Article I, Section 6 of the U.S. Constitution reads, in pertinent part:
"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[.]"An "emolument" is basically the compensation paid to a public official. Thus, the argument goes, because Clinton voted on budgets that included pay increases for the office of the Secretary of State, she cannot now serve in that office.
CNN ran a little segment on this story, but even their legal analyst, Jeffery Toobin, misses the more fundamental point:
The clause in question applies to Senators and Representatives. If the drafters had intended the clause to apply to former Senators and Representatives, they would have said so. They did not. Consequently, the clause does nothing more than bar a sitting Senator or Representative from moving directly into an appointed office for which they have previously voted a pay increase, and then only during the current term.
There is a line of arguments being made online (here, for example) that the "during the time for which he was elected" means that the ban extends to a Senator or Representative who retires before the expiration of his or her term. The argument then goes, in order for those words to mean something, they have to mean that it extends the ban for the duration of a current-term retirement.
The rules of constitutional/statutory construction do not permit such a simplistic analysis. The goal of interpreting the constitution is to give full effect to the entire clause, without parsing, whenver possible. It is also to not insert what has been omitted, or to omit what has been inserted.
Applying the clause to former members of congress necessarily inserts words that were not included by the drafters. Moreover, the "during the time" clause does not require an expansion of the ban to post-resignation periods. Rather, it recognizes the fact that members of congress are re-elected. Consequently, if during a Senator's first term he or she votes for a pay raise for the Secretary of State, then during the remainder of his or her term that Senator cannot move directly into that office. However, if that Senator is re-elected, then immediately upon the beginning of the new term of office, that Senator can then move into the Secretary of State office, because they have not voted for a pay raise during that term. Thus, the clause can be harmonized without expanding its scope by inserting new words.
Clinton has no emolument problem.
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