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Ronald Reagan Presidential Library
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This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Commission on Executive,
Legislative & Judicial Salaries (3 of 4)
Box: 11
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THE WHITE HOUSE
WASHINGTON
May 28, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 022
SUBJECT:
Draft Report of Commission on Executive,
Legislative, and Judicial Salaries
We have now received a draft report from the Commission on
Executive, Legislative, and Judicial Salaries, along the
lines discussed in my previous memorandum. I have no legal
objection to the report, but those reviewing it should
recognize that approval would, in effect, commit the Presi-
dent to proposing significant salary increases for covered
officials in January 1987. My draft memorandum for Chew
also contains some substantive corrections and several more
picayune points.
Attachment
THE WHITE HOUSE
WASHINGTON
May 28, 1985
MEMORANDUM FOR DAVID L. CHEW
STAFF SECRETARY
Orig., signed by FFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Report of Commission on Executive,
Legislative, and Judicial Salaries
I have reviewed the draft report of the Commission on
Executive, Legislative, and Judicial Salaries. As I have
noted previously, I have no objection to the substance of
the Commission's recommendations. You should be aware,
however, that approval of the Commission's report by the
President would, in effect, commit the President to pro-
posing significant salary increases for Federal judges,
Congressmen, and high-level executive branch officials in
January of 1987. Under the Commission's plan the President
would be most directly responsible and accountable for
salary levels, and the Commission's report makes it clear
that its members think the salaries should be raised.
Minor comments follow:
Page 2, lines 1-2: "Commission on Executive, Legislative
and Judicial Salaries" should be changed to "Commission on
Executive, Legislative, and Judicial Salaries." See
2 U.S.C. $ 351. (This mistake also appears on the Com-
mission stationery.)
Page 2, lines 1-2: The first Commission was not appointed
in 1967. The statute establishing the Commission was
enacted on December 16, 1967, but the first members were not
appointed until 1968.
Page 4, line 15: I would add "in effect" after "reduced,"
to avoid appearing to give credence to the claim that
failure to grant raises to Federal judges in the face of
inflation can constitute a violation of the Compensation
Clause. That claim has been made and rejected. See Atkins
V. United States, 556 F.2d 1028 (Ct. Cl. 1977), cert.
denied, 434 U.S. 1009.
Page 6, line 13: It is inaccurate to state that the Supreme
Court in United States V. Will, 449 U.S. 200 (1980), af-
firmed the rulings of the lower courts. In fact, the lower
- 2 -
court decisions were affirmed in part and reversed in part.
See id., at 230-231.
Page 7, line 7: "signature or veto" should, in the interests
of technical accuracy, be changed to "approval or disapproval." or
A law can become effective without the President's signature,
and can be disapproved without an affirmative veto.
Page 12, line 8: Again, "signed or vetoed" should more
properly read "approved or disapproved."
Page 12, line 22: Same comment.
Page 14: There is no discussion of how such a Commission
should be established or who should appoint the membership.
FFF:JGR:aea 5/28/85
CC: FFFielding
JGRoberts
Subj
Chron
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o - OUTGOING
H * INTERNAL
I - INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Dave Chew
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Draft Report of commission on Executive,
Legislative and Judicial salares
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
ORIGINATOR
85,05,24
/
/
Referral Note:
COLAT 18
D
85,05,24
5.85,05,31
Referral Note:
CDB
/
/
/ /
-
Referral Note:
/
/
/
/
-
Referral Note:
/
/
/
/
I
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I * Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R. Direct Reply w/Copy
B. * Non-Special Referral
S Suspended
D Draft Response
S. For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
CLOSE HOLD
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE: 5/23/85
ACTION/CONCURRENCE/COMMENT DUE BY:
COB, June 1
SUBJECT: DRAFT REPORT OF COMMISSION ON EXECUTIVE, LEGISLATIVE AND JUDICIAL
SALARIES
ACTION FYI
ACTION FYI
VICE PRESIDENT
LACY
REGAN
McFARLANE
STOCKMAN
OGLESBY
BUCHANAN
ROLLINS
CHAVEZ
RYAN
CHEW
P
SS SPEAKES
DANIELS
SPRINKEL
FIELDING
SVAHN
FRIEDERSDORF
TUTTLE
HENKEL
HICKEY
HICKS
KINGON
REMARKS:
Attached is the draft report of the Commission on Executive, Legislative
and Judicial Salaries. It is sensitive, so please keep distribution
limited. Please provide your comments by close of business June 1.
RESPONSE:
CLOSE HOLD
David L. Chew
Staff Secretary
1905 MAY 24 E 7:25
Ext. 2702
COMMISSION ON EXECUTIVE,
LEGISLATIVE AND JUDICIAL SALARIES
Received S
1983 MAY 23 PH 1:08
May 23, 2985
Mr. David L. Chew
Staff Secretary and
Deputy Assistant to the President
The White House
Washington, D.C. 20500
Dear David:
Enclosed is a confidential copy of the first draft of our report. We
would appreciate your thoughts and comments.
We plan to submit our report to the President by the end of June. I
am anxious to receive any ideas or suggestions you might have and would
greatly appreciate hearing from you as soon as possible.
Please let me know your thoughts.
Thank you again for all your help.
