[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7. The Members]
[B. Compensation and Allowances]
[§ 4. Salary; Benefits and Deductions]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 697-710]
CHAPTER 7
The Members
B. COMPENSATION AND ALLOWANCES
Sec. 4. Salary; Benefits and Deductions
The Constitution directs in article I, section 6, clause 1, that
Senators and Representatives shall receive compensation for their
services,(2) to be paid out of the Treasury of the United
States.(3) Pursuant to that clause, the rate of compensation
is fixed by statute and is periodically reviewed.(4) In the
90th Congress, there was established the Commission on Executive,
Legislative, and Judicial Salaries, which commission reviews salaries
periodically and submits a report to the President who then makes
recommendations in his budget message.(5)
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2. Compensation is pay for official services and does not include
allowances, which are reimbursement for actual or presumed
expenses and which are additional and separable from the legal
rate of compensation. Smith v U.S., 158 U.S. 346 (1895).
Therefore, where there has been no appropriation for an
allowance, a Congressman cannot claim a constructive allowance
as part of his compensation. Wilson v U.S., 44 Ct. Cl. 428
(1909).
For discussion of allowances, see Sec. 6, infra (travel),
and Sec. 8, infra (office, personnel, and supply allowances).
3. See also 2 USC Sec. 47 (congressional compensation as ``public
accounts'').
In the drafting and ratification of the Constitution, there
was debate on whether any compensation should be allowed, or
whether it should be allowed for only the House and not for the
Senate. Story, Commentaries on the Constitution of the United
States, Sec. Sec. 851-52, Da Capo Press (N.Y., Repub. 1970).
It was specifically provided that the compensation be paid
out of the U.S. Treasury, rather than the individual state
treasuries, in order to insure the independence of the national
legislature and the equality of compensation. Id. at Sec. 854.
4. The constitutional authority for payment of congressional salaries
does not stem from the general taxing and spending power of
Congress but from the specific clause providing for a
congressional salary to be paid. Richardson v Kennedy, 313 F
Supp 1282 (W.D. Pa. 1970), aff'd mem. 401 U.S. 901 (1971)
(taxpayer lacked standing to challenge congressional pay raise
effected by the Commission on Executive Legislative, and
Judicial Salaries).
As to the fixing of the congressional salary, early
objections were voiced on the failure of the Constitution to
provide a procedure for fixing and changing the salary. Story,
Commentaries on the Constitution of the United States,
Sec. 855, Da Capo Press (N.Y., Repub. 1970).
5. For the establishment of the commission and for the 1969
congressional pay raise effected by the commission, see
Sec. 4.1, infra.
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The salary of Members progressed from $6 per diem in the
[[Page 698]]
First Congress to a fixed amount of $42,500 per year in the 90th
Congress.(6) The statutes also fix separate rates of salary
for the Speaker and Majority and Minority Leaders of the
House.(7)
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6. Salaries, 1795 to 1906: $6 per diem before Mar. 4, 1795, $7 per
diem after Mar. 4, Act of Sept. 22, 1789, 1 Stat. 70-71;
reduced to $6 per diem, Act of Mar. 10, 1796, 1 Stat. 448;
$1,500 annually, Act of Mar. 19, 1816, repealed by Act of Feb.
6, 1817, 3 Stat. 257; $8 per diem, Act of Jan. 22, 1818, 3
Stat. 404; $3,000 annually, Act of Aug. 16, 1856, 11 Stat. 48;
$250 per month, Act of Dec. 23, 1857, 11 Stat. 367; $5,000
annually, Act of July 28, 1866, 14 Stat. 323; $7,500 annually,
Act of Mar. 3, 1873, 17 Stat. 486; $5,000 annually, Act of Jan.
20, 1874, 18 Stat. 4.
1907 to 1936: $7,500 annually, Act of Feb. 26, 1907, 34
Stat. 993; $10,000 annually, Act of Mar. 4, 1925, 43 Stat.
1301; $9,000 annually, Act of June 30, 1932, 47 Stat. 401
(Economy Act of 1932); $8,500 annually, Act of Mar. 20, 1933,
48 Stat. 14 (Economy Act of 1933); $9,000 annually, Act of Mar.
28, 1934, 48 Stat. 521; $9,500 annually, Act of May 30, 1934,
48 Stat. 821; $10,000 annually, Act of Feb. 13, 1935, 49 Stat.
24.
