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Proposed 28th Amendment to the United States Constitution And Refutation of False Assertions Purporting to Justify and Require it

by  Scott N. Bradley

October 2017

Claims of Congressional Benefits and Protections

The following unnecessary and dangerous (so-called) 28th Amendment is proposed to address the false assertions which follow after the proposed amendment:

Proposed “28th Amendment”:

“Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States”.

The people who propose this do so for their own nefarious purposes, knowing that the only way it could possibly move forward is by the states applying for a constitution convention under Article V of the United States Constitution, and that when such a convention was called, the entire constitution could be altered. The limited government with separation of powers, checks and balances, and all of the other protection would be opened up for tampering (or altogether re-writing) by the same political scoundrels who have gotten us into the mess we are in today. The problem is not with the Constitution, the problem is that we have stopped abiding by it. We the People elect sycophants who pander to the whims of an unknowing electorate who wish to pull the levers of government to their benefit, at the expense of liberty and proper government, and the politicians continue to be re-elect (or replaced by similar-minded toadies) for a continuation of the plunder. The solution is a return to the plain English words of the Constitution, and a passionate adherence to it by both citizens and trusted representatives elected by them.

Let’s combine the following two (false) assertions and answer them together: 1. Children of Congress members do not have to pay back their college student loans. 2. Staffers of Congress family members are also exempt from having to pay back student loans.

Not true. Some congressional employees are eligible to have up to $60,000 of student loans repaid after several years — just like other federal workers. But that’s not the case for members of Congress or their families.

Further Clarification:

Are members of Congress exempt from repaying student loans? NO

Are members’ families exempt from having to pay back student loans? NO

Are children of members of Congress exempted from repaying their student loans? NO

Do congressional staffers have to pay back their student loans? YES

Some full-time congressional staffers participate in a student loan repayment program that helps pay back a portion of student loans. No more than $60,000 in the House and $40,000 in the Senate can be forgiven and only if the employee stays on the job for several years.

There are student loan repayment programs that may be offered to eligible House and Senate staffers, but those programs have annual and lifetime caps. It’s possible that some congressional staffers will not have to repay their student loans, but that depends on how much they owe and how long they remain on staff. A similar program exists for executive branch employees, so congressional staffers aren’t the only ones receiving this benefit. All of the programs were created to help recruit and retain qualified employees.

Some years ago a program was started which applied to federal employees in an effort to recruit and retain qualified employees within the federal government. There are many qualifying stipulations in that program that I won’t review here, but the congressional programs were created soon after the one for federal employees took effect.

They were started for the same reason: to recruit and retain highly qualified employees. The 2002 Congressional Research Service (CRS) report said that "some members of both the Senate and House" were concerned about "high turnover and ‘brain drain’ in their personal and committee offices." Unlike the program for federal employees, the House and Senate programs require a service agreement of at least one year — compared with the three-year minimum requirement for federal employees.

The House student loan repayment program was established by law in 2003, and specifically exempts House members. Following is the law which established this program:

“Title 2, Chapter 4, Section 60c-6: The Chief Administrative Officer shall establish a program under which an employing office of the House of Representatives may agree to repay (by direct payment on behalf of the employee) any student loan previously taken out by an employee of the office. For purposes of this section, Member of the House of Representatives (including a Delegate or Resident Commissioner to the Congress) shall not be considered to be an employee of the House of Representatives.”

House members and their families are not eligible for student loan repayment. The loan must be in the employee’s name. There are caps on the program in both the House and Senate versions.

Members of Congress enjoy a lot of perks, but student loan repayment is not one of them. The blanket statement that congressional staffers "do not pay student loans back" is simply not true.

False Assertion: Members of Congress can retire at full pay after only one term.

False. Members of Congress do not receive their full pay as a pension upon leaving office. That’s the case whether they served one term or several.

The basic eligibility for collecting a pension is as follows, according to a June 2014 report from the Congressional Research Service (CRS), the nonpartisan research arm of Congress:

   “CRS, June 13: Members of Congress are eligible for a pension at the age of 62 if they have completed at least five years of service. Members are eligible for a pension at age 50 if they have completed 20 years of service, or at any age after completing 25 years of service. The amount of the pension depends on years of service and the average of the highest three years of salary. By law, the starting amount of a Member’s retirement annuity may not exceed 80% of his or her final salary.”

That means that members of the House of Representatives — who are up for reelection every two years — would not be able to collect pensions of any amount if they only served one term. U.S. senators, on the other hand, serve six-year terms and would be able to collect pensions after one full term. But the pensions would not be equal to their full salaries.

Take Kay Hagan, the North Carolina senator who lost her bid for a second term in 2014, for example. After finishing just one six-year term in the Senate, Hagan, who turned 62 in 2015, is eligible for a pension of nearly $16,000, according to calculations done by the National Taxpayers Union. Hagan’s pension would be a little more than 9 percent of her most recent salary of $174,000, the amount paid to rank-and-file House and Senate members.

It is possible that a longtime member of Congress retiring with a starting pension near or equal to 80 percent of his or her final salary could — after many years of annual cost-of-living adjustments — see that pension rise to equal his or her final salary.

For example: Iowa Sen. Tom Harkin retired in January 2015 at age 75. Harkin served for 30 years in the Senate and 10 years in the House before that. He was eligible for a starting pension of $125,000, according to estimates from the taxpayers union. His retirement pay would be almost 71 percent of his final salary. Harkin is an exception. Pensions for most members are far less than that.