Sincerely,
rice
Ede Hollday
Executive Director
Enclosure
734 Jackson Place, N.W. Washington, D.C. 20503 (202) 377-3914
DRAFT SIX May 9, 1985
REPORT
For almost two hundred years America has tried to find a way to pay
appropriate wages to Senators, Representatives, judges, cabinet officers and
its other top level executives.
These 3200 people run our government--535 Members of Congress, 1,744
Federal judges, and 857 top level executives and legislative branch
officials and the process by which their salaries have been set has been
marked, historically, by Indecision and ad hoc experimentation.
Ralses have been given and rescinded and those granted, Inevitably, have
been diminished by long periods of inflation.
It has been a prolonged adventure in futility, and Its effects have
reached a critical point. Men and women of high quality are leaving public
life because they cannot afford to stay. We are drifting toward a government
led by the wealthy and those with no family obligations.
In the past 15 years, 43 judges have resigned from the bench, more for
financial reasons than In the previous 180 years. The same tendency is
apparent in Congress and the Executive Branch. There will always be people
willing to serve In these jobs and the quality of replacements has remained
high--but the number of qualified persons willing to serve is dwindling fast.
Twenty years ago a dozen or more persons of high capability would seek an
appointment to the bench. Today, we are told, there may be two or three. We
are close to the time when the essential quality of our government leadership
may be seriously Impaired. The best still respond to the challenge of a
Judgeship, a Congressional seat or a Cabinet post, but many will not accept
the responsibility of jobs in which salarles lose value year after year.
-2-
A PATTERN OF FRUSTRATION
Since the appointment of the first Commission on Executive, Legislative,
and Judicial Salaries in 1967, there has been a new pattern of frustration--
Commissions recommend salary adjustments, Presidents modify them, and
Congresses reject them. The basic problem is not the salaries, but the
process.
On March 7, President Reagan wrote the Commission. He said in part:
"It is important to recognize that the statutory framework under
which the Commission operates has falled In the past to resolve salary
determinations in an orderly and effective manner. I would hope that
the Commission, In addition to Its statutory obligations, could review
the entire statutory scheme for setting the salaries of top government
officials, and develop recommendations for any necessary changes."
The Commission recognizes that the present salary levels are Inadequate,
but it will make no specific salary recommendations. Instead, It hopes to
take a first step toward resolving the dilemma that began when the framers of
the Constitution decided that "Senators and Representatives shall receive a
compensation for their services to be ascertained by law."
AN INDECENT THING
Since only Congress can enact a law, this means that its Members must
set their own salaries. James Madison thought this "an indecent thing".
"Citlzens", he sald, "would see their chosen officials put their hand into the
publ ic coffers to take out money to put in their pockets."
He was, he sald, concerned with appearances, not greed, and his concern
was well placed. The publ coffers have not suffered but the Members of
-3-
Congress have, and so have their fellows In the judicial and executive
branches whose salaries are linked, by practice, to theirs.
Members of the first Congress (and many a Member since) recognized the
delicate nature of the conflict; they must avoid setting compensation so low
that men and women of ordinary means could not serve, but it must be low
enough to remind Members that they were elected as representatives, not
masters.
AT THE BEGINNING
In the year 1789 Congress sat only a few months a year and were pald $6
a day while sitting. It was a substantial sum and the Members had other
occupations and other sources of income.
The pay was raised to $8 a day some thirty years later, a sum that did
not always cover traveling and living expenses. It remained at $8 until 1856.
The value of congressional compensation was allowed to diminish with scarcely
a pause for over two-thirds of a century and over the years many Members
resigned to take lesser government jobs, as clerks, collectors of revenue or
post masters, that paid more.
The basic problem was clear, the Members found it extremely difficult to
raise their own pay. Once, when they voted to give themselves annual salaries
of $1,500, the figure was denounced by some Members as too high - one sald It
would "tempt the cupidity of the second or third rate county court lawyer" -
and the publ joined In the criticlsm. Congress took back the raise two
years later.
The pattern had been established.
-4-
LINKAGE
In recent years, the pay of the members of the other two branches of
government have been tied to the Congressional pay. This is unfortunate and
Illogical, but it is an Inescapable reallty. Congress linked its own pay to
the pay of Judges and high executives with the hope that If all salaries rose
together, there would be a broad political acceptance. It has not worked out
that way. Each time Congress has failed to give its own Members ralses,
judges and Cabinet Officers and the other top level executives have also
suffered the consequences. Members of the House and Senate received 5 ralses
In the first 100 years, federal Judges 4, Cabinet officers 4, and each raise
came only after a long period of salary erosion.
A MEASURE OF PROTECTION
The Constitution did give Judges a measure of protection. They were to
be appointed for life, and their compensation, once set, could not be reduced.
The Intent was to give them permanent Independence; free from political
pressures and pecuniary concern, but the assumption has been proved faulty--
salarles of judges (like those of their governmental peers) have been reduced,
not by deliberative act but by Inflation and Inaction. A District Judge who
made $40,000 in 1969, today makes the equivalent of about $28,000 in 1969
dollars.
The pursuit of reasonable salaries for these essential decision makers
has had Its champions. In 1925 Representative Ben Johnson of Kentucky, sald,
"If my constitutents should say I am not worth $10,000 a year, then my answer
is, send somebody who is." More often than not, however, Congress, has shied
away from even the suggestion of a raise.
