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Letters to the 107th Congress

October 24, 2001

RE: Conference on H.R. 2500, Appropriations for FY2002 for the Departments of Commerce, Justice and State, the Judiciary and Related Agencies.

Dear Representative:

I am writing to you in your capacity as conferee to urge you to reject Sections 304 and 608 of the Senate-passed version of H.R. 2500, the FY 2002 appropriations bill for the Departments of Commerce, Justice and State, the Judiciary and related agencies. Both sections would undermine the intent of the Ethics Reform Act of 1989 and would do a grave disservice to our Federal judiciary. H.R. 2500, as passed by the House, has no comparable provisions.

The Ethics Reform Act of 1989 was intended to de-politicize the issue of compensation for high-level officials in all three branches of the Federal government. Under the Act, Federal judges, Members of Congress and high-level Executive Branch officials (all of whose pay rates are linked) are entitled to cost-of-living pay adjustments, based on the Employment Cost Index, whenever General Schedule salaries for government employees are adjusted for inflation. Once this condition precedent is met, pay adjustments under the Act are intended to be automatic for all high ranking Federal officials.

Section 140, enacted as part of a 1981 continuing appropriations resolution, requires the express, affirmative approval of Congress before judges are permitted to receive the same COLA due under the Ethics Reform Act and scheduled to be awarded to Members of Congress and other high-level officials. Section 140 has been an unnecessary and undesirable obstacle to Congress' ability to apply the October 24, 2001 automatic pay-setting mechanism of the Ethics Reform Act to the Federal judiciary and thereby allow it to operate as intended.

Sections 304 and 608 of the Senate bill seek to make Section 140 permanent. These sections should not be retained for several reasons.

    1. Earlier this year, in the case of Williams v. US, 240 F. 3d 1019 (2001), the U.S. Court of Appeals for the Federal Circuit ruled that Section 140 "was clearly superceded by the provisions of the 1989 [Ethics Reform] Act." Williams at 1027. Neither Section 304 or 608 cures this defect.

    2. Section 140 embodies bad policy that should not be revived. It unnecessarily strains inter-branch relations by evincing a disregard for a co-equal branch of government and challenging the difficult boundary between judicial independence and judicial accountability. Our system of government works best when each separate but co-equal branch of government acts with mutual respect and restraint in pursuit of a common purpose.

    3. The 107th Congress should not simply rubber-stamp a controversial provision that was enacted into law by the 97th Congress. Section 140 was added to a continuing appropriations resolution during 11th-hour deliberations on the Senate floor in 1981 in response to that Congress's frustration and disdain for a legal ruling that resulted in Federal judges recouping cost-of-living adjustments that Congress had previously denied its own members, as well as judges and senior Executive Branch officials, in 1976 and 1979.

Now that the Federal Circuit has invalidated the 1981 provision, the time is particularly ripe for Members of Congress to pause to re-examine the purpose, value and effect of Section 140 and to duly deliberate before casting their votes. Retaining Sections 304 and 608 in the Senate-passed version of H.R. 2500, a must-pass appropriations measure, will deny your colleagues this opportunity.

For all of the above-stated reasons, the American Bar Association urges you to reject Sections 304 and 608 of the Senate-passed version of H.R. 2500.


Robert D. Evans
Director, Governmental Affairs Office

107th Congress Letters Home

Governmental Affairs Office
740 Fifteenth Street, NW
Washington, DC 20005
ph: 202-662-1760
fx: 202-662-1762

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