Since 1936: $12,500 annually, effective Jan. 3, 1947, Act
of Aug. 2, 1946, 60 Stat. 850; $22,500 annually, Act of Mar. 2,
1955, 69 Stat. 11; $30,000 annually, effective Jan. 3, 1965,
Act of Aug. 14, 1964, 78 Stat. 415; $42,500 annually, effective
Mar. 1, 1969, Act of Dec. 16, 1967, Pub. L. No. 90-206, 81
Stat. 613 (codified as 2 USC Sec. 31); $57,500 annually,
effective Mar. 1, 1977 (recommendations of President submitted
Jan. 17, 1977, pursuant to Pub. L. No. 90-206).
7. Under 2 USC Sec. 31, as amended by the Act of Sept. 15, 1969, Pub.
L. No. 91-67, 83 Stat. 107, the Speaker receives $62,500
annually, and the Majority and Minority Leader receive $49,500
annually.
Prior to the passage of Pub. L. No. 91-67, the Majority and
Minority Leaders received the same salary as the other Members.
Their pay raise was effected by the recommendations of the
Commission on Executive, Legislative, and Judicial Salaries, as
transmitted to Congress in the Presidential Budget Message for
1970. H. Doc. No. 91-51, 91st Cong. 1st Sess., Jan. 17, 1969.
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Salary begins for Members-elect at the beginning of their term,
even if Congress meets after the constitutional day of Jan.
3.(8) The actual entitlement to salary before Congress
meets, depends, however, on the filing of duly-certified
credentials.(9) Once Congress con
[[Page 699]]
venes, salaries are regularly paid only to those Members who have taken
the oath and who have duly qualified for seats in the
House.(10) If a Member-elect does not have credentials on
file, or if his right to a seat is challenged, he is paid retroactively
to the beginning of the term once his right to a seat is
determined.(11)
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8. 2 USC 34.
9. Members-elect receive compensation monthly between the beginning of
the term and the convening of Congress under 2 USC Sec. 34, but
only if the Clerk has received a certificate showing regular
election under 2 USC Sec. 26. A person who presents regular
credentials must be placed on the Clerk's roll and must receive
salary from the beginning of his term. Page v U.S., 127 U.S. 67
(1888).
If a territory elected a ``representative'' before
admission into the Union, the person elected was entitled to
congressional salary only from the time of the admission of the
territory as a state into the Union. Conway v U.S., 1 Ct. Cl.
69 (1863).
10. 2 USC Sec. 35. The House may, however, authorize a Member-elect
whose right to a seat is being investigated to receive salary
and allowances pending the result of the investigation (see
Sec. 4.3, infra)
11. See Sec. 4.5, infra.
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As for the salary of Members elected to fill unexpired terms, the
statutes formerly provided that such a Member would receive salary from
the time that the compensation of his ``predecessor''
ceased.(12) The code now provides that where a person is
elected to fill an unexpired term, his salary commences on the date of
his election and not before.(13)
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12. Resolution of July 12, 1862, No. 54, 12 Stat. 624.
13. 2 USC Sec. 37. For the Speaker's analysis of the change in the
provision, see 6 Cannon's Precedents Sec. 203.
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The Sergeant at Arms is the accounting and disbursing officer for
the salaries of Members.(14) Before the salaries are paid
out of United States Treasury, however, salary accounts are certified
by the Speaker if the House is in session (15) or by the
Clerk if the
[[Page 700]]
House is not in session.(16) Congressional salaries are paid
out monthly, by statutory mandate, both before and after Congress
convenes.(17)
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14. 2 USC Sec. 78. The function of the Sergeant at Arms in disbursing
salary is also dictated by Rule IV clause 1, House Rules and
Manual Sec. 649 (1973), which was amended by H. Res. 5, 92d
Cong. 1st Sess., Jan. 22, 1971, and H. Res. 1153, 92d Cong. 2d
Sess., Oct. 13, 1972, to extend his services to all Delegates
and the Resident Commissioner.
See also 31 USC Sec. 148, which authorizes the Treasurer of
the United States to disburse the Members' salaries in the case
of the Sergeant at Arms' disability.