-5-
THE FEDERAL SALARY ACT
Advances have always been followed by retreats. A resolute effort was
made In 1967. Congress passed the Federal Salary Act, and the first
Quadrennial Commission was appointed. Its nine members were to be chosen by
the Presldent, the President of the Senate, the Speaker of the House and the
Chief Justice. They would revlew the salaries and recommend adjustments to
the President who would accept or modify them and pass them along to Congress.
If neither House voted formal disapproval, they would go into effect in thirty
days.
The system was designed to put space between Congress and Its difficult
task. The necessary adjustments of salary would be recommended by the
Commission members, who were by definition objective, and tempered to
political realities by the President. The public Interest would be served;
Congressional accountability would be recognized, and the detachment of the
Commission would preclude both abuses and emotional responses.
COST-OF-LIVING ADJUSTMENTS
The process worked quite well in 1969 but no further ralses were given
in the following seven-year period of high inflation. In 1975, a second act
was passed that would, for the first time, apply the cost-of-living
adjustments given to General Schedule employees to this core group as well.
When Congress accepted the President's recommendations in 1977, a strong
and swift public reaction caused it to retreat once more, and Congress
promptly amended the process to require that no future recommendations be
accepted unless both Houses gave specific, recorded approval.
-6-
The cost-of-living adjustment worked after a fashion, but real wages
continued to erode. The elaborate machinery was in place, but It would work
erractically, and on one occasion It had an unexpected result.
The cost-of-living Increases were Intended to be automatic but for four
consecutive years Congress stopped or reduced them. In two of the four years,
however, the legislation blocking the Increases was signed by the President
after the date on which such Increases would go automatically Into effect. On
both occasions a group of federal district judges in Illinois sued the United
States on the grounds that under the Constitution raises once given to members
of the judiciary could not be taken back.
THE BAN APPLIED
The lower courts held that the judges' points were valid, their salaries
2
had indeed been diminished In violation of the Constitutional ban, and the
Supreme Court affirmed their rulings. As a result, the judiclary was given
Increases that were not given to the corresponding persons in the other two
branches.
To the existing confusion and frustration there had now been added a
measure of 111 feeling. The basic problem remained as stubborn as ever.
A CONSTITUTIONAL AMENDMENT
Senator Baker of Tennessee, the then Majority Leader, was moved to say
that Congress was incapable of raising its own salarles. In 1983 he and
Senator Long of Louisiana, both In their last terms, offered as a legacy an
Amendment to the Constitution that would transfer the authority for setting
Congressional salaries to an outside body. It was opposed by Members who felt
It would diminish Congress by diminishing its control over the nation's purse
-7-
strings, and by those who are against amendment of the Constitution. It was
never brought to the floor.
The battered process designed to permit the practical adjustment of
Congressional and other salaries had proved Inoperable.
Another blow came in 1983 when the Supreme Court ruled that a
3/
Congressional act, to be effective, must be sent to the President for his
signature or his veto.
That meant that resolutions by either one or both Houses of Congress not
submitted to the President were without effect. According to the Attorney
General, the established Quadrennial process, which requires only record vote
approval of Presidential recommendations by both Houses of Congress, Is
unconstitutional.
THE MACHINERY BREAKS DOWN
There Is now no legal, practical machinery for setting and adjusting
salaries of these essential public servants, the Members of Congress, the
federal Judges, and the top level members of the executive branch. The matter
Is at an Impasse and unless the process is reconstructed, promptly, to conform
to the law and to reality, the consequences are clear.
THE BASIC POINTS
Many Informed and concerned people wrote the Commission and 28 appeared
as witnesses at a hearing In April.
They agree practically without exception on several basic points:
The process by which the salaries of our 3200 key government
employees are set is in critical need of repair.
-8-
The long term erosion of salaries has caused many of the best to
leave, and it is Increasingly difficult to find replacements of
equal ability.
The constant problem has been the reluctance of Congress to raise
the salary levels, and this reluctance is rooted in politicaly
reality.
As Senator John C. Danforth of Missouri advised the Commission "to vote
for your own pay Increase is an Invitation to a 30-second commercial against
you in your next campaign."
A VIVID PICTURE
Senator Barry Goldwater of Arizona gave the Commission a particularly
vivid picture of the continuing assault on the I Ivlihoods of essential public
servants.
He wrote, in part:
The original Intent of the Founding Fathers, of course, was that a
member of the Congress would be a part-time sort of person, working at
home, going to Washington when needed, then returning to his own pur-
sults. Let's take a look at what happened. When I first came to
Congress [in 1952], we were paid $14,000 a year. I had four children at
the time and
belleve It or not I made a little money every year off
that salary. Now, however, I think my salary is around $75,000 a year
Now one would think with
the great amount of money I'm being paid I
would be making a little. But, oh no. Every year at Income tax time, I
have to go to the bank and borrow money to pay the taxes on my home in
Arizona and the taxes on what property I have in Washington.'
-9-
Senator Goldwater added that during his years In Washington his once
considerable reserve funds have been cut to a fraction."
WITNESSES
The witnesses at the hearing Included some, such as two former Cabinet
officers who have had direct experience with the problem, and others, such as
the President of the American Bar Association and corporate executives
representing a group of some thirty corporations, who have a sympathetic If
more distant Interest.
Many of the ltnesses spoke on the difficulties encountered by the
members of the judiciary, an appropriate emphasis since more than half of the
persons with whom we are concerned are sitting judges.
