Twenty-Seventh Amendment - Changes in Pay for Members of Congress

The 27th Amendment prohibits salary changes for members of Congress until after an election of representatives. To put it differently, senators and representatives have the power to increase (or decrease) their own salaries. However, any changes will not come into effect until the next session of Congress.

The Amendment's text is straightforward. However, as one legal scholar wrote, "No provision of the United States Constitution has a more drawn-out, tortured history," than the 27th Amendment.

This article outlines the history, interpretation, and current relevance of the 27th Amendment.

What the Twenty-Seventh Amendment Says

The 27th Amendment, sometimes called the "congressional pay amendment," states the following:

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

What It Means

The 27th Amendment limits changes to Congressional salaries. Congressional pay raises can only occur after the next election of representatives. Congressmembers can't raise their salaries right before getting voted out of office. Any law passed that changes their pay takes effect in the following session.

Historical Background

In 1787, the Framers met in Philadelphia, Pennsylvania, to amend the Articles of Confederation. Throughout the summer, debates and discussions about America's governmental structure occurred. The result was the Constitution of the United States.

The U.S. Constitution established the federal government. Specifically, it created three branches of government:

• The legislative branch (Congress)
• The executive branch (the President)
• The judicial branch (the judiciary)

The Constitution enumerated specific powers to each branch. It also created a separation of powers structure between them. Moreover, it divided power between the federal and state governments ("federalism").

The Framers incorporated multiple aspects of the British Parliament in the design of Congress. For example, many of Congress' procedures come directly from Parliament, and Congress's bicameral structure is similar to Parliament's.

A significant difference between Congress and Parliament was the congressional pay structure. In Britain, constituents paid their representatives wages. This led to candidates running on campaigns promising to take less wages than their rivals. Eventually, some candidates promised their constituents that they would work for free. Other candidates paid out of pocket for improved streets and projects to sway voters. Even after reforms, these practices continued into the mid-1800s.

American colonists generally did not approve of what they believed was a corrupt political system in England. Before the Constitution's ratification, state and local governments paid their representatives' wages. The Framers did not want the vote-buying system of English politics to play a role in American politics.

James Madison, a congressman from Virginia, spearheaded the effort to amend the Constitution. In 1789, he became the first member of Congress to propose amendments.

Three states—Virginia, New York, and North Carolina—demanded the congressional pay amendment. The Framers had already fiercely debated it during the Constitutional Convention. In justifying the amendment, Madison wrote that by requiring Congress to pass a law that would not take effect until after an election, "it cannot be for the particular benefit of those who are concerned in determining the value of the service."

Ratification Process

In 1791, the states ratified 10 amendments in what became known as the Bill of Rights. Indeed, the Bill of Rights is commonly known as the first ten amendments to the U.S. Constitution, but the original proposal included twelve amendments. The states ratified ten of these, which became the Bill of Rights.

Article V of the Constitution governs the amendment and ratification process. The ratification process for constitutional amendments is as follows:

• Congress must propose amendments to the states for ratification. Before Congress can propose an amendment, it must pass a two-thirds majority vote in each chamber (the House of Representatives and the Senate).
• Once Congress proposes an amendment, three-fourths of the states must ratify it.
• Once three-fourths of the states ratify an amendment, the Archivist of the United States certifies it. The amendment then becomes part of the Constitution.

The majority of states only ratified 10 of the 12 proposed amendments. The compensation amendment did not receive the necessary support from the states. By 1791, only six states indicated they would adopt it.

