Saxbe fix
The Saxbe fix, or salary rollback, is a mechanism by which the president of the United States, in appointing a current or former member of the United States Congress whose elected term has not yet expired, can avoid the restriction of the United States Constitution's Ineligibility Clause. That clause prohibits the president from appointing a current or former member of Congress to a civil office position that was created, or to a civil office position for which the pay or benefits were increased, during the term for which that member was elected until the term has expired. The rollback, first implemented by an Act of Congress in 1909, reverts the emoluments of the office to the amount they were when that member began their elected term.
To prevent ethical conflicts, James Madison proposed language at the Constitutional Convention that was adopted as the Ineligibility Clause after debate and modification by other Founding Fathers. Historically, a number of approaches have been taken to circumvent or adhere to the restrictions; these have included choosing another nominee, allowing the desired nominee's elected term of office to expire, ignoring the clause entirely, or reducing the offending emoluments to the level prior to when the nominee took office. Although Congress passed the mechanism reducing emoluments in 1909, the procedure was named "Saxbe fix" after Senator William Saxbe, who was confirmed as attorney general in 1973 after Congress reduced the office's salary to the level it had been before Saxbe's term commenced. The Saxbe fix has subsequently become relevant as a successful—though not universally accepted—solution for appointments by presidents of both parties of sitting members of the United States Congress to the United States Cabinet. Members of Congress have been appointed to federal judgeships without any fix being enacted; court challenges to such appointments have failed.
There were four Saxbe fixes for appointees of presidents prior to Barack Obama. The first two rollbacks concerned appointees of Republicans William Howard Taft and Richard Nixon, and the last two were implemented for appointees of Democrats Jimmy Carter and Bill Clinton. Congress approved two more in the weeks preceding Obama's presidency in preparation for his designated Cabinet nominees. Since the 1980s, Saxbe fixes have only been temporary, extending to the conclusion of the term for which the sitting member of Congress was elected. The Clause has received relatively little scholarly or judicial attention; the sparse extant debate centers on whether the reduction of salary satisfies the Ineligibility Clause, or whether affected members of Congress are ineligible for appointment in spite of the reduction.
Background
In his notes of the Philadelphia Convention in 1787, James Madison expressed the fear that members of Congress would create new federal jobs, or increase the salaries for existing jobs, and then take those jobs for themselves. Madison wrote that corrupt legislative actions, in the form of the unnecessary creation of offices and the increase of salaries for personal benefit, were one of his greatest concerns. The delegates who were present agreed that no member of Congress should be eligible to be appointed to an executive position while serving in Congress. Madison originally proposed a one-year length on such a bar. However, Nathaniel Gorham, James Wilson, and Alexander Hamilton wanted no bar at all at the conclusion of congressional service. Eventually, Madison proposed a compromise: "that no office ought to be open to a member, which may be created or augmented while he is in the legislature"; this led to extensive debate.The delegates eliminated the prohibition on a member of Congress's assuming holding state office based on the rationale that there might be times when it might be in the best interest of the nation to allow such service. They eliminated the one-year ban because they judged it to be ineffective in protecting the Constitution. Charles Cotesworth Pinckney moved that the states vote and the prohibition carried by vote of 8 states to 3. Robert Yates noted that the clause "which shall have been created, or the Emoluments whereof shall have been increased" was an amendment passed in his absence, and that he did not place much faith in it as he felt unscrupulous politicians would circumvent it by creating new positions for persons who would subsequently place a member of Congress in a vacancy that they and not Congress created. Madison moved that the phrase "or the Emoluments whereof shall have been augmented by the legislature of the United States, during the time they were members thereof, and for one year thereafter." This motion failed 2–8, with one state divided. The clause was limited to "civil" offices so as not to restrict military service. Accordingly, the clause was passed in its current form without an explicit time consideration.
