By Kathleen Hunter, CQ Staff

A constitutional provision that has prompted questions from an outside group about Sen. Hillary Rodham Clinton ’s eligibility to become Secretary of State has Senate Democratic leaders scrambling to craft a legislative fix. But the matter is unlikely to slow the New York Democrat’s confirmation.

Precedent exists for Congress to pass a joint resolution sidestepping provisions of the so-called “Emoluments Clause,” which is intended to bar legislators from transferring to Cabinet posts and benefitting from salary increases that they helped secure as members of Congress.

Jim Manley, a spokesman for Senate Majority Leader Harry Reid , D-Nev., said Wednesday that it was still unclear whether the Senate would take up a legislative fix next week, when the chamber is expected to be in session to consider a bailout of the nation’s faltering automobile industry. A more likely scenario, especially because Clinton, D-N.Y. intends to keep her Senate seat until she is confirmed, would be for the Senate to act on the matter next year.

That approach would give lawmakers more time to study precedent. Democrats also would return to Capitol Hill with larger majorities in both chambers, although such a legislative fix most recently passed by unanimous consent.

“This is simply a technical fix we must make so that Senator Clinton can serve as our next Secretary of State,” Manley said, adding that Reid “believes a resolution can be reached.”

But Tom Fitton, president of Judicial Watch, a conservative-leaning watchdog group, said Wednesday that the legislative fixes used in the past do not address to the root of the problem: that the Constitution expressly forbids Clinton’s move to State.

“There are no caveats in the Constitution,” Fitton said.

The group, which touched off a flurry of debate within the blogosphere earlier this week when it issued a press release insisting that Clinton was constitutionally ineligible to serve as Secretary of State, is considering a legal challenge — perhaps by working with a State Department employee to file a lawsuit if Clinton is confirmed — and is working to fan grassroots opposition to Clinton’s appointment.

“Certainly a lawsuit would be something that we would consider,” Fitton said, “But in the meantime, it’s the obligation of senators to make sure that the Constitution is followed.”

Manley pointed out that Congress had addressed similar scenarios in the past “based on the ample precedent that has been set.”

At issue is Article I, Section 6 of the Constitution, which states, “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.”

In the past — most recently when President Bill Clinton appointed Texas Democratic Sen. Lloyd Bentsen as Treasury Secretary in 1993 — Congress has rolled back the salary of a legislator-turned Cabinet member to the level it was at the beginning of the lawmaker’s most recent term. That approach is known as the “Saxbe fix,” for Ohio Republican Sen. William B. Saxbe, nominated by President Richard M. Nixon in 1973 to serve as attorney general.

On Jan. 5, 1993, the Senate passed a resolution cutting the salary that Bentsen would receive as Treasury Secretary from $148,400 to $99,500 to reflect the level of pay that Cabinet members received in 1989, the start of Bentsen’s most recent Senate term.