Federal Withholding: One Budget or Two?

“Federal withholding” may take on new meaning if the Senate passes H.R. 325, the “No Budget, No Pay Act.”

Along with increasing the debt ceiling to whatever level it reaches by May 18th, the bill would withhold the pay of members of Congress and senators if their respective bodies don’t pass a budget by the April 15th deadline found in the Congressional Budget Act of 1974.

But does “pass a budget” mean that each house of Congress can pass its own budget? Or does it mean that the two have to agree on a budget? In a WashingtonWatch.com blog post running down the prospects for a normal budget year, I said “both houses of Congress are supposed to agree to a final budget plan by April 15th.” But most people believe that No Budget, No Pay simply requires each house of Congress to pass its own budget in order to stave off “federal withholding” of their paychecks.

I’m a simple country lawyer, and I looked at the language of No Budget, No Pay, which says:

If by April 15, 2013, a House of Congress has not agreed to a concurrent resolution on the budget for fiscal year 2014 pursuant to section 301 of the Congressional Budget Act of 1974, … the payroll administrator of that House of Congress shall deposit in an escrow account all payments… [blah blah blah].

And I looked at section 301 of the Congressional Budget Act of 1974, which says:

On or before April 15 of each year, the Congress shall complete action on a concurrent resolution on the budget for the fiscal year beginning on October 1 of such year. The concurrent resolution shall set forth [various things]…

And I thought to myself, “A concurrent resolution on the budget agreed to pursuant to section 301 of the Congressional Budget Act is one that is passed by Congress.”

Existing law calls for one budget resolution to be passed by Congress—i.e., both houses—by April 15th, so a budget resolution passed pursuant to the Congressional Budget Act is one that has been passed by both houses. What does “pursuant to” mean if not “in conformance to or agreement with”? A budget resolution not agreed to by both houses of Congress is not agreed to pursuant to the law.

Much of section 301 of the Congressional Budget Act refers to the budget resolution using the definite article, “the,” as opposed to indefinite articles, such as “a” or “any.” This, too, suggests that the law contemplates a single budget resolution passing both houses.

The bulk of conventional opinion is that the No Budget, No Pay Act would only require each of the two houses of Congress to pass their own budgets in order to prevent federal withholding of their paychecks. Perhaps the phrase “pursuant to” only modifies “concurrent resolution,” not “agreed to.” But that is an odd use of language to say that a “concurrent resolution” matching the one described in the Congressional Budget Act is “pursuant to” it. Why not say “as described in”? No, I think “pursuant to” modifies “agreed to,” meaning that a budget resolution has to be agreed to by both houses.

The Act does use the indefinite article—”a concurrent resolution.” One could argue that the current Congress is superceding the Congressional Budget Act’s call for a budget resolution passed by both houses. But that doesn’t jibe with the use of “pursuant to,” which I think binds the phrase “concurrent resolution” to its meaning in section 301 of the Congressional Budget Act.

The upshot is that I don’t think either house of Congress should be paid until they come to agreement on a budget. I like the use of federal withholding when Congress doesn’t do its job. It’s odd that they have to institute an incentive system like this to get them to follow the law. So, the more federal withholding the better, and I think I have the better reading of the law, too. My hope is that we don’t have to find out because Congress passes a budget on time, starts in with appropriations on time, and has set federal spending for 2014 before the beginning of the 2014 fiscal year on October 1st.