Judge Kaufman of the Maryland Federal Courts spoke from personal
knowledge of the facts of present day judicial life, and what he sald also can
be applied to the experiences of the affected members of the legislature and
the Executive branches.
In each branch, persons of high qualifications are resigning and in each
case their replacements--as Judge Kaufman put it are "being drawn--more and
more from the ranks of persons possessing Independent wealth or from persons
who for one reason or another have limited earning power. 11
"He are in danger, " he said, of "getting Into. an el itist bench--some of
the very best can not afford to serve. If
THE SHRINKING POOL
Witness after witness sounded this same warning, if the pool- in all the
branches-- continues to shrink it will have a most unfortunate impact on the
quality of the persons who make, administer and interpret our laws.
-10-
Joseph A. Callfano, Jr., former Secretary of Health, Education and
Welfare, noted that the loss of potential public leaders is most severe among
the "people we'd love to have"--those from 40 to 60 years of age.
Young men and women of great potential can easlly serve, and do, but
many, perhaps most, are reluctant to stay on for many years.
One Insurmountable problem is often the high cost of sending children to
college.
One witness, Thomas A. Masterson of the Philadelphia Bar, was appointed
to the federal bench In 1967. When his children reached college age, he found
tuitions and other basic family expenses had climbed rapidly and his Income
had not. He resigned, from necessity he sald, in 1973.
AN OBSERVATION
He made a striking observation:
"What happened or is in the process of happening is the perversion
of the Constitutional notion that a judge is going to be appointed for life."
Judges, --as well as executives and congressional officials-- do not seek
appointment for personal gain. Judges of high quality and the federal bench
has been traditionally composed of men and women of the highest quality--are
committed to the Implementation of Justice above all other considerations.
But they live In the same world we all do.
As another witness, Charles Renfrew, put it: "Judges do not go on the
bench
for financial success. They expect to make a sacrifice. What they do
not expect is that their already low salaries will be eroded by the impact of
Inflation."
-11-
THE CHIEF JUSTICE'S LETTER
Chlef Justice Burger spelled It out In a letter to the Commission:
"Since I took my present office in 1969, the compensation of
federal Judges has declined 8 full one-third. During that period I have
received the resignations of 43 judges. More. Judges have resigned from
the federal court for financial reasons [during my term] than during the
entire preceding 180 years.'
As a number of witnesses pointed out that there are still capable people
who are committed to public service but this is made up Increasingly of
younger and relatively Inexper Tenced lawyers or older successful men and women
who are only able to serve for a short time. What Is in short supply are men
and women In their middle years who have already made their professional mark
are recognized leaders of the bar, and will be able, as the Constitution
Intended, to serve a long and active tour.
As Vernon Jordan, a law firm partner and former President and Chief
Executive Officer of the National Urban League, Inc. sald, "we are at risk of
losing. the talented and experienced - liberal, moderate and conservative."
n
we must recognize that the sanctity, quality and excellance of our
government is at stake."
The Commission members asked each of the witnesses to address the central
problem of restructuring the mechanism by which salary levels are set.
THE PRESIDENT'S ROLE
Judge Bell and others suggested that the President's role In the process
should be given even greater emphasis than It has had in the past. As he put
It: "The President-- and of course the Vice President are the only officials
-12
elected by all the people. Let his recommendations become law unless
Congress, by a joint resolution
(should)
disapprove."
The actions and conclusions of the Commission have been shaped by the
witness testimony, the President's request and the Supreme Court's rul ing.
In INS V. Chadha, as noted, the Supreme Court decided that Congress could
not enact law simply by passing resolutions. It must, it held, follow the
full legislative process--both acts and resolutions must be passed by both
Houses and signed or vetoed by the President.
The Attorney General, has Informed the Commission that in his opinion
this ruling Inval Idates part of the statute under which the Commission has
operated--specifically, the section that permits the enactment by Congress of
the President's salary recommendations into law without presentment to the
President. It does, however, leave the authority of the Commission and the
President to make such recommendations Intact.
RECOMMENDATION
We, therefore, make a recommendation which, we believe, offers workable
solutions to past and present problems.
We propose first that:
1) Future Commissions, as past Commissions, make salary recommendations
to the President who will accept or modify them and send them to Congress. 2)
Unless Congress should pass a joint resolution of disapproval rejecting them
within thirty days, they would become law. 3) If Congress should pass a joint
resolution It would go to the President who would sign or veto It. 4) If he
vetoed it, Congress could If It wished, override the veto by the prescribed
two-thirds vote.
-13-
Our proposal would restore part of the original formula adopted in 1967:
that the Presidential salary level recommendations would become law
automatically, unless specifically rejected by Congress.
We belleve this restoration is essential -- the 1977 amendment which
requires voted approval of the recommendations exacerbated the very problem
the process was Intended to solve.
PRESIDENTIAL RESPONSIBILITY
Our proposed restructuring would give the President the central
responsibility for setting these salary levels and we are persuaded that this
is where the responsibility belongs.
The President is elected by all the voters of the nation and is concerned
with both the needs and costs of government. He should be directly involved
In setting the salaries of this small group of essential public servants from
beginning to end.
The restructuring would open up the process, as much as the Constitution
allows, to relieve the country of an unseemly spectacle. No person paid by
tax money should be placed in the position of having to set his own wages,
alone and unalded, a position rightly described by President Monroe as
"obscene."
