Vis Lupi Est Grex

Senatorial Compensation Act is unconstitutional without student vote

In 2008, ASUN voters approved a ballot measure to grant to the Senate the authority to set senator compensation at a maximum of a $500 grant per semester in addition to the equivalent to the cost of 14 undergraduate credit hours per year (in 2008, that equated to almost $2,700 at the maximum). ASUN Public Law 75-42. See also Senate Report on the bill here. That question passed by the requisite majority. See election results certificate here. The Senate never acted on this authority.

Tonight the Senate considered a bill to implement the authority the voters granted back in 2008. There's just one problem: this might not be constitutional.

The ASUN Constitution states "The elected members of this government shall receive a compensation to be set by law. Any increase in compensation will take effect after the next intervening general election, which shall be subject to approval by a majority vote of the students voting in the election on that question." ASUN Const. article I, section 1(e). Broken into its component parts, in order:

1. Compensation set by law. The Senate passes a law.
2. Any increase cannot take effect until a general election intervenes. This means members of one Senate cannot raise its compensation knowing if they had been reelected. This is designed to limit corruption.
3. The voters must approve the law in the general election for it to take effect.

The problem is the law passed back in 2008 didn't actually set anything; it merely asked for authority for the Senate to do it later. This is a problem because nothing is set for the voters to pass judgment on. Furthermore, many years could pass between the time the authority was granted and the authority is acted upon, effectively depriving the voters of their review power.

Now, to be fair, the provision at issue in the Constitution is subject to several reasonable interpretations; indeed, at the time I supported the view the Senate is now acting on, that it is permissible to ask for the authority now and act on it later. But I now believe my reasoning then was flawed, and perhaps clouded by my proximity to the senatorial pay issue.

What if the Senate asked for the authority to set compensation at a maximum that, in its judgment, was reasonable? This is at the core of why what the Senate did in 2008 is not permissible. Nothing was set. The only difference in the two situations is in the one the Senate asked for authority bound by an upper cap and in the other there is no cap, but in neither case is anything set, fixed, determinate.

The phrase "set by law" as used in the Constitution implies a determinate figure, not some indeterminate permission to "set by law" the actual compensation in the future, so long as the voters agree. Should this bill pass, which is a poor judgment call after University President Glick told the senators tonight the University is facing budget cuts that will set the campus back at least a decade, it should be challenged in the Judicial Council and held invalid.