The Congressional Compensation Clause

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.

—GianCarlo Canaparo

Introduction

The Constitution limits Congress’s ability to modify the compensation received by the President and federal judges. The President’s compensation cannot be increased or decreased during his term in office,¹ and compensation for federal judges cannot be decreased during their tenure.² (See Essay Nos. 99 and 122.) But Article I imposes no limits on how much Senators and Representatives can pay themselves. The Congressional Compensation Clause, also known as the Ascertainment Clause, ensures that the federal government, not the states, provides the salaries for members of Congress.

This proposal represented a break from the Articles of Confederation. Under that system of government, the states would pay their own delegates’ compensation. Justice Joseph Story observed that paying members for their services had the benefit of “removing a virtual disqualification, that of poverty, from that large class of men, who, though favoured by nature, might not be favoured by fortune.”³ Otherwise, poor members of Congress might “be compelled by their necessities, or tempted by their wants, to yield up their independence, and perhaps their integrity, to the allurements of the corrupt, or the opulent.”⁴

In modern times, Congress has empowered an outside commission and the executive branch to set congressional salaries. This regime may be vulnerable to a challenge brought under the Congressional Compensation Clause and the nondelegation doctrine.

History Before 1787

During the colonial era, members of certain legislatures were required to own property and to pay election expenses.⁵ Moreover, they did not receive any wages from Parliament but instead were paid by the relatively poorer and occasionally cash-strapped colonial governments.⁶ This made it difficult for men without wealth to win their seats. Wealthy candidates promised voters that they would take no wages or would even personally pay for local improvements like roads.⁷ Colonial governments widely perceived these practices as corrupt.⁸

After independence, states took different approaches to property requirements. Some had significant requirements, others had small ones, and a few had none at all.⁹ The states also paid the compensation for their delegates to the First Continental Congress, a practice that would continue in the Articles of Confederation Congress.¹⁰ This power gave states leverage over their delegates. States could threaten to withhold members’ salaries if they did not vote the way the states wanted them to vote. States also could recall any delegate for any reason.¹¹

The Constitutional Convention

During the Constitutional Convention, there was some debate about whether the states or the national government should pay the compensation for members of Congress. Piece Butler of South Carolina argued that the states should pay. Senators, in particular, would “be so long out of their respective States, that they will lose sight of their Constituents unless dependent on them for support.”¹² However, James Madison of Virginia contended that members would have “an improper dependence” if their states paid.¹³ Alexander Hamilton of New York likewise reasoned that “[t]hose who pay are masters of those who are paid.”¹⁴ Edmund Randolph of Virginia added that the whole nation had an interest in members’ services and therefore that the whole nation should pay them.¹⁵ Randolph warned that allowing the states to pay would “vitiate the whole System.”¹⁶

Exactly how members should be paid was also a subject of debate. Madison identified a conflict of interest if members of Congress could set their own salaries. He said it would be “indecent to put their hands into the public purse for the sake of their own pockets.”¹⁷ Madison suggested that the Constitution fix the amount of compensation to some benchmark, like the price of wheat.¹⁸ (He made the same proposal for judicial salaries.) Hamilton worried that pegging compensation to a commodity would produce “inconsistency.”¹⁹ Gouverneur Morris of Pennsylvania argued that Congress should have discretion to set its own members’ pay. He saw “no reason to fear that they would overpay themselves.”²⁰ Roger Sherman of Connecticut was concerned about underpayment. He echoed concerns from the colonial legislatures: “men ever so fit could not serve unless they were at the same time rich.”²¹

On August 14, by a vote of nine states to two, the Convention decided that Congress should set the compensation.²² The compensation would have to be “ascertained by law,” that is, set by statute. A single house could not set the salaries for its own members. Rather, the House and Senate would have to agree to a compensation rate, and the President would have to sign that bill into law. In this regard, there is some check on Congress’s ability to increase or decrease its members’ compensation.

Ratification Debates

During the ratification debates, the Congres-sional Compensation Clause became a lightning rod for criticism. Anti-Federalists argued that the clause proved that the Constitution weakened the states and gave the federal government unrestrained power.²³ Even Edmund Randolph derided Congress’s discretion to set salaries as “obnoxious.”²⁴ Patrick Henry of Virginia railed against the clause during the Virginia ratifying convention, arguing that it would not stop members from enriching themselves at public expense.²⁵ James Madison responded that the people would never tolerate that behavior from their representatives.²⁶

When the Virginia convention voted to ratify the Constitution, it submitted a proposed amendment that would delay the effect of any law changing compensation until after the next election of the House of Representatives.²⁷ Similar proposals were submitted by the New York and North Carolina conventions.²⁸ In the First Congress, on June 7, 1789, Representative Madison would include this proposal in a list of proposed amendments.²⁹ It provided that “no law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” Ten amendments would be ratified by 1791, but the congressional pay amendment would not be ratified until 1992 when it became the Twenty-Seventh Amendment. (See Essay No. 216.)

The Federal Salary Act

From 1789 until 1967, Congress set the salaries of its members directly.³⁰ Congress would enact specific legislation that set specific rates of pay. The Executive had no formal role in the process apart from signing or vetoing the legislation.