Finally, as the Constitution envisions, Congress would remain ultimately
accountable to the publc for the determination of their own pay. Whenever It
wished It could override a Presidential veto with its own resolve.
The Commission finds that these top government officials are critically
underpald. We feel, however, it is pointless for It to make specific salary
recommendations at this time of unresolved budget deficits and under the old
-14
and faulty process. We also feel strongly that such recommendations should be
made to the President by a qualified body as soon as the process can be
revised.
A ONE-TIME COMMITTEE ON COMPENSATION
The second part of our proposal, therefore, is that a one-time Committee
on Compensation composed of persons of the highest prestige and authority be
appointed to sit next year and recommend a full schedule of adjusted salaries
to the President no later than January 1, 1987.
The solution must be one that will serve not only the present office
holders but future ones as well.
We believe that a continuing process that provides a fair and appropriate
Income to these essential public servants will benefit not only those who
receive it, but all citizens of the Republic and their descendants.
THE WHITE HOUSE
WASHINGTON
May 21, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS JJR
SUBJECT:
Commission on Executive, Legislative,
and Judicial Salaries
The Executive Director of the Commission on Executive,
Legislative, and Judicial Salaries has sent David Chew a
draft of the Commission's tentative recommendations. Chew
has asked for your views by May 22.
The Commission will recommend new legislation, providing
that the President's recommendations on salary levels would
become law unless Congress disapproved them by joint resolu-
tion within 30 days. The Commission will make no salary
recommendations this year, but will urge that a one-time,
blue ribbon panel be appointed by July 1, 1986 to submit
salary recommendations to the President by January 1, 1987.
(It is not clear who would appoint the members of this
panel.) The President would then submit his recommendations
under the new scheme. In 1988, the Quadrennial process
would begin anew.
The current scheme requires Congress to vote to approve the
President's recommendations. 2 U.S.C. $ 359. The proposed
scheme simply gives Congress the chance to block them by
passing a joint resolution. The responsibility for fixing
salaries is thus effectively shifted from Congress to the
Executive.
The Commission's scheme has a chance of working. Congress
would normally be reluctant to pass legislation giving the
President the right to do anything on his own (unless
blocked by a joint resolution), but in this case doing so
would enable Congress to pass the buck on setting the salary
of its own members. Throwing judges and high-level execu-
tive officers into the mix would make it look less apparent
that this is what Congress was doing. In short, there is a
chance that the new legislation recommended by the Commis-
sion could pass. Once in place, the new scheme would put
the onus of setting salaries on the President, but the
President could take some refuge from potential criticism by
hiding behind the recommendations of the advisory panel.
- 2 -
The proposed scheme would pass muster under INS V. Chadha.
The proposal does not specify who would appoint the members
of the one-time blue ribbon panel, but this is irrelevant as
a constitutional matter since the responsibilities of the
panel would be purely advisory. (Indeed, since the Presi-
dent may want to hide behind the panel's recommendations, he
may not want to appoint all of the members.) I have some
constitutional queasiness about the President assuming the
legislative function of enacting spending levels, but this
would seem acceptable under the theory that Congress legis-
lated when it authorized the President to set the levels.
Attachment
THE WHITE HOUSE
WASHINGTON
May 21, 1985
MEMORANDUM FOR DAVID L. CHEW
STAFF SECRETARY
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Commission on Executive, Legislative,
and Judicial Salaries
I have reviewed the proposal of the Commission on Executive,
Legislative, and Judicial Salaries and think it holds
considerable promise. Under the current scheme both Houses
of Congress must vote to approve salary recommendations of
the President. 2 U.S.C. §§ 351-361. The proposal would
provide that the President's recommendations become law
unless disapproved by a joint resolution. In practical
terms this shifts responsibility for setting salary levels
from the Congress to the President. Since this would permit
Congress to pass the buck on setting the salary of its
members, there is some chance that the proposal could pass.
The President would, of course, have heightened responsi-
bility in this sensitive area, but he would have the re-
commendations of the advisory panel for support in the face
of any public criticism. (I note that the Commission
proposal does not specify who would appoint the members of
the one-time, blue ribbon Committee on Salaries.)
I cannot, of course, give any definitive legal clearance
until I have an opportunity to review the draft legislation
recommended by the Commission. The proposal would not,
however, present any problems under INS V. Chadha. In this
regard I would note that we should be careful not to appear
to concur in any Commission views on the constitutional or
other legal flaws of the current scheme. You may recall
that we took pains in corresponding with the Commission to
note that the current statutory scheme was ineffective but
not to opine gratuitously that it was unconstitutional. The
current statute does in fact present a minor technical
problem under INS V. Chadha, but it is far from clear how
that infirmity affects the statutory scheme, and the resolu-
tion of that question is pending before the courts.
In sum, I see no reason at this point to object to the
general approach of the Commission.
FFF:JGR:aea 5/21/85
CC: FFFielding/JGRoberts/Subj/Chron
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 . OUTGOING
H - INTERNAL
I . INCOMING
Date Correspondence
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Name of Correspondent:
Dave Chew
MI Mail Report
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Subject:
Proposal by Commission on
Salaries Executive Legislative, and Judicial
ROUTE TO:
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S851052
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S. For Signature
F Furnish Fact Sheet
X % Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
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Comments:
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5/81
CLOSE HOLD
THE WHITE HOUSE
WASHINGTON
May 20, 1985
FRED FIELDING:
The Commission has provided the attached
proposal on an informal basis to get
our off-the-record reaction. If you
have any questions, please call. I'd
like your reaction by Wednesday.
