Salary Linkage: Members of Congress and Certain Federal Executive and Judicial Officials
Released: 2011-02-09T00:00:00

The salaries of Members of Congress and certain high-level federal officials (those paid at EX Level II) have, until recently, generally been in parity since the Executive Schedule was established in 1964. The Member salaries were in parity with those of district judges from 1955 to 1969 and have been again since 1987. During the period 1969 to 1987, Member pay was often in parity with the pay of federal appellate judges. There is no constitutional or statutory requirement (other than the provision of law establishing the commission procedure discussed below) that the salaries of federal executive branch officials and federal Justices and judges be limited by the salaries of Members of Congress, or that Member pay be limited by the salaries of these federal executive and judicial officials.

Ethics Reform Act

The Ethics Reform Act of 1989 includes two provisions under which pay rates for Members, the Vice President, federal officials paid under the EX, and certain federal Justices and judges can be set. The first of these provisions provides for a quadrennial review of the salaries of federal officials by a Citizens' Commission on Public Service and Compensation. The commission is to make recommendations to the President. The law requires the commission and the President to submit recommendations to Congress providing that the salaries of the

Speaker of the House of Representatives, the Vice President of the United States, and the Chief Justice of the United States shall be equal; Majority and Minority Leaders of the House of Representatives and the Senate, the President pro tempore of the Senate, and Level I of the Executive Schedule (Cabinet officers) shall be equal; and Senators, Members of the House of Representatives, the Resident Commissioner from Puerto Rico, Delegates to the House, Judges of the U.S. District Courts, Judges of the United States Court of International Trade, and Level II (Deputy secretaries of departments, secretaries of military departments, and heads of major agencies) of the Executive Schedule shall be equal.

Although the law establishes the salary parity stated above upon quadrennial review, it is unclear what effect, if any, the provision has, since the commission has never been activated. The commission was initially funded in the 1993 Treasury, Postal Service, and General Government Appropriations Act, but that appropriation was rescinded in the 1994 act.

A second provision in the Ethics Reform Act establishes an annual salary adjustment procedure for the Members, the Vice President, federal officials paid under the EX, and federal Justices and judges. The adjustment is based on the percentage change in the wages and salaries (not seasonally adjusted) for the private industry workers element of the Employment Cost Index (ECI), minus 0.5% (December indicator). It becomes effective at the same time as, and at a rate no greater than, the annual base pay rate adjustment for federal white-collar civilian employees under the General Schedule (GS). The adjustment cannot, however, be less than zero or greater than 5%.

While this provision of the Ethics Reform Act sets the rate of the judicial pay adjustment, a 1981 law provides that any salary increase for Justices and judges must be "specifically authorized by Act of Congress hereafter enacted." The Member pay raise becomes effective automatically unless Congress statutorily denies an increase or revises the adjustment, or the annual base pay adjustment for GS employees is established at a rate less than the scheduled increase for Members, in which case Members would be paid the lower rate. The pay adjustment for federal officials paid under the EX also takes effect automatically unless Congress takes similar action. Such congressional action has generally occurred during consideration of the appropriations bill that funds the Department of the Treasury and General Government. Most recently, this occurred in the 105 th Congress (1999) when Members voted to deny themselves and federal executive and judicial officials a pay adjustment. Similar action occurred in 1994, 1995, 1996, and 1997.

There have been instances in which pay parity could have been, but was not, broken. In the 103 rd Congress, for example, the Representatives and Senators passed legislation to forgo their pay adjustment for 1994. Because base pay for the GS was not increased in 1994, the Members and federal executive and judicial officials did not receive a pay raise in January 1994. If GS base pay had been adjusted and these officials had received a pay adjustment in that year, pay parity would have been severed because of the action of the Members to deny themselves a pay increase. A provision to cut FY2000 spending across the board by 0.97% and to include Member pay in that reduction, if enacted in the 106 th Congress, would have resulted in lower salaries for Members, but not for federal executive and judicial officials. During the first session of the 109 th Congress, the Senate agreed to a provision that would have denied Members of Congress a pay adjustment in January 2006. On October 18, 2005, during consideration of H.R. 3058 , Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act for FY2006, the Senate agreed, on a 92 to 6 vote (No. 256), to an amendment ( S.Amdt. 2062 ) offered by Senator Jon Kyl to forgo the Member pay adjustment. The House version of the bill did not include this provision and it was not included in the enacted legislation. The Members received the 1.9% pay adjustment granted to the executive and judicial officials in January 2006.

Recent Pay Actions

In January 2007, however, while the Vice President and federal officials paid on the EX received a 1.7% pay increase, Members of Congress and Justices and judges did not receive the pay increase. Section 115 of P.L. 110-5 , the Revised Continuing Appropriations Resolution for FY2007, enacted on February 15, 2007, denied the Members a pay adjustment. Justices and judges did not receive a pay adjustment in 2007 because it was not authorized by Congress. S. 197 , to provide the authorization, passed the Senate by unanimous consent on January 8, 2007, and was referred to the House Committee on the Judiciary, but no further action occurred.

