Kennedy's was one of three unsuccessful legal challenges in the 1980s and 1990s to the controversial use of unvouchered expenses by the General Assembly to skirt a constitutional prohibition against granting itself a midterm raise.
Pennsylvania courts have held that unvouchered expenses are constitutional, in essence because the General Assembly said they were different from pay and because the plaintiffs were unable to prove otherwise.
But when lawmakers this month began employing the practice after approving a double-digit pay raise in July, many people - constitutional law experts, voters, even some lawmakers - questioned how it could be constitutional.
"It's an expense in name only," said Bruce Ledewitz, a constitutional law professor at Duquesne University. "It's the most blatant violation of the constitution by the men and women sworn to uphold the law."
The case that set the precedent for upholding the use of the vouchers was Consumer Party of Pennsylvania v. Commonwealth in 1986. In it, the state Supreme Court considered several arguments against a 1983 pay raise, among them the constitutionality of the unvouchered expenses, which totaled $5,000 a year for each lawmaker.
Writing for the majority, Chief Justice Robert N.C. Nix did not address the argument that the legislative expenses appeared to be the same as salary. Rather, he said statutory law permitted expense allowances. "As long as the expense allowance fixed is reasonably related to actual expense," he wrote, "the lack of mathematical precision inherent in such a system does not present a problem."
Nix also supported unvouchered expenses - expenses requiring no receipts - as a way to eliminate time-consuming bookkeeping.
There is no other item in legislative accounts known as an "unvouchered expense." Yet, for instance, lawmakers do not have to show receipts when they claim $128 per-diem allowance on days they work in Harrisburg.
Philosophical shift in '80s
David Kairys, a professor at Temple University Law School, said that between the early and mid-1980s the state Supreme Court underwent a philosophical shift that led to the Consumer Party decision.
"It changed its tune on the issues," said Kairys, who in 1981 represented the Consumer Party in a successful effort to invalidate a Philadelphia City Council pay raise. "It went from applying what was strictly a protection of the public to the assumption that anything the legislature does is OK."
But not every judge who heard the Consumer Party case agreed.
Commonwealth Court Judge Francis A. Barry, in his 1984 dissent, wrote: "Since the very real possibility exists that a portion of the $5,000 will not be used to cover actual expenses, it must, therefore, be considered income to the recipient."
The debate over the use of the vouchers centers on Article 8 of state constitution, which states: "No member of either house shall during the term for which he may have been elected receive any increase of salary or mileage under any law passed during such term."
Raises start at 16 percent
The latest legislative pay raise, approved July 7, is supposed to go into effect Dec. 1, 2006, for most lawmakers and on Dec. 1, 2008, for 25 of 50 senators. The raises start at 16 percent for rank-and-file lawmakers.
One hundred fifty-eight lawmakers who accepted the unvouchered expenses began receiving monthly checks equal to the amount of their raises on Aug. 1. Since then, at least 19 lawmakers who accepted the additional money have changed their minds, several of them citing constitutional concerns.
A bill to repeal the unvouchered expense section of the pay raise act has attracted 40 cosponsors and bipartisan support. The bill's primary sponsor, Rep. William Gabig (R., Cumberland), said he plans to introduce the bill on Sept. 13.
Legal experts on both sides of the issue say the 1986 Supreme Court ruling would make it difficult to prevail in any lawsuit filed today.
"If the judges who hear the case apply the previous precedent, it is a clear-cut case: The unvouchered expenses are not unconstitutional," said Drew Crompton, chief counsel for Senate President Pro Tempore Robert Jubelirer (R., Blair), one of nine leaders in the House and Senate who voted for the raise and accepted the expenses.
But Kairys said he thinks the 1986 ruling leaves open the possibility of proving that the monthly expenses are the same as the raise.
"Where is it shown that the calculation of average expenses is exactly equal to the pay raise?" he said. "I don't think the [General Assembly] can do that."
Gene Stilp, a Harrisburg activist who sued the state over unvouchered expenses in 1995, has filed a new lawsuit in Commonwealth Court. This time, Stilp says, he will ask lawmakers for documents needed to prove his case.
"We will show how the money is used now and in the future," Stilp said. "The expenses count toward retirement, and they pay taxes on it. Ask 90 percent of the people, and they will say that it's salary."
Kairys said discovery could be critical in determining how the amount of the expenses was calculated to show that it correlates directly to the pay raise.
Ledewitz is less sanguine about the suit's chances, especially in the lower court.
"The facts won't convince them," he said. "The case doesn't have a chance until it reaches the Supreme Court. The Commonwealth Court is constrained by Consumer Party."
Contact staff writer Amy Worden
at 717-783-2584 or aworden@phillynews.com.
ONLINE EXTRA
To see how area lawmakers voted for the pay increase July 7, go to http://go.philly.com/payraise
