding bill that President Obama had already promised to veto, Reps. Jim Moran (D-VA) and Frank Wolf (R-VA) both said that regardless of congressional action, federal employees should get paid this week and into the future, no matter what. "They should not be punished because the president and Congress cannot agree," Wolf said. Moran added that a shutdown would only hurt the people who have no power to avoid it.

"What are we doing this for?" Moran said. "This doesn't make sense."