Ben Smith today adds some new facts I didn’t know about to the story I first learned about from Matthew Berger, guest-blogging for Marc Ambinder. The original story was Senator Hillary Clinton is constitutionally ineligible from accepting the Secretary of State job because of Article I, Section VI:
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; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Emoluments defined as:
the returns arising from office or employment usually in the form of compensation or perquisites
So if the civil office received a pay raise while the representative or senator was serving in Congress, the person in question cannot take the job. In 2007, cabinet secretaries made $186,600, and in 2008, they made $191,300 (actually, their pay has increased every year as far back as 2003). Clinton, of course, was elected in 2006 to serve a six-year term, so the Secretary of State’s pay has increased while Clinton was serving her term, thus making her constitutionally ineligible from becoming secretary of state.
Does this matter? Technically, it does. The Constitution, after all, is the supreme law of the land. There is precedent, however, for this situation as Ben Smith points out:
It is not, however, an actual political problem, any more than it was when Sen. Lloyd Bentsen became Treasury secretary in 1993 or when Richard Nixon made Sen. William Saxbe attorney general in 1973.
Nixon’s lawyers used what’s now known (in very small circles) as the “Saxbe fix,” by which Congress re-lowered the salary for the job, deciding that that got around the constitutional issue.
The dodge actually goes further back than that, though: Taft’s secretary of state, Philander Knox, came through the same loophole; his salary was brought back down to $8,000 in February of 1909.
I’m no consitutional lawyer, but I’m assuming her resigning before she’s nominated wouldn’t matter because the clause in Article I, Section VI says “during the time for which he was elected.” So regardless of whether or not Clinton is a sitting senator, she was elected for a term from 2007-2013. The clause makes no reference to the represenative or senator being a sitting or former (retired, resigned) representative or senator.
But the best part of this pseudo-debate is the technicality to the technicality:
But one of the original troublemakers on this, Michael Stokes Paulsen who wrote a 1994 paper titled “Is Lloyd Bentsen Unconstitutional?” is holding the line, though he suggests Hillary could slip through on a different technicality: The constitutional clause refers to “he.”
While the “he” may be technically sufficient to get Clinton by Article I, Section VI, I think the reduction of her salary to the 2006 level should be enough. The clause was originally inserted to bar Congressmen from raising salaries in civil offices and taking the jobs for themselves in other words, to curtail corruption. Reducing the salary of the secretary of state avoids the reason the clause is part of the Constitution, and I don’t think anyone can argue Clinton becoming secretary of state is a result of some corrupt practice. I think we can, however, make the arguement that creating laws to sidestep parts of the Constitution we don’t like is a potentially dangerous precedent.
