The following article is posted with permission of the Pittsburgh Tribune-Review.
Legislative pay not issue, but state constitution is
by Dennis Barbagello
HARRISBURG - A majority of the lawmakers violated their oaths of office last week and collectively thumbed their noses at Pennsylvania's Constitution.
They also paid off the state's judges in order to get away with it.
At issue is an 18 percent legislative pay increase that won quick General Assembly approval and was signed into law by Gov. Tom Ridge.
Whether lawmakers deserved to boost their salaries after eight years is not at issue here. Neither are their new $55,800 annual pay-checks.
Rather, at issue is their strategy to circumvent a state constitution prohibition against incumbent legislators getting raises.
Also at issue is whether a strategy may eventually lead to the gross disregard of other state and federal constitutional mandates for political convenience.
Article II, Section 8 of Pennsylvania's Constitution is specific. It says: "No member of either House (of the General Assembly) shall during the term for which he (or she) may have been elected, receive any increase of salary, or mileage, under any law passed during such term."
In interpreted literally, as it should be, it means no member of the state House of Representatives and half the state Senate is entitled to the just-approved pay boost until January 1997. That's when a new two-year legislative session is slated to convene.
State senators are elected for four-year terms. And that means half the state Senate - those 25 senators elected last year should not be entitled to the increase until January 1999.
The constitutional intent is to require lawmakers to face a possible ballot-box challenge between voting themselves a raise and actually getting the money.
State lawmakers in both the Senate and House of Representatives, however, aren't waiting. They plan to start grabbing the cash November 1.
Lawmakers will circumvent the constitution ban on incumbent pay raises by calling the boost "an unvouchered expense allowance." That means an expense account for which no receipts are required for reimbursement.
Ironically, that "unvouchered expense allowance' will be for the exact amount of the just- approved pay boost and will be automatically included in legislator's pay checks for the next 14 months as such.
That expense allowance will expire in January 1997, just in time for the new hike of the same amount to take effect.
Ironically, the U.S. Internal Revenue Service is required the "unvouchered expense allowance" to be taxed as earned income.
This should theoretically be a situation ripe for constitutional challenge. But don't expect the Commonwealth, Superior or even state Supreme Court to even accept such a case. That's because the legislation that boosts the lawmakers' pay also raises the salaries of all judges in Pennsylvania.
Moreover, that judicial pay increase comes just three years after Pennsylvania's judges got their last raise plus an annual cost-of living increase - a first ever for any state employee.
Legislative leaders of both parties said the boost in judges' pay along with their own was a move to ensure a quality judiciary for Pennsylvania.
Really?
Ironically, that bill includes a 'non-severability clause." That's a provision that mandates if any part of the pay raise bill is declared null and void for constitutional reasons, the entire law must be struck down. The judges then would be forced to strike down their own pay hikes if they ruled the "non-vouchered expense allowance" for legislators was in violation of Pennsylvania's constitution prohibition against incumbent legislative salary increases.
Count on judges taking the pay boost and saying nothing about a blatant violation of Pennsylvania's Constitution. And don't look for any improvement in judicial quality to correspond with the salary hike for judges.
In fact, the judges apparently were satisfied with their old pay. None in recent memory has resigned because of inadequate compensation or benefits. And there always seems to be a stampede of lawyers heading for the governor's office seeking appointments to any judicial vacancies. It's a good job.
The judicial salary increase appears to be a payoff to protect the '"unvouchered expense allowance" until it officially becomes a legislative pay boost.
Clever, but very, very dangerous.
What happens if it becomes politically convenient to circumvent other Constitutional provisions, such as the right to bear arms, protection against double jeopardy, the right to fair and just bail, the right to free speech, or freedom of religion, or of assembly or protection from unlawful searches and seizures?
A blatant disregard for any portion of the constitution is dangerous since it undermines the very structure of government and society. But don't look for any Pennsylvania Supreme Court justice or appeals court judge to guarantee our protections from what a majority of members of the General Assembly did last week. That's because the judiciary was given a vested interest in ensuring that such a violation stands while every Pennsylvania businessman or worker pays the bill.
It proves correct the old adage: "In politics money talks...."
We know the rest.
Published by the Pittsburgh Tribune-Review on October 22, 1995
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Here is a copy of an inter-office memo obtained by Voice PAC, regarding the withholding of taxes on the unvouchered expense allowance check.
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