The Hillary Fix

December 04, 2008 12:24 PM

ABC News’ Rick Klein Reports: Democrats on Capitol Hill are working with the Obama transition office to quickly pass a special measure that will allow Sen. Hillary Rodham Clinton to become Secretary of State, despite an obscure constitutional provision that would appear to bar it, officials tell ABC News.

A Senate leadership aide said the special resolution to clear the way for Clinton could be passed without a roll-call vote as soon as next week, assuming no Republicans object. The measure will need to pass the House and Senate and be signed by President Bush.

At issue is the so-called “Emoluments Clause,” which was included in Article I, Section 6 of the Constitution in an apparent attempt to keep members of Congress from sweetening government sinecures that they could resign their seats to fill.

“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time,” the clause reads.

(“Emoluments” means compensation. And the clause appears to apply even though, in this case, the “he” is actually a she.)

Clinton, D-N.Y., was elected in 2006 to a term that doesn’t expire until the end of 2012. The “Emoluments Clause” comes into play because the Secretary of State’s salary was increased in January, from $186,600 a year to $191,300 a year. As a senator, Clinton makes $169,300 a year.

Lawmakers plan to address this by passing what’s widely known as the “Saxbe Fix,” named for the arrangement whereby Congress set a lower salary for President Richard Nixon’s nominee for attorney general, William Saxbe.

The “fix” would set the secretary of state’s salary at the level that was in place when Clinton’s term started. It would cost Clinton $4,700 a year; as one person close to the transition process pointed out, that works out to $12.87 a day.

“This is simply a technical fix we must make so that Sen. Clinton can serve as our next Secretary of State,” said Jim Manley, a spokesman for Senate Majority Leader Harry Reid. “It is not the first time Congress has had to address the issue of one of its senators moving to a cabinet position, and we intend to address this as quickly as possible.”

Indeed, similar steps have been taken for at least 100 years. In 1908, that’s how Congress cleared the way for Sen. Philander Knox to become President William Howard Taft’s Secretary of State. Similar arrangements allowed then-senators Edmund Muskie and Lloyd Bentsen to join Cabinets as well.

But the maneuvering has caught the eye of many in the legal community, including some conservative bloggers who say the “Saxbe fix” is itself unconstitutional.

Some pointed out that President Ronald Reagan’s administration decided not to turn to Sen. Orrin Hatch, R-Utah, for a Supreme Court vacancy, in part because of potential obstacles raised by the “Emoluments Clause.”

Judicial Watch, a conservative watchdog group that has long tangled with the Clintons, issued a statement this week declaring Sen. Clinton to be flatly ineligible from serving in the Cabinet until at least 2013, when her current Senate term expires.

“There’s no getting around the Constitution’s Ineligibility Clause,” said Judicial Watch President Tom Fitton. “Barack Obama should select someone who is eligible for the position of Secretary of State and save the country from a constitutional battle over Hillary Clinton’s confirmation. No public official who has taken the oath to support and defend the Constitution should support this appointment. And aside from the constitutional issue, Hillary Clinton’s long track record of corruption makes her a terrible choice to serve as the nation’s top diplomat.”

But -- at least so far -- the “fix” appears to be on a glide path, with no lawmakers seeming inclined to wage a “constitutional battle.”

A Senate Republican leadership aide told ABC Thursday that no GOP senators are expected to object when the measure comes to the Senate floor, probably next week.