2 USC Sec. 80 clarifies the Sergeant at Arms' duties in
relation to the compensation of Members. When he presents the
necessary certificates to the Treasurer of the U.S. for
Members' salary, he is acting as a public agent. Where,
however, he draws the salary for Members before it is properly
due, the transfer of the money to him is not a payment to
Members. Crain v U.S., 25 Ct. Cl. 206 (1890).
15. 2 USC Sec. 48. The Court of Claims has stated that the salary of
Members is not dependent upon the Speaker's certificate. Wilson
v U.S., 44 Ct. Cl. 428 (1909) (dicta). However, the Speaker's
certificate, even if in the form of a personal letter, is
conclusive upon the accounting officers of the Treasury. 6
Cannon's Precedents Sec. 201.
The Speaker may designate a substitute to sign the
certificates in his name. 2 USC Sec. 50.
16. 2 USC Sec. 49.
17. 2 USC Sec. 34 (before convening) and 2 USC Sec. 35 (after oath-
taking).
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The salaries of Members are subject to deductions for federal
income tax, and may be made subject, at the election of the individual
Member, for deductions for retirement, health, and insurance
benefits.(18) Authorized by statute are deductions for
unauthorized leaves of absence,(19) for withdrawal from the
congressional seat,(20) and for delinquency
indebtedness.(1)
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18. See Sec. 4.10, infra.
19. 2 USC Sec. 39.
Deductions from a Member's salary for unauthorized leaves
may only be taken after he has been sworn in. 2 Hinds'
Precedents Sec. 1154. For information on leaves of absence, see
Sec. 5, infra. On one occasion, a Member requesting a leave of
absence not for official business requested a leave of absence
without pay (Sec. 5.10, infra).
20. 2 USC Sec. 40.
1. 2 USC Sec. 40a.
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On one occasion, the House directed that a monthly deduction be
levied from a challenged Member's-elect salary as punishment for
improper conduct in past Congresses.(2)
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2. See Sec. 4.4, infra.
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In the event that a Member dies during his term of office, and was
due unpaid salary, such salary goes to his designated beneficiary by
statute, or to his widow or widower, or children, or parents, or to the
person so entitled under state domiciliary law.(3)
Customarily, the House appropriates an amount equal to one year's
congressional salary to the widow of a deceased Member.(4)
Any such death gratuity payment must be construed as a gift to the
specified donee.(5)
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3. 2 USC Sec. 38a. The claim of the estate of a deceased Member is
handled by the Committee on the Judiciary (see Sec. 4.12,
infra).
Where a Member took leave of absence for military service,
and after the Sergeant at Arms had ceased paying Members absent
for that purpose, the House paid the deceased's widow the
difference between his unpaid House salary and the military
salary he had received (see Sec. 4.13, infra).
4. 6 Cannon's Precedents Sec. 204.
5. 2 USC Sec. 38b.
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The question arises as to whether a Member-elect of Congress may
receive dual compensation both for (1) his congressional seat and (2)
an incompatible office held
[[Page 701]]
up to the time he takes the oath.(6) When that problem
recently arose for a Senator-elect, he waived his congressional salary
up to the time he took the oath and resigned from his
office.(7) The House has not expressly ruled on the question
whether a Representative would be required to do the
same.(8)
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6. 14 Op. Att'y Gen. 406 (1874) proposed that since a Member-elect
could lawfully hold an office under the United States until
appearing to be sworn (see Sec. 13, infra), he was entitled to
receive pay for both positions before becoming a Member
(assuming Congress met after the beginning of the term). That
conclusion was based in part on the decision in Converse v
U.S., 62 U.S. (21 How.) 463 (1859), that a person holding two
compatible offices under the government is not precluded from
receiving the salaries of both by any provision of the general
laws prohibiting double compensation. See also 9 Op. Att'y Gen.
508 (1860) and 12 Op. Att'y Gen. 459 (1868).
7. See Sec. 4.9, infra.
8. See the determination of the House, cited at 1 Hinds' Precedents
Sec. 500, that a Member-elect receiving pay as a military
officer was disqualified from taking his congressional seat or
from receiving any congressional salary as of the moment the
Congress to which he was elected convened, regardless of the
time when he would appear to take the oath (the main issue
before the committee was not, however, the status of that
Member-elect, who resigned before taking the oath, but the
entitlement to salary of his successor).