David Chew
CLOSE HOLD
COMMISSION ON EXECUTIVE,
LEGISLATIVE AND JUDICIAL SALARIES
April 26, 1985
Mr. David L. Chew
Staff Secretary and
Deputy Assistant to the President
The White House
Washington, D.C. 20500
Dear Dark Mr. Chew:
As we discussed, I am enclosing a draft proposal of the Commission's
recommendations for your review.
Many thanks.
Sincerely,
the
Ede Hollday
Executive Director
Enclosure
734 Jackson Place, N.W. Washington, D.C. 20503 (202) 377-3914
COMMISSION ON EXECUTIVE,
LEGISLATIVE AND JUDICIAL SALARIES
April 26, 1985
COMMISSION PROPOSAL
A great many of our top level public officials are leaving their Jobs
because they can't afford to stay.
There has never been a sustained mechanism by which realistic
adjustments can be made in the salaries of the Members of Congress, the
Judiciary and Cabinet Officers, and other essential persons in the executive
branch.
The mechanism most recently in use is disorderly, it hasn't worked and
In the opinion of the Attorney General it is unconstitutional.
In compl lance with the President's request, the present Quadrennial
Commission on Executive, Legislative and Judicial Salarles is primarily
concerned with recommending a process that is logical and legal and will
work.
The Commission has had a number of meetings and has concluded that a new
law should be passed whereby the President's recommendations to Congress on
salary levels would become law unless Congress passed a disapproving joint
resolution within 30 days. Currently, the President's recommendations must
be approved by both Houses of Congress.
The present Quadrennial Commission would make no salary recommendations
at this time in recognition of the current efforts to reduce the deficit and
because under the present faulty law any such recommendations would be
futile.
in addition, the Commission would recommend that a one-time, blue ribbon
Committee on Salaries, composed of persons of the highest caliber, would be
appointed in 1986 to recommend new, appropriate salary levels for the
positions in the three branches that are now under the purview of the
Quadrennial Commission. This Committee would be appointed no later than
July 1, 1986, and its recommendations would be submitted to the President no
later than January 1, 1987. The President would make his recommendations to
Congress in his first Budget message in 1987. The recommendations would
become effective in 30 days unless disapproved under the amended process
described above.
In 1988, the Quadrennial process would continue under the new enactment
procedures suggested above.
734 Jackson Place, N.W. Washington, D.C. 20503 (202) 377-3914
THE WHITE HOUSE
WASHINGTON
March 5, 1985
MEMORANDUM FOR DAVID L. CHEW
STAFF SECRETARY
FROM:
FRED F. FIELDINOrig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Presidential Letter to the
Commission on Executive, Legislative,
and Judicial Salaries
By staffing memorandum dated February 15, you requested
comments on a proposed draft letter from the President to
Nicholas Brady, Chairman of the Commission on Executive,
Legislative, and Judicial Salaries. The letter asked for
recommendations from the Commission on how to resolve a
perceived constitutional problem in the Commission's
enabling legislation, and how to make the statutory scheme
more effective. I responded on February 19 with a recom-
mendation that the letter not be sent, noting that the
President should seek neither legal nor policy guidance from
a Commission to which he appoints only three of nine members.
It has since come to my attention that the Presidential
appointees to the Commission were given assurances prior to
their appointments that the President would request them to
go beyond their narrow statutory mandate and examine the
need for reform of the statutory pay scheme. In light of
these assurances a letter of some sort should be sent. I
continue to object to any specific reference to or request
for guidance on any perceived legislative veto problem, but
a general request to consider the need for reform of the
statutory scheme would be tolerable. I have attached a
revision of the February 15 draft along the foregoing lines
for appropriate staffing.
Attachment
FFF: JGR:aea 3/5/85
CC: FFFielding/JGRoberts/Subj/Chron
DRAFT
March 5, 1985
Dear Mr. Brady:
It is important as the Commission on Executive, Legislative,
and Judicial Salaries begins its work to recognize that the
statutory framework under which the Commission operates has
failed in the past to resolve salary determinations in an
orderly and effective manner. I would hope that the Com-
mission, in addition to its statutory obligations, could
review the entire statutory scheme for setting the salaries
of top government officials, and develop recommendations for
any necessary changes.
I would like the recommendations of the Commission on this
broader question as soon as possible, so they may be reviewed
and evaluated within the Administration. Thank you for your
efforts in this regard.
Sincerely,
RR
Mr. Nicholas Brady
Chairman, Commission on Executive,
Legislative, and Judicial Salaries
734 Jackson Place
Washington, D.C. 20503
RR:JGR:aea 3/5/85
cc: FFFielding/JGRoberts/Subj/Chror
DRAFT
THE WHITE HOUSE
WASHINGTON
March 5, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 820
SUBJECT:
Cutler Call
As we discussed, attached is a proposed letter from the
President to Nicholas Brady, asking that the Commission on
Executive, Legislative, and Judicial Salaries review the
effectiveness of the statutory scheme for setting the
salaries of top officials. The draft makes no reference to
any legislative veto problem, and also makes clear that any
Commission recommendations will be reviewed within the
Administration. A cover memorandum for Chew explains why
the revised letter is being submitted, and requests appro-
priate staffing.
