No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.
On June 8, 1789, James Madison proposed the Congressional Compensation Amendment as one of many that he presented to the House of Representatives that day. After debate, the House of Representatives and the Senate approved the proposed amendment and forwarded it and eleven others to the states. Only six states ratified it, well short of the three-quarters requirement, however, and thus it did not become part of the Bill of Rights. The proposed amendment languished for almost two hundred years before becoming the object of a successful ratification campaign in the 1980s, ultimately resulting in its formal acceptance by Congress as the Twenty-seventh Amendment on May 20, 1992.
At the Constitutional Convention, the Framers heatedly debated the question of whether individual states or the new national government would compensate elected representatives. The Compensation Clause of Article I, Section 6, was the result, providing that the central government would pay the representatives from the federal treasury as established by federal law.
The Anti-Federalists and others at state ratifying conventions found this compensation arrangement deeply worrisome; because members of Congress would enact the very law that set their salaries, there would be no check on Congress’s ability to enrich itself. It was a classic case of the danger of self-dealing corruption. Madison responded to that criticism with the proposed Compensation Amendment, which would prevent representatives from granting themselves a pay raise that would take effect during the term in which they sat. Instead, Congress would be able to pass the pay raise only prospectively and would thereby face the electorate before it could take effect. Madison believed the amendment was necessary because of the “seeming impropriety in leaving any set of men without controul to put their hand into the public coffers, to take out money to put in their pockets.”
Some legal scholars have speculated that the amendment failed at the time it was first proposed because state legislators, to whom the ratification question was presented, might have feared that, once ratified, a similar initiative might be pushed regarding their own compensation. Anti-Federalists who had proposed the idea during the Constitution’s ratification debates were not so troubled, however, easily distinguishing the local legislator from the national. The former, the Anti-Federalist Cornelius wrote, was chosen annually, in small districts, and “sent but a small distance” from his home, whereas the latter was “far removed, and long detained, from the view of their constituents.”
The issue of congressional compensation was the subject of periodic legislation and attendant political maneuvering in succeeding years. Particularly unpopular with the electorate was the notorious “Salary Grab” Act of 1873, which not only granted a pay raise to legislators but also made it retroactive. One of the Ohio General Assembly’s responses to the act was ratification of the dormant Compensation Amendment, thus becoming the seventh state to do so, eighty-four years after Maryland, which was the first state to ratify.
Over a century later, the amendment became the object of a grassroots ratification campaign initiated by a college undergraduate who had authored a term paper on the subject in 1982. Despite widespread doubt about the propriety of actually adopting the long-dormant amendment should it ever be fully ratified, the ratification campaign gathered momentum. On May 7, 1992, Michigan became the thirty-eighth state to ratify the Compensation Amendment, completing the process initiated over two hundred years earlier by the First Congress in 1789.
The unique history of the Compensation Amendment raised initial questions about the validity of its ratification. In Coleman v. Miller (1939), the Supreme Court declared that disputes about ratification procedures and the time within which an amendment could be ratified were political questions assigned to the province of the legislative branch under Article V of the Constitution and, therefore, not subject to adjudication by the federal courts. Coleman seemed to envision some sort of formal congressional review of the constitutional validity of a fully ratified amendment prior to its official addition to the Constitution. Despite initial comments about formal review by rather stunned federal legislators following Michigan’s ratifying vote on May 7, 1992, Congress, sensing the public mood, scheduled no formal hearings on the Compensation Amendment. On May 18, 1992, the National Archivist certified the amendment. Two days later, overwhelming majorities in both chambers of Congress confirmed the Twenty-seventh Amendment. The Office of Legal Counsel of the Department of Justice also issued an opinion declaring that, despite the long passage in time, the ratification of the amendment was valid.
The first challenge arising under the amendment was brought by Representative John Boehner, who claimed that the automatic Cost of Living Adjustments (COLAs) provided to Congress under the Ethics Reform Act of 1989 amounted to an increase in compensation without an intervening election. Assuming that the Twenty-seventh Amendment applied to laws adopted before it was ratified, the Court of Appeals for the District of Columbia Circuit nevertheless rejected the claim, noting that “the COLA provision of the Ethics Reform Act of 1989 is constitutional because it did not cause any adjustment to congressional compensation until after the election of 1990 and the seating of the new Congress.” Boehner v. Anderson (D.C. Cir. 1994).
Another challenge to the COLA provision in federal court centered on the question of standing. Schaffer v. Clinton (2001). Outside of Establishment Clause cases, see Flast v. Cohen (1968), the federal courts almost never recognize a taxpayer’s standing to contest a spending provision of a law. Consequently, the district court denied standing to three of the plaintiffs, who came to the court as taxpayers. However, the district court reached the merits for the remaining plaintiff, Representative Bob Schaffer, whose salary had been increased under the statute (to the detriment, he asserted, of his anti-tax reputation).
On appeal, the Tenth Circuit declined to reach the merits, finding instead that Representative Schaffer also lacked standing, noting that “the standing inquiry must be ‘especially rigorous’” when the dispute involves two branches of government. The circuit court held that the congressman “was not injured for standing purposes simply because he received a higher salary.” If followed by later courts—the Supreme Court denied the petition for a writ of certiorari in the case—the Tenth Circuit’s reasoning would appear to foreclose standing to any plaintiff challenging a statute under the Twenty-seventh Amendment. Ironically, after lying dormant for two hundred years, this amendment may now have been put back to sleep. Nevertheless, it is clear that Congress still has the option of voluntarily abiding by the amendment.
Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-seventh Amendment, 22 Fordham L. Rev. 497 (1992)
Gary Lawson, The Constitution's Congress, 89 B.U. L. Rev. 399 (2009)
Office of Legal Counsel, Department of Justice, Memorandum Opinion: Congressional Pay Amendment, November 2, 1992, at http://www.justice.gov/olc/congress.17.htm
Ronald Rotunda, Running Out of Time: Can the E.R.A. Be Saved?, 64 A.B.A. J. 1507 (1978)
Adrian Vermeule, The Constitutional Law of Official Compensation, 102 Colum. L. rev. 501 (2002)
Coleman v. Miller, 307 U.S. 433 (1939)
Flast v. Cohen, 392 U.S. 83 (1968)
Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994)
Schaffer v. Clinton, 240 F.3d 878 (10th Cir. 2001), cert. denied sub nom. Schaffer v. O'Neill, 122 S.Ct. 458 (2001)