with whether or not he had been taking advantage of the revenues that he had used up to that time?

Mr. TINSLEY. No, we would not.

Mr. HAMPTON. I think, Tom, does he not have the deposit, plus interest?

Mr. TINSLEY. Yes, but the variation in the interest rate-in fact, right now, many times, deposit and redeposit, individuals will put that money into investments, even savings accounts, because the interest rate that they would receive is higher than what the interest rate is on what they have to pay back to us.

Mr. WHITE. What interest rate do you pay?

Mr. TINSLEY. I believe right now it is 3 percent.

Mr. WHITE. Is that 3 percent compounded or is it a straight 3 percent?

Mr. TINSLEY. The interest is computed at the rate of 4 percent a year to December 31, 1947, and 3 percent a year thereafter compounded annually.

Mr. WHITE. You have said that this bill should be changed to cover only those who are going to be appointed to the Federal bench from this point on.

Mr. HAMPTON. That is correct, sir.

Mr. WHITE. And your principal basis for this is that you are concerned about the constitutionality of altering the emoluments to a sitting judge under the Constitution. Am I correct on that?

Mr. HAMPTON. Well, our concern there is that, because of an erroneous interpretation of the law, that they were denied the benefit to which they were entitled.

Mr. WHITE. Or to which the law assigned them.

Mr. HAMPTON. It was an oversight. It was a straight oversight; and that, in order to see that the law was properly carried out, we do not feel that we could retroactively deny them something to which they were legally entitled. And that is why we say that all judges appointed after enactment know full well what the law of the land is, and from that day forward would have no claim on any equity to an annuity at the time they were sitting.

Mr. WHITE. You have stated that the law, as misinterpreted, applied only to those who were in civil service, but not Congressmen. In other words, what you are saying actually is that the misinterpretation is as to civil service employees who go into the Federal bench, but not as to Congressmen. It does not treat Congressmen in the same manner as the civil service employees.

Mr. HAMPTON. That is correct, because the law was specific only on the entitlement to members, and it was an oversight that it did not include civil service employees.

Mr. WHITE. So you are saying now that a former Member of Congress who ascends to the bench is prohibited from drawing his annuity while he is on the active bench?

Mr. HAMPTON. That is correct, sir.

Mr. WHITE. We had some judges before us at the last hearing. One of them said that he has made his application for annuity while sitting on the active bench so as not to preclude himself in the event that this law should change the provision. So actually, then, he would be precluded in any event?

Mr. HAMPTON. He would be precluded from drawing an annuity while he is serving actively since his annuity was for service as a Congressman.

Mr. WHITE. So you are saying, prospectively, as to civil service employees who go to the bench, that they would be able to draw their annuity while they are on the active bench?

Mr. HAMPTON. That is correct.

Mr. WHITE. But as to former Congressmen who go on the bench, they would not, under the law, be able to get the annuity.

Would you then think we should change the law to provide that former Members of Congress be able to draw their annuities while they are on the active bench in order to make them equal to civil service employees, or should we just leave the law alone?

Mr. HAMPTON. Well, I really had not thought that through, Mr. Chairman. There is no entitlement that they had because of the specific provisions of the law, and the only reason that the others would be treated differently is because of the oversight. I am sure that there is an oversight.

Mr. WHITE. Well, the thing is, we have the option of doing nothing regarding that, or doing something regarding that. And if we do nothing, do you have any word that somewhere down the line there would be a new interpretation? And, questioning their treatment. should we in this bill treat active judges who were former Congressmen, or should we leave that subject alone, is the question I have.

Mr. HAMPTON. I would say that we ought to leave it alone, because it was in the law, and it would provide a benefit which when they took their oath of office as a judge, that they knew that they were not entitled to.

Mr. WHITE. How many judges are on the Federal bench who were former civil service employees, with vested retirement rights, and how many former Congressmen are on the bench?

Mr. HAMPTON. We say there are at least 90 individuals who are serving in this group of roughly 660. At least 90 of those individuals, from what records we have been able to check, have 5 years of prior civil service that they can possibly claim. We are not absolutely sure on that, because there is no way to get that information.