Attachment
THE WHITE HOUSE
WAEHINGTON
March 5, 1985
MEMORANDUM FOR DAVID L. CHEW
STAFF SECRETARY
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Presidential Letter to the
Commission on Executive, Legislative,
and Judicial Salaries
By staffing memorandum dated February 15, you requested
comments on a proposed draft letter from the President to
Nicholas Brady, Chairman of the Commission on Executive,
Legislative, and Judicial Salaries. The letter asked for
recommendations from the Commission on how to resolve a
perceived constitutional problem in the Commission's
enabling legislation, and how to make the statutory scheme
more effective. I responded on February 19 with a recom-
mendation that the letter not be sent, noting that the
President should seek neither legal nor policy guidance from
a Commission to which he appoints only three of nine members.
It has since come to my attention that the Presidential
appointees to the Commission were given assurances prior to
their appointments that the President would request them to
go beyond their narrow statutory mandate and examine the
need for reform of the statutory pay scheme. In light of
these assurances a letter of some sort should be sent. I
continue to object to any specific reference to or request
for guidance on any perceived legislative veto problem, but
a general request to consider the need for reform of the
statutory scheme would be tolerable. I have attached a
revision of the February 15 draft along the foregoing lines
for appropriate staffing.
Attachment
FFF:JGR:aea 3/5/85
CC: FFFielding/JGRoberts/Subj/Chron
DRAFT
March 5, 1985
Dear Mr. Brady:
It is important as the Commission on Executive, Legislative,
and Judicial Salaries begins its work to recognize that the
statutory framework under which the Commission operates has
failed in the past to resolve salary determinations in an
orderly and effective manner. I would hope that the Com-
mission, in addition to its statutory obligations, could
review the entire statutory scheme for setting the salaries
of top government officials, and develop recommendations for
any necessary changes.
I would like the recommendations of the Commission on this
broader question as soon as possible, so they may be reviewed
and evaluated within the Administration. Thank you for your
efforts in this regard.
Sincerely,
RR
Mr. Nicholas Brady
Chairman, Commission on Executive,
Legislative, and Judicial Salaries
734 Jackson Place
Washington, D.C. 20503
RR:JGR:aea 3/5/85
CC: FFFielding/JGRoberts/Subj/Chron
DRAFT
THE WHITE HOUSE
WASHINGTON
P me ASAP see
March 1, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS JJR
SUBJECT:
Cutler Call
You may recall that our office objected on February 19 to a
proposed letter from the President to the Commission on
Executive, Legislative, and Judicial Salaries. The letter
requested that the Commission review the legislative veto
problem in its enabling legislation and the general effective-
ness of the statutory scheme, in addition to its narrower
statutory duties. We objected because (1) the President
should not seek legal guidance from an independent commission,
(2) the legislative veto problem in the statute did not in
any way affect the responsibilities of the Commission, and
(3) the President should not seek policy guidance from a
commission to which he appoints only three of the nine
members. Your memorandum of February 19 to Chew noting
these objections apparently sufficed to kill the letter.
I received a call earlier this week from the Executive
Director of the Commission, who had been told (unclear by
whom) that the letter was stalled in our office. She
advised me that the proposed letter had been prepared by the
Commission in the first place, after approval by Mr. Meese.
I told her that the letter might not be sent.
Today (2:00 p.m.) I received a call from Lloyd Cutler, who
as you know serves on the Commission. He wanted to know why
the letter was not going to be sent, stating that both he
and Mr. Brady agreed to serve on the Commission with the
understanding that it would address the broader questions.
He also stated that the letter had been approved by Mr.
Meese. I did not want to get into specifics with Mr.
Cutler, but indicated the general nature of our concerns.
He noted that he would explore the matter further with you.
I did not and do not know of any implicit or explicit
understandings Cutler or Brady may have had when they were
appointed to the Commission, nor am I aware of any represen-
tations made by Mr. Meese. I adhere to the view that the
President should not ask an independent commission to which
he appoints only one-third of the members for legal advice
on a perceived legislative veto problem. The President can
turn to our office or the Justice Department for all the
legal advice he needs.
THE WHITE HOUSE
WASHINGTON
June 12, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 8702
SUBJECT:
Meeting With Judges Interested in
Work of the Commission on Executive,
Legislative, and Judicial Salaries
Dianna has advised me that Len Garment will be bringing into
your office a group of judges interested in the judicial
salary issue and the work of the Commission on Executive,
Legislative, and Judicial Salaries, also known as the
Quadrennial Commission. You are familiar with the Commis-
sion: it consists of three members appointed by the Presi-
dent, two by the President of the Senate, two by the Speaker,
and two by the Chief Justice. Every four years the Commission
is to review the salaries of Federal judges, Congressmen,
and high-ranking Executive branch officials, and report to
the President on appropriate salary levels. The President
then recommends salary levels to Congress, and his recom-
mendations, under the statute, become law if approved by
affirmative vote of both Houses. 2 U.S.C. §§ 351-361. This
last proviso is technically invalid under INS. V. Chadha,
since no bill is presented to the President after the votes
of both Houses.
