Saxbe fix

James Madison envisioned ethical conflict, resulting in the Emoluments clause of the U.S. Constitution and the creation of the Saxbe fix.

The Saxbe fix or simply a "rollback" is a legislative solution to a restriction by the Ineligibility Clause contained in Article One of the United States Constitution on sitting members of the United States Congress being appointed to jobs created for them or for which the emolument (salary and benefits) was increased while they were in office. The Saxbe fix attempts to attend to complications related to the self-dealing portion of the ineligibility clause.

Historically, the solution has been to reduce salaries of Cabinet positions to the level they were before the offending salary increases. Although the method originated in 1909 during the Taft Administration, it is named after Senator William B. Saxbe, who was successfully appointed United States Attorney General in 1973 after Congress acted to "fix" the violation of the clause by reducing the Attorney General salary to the previous level. The Saxbe fix has subsequently become relevant as a successful, although not universally acceptable, solution for Presidential appointments of sitting members of the United States Congress to the United States Cabinet.

Background

Main article: Ineligibility Clause

In James Madison's notes at the 1787 Constitutional Convention, there was fear of members of Congress creating new jobs or giving raises to existing jobs, and then taking them for themselves. Madison viewed creation of offices and increase of salaries as one of the greatest fears of corruption of legislative service. Madison originally proposed a one-year ban on such service, but it was passed in its current form without a time consideration. Article 1, Section 6, Clause 2 of the United States Constitution states:

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.

The clause above prohibits self-dealing legislation and is intended to protect the "separation of power" of various branches of government. Corruption like that previously seen in the British Parliament was a consideration during debate by the framers of the Constitution.

Examples

19th Century

In the 19th Century, it was the custom of the United States Senate to confirm Presidential appointments immediately without any contestation. Senator Matthew Ransom was appointed United States Ambassador to Mexico during the second Grover Cleveland administration and Senator Edward Oliver Wolcott was named to chair a European commission on bimetallism by President William McKinley without use of such a fix.

20th Century

While the Saxbe fix is named after Saxbe, it had been used before, in February 1909, when United States Senator from Pennsylvania Philander C. Knox was picked by President William Howard Taft to be Secretary of State. The discovery of the constitutional complication from the Emoluments clause came as a surprise, after Knox had already been nominated. Knox had been elected to serve the term from March 3, 1905 to March 3, 1911 and during legislation approved on February 26, 1907 as well as debate beginning on March 4, 1908 he consistently supported pay raises eventually instituted for the 1908 fiscal calendar. At the time of his nomination in 1909, the United States Senate Committee on the Judiciary determined the remedy of resetting the salary to its pre-service level, and the whole Senate passed it unanimously on February 11, 1909. There was much more opposition in the U.S. House of Representatives, where the same measure was defeated once, and then after a special procedural rule was applied, was passed by a 173–115 vote. Congress had discussed reverting the fix after the appointed nominee had resigned and assumed the post so that Knox did not have to forgo any emoluments. They had also discussed reverting the salaries of all United States Cabinet members. On March 4, 1909, the salary of just the Secretary of State was reverted from $12,000 to $8,000, and Knox took office on March 6.

In the Saxbe instance, President Richard Nixon wanted to appoint Saxbe as the United States Attorney General from his position as a United States Senator from Ohio following the firing of Elliot Richardson in the Saturday Night Massacre in 1973. Saxbe had been a Senator in 1969 when the Congress passed a pay increase from US$35,000 to $60,000 for Cabinet members. Congress eventually allowed the appointment when it followed the advice of acting Attorney General Robert Bork to reduce the Attorney General salary from $60,000 to the previous $35,000 pre-1969 level. Ten Democratic Senators had voted against this ploy on constitutional grounds, including current Senator Robert C. Byrd of United States Senator from West Virginia (the only remaining Senator currently serving). Byrd explained his position at the time: "we should not delude the American people into thinking a way can be found around the constitutional obstacle." The logic behind objections to the Saxbe fix is that an increase and offsetting decrease are still unconstitutional, but the common interpretation that has traditionally carried the majority is that the legislative intent was that net increases are the relevant consideration. Saxbe went on to serve as Nixon's fourth and final Attorney General.