Article 1, Section 6, Clause 2 of the United States Constitution therefore prohibits self-dealing legislation and is intended to protect the "separation of power" of the various branches of government. Corruption such as previously seen in the British Parliament was a consideration during debate by the framers of the Constitution. Legal scholars have accorded this clause little attention in their academic writings and there have been no cases which directly applied the clause, as no plaintiff has been able to establish legal standing. In fact, some general guides to Constitutional research, such as the clause-by-clause The Constitution of the United States: A Guide and Bibliography to Current Scholarly Research, do not discuss the Ineligibility clause. Most scholarly texts on the Constitution ignore the clause. Although the Saxbe fix is named for Nixon nominee William Saxbe, the device's first intentional use predates him by several decades. As a matter of historical tradition, the Saxbe fix is considered sufficient to remove the disqualification of the Ineligibility Clause.
History
18th and 19th centuries
The Ineligibility Clause has interfered with appointments as far back as 1793. President George Washington attempted to appoint William Paterson to the Supreme Court on February 27, 1793, after the resignation of Associate Justice Thomas Johnson. However, Paterson, who was serving as Governor of New Jersey, had previously been elected to serve a Senate term that would expire at noon on March 4, 1793. Washington withdrew the nomination and withheld it until the afternoon of March 4, when the term for the disqualifying office had expired.In 1882, a formal opinion by the Attorney General concluded that resignation from Congress does not free a member to be appointed to civil office because the Clause speaks to the term for which a member was elected, and that term still exists, even if a member resigns. Therefore, as in the Paterson matter a century earlier, Iowa Governor Samuel J. Kirkwood, who had resigned a Senate seat with a term that did not expire until March 1883, was ineligible for appointment to the position of United States Tariff Commissioner. In 1896, the Comptroller of the Treasury determined, after the fact, that former Senator Matthew Ransom's appointment as Minister to Mexico was invalid, as that office's salary had been increased during Ransom's term; the belated discovery precluded Ransom from drawing a salary.
The practice of barring members of Congress from serving in other civil offices was not without exception. Ransom, after all, was in fact appointed. In another case, there may have been an inadvertent Saxbe fix. Senator Lot M. Morrill began serving a six-year term in 1871, and in 1873, as part of the Salary Grab Act, Congress increased Cabinet officers' salaries from $8,000 to $10,000; it repealed the increase in 1874, and two years later—before the end of his term—Morrill was appointed United States Secretary of the Treasury. The repeal of the "salary grab" was motivated by reaction to public outrage rather than concerns about a member's eligibility for office, but Acting United States Attorney General Robert Bork would later cite the Morrill case in his opinion about the Saxbe appointment.
20th century
Philander C. Knox
In 1909, President-elect Taft announced his intent to nominate Senator Philander C. Knox to be Secretary of State. Shortly after the announcement, the Clause emerged as a problem that caught those involved by surprise: Knox had been elected to serve a term that would not end until 1911, and during that term Congress had voted to increase executive branch pay. Members of Congress considered reverting the fix after the appointed nominee had resigned and assumed the post so that Knox would not have to forgo any emoluments. Members of Congress also discussed reverting the salaries of all United States Cabinet members. At the suggestion of the Senate Judiciary Committee, Congress passed a bill reducing only the Secretary of State's salary to the level it had been at before Knox's term began, believing this would cure the problem.The Senate passed the bill unanimously, but there was much more opposition in the U.S. House of Representatives, where the same measure failed to get a required two-thirds vote under a motion to suspend the rules and pass, a procedure normally reserved for uncontroversial matters. After a different procedural rule was applied, it passed by a 173–115 majority vote and President Roosevelt subsequently signed the bill. On March 4, the first Saxbe fix became effective when the salary of the Secretary of State was reverted from $12,000 to $8,000. The Senate confirmed all of Taft's Cabinet appointees on March 5, and Knox took office on March 6.
In 1922, the boundaries of the Clause were further defined when Senator William S. Kenyon was allowed to accept an appointment by President Warren G. Harding as circuit judge for the Eighth Circuit. Attorney General Harry M. Daugherty concluded that no disqualifying event had occurred because the increase in emoluments to that office had occurred in a term prior to the one Kenyon was serving at the time of the nomination. No rollback was attempted when Senator Hugo Black was appointed to the Supreme Court, and in Ex parte Levitt, the court rejected, for lack of legal standing, an attempt to prevent Black from taking his seat based on Ineligibility Clause objections. The movant in the Black case, Albert Levitt, only had an interest in the case as a United States Citizen and a member of the Supreme Court bar, which the Court found to be insufficient.