Mr. WHITE. But do you have the number of former Congressmen who are on the Federal bench?

Mr. TINSLEY. Yes. We believe between 10 and 12.

Mr. WHITE. Ten and twelve?

Mr. TINSLEY. Yes.

Mr. WHITE. Congressmen have not done too well, have they?
Mr. TINSLEY. Not lately.

Mr. WHITE. How many judes have lost their annuity benefits by taking their moneys from the retirement fund?

Mr. TINSLEY. That is in the testimony; about 70, I believe.

Mr. WHITE. Do you have any cost on this particular program under what you are suggesting in terms of refunds?

Mr. TINSLEY. It is extremely difficult in this situation, because of the way it evolved over the years, Mr. Chairman, to come up with an accurate cost at the moment, and actually being able to identify these and getting into them. We do know in these four cases we mentioned the amount of the lump sum payout is going to be in excess of $200,000

with continuing monthly payments-oh, in one case, I think it is well over $1,000 a month-and then it will range up from there. It is extremely difficult at this point in time for us to estimate.

Mr. WHITE. Well, in your estimate, you are going to have to include the lump sums.

Mr. TINSLEY. That is right.

Mr. HAMPTON. I do not believe this creates any additional unfunded liabilities, or any situation where you can amortize it, because the people who did not withdraw their funds would be considered in the course of a normal cost. I think any additional cost would have been, for those who are entitled to it if you passed the law, for us to receive from them the redeposit. I think that would be about the only possible

way.

Mr. TINSLEY. Yes. The unfunded cost here would be extremely low, if any existed at all.

Mr. WHITE. We are talking about 160 cases, actually.

Mr. TINSLEY. At the most.

Mr. WHITE. Thank you very much.

I will now yield to Mr. Taylor.

Mr. TAYLOR. Thank you, Mr. Chairman.

Chairman Hampton, I want to take this opportunity to express my appreciation for your being here and for your cooperation with this committee at all times, particularly Mr. Tinsley, who has been very helpful to us during the past year in trying to hammer out legislation. We have had a lot of it.

As I understand it, if we leave this law as it is, and do nothing, a former Member of Congress who is on the bench, who retired as a Member of Congress, under the present law would not receive his annuity. Would he or would he not?

Mr. HAMPTON. He would not receive an annuity while he is actively serving on the bench, but he would receive his entitlement when he retires.

Mr. TAYLOR. Then he would receive both entitlements, from the judiciary as well as his congressional retirement, upon his retirement from the bench?

Mr. HAMPTON. Yes.

Mr. TAYLOR. We had four judges in here the other day testifying before the committee. One of them, Judge Bennett, who was a former Member of Congress with 8 years of service, is presently receiving his annuity as well as his judicial pay. However, he did not, as I understand, retire as a Member of Congress. He retired from some other position that he held. But he does receive credit for his congressional service with his annuity. Is that true?

Mr. HAMPTON. Yes, sir.

Mr. TAYLOR. Then he would not be precluded because he did not retire as a Member of Congress, even though he is receiving credit for his congressional service?

Mr. HAMPTON. That is correct.

Mr. TAYLOR. So he would be in a different situation than one who had retired as a Member of Congress, who would have been suspended while they were serving on the bench?

Mr. HAMPTON. That is right.

Mr. TAYLOR. How many of these judges-is it four of them that actually took their money back?

Mr. TINSLEY. No. There are over 70, I believe, who have taken their money back. These four judges we are speaking of did not take their money out of the fund. They filed a claim for retirement at the time they became eligible. I believe that the first one who filed was Judge Oliver Gasch, and this issue as to whether or not these sitting judges were entitled to annuities by virtue of prior Federal service in the executive branch has been one of long standing. In fact, the issue concerning the treatment of the judiciary, the justices and the judges, under the Retirement Act has been a matter of some controversy going back almost 30 years.

At one point in time, following certain amendments to the Retirement Act, the Commission's position was that these Federal judges were covered under the Retirement Act. That is what first raised an issue. The judges immediately took the position through the Judicial Conference that they were not, and directed the Administrative Office of the U.S. courts not to withhold anything from the judges' salaries. This then led to the question under the constitutional issue as to whether or not you could withhold anything from the salary of a judge.