According to the Congressional Research Service, as of Oct. 1, 2013, there were 367 former members of Congress who had retired under the Civil Service Retirement System, the old system that was criticized for being too generous. Those members were receiving an average annual pension of $71,664. The pensions of the 250 former members who retired under the Federal Employees Retirement System, which began in 1987, average even less. Their average pension was $42,048 in 2013, CRS said.

Pension benefits for members aren’t calculated by simply adding together previous salary amounts. Benefits are determined by the average annual salary for the three consecutive years of highest pay, the number of years served under a member’s pension plan, and the “accrual rate” at which benefits accumulate for each year of service.

Another assertion that is often made has to do with the health care perk, so I will briefly address that falsehood:

Members of congress do not have their own special plan for health care.

One of the provisions of the Patient Protection and Affordable Care Act (“ObamaCare”) passed by Congress is a requirement that lawmakers give up the insurance coverage previously provided to them through the Federal Employees Health Benefits Program and instead purchase health insurance through the online exchanges that the law created. Following is the section of the act which requires congress’ participation:

   “ (D) MEMBERS OF CONGRESS IN THE EXCHANGE.

   (i) REQUIREMENT — Notwithstanding any other provision of law, after the effective date of this subtitle, the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are:

   (I) created under this Act (or an amendment made by this Act); or

   (II) offered through an Exchange established under this Act (or an amendment made by this Act).”

Under the Affordable Care Act, beginning in 2014, insurance coverage for members of Congress switched from the Federal Employees Health Benefits Program (FEHB), the government’s employer-subsidized private insurance plans that cover more than 8 million federal employees and retirees, to the health care exchanges created by the law. Active members now must purchase a plan under the small-business health options program on the exchange in order to receive a government contribution toward their health coverage.

But going forward, congressional retirees, based on an October 2013 final rule issued by the Office of Personnel Management, will still be eligible to purchase insurance through the FEHB plan if they meet certain criteria. The criteria, according to Congressional Research Service (CRS), are eligibility for retirement from the federal government, and continuous enrollment in a health plan offered under FEHB or the exchanges for the five years of service immediately prior to retirement.

In either case, health coverage for retirees isn’t free. Enrollees and the government both pay for the insurance coverage. On average, the government pays 72 percent of the premiums for its workers, up to a maximum of 75 percent depending on the policy chosen. As federal retirees, former members of Congress would still be responsible for paying the same share of premiums as active federal employees.

False Assertion: Members of Congress have exempted themselves from many of the laws they have passed, under which ordinary citizens must live. For example, they are exempt from any fear of prosecution for sexual harassment.

Decades ago this claim could have had a shred of truth to it, but in 1994 congress sought to correct any such exemptions. In 1994 congress passed the Congressional Accountability Act (PL 104-1), which applies a dozen civil rights, labor and workplace safety regulations to the legislative branch. Here’s a list compiled by the independent, nonpartisan Office of Compliance, which was set up to enforce the laws in Congress:

Laws Applied to the Legislative Branch by the Congressional Accountability Act (PL 104-1):

       The Age Discrimination in Employment Act of 1967

       The Federal Service Labor-Management Relations Statute

       Veterans’ employment and reemployment rights at Chapter 43 of Title 38 of the U.S. Code

       The Americans with Disabilities Act of 1990

       Title VII of the Civil Rights Act of 1964

       The Employee Polygraph Protection Act of 1988

       The Fair Labor Standards Act of 1938

       The Family and Medical Leave Act of 1993

       Occupational Safety and Health Act of 1970

       The Rehabilitation Act of 1973

       The Worker Adjustment and Retraining Notification Act of 1989

In addition, the Congressional Accountability Act (PL 104-1) was amended in 1998 to include certain provisions of the Veterans Employment Opportunities Act of 1998.

According to the Office of Compliance, sexual harassment is specifically covered by Section 201 of the Congressional Accountability Act (PL 104-1).

The Legislative Body Being Above the Law?

As to the members of congress being above the law, in a certain sense, the Constitution allowed such a status for good reason. The American founders worried that presidents might try to bully House or Senate members by threatening to arrest them on trumped-up charges. So to preserve the separation of executive and legislative powers, the founders gave elected lawmakers a certain degree of immunity, as noted in the Constitution:

U.S. Constitution

Article I, Section 6

“They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

Final Thoughts

There are dozens of proposed amendments out there. All are designed to appeal to certain segments of society. They are written to “sing to the choir” they seek to motivate to seek a constitution convention (by whatever name they choose to denominate it). They know the “hot buttons” of their constituency and know how to play their heartstrings. Some seek term limits or balanced budgets, some seek to eliminate the Second Amendment. Regardless of the purported purpose, if enough “good and caring” citizens can be riled up in support of them, all will ultimately result in a constitution convention, which will be held at great risk to our liberty and God-given rights. The solution is a return to and application of the current Constitution we were bequeath at such great cost.

Hopefully, we will be able to raise up enough Americans who understand the foundation principles, and are willing to stand for them, while recognizing the risks associated with the “solutions” which are being foisted upon them, and we will be able to restore what we have lost, and prevent the entire destruction of this great blessing which is the Charter of the Nation: The United States Constitution!

—Scott N. Bradley

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