Jimmy Carter used the Saxbe fix to appoint Edmund Muskie as his Secretary of State after Cyrus Vance resigned following Carter's attempted military rescue of U.S. hostages in Iran.

However, during Ronald Reagan's administration, the solution was deemed inappropriate for the possible appointment of Orrin Hatch to the United States Supreme Court in June 1987 (to replace the retiring Lewis F. Powell, Jr.), after Congress had approved $6,000 pay raises for Supreme Court Justices in February. A memorandum by U.S. Assistant Attorney General Charles J. Cooper rejected the notion that rollbacks could satisfy the Ineligibility Clause. Hatch had been on the short list of two finalists with Robert Bork, but after the Ineligibility Clause had been brought to light, Hatch was no longer under consideration. Thus, Bork, Douglas Ginsburg and Anthony Kennedy were subsequently nominated for the Powell seat.

The situation came up again when, as he was leaving office, President George H.W. Bush approved a Saxbe fix so that Lloyd Bentsen could move from the Senate to take the job of Treasury Secretary during the Bill Clinton administration. It passed without objection.

21st Century

The term reentered the public lexicon in 2008 with the speculation that Hillary Rodham Clinton, the United States junior Senator from New York, was the preferred nominee to be United States Secretary of State in the administration of Barack Obama, a nomination that was indeed made on December 1, 2008. Clinton's current term began with the seating of the 110th United States Congress on January 3, 2007 following her 2006 re-election. In that time, United States Cabinet salaries were increased from US$186,600 to $191,300 in January 2008, and to $196,700 in January 2009. These pay raises were by executive order in accordance with cost of living adjustment statutes, as noted by legal scholar Eugene Volokh on his blog, The Volokh Conspiracy.

Without a Saxbe fix, Clinton would have been ineligible to serve in the Cabinet until the conclusion of the 112th United States Congress. On December 10, 2008 the 110th United States Congress, voting by unanimous consent, passed Senate Joint Resolution 46, which provides for a Saxbe fix to reduce the Secretary of State's salary back to its pre-2007 level of $186,000, taking effect at 12:00 p.m. on January 20, 2009. President George W. Bush signed the resolution into law on December 19.

The conservative organization Judicial Watch announced after the nomination that it believed a Saxbe fix was unconstitutional and that Clinton could not become Secretary of State until 2013 at the earliest. After the Saxbe fix was passed, Judicial Watch said it might seek to halt her appointment via litigation in the United States District Court for the District of Columbia.

Both Hilda Solis, the United States Secretary of Labor-nominee and Ken Salazar, the United States Secretary of the Interior-nominee will require Saxbe fixes by 111th United States Congress to be approved.

Legality

Some legal scholars do not believe that the Saxbe fix addresses the constitutional problem. Because the language of the rule is an absolute prohibition, Michael Paulsen, a Constitutional law expert, said that "A 'fix' can rescind the salary, ... but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls."

Other legal scholars and political pundits, such as Pete Williams, believe that appointments using the fix, such as Obama's appointment of Clinton, are constitutional. Although the act would violate the letter of the law, the common perception is that the spirit is to dissuade self-dealing and that the appointment would not violate the spirit of the law as long as a Saxbe fix is applied. He notes the fix addresses the intent of the Constitution and that it is unlikely that anyone would be granted legal standing to contest the appointment.

United States Department of Justice memoranda outline official opinions by United States Attorney General that "the Ineligibility Clause covers only increases during the term that a Member of Congress is currently serving." The opinion was the response to a request by Warren G. Harding of Attorney General Harry M. Daugherty regarding the prospective 1922 appointment of Senator William S. Kenyon as United States Circuit Court Judge. During Senator Kenyon's term that expired on March 4, 1919 Congress increased judicial salaries.