So, this has evolved over a long period of time, Mr. Taylor. And the issues, while they have been developed and more refined over the years, have always been there so far as the Federal judiciary is concerned.

Mr. TAYLOR. As I understand it, if the committee recommends that we legislate, that they can go ahead and draw their retirement even though they are on the bench-in other words, change the law as it now stands they could go ahead and do it. But prospectively, in the future, if a Member of Congress desires to go on the bench, that he be told, "If you do go on the bench, you will not receive your annuity until you retire from the bench." Is this it?

Mr. HAMPTON. That is correct. If you, for instance, took no position on this law, we would be paying anyone with an entitlement to a civil service annuity both his retirement pay and he would receive his judicial pay while on active service. That is, if you took no action on this law, that is what we would have to do. Then you would have this disparity of treatment between those who were Members and those who were civil service annuitants.

Now, if this law is passed, it would give us the authority to withhold an annuity while a judge was on active service. But he would get that entitlement, he would get his annuity, after he retired.

Mr. TAYLOR. What about the present judges? What would their status be; the judge who says, "I have paid mine; it is vested. I have become eligible because of age to draw my congressional retirement."—and he is presently on the bench? Would he qualify?

Mr. HAMPTON. He would continue-those who are presently sitting as judges today would continue to draw whatever annuity they were entitled to, plus their judicial salary.

Mr. TINSLEY. Perhaps I might be able to help, I think, clarify the point that Mr. Taylor is making. I have two judges sitting. One happens to be a former Member of Congress, and one happens to be a former employee in the executive branch of the Government. Both of

them reach retirement age under the conditions provided in the law while they are active, sitting judges.

Under the law as it is written today, we would pay annuity to the one whose annuity is based on his executive branch service while he is sitting. We would not pay the judge whose annuity is based on his Member's service, because the law contains a specific provision, and has had in there for some years, that says that a former Member of Congress who serves in an appointive or an elective position cannot receive an annuity and the salary of that position; that the annuity must be suspended during that period of service, and then resumed at the end of that period of service in the same amount as it was prior to that period of service.

So, a Member sitting actively as a judge, even though he might otherwise be entitled, could not today receive an annuity.

Mr. TAYLOR. I see. Then he does not have the same status as the other Federal employees?

Mr. TINSLEY. Not at the present time. Judge Thornberry, who was here before, the committee and Judge Harris are both in that position. Their annuity is based on former Member's service. There is no way we can pay them that annuity under existing law for the period that they have been serving as active judges.

Mr. TAYLOR. But in fairness, to assume that they would-one may assume the position of judge, in fairness to them-that they probably should be paid their annuity, but future ones should not, and should be so advised at the time that they-ascend, I believe, is the word the chairman used-to the bench.

Mr. TINSLEY. That, I believe, is the Commission's position. The difference here is, Members of Congress, when they were appointed to the bench, and former Members of Congress when they were appointed to the bench, were aware of the provision in the law that was going to preclude them from drawing an annuity if they were an active member of the judiciary at the time they became eligible for retirement. The members of the executive branch that moved into the judiciary were in a somewhat different position in terms of the law.

Mr. TAYLOR. Well, now, when Judge Thornberry-I use this only as an example-was appointed as a Federal judge, he had no reason to believe, nor did the others in his circumstances, that he would receive his congressional annuity as long as he was an active, salarydrawing member of the judiciary.

Mr. TINSLEY. No, he knew he would not receive it, because the law was clear on that point.

Mr. TAYLOR. Thank you, Mr. Chairman.

Mr. WHITE. When the Commission reinstates the annuity payment upon retirement of the judge, are such payments reinstated in the same amount, or are the intervening cost-of-living increases added to those payments? I should add, too, that when a judge is paid on a lump-sum basis on his past annuities that have accrued, does he also get the advantage of the cost-of-living increases as they have progressed?

Mr. TINSLEY. In terms of the Members whose annuities are suspended, they are reinstated in exactly the same amount as that at the time of suspension. They do not receive the benefit of any intervening cost-of-living increase. In the case of the judges who we are now going back and paying benefits in some instances-10 years in one