A report cited at 1 Hinds' Precedents Sec. 184, while
determining that a Member-elect could receive compensation for
another governmental office before the convening of Congress,
stated that the precedents of the House did not ``determine
that he [the Member-elect] may also be compensated as a Member
of Congress for the same time for which he was compensated in
the other office.'' The question was left open in the report.
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During World War I Members who served in the military forces during
their congressional terms received compensation for both
positions.(9) During World War II, however, the Sergeant at
Arms did not pay those Members absent for military training or service
during their terms, pursuant to an opinion of the Comptroller
General.(10) When drafting a bill providing for United
States representation in the United Nations, Congress specifically
provided that any Congressman appointed to the position not receive
salary for that position, in order to avoid the prohibition against
holding incompatible offices.(11)
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9. See 6 Cannon's Precedents Sec. 61.
10. See Sec. 4.6, infra. See also Sec. 4.13, infra (effect of military
absence on payment of congressional salary to widow of deceased
ex-Member).
11. See Sec. 4.7, infra. See U.S. v Hartwell, 73 U.S. 385, 393 (1868),
implying that another governmental office without compensation
would not be incompatible.
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[[Page 702]]
Congressional salary may be waived by a Member, in which case the
sum is remitted to the Treasury of the United States.(12)
For example, a Member who was to be imprisoned for a period of four
months for a criminal conviction instructed the Sergeant at Arms to
return his salary to the Treasury for that period.(13)
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12. 6 Cannon's Precedents Sec. 203.
13. See Sec. 4.8, infra.
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What has been said above is applicable to Delegates and the
Resident Commissioner; contrary to prior practice,(14) they
now receive the same salary as Members.(15) Rule IV clause
1, detailing the functions of the Sergeant at Arms in keeping accounts
and disbursing pay to Members, was amended in the 92d Congress to
explicitly entitle Delegates and the Resident Commissioner to the
financial services of that officer.(16)
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14. 6 Cannon's Precedents Sec. 201 (differentiation in salary between
Members and Delegates and Resident Commissioners).
15. 2 USC Sec. 31.
16. House Rules and Manual Sec. 649 (1973). The amendments were
accomplished by H. Res. 5, 92d Cong. 1st Sess., Jan. 22, 1971,
and H. Res. 1153, 92d Cong. 2d Sess., Oct. 13, 1972.
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Cross References
Monetary allowances, see Sec. 6, infra (travel allowance) and Sec. 8,
infra (office and personnel allowances; supplies).
Compensation and incompatible offices, see Sec. 13, infra.
Compensation for military service, see Sec. 14, infra.
Deductions from compensation for absence, see Sec. 5, infra.
Compensation of officers, officials and employees, see Ch. 6,
supra. -------------------
Fixing Congressional Salary
Sec. 4.1 The Commission on Executive, Legislative, and Judicial
Salaries, established in the 90th Congress, reviews congressional
salaries and submits budget recommendations periodically.
There was established in the 90th Congress a Commission on
Executive, Legislative, and Judicial Salaries.(17) The
commission's functions are to review once every fourth year the
salaries of identified federal officials, including
[[Page 703]]
Congressmen, and to submit a report to the President embodying suitable
budget recommendations.(18)
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17. Postal Revenue and Federal Salary Act of 1967, Pub. L. No. 90-206,
61 Stat. 642, Sec. 225 (2 USC Sec. Sec. 351-361).
In Richardson v Kennedy, 313 F Supp 1282 (W.D. Pa.), aff'd
mem., 401 U.S. 901 (1971), the Supreme Court affirmed a lower
court decision that a taxpayer lacked standing to attack a
congressional pay raise effected by the commission.
18. 2 USC Sec. 356. For the membership of the commission, appointed by
the President, the Speaker, the President of the Senate, and
the Chief Justice, see 2 USC Sec. 352.
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Pursuant to the report of the commission in 1969, and to the
President's budget proposals incorporating its recommendations, the
congressional salary was increased to $42,500 per annum in
1969.(19)
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19. Act of Sept. 15, 1969, Pub. L. No. 91-67, Sec. 2, 83 Stat. 107.
For the President's 1969 salary recommendations, see 34
Fed. Reg. 2241 (1969), reprinted at 2 USCA Sec. 358. For the
President's message to Congress transmitting his recom
mendations and analyzing the commission, see Message from the
President, H. Doc. No. 91-51, 91st Cong. 1st Sess.
