WHILE Americans are unwrapping their Christmas presents, Congress will be contemplating its next gift from the taxpayers - a $4,144 pay raise on Jan. 1.
Despite protests from a few congressmen, pay for the nation's 535 senators and representatives will climb next month to $133,644, up 3.2 percent.
"We are outraged," says Jack Gargan, founder of THRO Inc. (Throw the Hypocritical Rascals Out), a watchdog group. He calls lawmakers "cowardly" for taking the automatic cost-of-living raise without first voting for it.
Federal Judge Stanley Sporkin, who recently ruled the pay increase was legal, praised the higher salaries. He declared:
"It clearly could not have been the concept of our Founding Fathers to provide government `on the cheap.' "
Public anger over pay raises was a big issue in the November elections. Congressional salaries have escalated 49 percent since 1989. But David Keating, executive vice president of the National Taxpayers Union, says chances of blocking the higher salaries are "pretty small."
Next month's pay raise takes effect as the federal budget deficit careens toward an all-time record of $341 billion.
The raise also comes as the nation recovers from a severe economic slowdown. Incomes of the typical American household have fallen to $30,126, a decline of $1,077 in one year, according to the most recent (1991) figures from the United States Census Bureau.
"Congressmen are supposed to be representative of the people, but their pay is not at all representative," Mr. Keating says. Two-pronged attack
Critics of the pay hike have not given up. They will attack the raise on two fronts.
Rep. John Boehner (R) of Ohio, along with 19 of his colleagues, will appeal Judge Sporkin's decision.
At the same time, Rep. Porter Goss (R) of Florida and others will quickly introduce legislation in the new Congress to rescind the January raise. In a statement, Mr. Goss observed:
"I am certain that the chances of success on this issue are far greater in the [newly-elected] 103rd Congress than the 102nd."
The court appeal will rest primarily on "the Madison Amendment," the recently adopted 27th Amendment to the United States Constitution.
Drafted in 1789 by James Madison, the amendment says: "No law, varying the compensation for the services of the senators and representatives, shall take effect until an election of Representatives shall have intervened."
The newest pay raise takes place under a 1989 law known among its critics as "the midnight pay raise." It provides Congress with annual cost-of-living increases.
Critics say the automatic nature of the law violates Madison, since no vote is required. But Sporkin disagreed. He ruled that the requirements of Madison are met because two elections have taken place since 1989.
"If we want good government, we must pay for it," the judge said. As for the critics of higher pay, he said:
"Predictably, the demagogues ... came to the fore, ignoring the salutary purposes of the  legislation and accusing the members who voted for it of raiding the treasury.
"To the contrary, this nation's elected representatives are by and large hard-working, diligent, and highly intelligent," Sporkin said. "They do not live `high off the hog' and many have difficulty in balancing their personal budgets because they have to maintain two residences."
Sporkin's comments quickly drew fire.
"I am sitting here seething," Mr. Gargan says. "That is precisely why this country needs an incredible shake-up, and that includes the judiciary," he says.
Gargan blasts Sporkin's implication that the Founding Fathers wanted government service to include fat pay checks.
The founder of THRO observes: "Our Founding Fathers put their own lives and fortunes at risk for the welfare of the nation. Today's congressmen risk the welfare of the nation for their own personal fortunes." Court decision blasted
Keating says: "I think it [Sporkin's decision] sounds like a fine case of judicial activism, with the ends justifying the means, and not much thought about why this [amendment] was drafted the way it was."
William Orr, executive director of the American Constitutional Law Foundation, sees a tough, but winnable, fight ahead against the pay raise.
In the next round of judicial action, Mr. Orr expects help from some of the states, such as Georgia, which recently ratified the Madison Amendment.
Meanwhile, Orr points to one irony of Madison. Once Congress's pay rises on Jan. 1, Congress cannot cut it without an intervening election.
Madison works both ways, slowing the process for both pay raises and pay cuts.