Saxbe Fix - Background

Background

In his notes of the Philadelphia Convention in 1787, James Madison expressed the fear that members of Congress would create new federal jobs, or increase the salaries for existing jobs, and then take those jobs for themselves. Madison wrote that corrupt legislative actions, in the form of the unnecessary creation of offices and the increase of salaries for personal benefit, were one of his greatest concerns. The delegates who were present agreed that no member of Congress should be eligible to be appointed to an executive position while serving in Congress. Madison originally proposed a one-year length on such a bar. However, Nathaniel Gorham, James Wilson, and Alexander Hamilton wanted no bar at all at the conclusion of congressional service. Eventually, Madison proposed a compromise: "that no office ought to be open to a member, which may be created or augmented while he is in the legislature"; this led to extensive debate.

The delegates eliminated the prohibition on a member of Congress's assuming holding state office based on the rationale that there might be times when it might be in the best interest of the nation to allow such service. They eliminated the one-year ban because they judged it to be ineffective in protecting the Constitution. Charles Cotesworth Pinckney moved that the states vote and the prohibition carried by vote of 8 states to 3. Robert Yates noted that the clause "which shall have been created, or the Emoluments whereof shall have been increased" was an amendment passed in his absence, and that he did not place much faith in it as he felt unscrupulous politicians would circumvent it by creating new positions for persons who would subsequently place a member of Congress in a vacancy that they and not Congress created. Madison moved that the phrase "or the Emoluments whereof shall have been augmented by the legislature of the United States, during the time they were members thereof, and for one year thereafter." This motion failed 2–8, with one state divided. The clause was limited to "civil" offices so as not to restrict military service. Accordingly, the clause was passed in its current form without an explicit time consideration.

"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; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

Article 1, Section 6, Clause 2 of the United States Constitution

Article 1, Section 6, Clause 2 of the United States Constitution therefore prohibits self-dealing legislation and is intended to protect the "separation of power" of the various branches of government. Corruption such as previously seen in the British Parliament was a consideration during debate by the framers of the Constitution. Legal scholars have accorded this clause little attention in their academic writings and there have been no cases which directly applied the clause, as no plaintiff has been able to establish legal standing. In fact, some general guides to Constitutional research, such as the clause-by-clause The Constitution of the United States: A Guide and Bibliography to Current Scholarly Research, do not discuss the Ineligibility clause. Most scholarly texts on the Constitution ignore the clause. Although the Saxbe fix is named for Nixon nominee William Saxbe, the device's first intentional use predates him by several decades. As a matter of historical tradition, the Saxbe fix is considered sufficient to remove the disqualification of the Ineligibility Clause.