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Funds for Salary
Sec. 4.2 The House authorized the Clerk by resolution to transfer
unexpended funds to the Sergeant at Arms in order to pay the
salaries of Members, where the supplemental appropriation bill was
pending before the Senate.
On May 28, 1969, a resolution was called up authorizing the
transfer of funds left over from 1968 House appropriations and of funds
for 1969 House appropriations, in order to meet the payroll of the
House: (20)
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20. 115 Cong. Rec. 14165, 91st Cong. 1st Sess.
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Mr. [Samuel N.] Friedel [of Maryland]: Mr. Speaker, by
direction of the Committee on House Administration, I call up the
resolution (H. Res. 425) and ask unanimous consent for its
immediate consideration.
The Speaker: (1) Is there objection to the request
of the gentleman from Maryland?
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1. John W. McCormack (Mass.).
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There was no objection.
The Clerk read the resolution, as follows:
H. Res. 425
Resolved, That the Clerk of the House and Sergeant at Arms
be and is hereby directed to pay such sum as may be necessary,
from the balance available of the 1968 appropriation and the
various funds of the 1969 appropriation, where balances may be
available, for the House of Representatives to meet the May and
June payroll of Members, officers of the House, and employees
of the House. Moneys expended from these funds and/or
appropriations by the Sergeant at Arms and the Clerk will be
repaid to the funds and/or appropriations from the Sergeant at
Arms and Clerk's supplemental appropriation upon its approval.
The House adopted the resolution, after Mr. Friedel explained that
the purpose of the resolution was to enable meeting the payroll
[[Page 704]]
of the House for the next month, pending enactment of a supplemental
appropriation bill containing funds for such payroll.
Parliamentarian's Note: The resolution was not in fact privileged
for consideration under Rule XI clause 22, since it did not involve
payment from the contingent fund of the House.
Salary of Challenged Member-elect
Sec. 4.3 Where a Member-elect was excluded from the House pending an
investigation of his right to be sworn, the House by resolution
authorized salary and allowances for such Member pending a final
determination of his right to the seat.
On Jan. 10, 1967,(2) the House agreed to House
Resolution 1, as amended, excluding Member-elect Adam C. Powell, of New
York, from the House pending an investigation of his right to be sworn.
The resolution, referring to a select committee the question of his
right to his seat, permitted Mr. Powell to draw all the pay,
allowances, and emoluments authorized for Members of the House:
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2. 113 Cong. Rec. 24, 90th Cong. 1st Sess.
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Resolved, That the question of the right of Adam Clayton Powell
to be sworn in as a Representative from the State of New York in
the Ninetieth Congress, as well as his final right to a seat
therein as such Representative, be referred to a special committee
of nine Members of the House to be appointed by the Speaker, four
of whom shall be Members of the minority party appointed after
consultation with the minority leader. Until such committee shall
report upon and the House shall decide such question and right, the
said Adam Clayton Powell shall not be sworn in or permitted to
occupy a seat in this House. . . .
Until such question and right have been decided, the said Adam
Clayton Powell shall be entitled to all the pay, allowances, and
emoluments authorized for Members of the House.
Sec. 4.4 When affirming the right of a Member-elect to his seat,
challenged for improper conduct in past Congresses, the House may
provide for punishment by levying deductions from his congressional
salary.
On Jan. 3, 1969, the House authorized by resolution (H. Res. 2)
challenged Member-elect Adam C). Powell, of New York, to take his
seat.(3) Clause 2 of House Resolution 2 read as follows:
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3. 115 Cong. Rec. 34, 91st Cong. 1st Sess.
For a summary of Mr. Powell's alleged improper conduct in
past Congresses, see the remarks of Mr. Gillespie V. Montgomery
(Miss.), id. at p. 21.
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[[Page 705]]
That as punishment Adam Clayton Powell be and he hereby is
fined the sum of $25,000, said sum to be paid to the Clerk to be
disposed of by him according to law. The Sergeant at Arms of the
House is directed to deduct $1,150 per month from the salary
otherwise due the said Adam Clayton Powell, and pay the same to
said Clerk until said $25,000 fine is fully paid.(4)
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4. For legal basis for the salary deductions, as based on the
constitutional power of the House to punish Members, see the
remarks of Mr. Frederick Schwengel (Iowa), id. at pp. 32, 33.
