Article I, Section 6:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time....
What's an Emolument, you ask? It's your salary or other compensation for employment. In other words, the Framers didn't want members of Congress creating new jobs or giving raises to existing jobs, and then taking them for themselves. Via James Madison's Notes of the Constitutional Convention, June 23, 1787:
Mr. MADISON renewed his motion yesterday made & waved to render the members of the 1st. branch "ineligible during their term of service, & for one year after- to such offices only as should be established, or the emoluments thereof, augmented by the Legislature of the U. States during the time of their being members." He supposed that the unnecessary creation of offices, and increase of salaries, were the evils most experienced, & that if the door was shut agst. them: it might properly be left open for the appointt. of members to other offices as an encouragemt. to the Legislative service....
Mr. WILSON supported the motion. The proper cure he said for corruption in the Legislature was to take from it the power of appointing to offices. One branch of corruption would indeed remain, that of creating unnecessary offices, or granting unnecessary salaries, and for that the amendment would be a proper remedy. He animadverted on the impropriety of stigmatizing with the name of venality the laudable ambition of rising into the honorable offices of the Government; an ambition most likely to be felt in the early & most incorrupt period of life, & which all wise & free Govts. had deemed it sound policy, to cherish, not to check. The members of the Legislature have perhaps the hardest & least profitable task of any who engage in the service of the state. Ought this merit to be made a disqualification?
Others objected:
Mr. SHERMAN, observed that the motion did not go far enough. It might be evaded by the creation of a new office, the translation to it of a person from another office, and the appointment of a member of the Legislature to the latter. A new Embassy might be established to a new Court, & an ambassador taken from another, in order to create a vacancy for a favorite member. He admitted that inconveniencies lay on both sides. He hoped there wd. be sufficient inducements to the public service without resorting to the prospect of desireable offices, and on the whole was rather agst. the motion of Mr. Madison.
Mr. GERRY thought there was great weight in the objection of Mr. Sherman. He added as another objection agst. admitting the eligibility of members in any case that it would produce intrigues of ambitious men for displacing proper officers, in order to create vacancies for themselves. In answer to Mr. King he observed that although members, if disqualified themselves might still intrigue & cabal for their sons, brothers &c, yet as their own interest would be dearer to them, than those of their nearest connections, it might be expected they would go greater lengths to promote it.
The motion carried, though without Madison's "& for one year after" proviso.
Why should you care? By Executive Order dated January 4, 2008, President Bush ordered the salaries of Cabinet Secretaries to be raised from $186,600 to $191,300. And Sen. Clinton's current term runs from 2007 through 2012. As such, umm, we've got a slight problem.
This has, as you may have suspected, happened before. In 1909, President Taft sought to nominate Sen. Philander Knox (R-PA) to be his Secretary of State, despite the position's pay having been hiked during his term. As the NYT reported on Feb. 11, 1909, "With President-elect Taft rests the decision in the queer constitutional tangle that threatens to prevent the accession of Senator Knox to the Cabinet. The Senate to-day passed a bill designed to remove the legal barrier which prevents Mr. Knox from accepting the Portfolio of State" by rescinding the previous pay raise. [HT: StubbornFacts.] [N.B. If you click on that link, do scroll down to the item at the bottom as well.]
In 1973, President Nixon nominated Sen. William Saxbe (R-OH) to serve as his Attorney General after the Saturday Night Massacre, but the AG's salary had been increased in 1969 during Saxbe's term. Nixon persuaded Congress to lower Saxbe's salary to the pre-1969 level, and the "Saxbe fix" was born.
This was not without objection. Sen. Robert Byrd (D-WV) was opposed, saying that the Constitution was explicit and "we should not delude the American people into thinking a way can be found around the constitutional obstacle." NYT liberal columnist Anthony Lewis weighed in as well on November 29, 1973:
The language of the Constitution is explicit: It bars members of Congress when salaries are increased, and it does not say that the ineligibility can be cured later.
Now it can be argued that the provision is "an anachronism," as Senator John Tower said. Or one could take a broad view and argue that its purpose was met by lowering the Attorney General's pay. But the words of the Constitution do happen to be there, and on a strict construction -- really a straight reading -- they make Senator Saxbe ineligible for the job.
The Saxbe question is especially interesting in one respect: for what it says about attitudes toward law and the Constitution. President Nixon has made a great point of saying that he believes in "strict construction" of the Constitution. But here he is trying to read the document in a way that avoids its plain meaning.
Nor is that the only matter on which Mr. Nixon's talk of "strict construction" has proven to be, well, just talk...
And from there, Lewis gets into the then-bubbling White House Tapes issue. [Also, via the 11-2-73 NYT, this was an issue as well when Nixon appointed then-Cong. Donald Rumsfeld to serve as director of the Office of Economic Opportunity. Rumsfeld declined a salary for that position (which had been raised), and instead took the raised salary as an "assistant to the President".]
The issue returned in 1993, when President-elect Clinton sought to confirm Sen. Lloyd Bentsen (D-TX) as his Treasury Secretary, despite his having been reelected to the Senate in 1989 prior to a Cabinet pay raise. On January 5, 1993, Sen. John Glenn and others introduced S. J. Res. 1, which read in its relevant parts:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) the compensation and other emoluments attached to the office of Secretary of the Treasury shall be those in effect January 1, 1989, notwithstanding any increase in such compensation or emoluments after that date under--
(1) the Ethics Reform Act of 1989 (Public Law 101-194) or any other provision of law amended by that Act; or
(2) any other provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 1989, and ending at noon of January 3, 1995.
This joint resolution shall become effective at 12:00 p.m., January 20, 1993.
It passed both Houses without objection, and was signed into law by President Bush on January 19, 1993. Bentsen would receive an annual salary of $99,500 for his Cabinet service, far less than his colleagues at $148,400. When the issue threatened to resurface in 1996 upon the nomination of Cong. Bill Richardson and Sen. William Cohen to UN Ambassador and Defense Secretary, respectively, the USDOJ Office of Legal Counsel mooted the issue by noting that the pay increase for Richardson's position occurred prior to his current term in Congress, and that Cohen's Senate term would expire before his being sworn in.
Bottom line? Congress needs to act between now and January 20, 2009 her potential swearing-in date if Sen. Clinton is to become Secretary Clinton, but precedent suggests that Congress will make it happen, regardless of whether it's actually, strictly constitutional. I happen to think the "Saxbe fix" is consistent with the purpose behind Article I, Section 6, especially in a case such as this in which Sen. Clinton did not vote upon the pay raise applicable to the position, but you can fairly disagree based on the generosity of your interpretation.
Also? Constitutional history is fun, and y'all ought to cogitate on it more often.