How To Say No

The Legislature doesn't have to accept a pay raise

There are very few situations in which you would consider turning down a pay raise. Perhaps you don’t want to be bumped into the next tax bracket, or maybe you don’t want additional responsibilities. Yet most people take raises when they can get them.

Members of the Idaho State Legislature are in a unique position. As part-time lawmakers, they are not paid very much in the first place — just under $20,000 last year. However, their per diem payments and benefits are rather generous. Ask most voters if elected officials should receive more money and most will say “heck no.” Of course, many voters assume that Idaho state legislators are paid six generous figures like US congressmen. In any case, it can never hurt a legislator’s standing with the voters to turn down a raise.

Unlike the US Congress, our Legislature does not have the authority to vote itself a pay raise. Article III, Section 23 of the Idaho Constitution lays out how the process works:

Compensation of members. The legislature shall have no authority to establish the rate of its compensation and expense by law. There is hereby authorized the creation of the citizens committee on legislative compensation, which shall consist of six members, three to be appointed by the governor and three to be appointed by the supreme court, whose terms of office and qualifications shall be as provided by law. Members of the committee shall be citizens of the state of Idaho other than public officials holding an office to which compensation is attached. The committee shall, on or before the last day of November of each even-numbered year, establish the rate of compensation and expenses for services to be rendered by members of the legislature during the two-year period commencing on the first day of December of such year. The compensation and expenses so established shall, on or before such date, be filed with the secretary of state and the state controller. The rates thus established shall be the rates applicable for the two-year period specified unless prior to the twenty-fifth legislative day of the next regular session, by concurrent resolution, the senate and house of representatives shall reject or reduce such rates of compensation and expenses. In the event of rejection, the rates prevailing at the time of the previous session, shall remain in effect.

The officers of the legislature, including committee chairmen, may, by virtue of the office, receive additional compensation as may be provided by the committee. No change in the rate of compensation shall be made which applies to the legislature then in office except as provided herein.

When convened in extra session by the governor, no such session shall continue for a period longer than twenty days.

The Citizens Committee on Legislative Compensation, made up of three members appointed by the governor, and three appointed by the Supreme Court, met this fall to evaluate legislator salaries. Members of the committee rejected a proposal by legislative leadership to pin legislator salaries to 40% of the Average Idaho Household Income, which would have meant a 34%-43% salary increase next year, depending on how you calculate it.

Instead, the committee met again and approved a raise to $25,000, which comes out to approximately 22%.

American Action Fund (AAF), a project of Young Americans for Liberty (YAL), has been running Facebook ads targeting the new legislative leadership over the proposed pay raise. They’re calling it “Moyle’s 43% Politician Pay Hike”, which is obviously not accurate. In addition to legislative leadership, AAF also bought ads targeted at Reps. Heather Scott and David Cannon.

The YAL-adjacent PAC Make Liberty Win targeted Cannon’s district in the 2024 primary, sending mailers accusing him along with Rep. Julianne Young and Sen. Julie VanOrden of refusing to keep children from inappropriate materials. The mailer was not accurate, and though Cannon survived a close race, Young lost by two votes.

In any case, the Legislature does have the power to reject the raise if lawmakers so choose. The Legislature cannot vote to raise its own pay, but it can pass a concurrent resolution rejecting or reducing any increase approved by the Citizens Committee.

The last time this happened was in 2009, during the Great Recession. The committee had voted to increase per diems, but the Legislature unanimously rejected that change via a concurrent resolution. This year, eight conservative legislators who have aligned with YAL proposed a resolution that would reduce the pay raise to 2.5% each year rather than 22%. It will likely be introduced in the first week or two of the session, so stay tuned.

There was a very interesting court case in 1983 related to the issue of legislative compensation. If you go back and read the text of the Constitution I quoted above, you’ll notice that any resolution to reject or reduce the pay rates established by the Citizens Committee must be passed prior to the 25th day of the legislative session. In 1982, the committee voted to set pay rates at a certain level, but legislators decided to reject it via a concurrent resolution.

The House passed HCR10 on January 27, 1983, and the Senate passed it on February 2. That was the 24th day of the 1983 session, and as such it was the final day on which such a resolution could constitutionally be passed. However, after the Senate vote, a member gave notice that a motion to reconsider might be made the next day. This is a parliamentary procedure that is sometimes used in cases where several legislators were potentially absent for a vote, and their attendance might have changed the outcome.

By providing notice that a motion to reconsider would be made the following day, enrollment of the bill was delayed until February 3. The motion to reconsider failed, however it was now the 25th day of the legislative session, and past the deadline for such a resolution to be considered. Nevertheless, legislative leadership — House Speaker T.W. Stivers and Senate President Pro Tempore Jim Risch — signed the resolution and instructed payroll clerks to maintain the previous year’s salary.

Sen. Ron Beitelspacher, a Democrat, filed suit against Stivers and Risch, claiming that they violated the Idaho Constitution by reducing lawmaker pay despite the resolution having not been fully passed before the 25th legislative day. Then-Attorney General Jim Jones defended them before the Idaho Supreme Court. The Court had to decide exactly what words meant:

Thus, the narrow question presented in this case is the effective date of HCR 10. If it became effective on February 2, the 24th legislative day, then the citizens' committee recommendation was effectively rejected. However, if the notice of intent to move for reconsideration, given on the 24th day, and the subsequent making of the motion to reconsider on the 25th day, delayed the effectiveness of the vote on HCR 10 until the 25th legislative day or later, then the citizens' committee recommendation was not effectively rejected.

The Court declined to dig deeply into Mason’s Manual of Legislative Procedure; rather Justice Robert Bakes wrote for the majority that it was best to defer to the judgment of of Speaker Stivers and Pro Tem Risch, concluding that the legislative branch must interpret its own rules. However, Justice Stephen Bistline, called the Court’s “conscience and resident civil libertarian” by a local newspaper, partially dissented, believing that the matter needed to be examined more closely.

This has little impact on what the 68th Legislature will decide to do with regards to the new pay scale adopted by the Citizens Committee this year, but it’s an interesting piece of history. It reminds us that there is nothing new under the sun, and that debates over legislative compensation have happened before and will happen again.

It is also a reminder of how long some careers can be. In 1982, Jim Risch had just been elected Senate President Pro Tempore, having served in the chamber since 1974. Today he represents Idaho in the US Senate and is set to chair the Foreign Relations Committee next month. Jim Jones had just been elected Attorney General in 1982, and would go on to serve on the Idaho Supreme Court in the 1990s. This year he was one of the top spokesman for Prop 1, and he continues to write editorials excoriating the direction of the Idaho Republican Party. As for me, I was born in 1983, which puts me on the younger side of the political spectrum, I suppose.