The Congressional Compensation Amendment

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

—GianCarlo Canaparo

Introduction

Under the original design of the Constitution, the President’s compensation could not be increased or decreased during his term in office,¹ and compensation for federal judges could not be decreased during their tenure.² However, the Congressional Compensation Clause, also known as the Ascertainment Clause, placed no limits on when Senators and Representatives could give themselves a raise.³ (See Essay No. 30.) During the ratification debates, several states proposed an amendment that would delay the effect of any law changing compensation until after the next election of the House of Representatives. The Twenty-Seventh Amendment was ratified in 1992, and a federal court held shortly thereafter that automatic cost-of-living adjustments did not run afoul of the amendment.

The First Congress

During the ratification debates, the Congressional Compensation Clause proved controversial. Anti-Federalists warned that members of Congress could enrich themselves at the public expense. The Virginia, New York, and North Carolina conventions submitted a proposed amendment that would delay the effect of any law changing compensation until after the next election of the House of Representatives. On June 8, 1789, James Madison proposed it to the First Congress.⁴ Madison endorsed this amendment because it eliminated the risk of self-dealing. With an intervening election, members could not be sure that they would still be in office when their salaries changed. Madison explained that any raises “cannot be for the particular benefit of those who are concerned in determining the value of the service.”⁵

On August 14, 1789, the amendment was briefly debated in the House.⁶ Only two members spoke about the provision. Representative Theodore Sedgwick of Massachusetts said that the amendment would do “little good” because it would not stop “designing men” from lowering their wages to make themselves popular or to exclude poor but worthy challengers.⁷ Representative Jacob Vining of Delaware supported the amendment because he did not like the idea of “leaving it in the breast of any man to set a value upon his own work.”⁸ The Senate did not record any official debates about the amendment and approved it.⁹

Ratifying the Twenty-Seventh Amendment

On September 25, 1789, twelve proposed amendments, including the Congressional Compensation Amendment, were sent to the state legislatures for ratification.¹⁰ By December 1791, the amendments numbered three through twelve were ratified by three-fourths of the state legislatures. These ten amendments became known as the Bill of Rights. But the first two proposed amendments did not receive sufficient support. Eleven states were needed for ratification, but the Congressional Compensation Clause was approved by only six states.¹¹ For most of the next two centuries, it was largely forgotten.

In 1982, Gregory D. Watson, a sophomore at the University of Texas-Austin, wrote a college paper arguing that the states could still ratify the Congressional Compensation Amendment because Congress had not put a time limit on it.¹² By contrast, the Eighteenth, Twentieth, Twenty-First, and Twenty-Second Amendments would be operative only if ratified within seven years after they were submitted to the states. Watson earned a “C” on his paper because his professor believed that the amendment had expired. In response, Watson launched a self-funded mission to secure ratification of the Congressional Compensation Amendment. Thirty-two states were still needed to approve the amendment, as six states had already approved it two centuries earlier.

Watson’s efforts were well-timed. Between 1982 and 1991, Congress raised members’ salaries from approximately $70,000 to $125,000. These frequent salary increases and apparent self-dealing sparked growing public anger,¹³ and the states would soon support the amendment. Colorado, for example, declared that the “present political, social, and economic conditions are the same or even more demanding today than they were when the proposed amendment was submitted for adoption.”¹⁴ States rushed to follow Colorado’s lead. On May 7, 1992, Michigan provided the decisive thirty-eighth state for ratification.

On May 20, 1992, Congress completed the process of formally adopting the Twenty-Seventh amendment.¹⁵ It provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.” Soon, litigation would arise over the meaning of the word “law.”

Judicial Precedent

As the states considered whether to ratify the Congressional Compensation Amendment, there was some debate about whether the process could be resumed after so many years.¹⁶ In Dillon v. Gloss (1921), the U.S. Supreme Court said that “ratification must be within some reasonable time after the proposal.”¹⁷ But this dictum was not controlling, and Congress had not included a time limit in the amendment. Moreover, Coleman v. Miller (1939) held that disputes about ratification procedures and timing belonged to Congress alone.¹⁸

Only five months after the Twenty-Seventh Amendment was ratified, members of Congress challenged the constitutionality of the Ethics Reform Act of 1989. This statute provided Senators and Representatives with automatic annual cost-of-living adjustments. The plaintiffs argued that every annual adjustment was a new “law” for purposes of the amendment.¹⁹ As a result, those raises could take effect only after an intervening election. In Boehner v. Anderson (1992), the district court rejected this argument.²⁰ The court of appeals affirmed.²¹ The panel found that the Ethics Reform Act was a “law” that took effect after an election.²² Therefore, the pay raise complied with the terms of the Twenty-Seventh Amendment.

Open Questions

• Does the word “compensation” in the Congressional Compensation Clause have the same meaning as the word “compensation” in the Twenty-Seventh Amendment? Would an originalist analysis focus on the meaning of the word in 1789 or its meaning in 1992? Was there any linguistic drift between 1789 and 1992?
• The text of the Twenty-Seventh Amendment draws a distinction between a law “varying the compensation” and the law “tak[ing] effect.” At what point does a law vary compensation—when the law is enacted or when it takes effect?²³

1. Art. II, § 1, cl. 7. ↩︎
2. Art. III, § 1. ↩︎
3. Art. I, § 6, cl. 1. ↩︎
4. 1 Annals 451. ↩︎
5. 1 Annals 458. ↩︎
6. 1 Annals 756–57. ↩︎
7. 1 Annals 756. ↩︎
8. 1 Annals 756–57. ↩︎
9. Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 528–29 (1992). ↩︎
10. 1 Annals of Cong. 90–91 (1790). ↩︎
11. Bernstein, supra at 532. ↩︎
12. Id. at 537. ↩︎
13. Id. at 535, 537–38. ↩︎
14. Colorado House Concurrent Resolution No. 1008, 54th Gen. Assembly, 2d Reg. Sess., at 1152 (1984). ↩︎
15. Bernstein, supra at 542. ↩︎
16. GianCarlo Canaparo & Paul J. Larkin, Jr., The Twenty-Seventh Amendment: Meaning and Application, 2021 Harv. J.L. & Pub. Pol’y Per Curiam 1, 3–4 (2021). ↩︎
17. 256 U.S. 368, 375 (1921). ↩︎
18. 307 U.S. 433, 456 (1939). ↩︎
19. 809 F. Supp. 138 (D.D.C. 1992). ↩︎
20. Id. at 139. ↩︎
21. 30 F.3d 156 (D.C. Cir. 1994). ↩︎
22. Id. at 161; Shaffer v. Clinton, 54 F. Supp. 2d 1014 (D. Colo. 1999), aff’d on other grounds sub nom. Schaffer v. Clinton, 240 F.3d 878 (10th Cir. 2001). ↩︎
23. Canaparo & Larkin, supra at 17; Adrian Vermeule, The Constitutional Law of Official Compensation, 102 Colum. L. Rev. 501, 516–21 (2002). ↩︎