Mr. Schwengel also stated that the resolution would not bar
civil litigation to recover any moneys found to be due Congress
from Mr. Powell. Id. at p. 33.
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Sec. 4.5 Where a challenged Member-elect was declared entitled to a
seat following a recount of the votes cast in the election, the
House adopted a resolution entitling him to congressional salary
from the beginning of the term to which elected.
On June 14, 1961,(5) the House adopted House Resolution
339, reported as privileged from the Committee on House Administration,
declaring that J. Edward Roush, of Indiana, was entitled to a seat in
the House from the Fifth Congressional District of Indiana. The
committee had conducted a recount of the votes cast in the election,
pursuant to House Resolution 1 of the 87th Congress.
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5. 107 Cong. Rec. 10391, 87th Cong. 1st Sess.
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The House then adopted House Resolution 340, also reported as
privileged from the Committee on House Administration, providing that
Mr. Roush be entitled to compensation, mileage, allowances, and other
emoluments from the commencement of the term of the 87th Congress (and
providing suitable compensation for the other contestant for the seat):
Resolved, That the House of Representatives having considered
the question of the right of J. Edward Roush or George O. Chambers,
from the Fifth Congressional District of Indiana, to a seat in the
House in the Eighty-seventh Congress, pursuant to H. Res. 1,
Eighty-seventh Congress, and having decided that the said J. Edward
Roush is entitled to a seat in the House in such Congress with the
result that the said J. Edward Roush is entitled to receive and
will be paid the compensation, mileage, allowances, and other
emoluments of a Member of the House from and after January 3, 1961,
there shall be paid out of the contingent fund of the House such
amounts as are necessary to carry out the provisions of this
resolution in connection with such decision of the House, as
follows:
(1) The said George O. Chambers shall be paid an amount equal
to compensation at the rate provided by law for Members of the
House for the period beginning January 3, 1961, and ending on the
date of such decision of the House.
[[Page 706]]
(2) The said J. Edward Roush and the said George O. Chambers
each shall be paid an amount equal to the mileage at the rate of 10
cents per mile, on the same basis as now provided by law for
Members of the House, for each round trip between his home in the
Fifth Congressional District of Indiana and Washington, District of
Columbia, in response to the request of the Committee on House
Administration for his appearance before the committee in
connection with the investigation authorized by H. Res. 1, Eighty-
seventh Congress.
(3) The said J. Edward Roush and the said George O. Chambers
each shall be reimbursed for those expenses actually incurred by
him in connection with the investigation by the Committee on House
Administration authorized by H. Res. 1, Eighty-seventh Congress, in
accordance with that part of the first section of the Act of March
3, 1879 (20 Stat. 400; 2 U.S.C. 226), which provides for payment of
expenses in election contests.
Dual Compensation
Sec. 4.6 During World War II, the Sergeant at Arms of the House did not
disburse congressional salary to those Members who were presently
on leaves of absence and serving in the military.
In accordance with an opinion given him by the Comptroller General,
Sergeant at Arms of the House Kenneth Romney, did not pay congressional
salary to those Members of the House who were during World War II on
leaves of absence because of service in the armed forces. The action
was taken because such service was construed as incompatible with House
service.(6)
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6. See H. Rept. No. 2037, from the Committee on House Accounts, to
accompany H. Res. 512, 79th Cong. 2d Sess. (H. Res. 512
authorized the Sergeant at Arms to pay the widow of a deceased
ex-Member the difference between his congressional pay and his
military pay, where the ex-Member had obtained a leave of
absence from the House to serve in the armed forces. In
accordance with the practice of the Sergeant at Arms during the
war, neither the Member nor his widow could draw full
compensation for both positions.)
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Sec. 4.7 The House passed a bill denying extra compensation for any
Member appointed as a United Nations representative, thereby
avoiding in such cases the prohibition against holding incompatible
offices.
On Dec. 18, 1945, the House was considering a proposed bill to
provide for the participation of the United States in the United
Nations.(7) A committee amendment was offered to the bill,
denying compensation for the position of
[[Page 707]]
representative to the United Nations for any Member who might be
designated as such representative; the amendment had been drafted in
order to avoid the possible conflict of a Member holding an
incompatible office with compensation, under article I, section 6,
clause 2, of the Constitution.(8) Before the House agreed to
the amendment,(9) Mr. Sol Bloom, of New York, explained that
it would not preclude a Member appointed as representative to the
United Nations from receiving an expense allowance for duties connected
with that office.(10)
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7. 91 Cong. Rec. 12267, 79th Cong. 1st Sess.