You will recall that the President wrote a letter to the
Chairman of the Commission, Nicholas Brady, requesting that
the Commission not simply look at salary levels but in
addition evaluate the entire statutory scheme for setting
salaries of high-level officials. The letter accurately
noted that the process has not worked effectively. Since
the Chadha problem is probably severable from the Commis-
sion's functions, the letter did not refer to any constitu-
tional infirmity in the statute.
We have seen a draft Commission report. The Commission will
recommend that the Pay Act be revised to provide that the
President's recommendations become law unless blocked by a
joint resolution of disapproval. As I have noted in prior
memoranda, this shifts effective responsibility for salary
levels from Congress to the President. You have voiced
general support for this approach. The Commission has
advised that it will make no salary adjustment recommendations
this year.
- 2 -
I do not think you should tip the Commission's hand to this
group of judges, but you can note that the President has
asked the Commission to review the entire statutory scheme.
You can also express awareness of the problem of relatively
low judicial compensation, and perhaps offer personal views
on how it has affected the judicial selection process.
Suggested talking points follow.
Attachment
SUGGESTED TALKING POINTS FOR MEETING WITH
JUDGES INTERESTED IN WORK OF
QUADRENNIAL COMMISSION
-- There is an increasing amount of attention being
devoted to the question of the adequacy of judicial
compensation in the Administration. As salaries for
talented lawyers in the private sector sky-rocket, the
sacrifice demanded to give up a successful practice for
the bench, or to remain on the bench, increases. I am
acutely aware of this problem, because I chair the
President's Judicial Selection Committee and am often in
the position of asking if prospective candidates for the
bench are willing to make that sacrifice.
-- I am aware that an unprecedented number of judges have
left the bench for financial reasons, often brought on
by the burdens of putting children through college. I
agree that this trend threatens to undermine the
constitutional intent that Federal judges would
generally serve for life. With all the care and effort
we put into selecting judges, we certainly do not want
them forced off the bench for financial reasons.
-- I think there is general agreement that the current
system of fixing judicial compensation has proven
ineffective. Judicial salaries are, as a practical
matter, linked to Congressional salaries under the Pay
Act, as well as to the salaries of high-level executive
- 2 -
officials. Congress must affirmatively vote any pay
raise under the existing scheme, and for obvious
political reasons has been unable to vote raises for
itself. Judicial salaries, accordingly, stagnate.
-- The President is aware of the problem of judicial
compensation, and is also concerned more generally with
the compensation of Congressmen and high-level executive
officials. Neither the Federal bench nor the Government
as a whole should become the province only of the very
young, the semi-retired, or the independently wealthy.
Accordingly, he appointed very high-quality and
experienced individuals to fill his slots on the
Commission on Executive, Legislative, and Judicial
Salaries, which issues recommendations every four years
under the Pay Act -- Chairman Nicholas Brady, Lloyd
Cutler, and Alexander Trowbridge.
- In addition, the President took the very significant
step of formally requesting the Commission to reexamine
the entire Pay Act. In his letter the President wrote
that "the statutory formula under which the Commission
operates has failed in the past to resolve salary
determinations in an orderly and effective manner."
-- It is our hope that the Commission will develop
recommendations for revising the current, ineffective
scheme. This is far more important than trying to work
- 3 -
a one-shot raise through the existing system. It is the
-
in
system for setting judicial salaries that has failed,
and it is the system that must be corrected.
THE WHITE HOUSE
WASHINGTON
June 12, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
8702
SUBJECT:
Meeting With Judges Interested in
Work of the Commission on Executive,
Legislative, and Judicial Salaries
Dianna has advised me that Len Garment will be bringing into
your office a group of judges interested in the judicial
salary issue and the work of the Commission on Executive,
Legislative, and Judicial Salaries, also known as the
Quadrennial Commission. You are familiar with the Commis-
sion: it consists of three members appointed by the Presi-
dent, two by the President of the Senate, two by the Speaker,
and two by the Chief Justice. Every four years the Commission
is to review the salaries of Federal judges, Congressmen,
and high-ranking Executive branch officials, and report to
the President on appropriate salary levels. The President
then recommends salary levels to Congress, and his recom-
mendations, under the statute, become law if approved by
affirmative vote of both Houses. 2 U.S.C. §§ 351-361. This
last proviso is technically invalid under INS. V. Chadha,
since no bill is presented to the President after the votes
of both Houses.
You will recall that the President wrote a letter to the
Chairman of the Commission, Nicholas Brady, requesting that
the Commission not simply look at salary levels but in
addition evaluate the entire statutory scheme for setting
salaries of high-level officials. The letter accurately
noted that the process has not worked effectively. Since
the Chadha problem is probably severable from the Commis-
sion's functions, the letter did not refer to any constitu-
tional infirmity in the statute.
We have seen a draft Commission report. The Commission will
recommend that the Pay Act be revised to provide that the
President's recommendations become law unless blocked by a
joint resolution of disapproval. As I have noted in prior
memoranda, this shifts effective responsibility for salary
levels from Congress to the President. You have voiced
general support for this approach. The Commission has
advised that it will make no salary adjustment recommendations
this year.
- 2 -
I do not think you should tip the Commission's hand to this
group of judges, but you can note that the President has
asked the Commission to review the entire statutory scheme.
You can also express awareness of the problem of relatively
low judicial compensation, and perhaps offer personal views
on how it has affected the judicial selection process.
Suggested talking points follow.
Attachment