That practice would be changed by the Federal Salary Act of 1967, which was amended in 1985.³¹ Under this statute, every four years, a commission is established that includes members appointed by the President, the Chief Justice, the Speaker of the House, and the President of the Senate. The commission reviews compensation of different federal officials and recommends changes in congressional salaries to the President. The President, in turn, transmits his recommendations to Congress. Then, if Congress takes no action within 30 days, the President’s recommendations are printed in the Statutes at Large. The only way to block those changes during the 30-day window is for both houses of Congress to enact a joint resolution disapproving the recommendation. Alternatively, Congress can enact a statute setting compensation at a different rate.

In 1987, six members of Congress challenged the constitutionality of the Federal Salary Act, claiming that the statute violated the Congressional Compensation Clause and the nondelegation doctrine.³² In Humphrey v. Baker, the D.C. Circuit Court of Appeals rejected the Congressional Compensation Clause claim. The panel would not read the clause “inflexibly so as to require Congress to establish specific figures in specific legislation.”³³ Congress could set members’ salaries however it wanted to set them as long as its chosen method was “ascertained by law.”³⁴ The court rejected the non-delegation claim because “[r]ecent delegations as broad (or broader) than the one at issue here have survived delegation doctrine attack.”³⁵ The Supreme Court of the United States denied certiorari in Humphrey.

Cost-of-Living Adjustments

The Cost-of-Living Adjustment Act of 1975 provided for automatic cost-of-living adjustments for members’ salaries.³⁶ A member of Congress challenged this statute, arguing that it violates the Congressional Compensation Clause. In Pressler v. Simon, the D.C. District Court held that the Clause permitted any “rational procedures” for setting salaries.³⁷ The Supreme Court affirmed the decision in a per curiam order without any written opinion.³⁸ Then-Justice William Rehnquist wrote a concurrence cautioning that the unexplained affirmance did not signal that the Court agreed with the lower court’s analysis of the constitutional claim.³⁹

Open Questions

• Do the Federal Salary Act and the Cost-of-Living Adjustment Act violate the Congressional Compensation Clause?
• Do the Federal Salary Act and the Cost-of-Living Adjustment Act violate the non-delegation doctrine?⁴⁰
• Humphrey v. Baker (1988) and Pressler v. Blumenthal (1978) predate the Twenty-Seventh Amendment. Does the Twenty-Seventh Amendment have the effect of prohibiting Congress from delegating its power to set members’ compensation to any other body?⁴¹ Are Humphrey and Pressler still good law?

1. Art. II, § 1, cl. 7. ↩︎
2. Art. III, § 1. ↩︎
3. 1 Story’s Commentaries § 854. ↩︎
4. Id. ↩︎
5. Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 500–01 (1992) (citing 1 Edward Porritt & Annie G. Porritt, The Unreformed House of Commons: Parliamentary Representation Before 1832, at 155–66 (1909)). ↩︎
6. Id. ↩︎
7. Id. ↩︎
8. Id. at 501–02. ↩︎
9. Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions 90 (1980). ↩︎
10. Bernstein, supra at 501–02. ↩︎
11. Articles of Confederation, art. V, § 1. ↩︎
12. 2 Farrand’s 290. ↩︎
13. 1 Farrand’s 215–16. ↩︎
14. Id. at 373. ↩︎
15. Id. at 372; 1 Story’s Commentaries § 854. ↩︎
16. 1 Farrand’s 372. ↩︎
17. Id. at 374. ↩︎
18. Id. at 216. ↩︎
19. Id. at 373. ↩︎
20. 2 Farrand’s 290. ↩︎
21. Id. at 291. ↩︎
22. Id. at 292–93. ↩︎
23. Storing 4.10.1–.22; id. at 4.14.1–.10; id. at 3.14.1–.23. ↩︎
24. Id. at 2.5.41. ↩︎
25. 3 Farrand’s 313, App. A, CCX. ↩︎
26. Id. at 314. ↩︎
27. Contexts of the Bill of Rights 137 (Stephen L. Schechter & Richard B. Bernstein eds., 1990). ↩︎
28. Id. at 119 (New York), 143 (North Carolina). ↩︎
29. Creating the Bill of Rights: The Documentary Record from the First Federal Congress 11–14 (Helen E. Veit et al. eds., 1991). ↩︎
30. Humphrey v. Baker, 848 F.2d 211, 212 (D.C. Cir. 1988). ↩︎
31. Pub. L. 90-206, Title II, § 225(a) (1967). ↩︎
32. Humphrey, 848 F.2d at 213. ↩︎
33. Id. at 215. ↩︎
34. Id. ↩︎
35. Id. at 217. ↩︎
36. 2 U.S.C. § 4501. ↩︎
37. Pressler v. Simon, 428 F. Supp. 302, 305–06. (D.D.C. 1976). ↩︎
38. Pressler v. Blumenthal, 434 U.S. 1028 (1978). ↩︎
39. Id. (Rehnquist, J., concurring). ↩︎
40. Gundy v. United States, 588 U.S. 128, 149 (2019) (Gorsuch, J., dissenting); Paul v. United States, 140 S. Ct. 342 (2019) (statement of Kavanaugh, J.). ↩︎
41. GianCarlo Canaparo & Paul J. Larkin, Jr., The Twenty-Seventh Amendment: Meaning and Application, 2021 Harv. J.L. & Pub. Pol’y Per Curiam 10, 15–16 (2021). ↩︎