Likewise, in January 2010, the Vice President and federal officials paid on the EX schedule received a 1.5% pay increase. Members of Congress and Justices and judges did not receive the pay increase. Section 103 of Division J of P.L. 111-8 , the Omnibus Appropriations Act for FY2009, denied the Members a pay adjustment in 2010. Justices and judges did not receive a pay adjustment because Congress did not authorize it as required by law. S. 1432 , to provide the 2010 authorization, was reported to the Senate by the Committee on Appropriations ( S.Rept. 111-43 ) on July 9, 2009, but no further action occurred.

January 2011 Pay Adjustment

The pay adjustment for Members of Congress, federal officials paid on the EX schedule, and Justices and judges required under the Ethics Reform Act of 1989 would have been 0.9% in January 2011, the same as the January 2011 base pay adjustment required under the Federal Employees Pay Comparability Act of 1990, for federal civilian white-collar employees paid under the General Schedule (GS). P.L. 111-165 , enacted on May 14, 2010, denied Members of Congress a pay adjustment in FY2011. The Vice President, federal officials paid on the EX schedule, and Justices and judges also did not receive a pay adjustment in January 2011 because GS base pay was not adjusted. The Budget of the U.S. Government included President Barack Obama's order to freeze pay for senior political officials—the Vice President; individuals serving in Executive Schedule (EX) positions or in positions whose rate of pay is fixed by statute at an EX level and serving at the pleasure of the President or other appointing official; a chief of mission or ambassador at large; a noncareer appointee in the Senior Executive Service; any employee whose rate of basic pay (including locality payments) is at or above EX level IV who serves at the pleasure of the appointing official; and senior White House staff with salaries of more than $100,000. The budget also reiterated that the policy prohibiting political appointees from receiving bonuses continued.

January 2012 Pay Adjustment

The pay adjustment for Members of Congress, federal officials paid on the EX schedule, and Justices and judges required under the Ethics Reform Act of 1989 would have been 1.3%. This adjustment would have been limited to 1.1%, the January 2012 base pay adjustment required under the Federal Employees Pay Comparability Act of 1990 for federal civilian white-collar employees paid under the GS. Under Title I, Section 1(a)(2) of P.L. 111-322 , enacted on December 22, 2010, GS base pay is frozen through December 31, 2012, so Members of Congress, the Vice President, federal officials paid on the EX schedule, and Justices and judges will not receive a pay adjustment in January 2012, as any pay increase for these officials cannot be at a rate that is greater than the annual base pay rate adjustment for federal white-collar civilian employees under the GS.

Report Recommendations

Several reports over the last few years have recommended that salary adjustments for Members and federal executive and judicial officials be determined separately. For example, the 2000 annual report on the federal judiciary recommended a 9.6% adjustment in judicial salaries, disengagement from the Member salary adjustment, and automatic pay adjustments under the Ethics Reform Act. Chief Justice William H. Rehnquist stated that "because Judges are appointed for life and expected to remain on the bench, increases in judicial compensation should not be tied to increases for non-career public servants." In a 2003 report, the National Commission on the Public Service, citing "the compelling need to recruit and retain the best people possible" to serve as executive branch officials and on the federal judiciary, also recommended separate salary adjustments. As an interim step toward implementation of its recommendations, the commission stated that "Congress should grant an immediate and significant increase in judicial, executive, and legislative salaries to ensure a reasonable relationship with other professional opportunities," and "Its first priority in doing so should be an immediate and substantial increase in judicial salaries."

Chief Justice John G. Roberts, Jr., reiterated the commission's recommendations in the 2005 annual report on the federal judiciary. His 2006 annual report focused solely on the issue of judicial pay. Discussing the effects of inadequate salaries (increased by "only occasional and modest cost-of-living adjustments") on the federal judiciary, the Chief Justice stated these concerns:

An important change is taking place in where judges come from—particularly trial judges. In the Eisenhower Administration, roughly 65% came from the practicing bar, with 35% from the private sector. Today the numbers are about reversed—roughly 60% from the private sector, less than 40% from private practice. It changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar.

Inadequate compensation directly threatens the viability of life tenure, and if tenure in office is made uncertain, the strength and independence judges need to uphold the rule of law—even when it is unpopular to do so—will be seriously eroded.

The dramatic erosion of judicial compensation will inevitably result in a decline in the quality of persons willing to accept a lifetime appointment as a federal judge. Our judiciary will not properly serve its constitutional role if it is restricted to (1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase.... a judiciary drawn more and more from only those categories would not be the sort of judiciary on which we have historically depended to protect the rule of law in this country.

Judicial Pay Bill in the 111th Congress

The Federal Judicial Fairness Act of 2009, S. 2725 , was introduced, but saw no further action, in the 111 th Congress. Introduced by Senator Dianne Feinstein on November 3, 2009, and referred to the Senate Committee on the Judiciary, the bill would have repealed the provision of law, codified at 28 U.S.C. §461 note, that requires Congress to specifically authorize any salary increases for Justices and judges. It also would have amended 28 U.S.C. §461(a) to provide that Justices and judges would receive the same overall average percentage pay adjustment as is authorized each year for the General Schedule (GS), the pay schedule that covers federal white-collar civilian employees in pay grades GS-1 through GS-15.