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What is the legal process for Members of Congress to refuse or donate their salary during a lapse in appropriations?
Executive Summary
Members of Congress cannot legally refuse or permanently forfeit their statutory pay during a lapse in appropriations; federal decisions and Comptroller General guidance hold that congressional compensation is fixed by law and voluntary waiver is ineffective, but members can receive pay and then donate or return it to the Treasury or a qualifying charity after receipt. Legislative proposals and political pledges to withhold pay during shutdowns exist and are politically salient, but face constitutional and statutory obstacles that require either new legislation or a constitutional amendment to change the default legal outcome [1] [2] [3] [4]. This analysis compares official legal rulings, administrative practice, and political responses, and highlights where disputes over process and symbolism persist.
1. Why the Office of Pay Cannot Let Members Just Say “No”: the Legal Fixity of Congressional Compensation
Legal and administrative rulings establish that congressional pay is fixed and cannot simply be waived by the recipient, including during a lapse in appropriations. The Government Accountability Office concluded that members cannot unilaterally refuse or forfeit statutory compensation because voluntary service prohibitions and existing statutory frameworks prevent effective waiver—payment authority is law-based and does not depend on recipient consent [1]. The Constitution’s Article I, Section 6 and subsequent statutes create a permanent or mandatory funding mechanism for congressional salaries, meaning pay continues even if appropriations for other agencies lapse, and administrative guidance treats compensation as payments that must be disbursed unless altered by law [3] [5]. This is the legal baseline: refusal is not a recognized legal substitute for statutory change.
2. The Practical Route: Receive the Check, Then Donate or Return It
Because members cannot legally stop the payroll mechanism, the prevailing practical mechanism is to accept statutory pay and then donate or remit it—commonly to the U.S. Treasury to reduce public debt or to eligible charities—after the fact. GAO and legal analyses note that 31 U.S.C. § 3113 and related practice permit members to contribute received funds to the Treasury or to make charitable donations, and many public examples show lawmakers using donation as a symbolic remedy during shutdowns [1] [2]. Administrative options also include asking payroll offices to delay disbursement until the shutdown ends, but the underlying legal requirement to pay remains. Symbolic impact stems from publicity around donations, not from a change in legal entitlement.
3. Political Promises vs. Constitutional Constraints: Why “No Pay During Shutdown” Is Hard to Achieve
Several members have proposed amendments or bills to prevent pay during shutdowns and some pledge to withhold pay voluntarily, but these proposals bump into constitutional and statutory barriers. A proposed constitutional amendment cosponsored by some representatives would explicitly bar pay during lapses, underscoring that only constitutional change or explicit statutory redesign can alter the default legal rule [4] [6]. Short of amendment, Congress could pass specific implementing statutes, but such legislation itself raises constitutional questions about legislative self-deprivation and timing. Political actors use pay pledges as a public accountability signal, but legal experts stress that symbolism does not equal repeal of the payment mechanism [3] [5].
4. Administrative Workarounds and Their Limits: Payroll Holds and Donations in Practice
In practice, some lawmakers have used administrative workarounds—requesting that the payroll office withhold disbursement or instructing staff to donate paychecks—to avoid the appearance of being paid while other federal employees are furloughed. Media accounts and administrative guidance document instances where checks were delayed or donated, but officials note these are discretionary operational steps rather than changes to entitlement [2] [7]. GAO opinions emphasize that without statutory authority, withholding or refusal risks violating federal statutes against voluntary services and could be administratively reversed. Workarounds change optics, not the legal state.
5. Two Narratives: Accountability Signal vs. Legal Reality and the Stakes for Reform
The debate splits into two narratives: one framing voluntary refusal or no-pay laws as necessary accountability and deterrent to shutdowns, and the other emphasizing constitutional safeguards and the technical impossibility of unilateral waiver without reform. Proponents argue that preventing pay during shutdowns deters brinksmanship; opponents and legal analysts caution that procedural and constitutional hurdles mean reform requires deliberate legislative or constitutional action, not ad hoc pledges [8] [1] [3]. Any long-term change must address statutory payroll frameworks, constitutional clauses on compensation, and administrative mechanics; until then, donation after receipt remains the legally available channel to translate protest into fiscal effect [1] [2].