THE PLANK NOVEMBER 24, 2008
It turns out that the biggest obstacle to Hillary Clinton's march to Foggy Bottom might be grammatical in nature. Adam Bonin and Eugene Volokh weigh in on the debate over the application of the Emoluments Clause of the U.S. Constitution (Art. I, 6, cl. 2), which provides:
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.
As it happens, the secretary of state's salary was increased by executive order this past January, which would seem to clearly disqualify her from the job. The relevant debate here is whether the so-called "Saxbe fix" (named after Richard Nixon's last attorney general, former Sen. William Saxbe of Ohio, who ran into the same difficulty Clinton is facing now) would rectify the problem: couldn't the salary just be lowered to where it was prior to the beginning of Senator Clinton's current term?
The answer hinges on whether the phrase "have been increased during such time" refers to a net increase over the period of time in question, or to any individual instance of an increase. If it's the latter--which, according to the two Emoluments Clause experts (isn't legal academia wonderful?) quoted at length by Professor Volokh, is the more reasonable reading of the clause--then Clinton would be ineligible to serve as secretary of state until 2012 and nothing could be done about it.
I tend to agree with Volokh and Bonin that the language is ambiguous and supports both interpretations equally well, and no doubt Congress will resort to the Saxbe fix once again. But this points toward a larger issue in the realm of compensation of government officials. Hillary Clinton obviously doesn't really care how much she'd be getting paid were she to join the Cabinet; there are plenty of other perks to the job. But there's widespread sentiment, at least in some quarters, that rank-and-file members of Congress and executive branch officials at the deputy and assistant level ought to be paid significantly more than they are now, in order to attract and retain talent. And an obvious retort is, hey, if the secretary of state makes less than $200,000, how can you justify paying that much, or more, to some random freshman congressman? (The federal government already has a far flatter pay distribution, as you go up the ladder of authority, than pretty much any other major organization in America.) It's probably true that we should either pay second- and third-tier officials more than their bosses or increase their (already wealthy) bosses' pay well above what's actually needed to attract the best candidates for top jobs, but either way the optics of it are tricky.