An attorney representing Rep. Rick Crawford, R-Ark., and some former members of Congress on Friday argued against a Justice Department bid to dismiss a lawsuit that aims to provide them with retroactive pay.
The lawsuit, filed in the U.S. Court of Federal Claims, says Congress and the president suppressed cost-of-living increases in violation of the 27th Amendment, which stops officials from “varying the compensation” of lawmakers between House elections. The former lawmakers say they were underpaid by hundreds of thousands of dollars on an individual basis. Their suit says a 1989 law set a formula on annual cost-of-living adjustments to lawmaker salaries, but officials have “unconstitutionally suppressed” the increases via statute.
The plaintiffs include former members Rodney L. Davis, Thomas M. Davis III, Edwin G. Perlmutter and Mark S. Kirk. They’re being represented by Ken Cuccinelli, a former Trump administration Homeland Security official.
“Both the Ethics Reform Act and the 27th Amendment are” a money mandate, Cuccinelli told Judge Eric G. Bruggink of the Federal Court of Claims, a court that allows citizens to put forward claims for money against the U.S. government.
The lawsuit argues that the plaintiffs are “suffering the unconstitutional suppression of their member pay, and the former members continue to suffer the unconstitutional reduction of the retirement pay due them by law.”
The litigation also asks the court to certify the lawsuit as a class action.
The Justice Department, in its motion to dismiss, argued that the plaintiffs are asking the court to put aside “decades worth of decisions by Congress about what level of pay it should receive.”
“The Twenty-Seventh Amendment imposes no restrictions on the substance of the fiscal policy choice Congress is permitted to make with respect to its own pay,” the department said in its motion. “Rather, the Twenty-Seventh Amendment is merely a timing provision that specifies when certain compensation related laws shall take effect.”
Fiscal policy decisions come with judgment calls and tradeoffs, and the Constitution leaves those decisions to the political branches “where they can be made with the benefit of public debate and accountability,” the motion states.
Justice Department attorney Galina Fomenkova argued that the 27th Amendment was not “money mandating,” and pointed to the specific text of the amendment.
“It is directed at a procedural timing provision for certain laws rather than the amount of compensation itself,” she said.
The judge adjourned the oral arguments Friday without ruling on the motion.
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