8. See the House report on said amendment, H. Rept. No. 1383, 79th
Cong. 1st Sess. By removing compensation for the position, if
held by a Member, the amendment removed the office from the
Supreme Court's definition of an incompatible office, a ``term
(which) embraces the ideas of tenure, duration, emoluments, and
duties.'' U.S. v Hartwell, 73 U.S. 385, 393 (1868).
9. 91 Cong. Rec. 12286, 79th Cong. 1st Sess.
10. 91 Cong. Rec. 12281, 79th Cong. 1st Sess.
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Waiver of Salary
Sec. 4.8 When a Member was imprisoned for a criminal offense for a
four-month period during a term of Congress, he instructed the
Sergeant at Arms to return his salary to the Treasury during that
four-month period.
On May 3, 1956, Mr. Thomas A. Lane, of Massachusetts, requested by
letter the Sergeant at Arms of the House to return his congressional
salary covering the period from May 7, 1956, to Sept. 7, 1956, to the
Treasury of the United States. During that four-month period, Mr. Lane
served a criminal sentence for income tax evasion.(11)
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11. See U.S. v Lane, United States District Court for Massachusetts,
Criminal No. 56-51-W.
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Sec. 4.9 A Senator-elect who continued to hold an incompatible office
beyond the convening of Congress waived his congressional salary up
to the time he resigned that office and took the oath.
Jacob K. Javits, Senator-elect from New York, did not appear on
Jan. 3, 1957, the opening day of the 85th Congress, to take the oath
with the rest of the Senate, but was administered the oath on Jan. 9,
1957.(12) No objection was made to the administration of the
oath to Mr. Javits, although he did not resign from his position as
attorney general of the State of
[[Page 708]]
New York until the day he appeared to take the oath of office in the
Senate.(13) Mr. Javits waived his congressional salary for
the period prior to his taking of the oath.(14)
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12. 103 Cong. Rec. 340, 85th Cong. 1st Sess.
13. Biographical Directory of the American Congress 1774-1971, S. Doc.
No. 92-8 pp. 1183, 1184, 92d Cong. 1st Sess. (1971).
14. Senate Manual Sec. 863 (1971) (statistical section).
An early opinion of the Attorney General proposed that
until taking the oath a Representative-elect could receive
salary for both his congressional position and his incompatible
office. 14 Op. Att'y Gen. 408 (1874), cited at 2 USCA Sec. 25.
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Retirement, Health, and Insurance Benefits
Sec. 4.10 Members are eligible for Civil Service retirement, health,
and insurance benefits.
Members of Congress may elect to participate in a Civil Service
Retirement System, initiated for them by the Legislative Reorganization
Act of 1946.(15) To fund the optional program, deductions
are made from the Member's congressional salary.(16) Members
may also elect to receive life and health insurance.(17)
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15. Pub. L. No. 79-601, 60 Stat. 850, Ch. 753, Sec. 602, Aug. 2, 1946,
codified in 5 USC Sec. 8331(2). A Member or Delegate must give
notice in writing to the official by whom paid in order to
become subject to retirement.
16. 5 USC Sec. 8334. As of 1973, the deduction was eight percent of
salary. To be eligible for benefits, an ex-Member must be at
least 62 years old and have completed at least five years
civilian service or be at least 60 years old and have completed
10 years Member service. 5 USC Sec. 8336(f).
There is no mandatory retirement age for Members of
Congress. See 5 USC Sec. 8335.
17. 5 USC Sec. 8901-8905 (health); 5 USC Sec. Sec. 8701, 8702 (life).
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Sec. 4.11 Where Members were shot by persons in the House Gallery, the
House adopted a resolution paying from the contingent fund amounts
to defray hospital, medical, and nursing expenses in the treatment
of their injuries.
On Mar. 4, 1954,(18) the House authorized by resolution
that there be paid out of the contingent fund of the House necessary
amounts to defray the medical expenses and the treatment of injuries of
those Members of the House who were hit by bullets fired by several
occupants of the House galleries on Mar. 1, 1954. Mr. Charles A.
