Salary clause threatens Clinton's new job

Could Hillary Clinton's move to the state department be unconstitutional?

The US constitution forbids sitting members of Congress from being named to any government post "the emoluments whereof shall have been increased during his term" – and, unfortunately for Mrs Clinton, the secretary of state's salary has increased during her time as senator for New York.

The provision in the constitution, known as the emoluments clause, was originally framed to rein in corruption – by stopping congressmen from giving themselves sinecures – and has complicated appointments in the past.

Harry Reid, Senate majority leader, plans to introduce legislation to reduce Mrs Clinton's prospective salary. This manoeuvre was pioneered by President Richard Nixon in nominating senator William Saxbe to be attorney general.

But the conservative group Judicial Watch remains far from convinced that such a "fix" is legitimate. "The Saxbe fix may reduce the salary of secretary of state to previous levels but it does not affect what is a clear constitutional prohibition," says the group, which has often dogged Mrs Clinton. "It cannot change the fact that the salary had been increased while senator Clinton served in Congress."

Paul Orfanedes, Judicial Watch's head of litigation, admits the group would find it difficult to establish legal standing to bring the case to court but holds out the hope it could take action on behalf of someone more directly affected, such as a state department employee.

"It's clear that without the fix she can't be eligible," says Bruce Fein, a former justice department lawyer who was involved in the original Saxbe fix. But he dismissed any suggestion that once the legislation was passed, a court would find Mrs Clinton ineligible. "That would be a wooden reading of the constitution," he said. "The so-called fix fits the purpose of the clause like a glove."

Mr Reid's office notes that the then senator Lloyd Bentsen faced a similar problem in 1993 after being named Treasury secretary by President Bill Clinton.

"This is a Harvard Law graduate nominating a Yale Law graduate here, so all parties involved have been cognisant of this issue from the outset," says Philippe Reines, Mrs Clinton's spokesman, referring to the educational pedigrees of president-elect Barack Obama and of Mrs Clinton herself.

"But, putting frivolous lawsuits by fringe groups aside, this issue has been resolved many times over the past century, involving both Democratic and Republican appointments, and we're confident it will be here too."

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