Article I, Section 6: Congressional Pay and Privileges

Article I, Section 1 of the U.S. Constitution establishes Congress as the legislative branch of government. It reads:

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

This clause creates the federal government’s bicameral legislature, made up of two congressional bodies. The Framers developed it to limit the legislative power of the judicial and executive branches. It also limits Congress’s powers to those specified in the Constitution.

Although the Supreme Court has interpreted these enumerated powers expansively, it’s also affirmed that Congress’s power is indeed subject to limitations.

As one of its first orders of business, the Senate worked on the Bill of Rights, and the House of Representatives tackled congressional pay. Despite James Madison’s contention that senator duties warranted higher compensation than that of House members, the Framers ultimately decided otherwise.

An examination of the history behind Article I, Section 6, and associated clauses provides valuable insight into the Framers’ considerations. Likewise, Supreme Court decisions interpreting these Constitutional provisions help to contextualize subsequent legislation.

Article I, Section 6

Article I, Section 6 of the Constitution addresses the rights and limitations (“disabilities”) of members of Congress. Clause 1 covers Congressional pay, privileges, and immunities. Clause 2 restricts members of Congress from holding other federal offices while they serve in the legislature. Together, they read:

“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. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

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 encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

Clause 1 provides that the federal government will compensate Senate and House members according to pay-rate legislation passed by Congress. We discuss these legislative acts in more detail below.

Privilege from Arrest

The privilege-from-arrest language from Clause 1 in Article I, Section 6 is almost entirely outdated. It only applies to civil suit arrests, which were common when the Constitution was ratified. It provides no immunity in criminal cases.

Speech or Debate Clause

Clause 1 of Section 6 ends with the "speech or debate clause." As the Supreme Court explained in U.S. v. Brewster (1972):

“The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators."

Accordingly, this protection extends to legislative activity, including:

• Resolutions

• Committee reports

• Voting

Likewise, it generally covers member activities related to House business while in session.

Development of Congressional Compensation Laws

The Framers initially discussed the idea of the states compensating their own Congressional representatives to loyally represent their interests. However, concerns arose about leaving this to the state legislatures because of the potential for inequality. Ultimately, the Framers determined that Congressional compensation should come from the national treasury to reflect the lawmakers’ service to the entire nation.

Since then, Congress has passed laws setting compensation rates for its members. It passed one such law in 1967. The law created a commission to present salary recommendations for Congress and other top government officials to the president every four years.

In 1975, Congress passed another law bringing Congressional salaries into a distinct commission system. This law allowed the president to propose annual salary increases for members of Congress.

The law sought to ensure that legislators’ pay stayed competitive with private-sector employee compensation. However, some opposed the use of commissions to circumvent the compensation clause requirement that pay be “ascertained by law.”

Congress later passed the Ethics Reform Act of 1989 (2 U.S.C. §4501). The Act established a formula for determining annual cost-of-living adjustments to Congressional salaries and pensions.

It also provided for the adjustments to be made automatically unless Congress declined them. Since the Act was passed, however, Congress has rejected the annual adjustments more frequently than it’s accepted them.

The Twenty-Seventh Amendment

Ratification of the Twenty-Seventh Amendment occurred in 1992. It reads:

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

This meant that salary increases could only go into effect after an intervening election. No Supreme Court precedent on the matter currently exists. However, a federal court of appeals held in 1994 that the Act’s annual cost-of-living adjustments didn’t violate the new amendment.

Other Article I Provisions

Article I sets parameters for Congress to follow and addresses several other topics, including:

• Composition of Congress (Sections 2 and 3): Article I established that the electorate chooses members of the House. The number of House seats per state is based on population. State legislatures, on the other hand, initially chose two people to serve in the Senate. The Seventeenth Amendment later assigned this power to voters in 1912.

• Impeachment (Sections 2 and 3): The Framers divided impeachment powers within Congress. They assigned the House the exclusive power to impeach and the Senate the exclusive power to try impeachments brought by the House.

• Vacancies (Sections 2 and 3): Article I also delineates how congressional vacancies must be filled for the House and Senate.

• Elections (Section 4): The elections clause empowers Congress and state legislatures to determine how to best hold federal elections.

• Proceedings (Section 5): Article I, Section 5 lays out a few rules for legislative proceedings. For example, Congressional bodies have independent adjournment authority. Adjournments in excess of three days, however, require consent from the other Congressional body. A quorum must be present for either Congressional body to conduct business. A two-thirds vote in either house is required to expel a member. If at least one-fifth of those voting on any matter want, yeas and nays on that particular matter will be recorded in the journal of that Congressional body’s proceedings.

• Taxes (Section 8): Congress has broad power to “lay and collect taxes” for the country’s general welfare. However, Congress may not establish capitation or direct taxes unless they're subject to apportionment. In 2012, the Court clarified the meaning of capitation taxes. Quoting a 1796 Supreme Court opinion, Chief Justice Roberts explained that capitation taxes are those "paid by every person, ‘without regard to property, profession, or any other circumstance.'" Direct taxes are real and personal property taxes.