Halleck, of Indiana, delivered remarks in explanation of the
resolution:
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18. 100 Cong. Rec. 2709, 83d Cong. 2d Sess.
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Mr. Halleck: Mr. Speaker, I ask unanimous consent for the
immediate consideration of House Resolution 456.
[[Page 709]]
The Clerk read as follows:
Resolved, That there shall be paid out of the contingent
fund of the House such amounts as may be necessary to defray
hospital, medical, and nursing expenses in the treatment of
injuries incurred in the House of Representatives by its
Members during the session of the House on March 1, 1954.
The Speaker: (19) Is there objection to the present
consideration of the resolution?
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19. Joseph W. Martin, Jr. (Mass.).
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Mr. [Sam] Rayburn [of Texas]: Mr. Speaker, reserving the right
to object, and of course I am not going to, will the gentleman from
Indiana explain the resolution?
Mr. Halleck: Mr. Speaker, this resolution was introduced by our
colleague from Michigan [Mr. Cederberg], a very close friend of one
of our colleagues who was injured the other day.
The purpose of the resolution is to provide for payment out of
the contingent fund of the House of the necessary medical and
hospital expenses for our five colleagues who were so tragically
wounded on the House floor the other day. They were here on duty in
the House of Representatives. It seems to me and to everyone with
whom I have discussed this matter it is only fair and right that
the hospital and medical expenses which they are incurring in the
treatment of their wounds be borne out of the contingent fund of
the House of Representatives.
Mr. Rayburn: Mr. Speaker, I withdraw my reservation.
The Speaker: Is there objection to the request of the gentleman
from Indiana [Mr. Halleck]?
There was no objection.
Salary of Deceased Member
Sec. 4.12 The Committee on the Judiciary and not on House
Administration has jurisdiction of resolutions providing that the
Comptroller General approve payment of the claim of the estate of a
former Member for salary due to such former Member.
On Aug. 5, 1954,(20) Mr. Carl M. LeCompte, of Iowa,
asked unanimous consent that House Resolution 301 (below) be rereferred
from the Committee on House Administration to the Committee on the
Judiciary, since the resolution had the elements of a claim. There was
no objection.
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20. 100 Cong. Rec. 13469, 83d Cong. 2d Sess.
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House Resolution 301 reads as follows:
Resolved, That in order to enable the Comptroller General to
certify for payment, under the provisions of 31 USC Sec. 712b, the
claim of the estate of the late James M. Hazlett, a Member of the
Seventieth Congress, who took office on March 4, 1927, and who
resigned therefrom effective October 20, 1927, for the sum of
$6,305.42, which sum represents the salary due and unpaid Mr.
Hazlett for such period of service, the Speaker is hereby
authorized, in pursuance of the provisions of 2 USC Sec. 48, to
certify the proper salary
[[Page 710]]
certificates covering such period of congressional service.
In the next Congress, on June 20, 1955,(1) unanimous
consent was granted that House Resolution 269, authorizing payment of
the salary due to Mr. Hazlett, deceased, be referred to the Committee
on the Judiciary.
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1. 101 Cong. Rec. 8757, 84th Cong. 1st Sess.
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Sec. 4.13 On one occasion, the House paid to the widow of an ex-Member
the difference between his past due congressional pay and his
military pay, where he had obtained a leave of absence to enter the
military and later resigned his House seat to remain in the
service.
On May 14, 1946,(2) the House adopted the following
resolution:
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2. 92 Cong. Rec. 4998, 79th Cong. 2d Sess.
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Resolved, That the Sergeant at Arms of the House of
Representatives is hereby authorized and directed to pay to
Catherine L. Harrington the sum of $2,448.76, which sum represents
a difference between the congressional pay and military pay of her
late husband, Vincent F. Harrington, a member of the Seventy-
seventh Congress, who obtained a leave of absence therefrom,
effective May 8, 1942, to enter the military service, and who
resigned his congressional office on September 4, 1942.
In House Report No. 2307, accompanying the resolution, it was
indicated that the resolution was drafted to comply with the practice
of the Sergeant at Arms of the House during World War II of not
disbursing congressional salary to those Members who took leaves of
absence to serve in the military.(3)
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3. See Sec. 4.6, supra.
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