Congressional Pay Increases and Public Resentment

The compensation amendment sat in limbo for over 200 years. In the meantime, as constitutional historian Richard B. Bernstein notes, Congress tried several different compensation methods for representatives and senators, such as:

• In the late 1700s and 1800s, they received a per diem for each day they appeared in Congress and for travel.
• In 1817, Congress changed the compensation from a per diem to a salary (per annum). However, public outrage ensued at the new salaries. Congress repealed its compensation change soon after.
• In 1855, Congress again passed legislation providing members of Congress with a salary. In 1866, Congress approved a two-thirds salary increase.
• In 1873, the 42nd Congress passed a law that came to be known as the "Salary Grab" Act. The Act instituted a retroactive pay raise of $7,500 for members of the 42nd Congress (1871-1873). Public outrage over the pay raise again ensued. In response, Ohio's state legislature passed several resolutions. This included calling for a constitutional amendment to prevent Congress from instituting retroactive pay raises. It also ratified Madison's compensation amendment. Congress ultimately repealed the Act.
• During the Great Depression, Congress twice voted to reduce its salary. Those were the only times that Congress has reduced its pay.
• Congress continued to vote semi-regularly to increase salaries. This marked a shift from part-time to full-time or career politicians. By 1991, U.S. Senators and Representatives made $125,100 per year.

As Congress continued to pass pay raises, public resentment grew. Additionally, members of Congress found inventive ways to ensure their pay continued to increase. These methods included the following:

• It created different types of commissions that would decide whether to increase pay.
• In 1967, it created the Commission on Executive, Legislative, and Judicial Salaries. The Commission would recommend a new salary every four years. It would take effect unless the House or Senate adopted a resolution to block the salary.

This led to further public resentment. Consequently, "the public mood was ripe for a revival of the 1789 compensation amendment."

The Congressional Compensation Amendment's Resurgence

The proposed congressional pay amendment laid dormant for nearly 200 years. But in 1982, an aide to a Texas state senator began a 10-year campaign to revive it.

Gregory Watson was a sophomore at the University of Texas at Austin in 1982. A professor for a government class assigned him to write a paper. While deciding on a topic, Watson learned about the congressional pay amendment. His research concluded that the amendment was still technically pending the states' ratification.

Watson argued that, unlike more recent proposed amendments, the congressional pay amendment did not have a baked-in time limit for ratification. Watson confirmed that six states had ratified in between 1789 and 1791. He also noted that Ohio ratified it after the Salary Grab Act fiasco in 1873.

Although he got a "C" on his paper, Watson began a movement that eventually led to the ratification of the 27th Amendment. He approached state legislators to argue that the states could still ratify the proposed amendment.

In 1983, Colorado ratified the amendment, followed by Maine in 1984. During this time, Watson discovered that Wyoming had quietly ratified the amendment in 1977 but had yet to report it.

More than 200 years after its initial proposal, the states finally ratified the congressional pay amendment. Michigan became the 38th state to ratify the proposed amendment in 1992. Although Michigan's ratification was the final one needed for the amendment to become part of the Constitution, several other states also took action to ratify it after the fact.

The Archivist of the United States, Don W. Wilson, certified that enough states had ratified the amendment. He ruled that the states had ratified the 27th Amendment on May 18, 1992. Congress confirmed Wilson's decision on May 20, 1992.

Post-Ratification Impact

The ratification of the 27th Amendment led to several questions about Article V of the Constitution, such as:

• The status of proposed amendments (e.g., does a proposed amendment "expire" after a certain amount of time passes?)
• State actions regarding ratifying or rejecting proposed amendments

The Supreme Court interpreted some of these issues in Dillon v. Gloss (1921) and Coleman v. Miller (1939).

In Dillon, the Court determined that Congress can create deadlines for ratifying proposed amendments. The case involved a proposed constitutional amendment that later became the 18th Amendment.

Congress set a seven-year deadline for the states to ratify the amendment. Although the states ultimately ratified it within the deadline, the amendment would have expired after seven years had they not. The Court ruled that Congress has the authority to set reasonable deadlines for the ratification of proposed amendments.

In Coleman, the Court concluded that Congress can decide whether states validly ratified a proposed amendment. Therefore, if Congress had rejected the 27th Amendment after the states ratified it, Congress could have prevented it from becoming part of the Constitution. The Court also held that a proposed amendment remains pending before the states unless Congress sets a hard deadline for its ratification.

The ratification of the 27th Amendment and Congress' subsequent confirmation in 1992 confirmed the Court's approach in Coleman.