The Passage
The Twenty-Seventh Amendment has a very unique history. During the Philadelphia Constitutional Convention, congressional pay was a significant topic discussed. Benjamin Franklin argued members of Congress should not get paid because representatives would be serving the public for the wrong reasons and engage in selfish activities. However, this argument was not successful because the Framers didn’t want only the wealthy to be able to afford to become members of Congress. However, the Framers did recognize one of the main problems in English democracy, caused by the King appointing powerful members of Parliament to well-paid jobs in his executive branch to buy their loyalty and votes. For that reason, the Framers added the Incompatibility Clause to Article I, Section 6 of the Constitution, which states that “no person holding any office under the United States, shall be a member of either House during his continuance in office.” Regarding the salaries of Congressmen, the Constitution only said that the salaries should be determined by law, which means that Congress would set its own pay. This idea was not supported by the general public and James Madison, himself, because Congress could easily pay its members too much.
In 1789, James Madison proposed twelve amendments to the U.S. Constitution, and the first ten of these were ratified by the states in 1791 and became the Bill of Rights. The states did not approve the other two amendments, one of which concerned congressional pay, and two hundred years later became the Twenty-Seventh Amendment. Madison did not want Congress to determine its own salary without limitation, but he also didn’t want the President to have too much power over Congress by controlling their salaries, so he proposed that an election needed to happen before any pay raise could occur. Therefore, if the public did not agree with a proposed pay raise, they could replace the congressman pushing this change out of Congress when they ran for re-election.
The proposed congressional pay amendment was only initially ratified by six states, but Congress did not attach a time limit within which it needed to be ratified. In 1982, the proposed amendment resurfaced after Gregory Watson, a sophomore at the University of Texas, wrote a paper arguing that the amendment could still be ratified, sending letters around the nation to state legislators. This idea became popular with the general public because, in the 1980s, there was widespread disapproval of the high salaries and many benefits Congress members received, along with their performance. Soon, a campaign was launched to get three-quarters of the states to ratify the amendment, and on May 20, 1992, Congress declared the ratification to be legal and the Twenty-Seventh Amendment to be a part of the Constitution.
Amendment Text
No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.
Interpretation
The Twenty-Seventh Amendment prevents members of Congress from granting themselves pay raises during the current session. Instead, any raises that are instituted must take effect after an election during the next session. The general idea behind the amendment is that members are more likely to be cautious about increasing congressional salaries if they are adopting pay raises for future members of Congress instead of themselves.
Major Court Cases
There have been a few Supreme Court cases involving the Twenty-Seventh Amendment.
Coleman v. Miller, a 1939 Supreme Court Case, held that any proposed amendment for which Congress does not specify a ratification deadline is still pending and can be passed at any time. Therefore, states may continue to consider an amendment no matter how long it has been since it was proposed. This was important for the congressional pay amendment because it wasn’t until 200 years later that three-quarters of the states needed to ratify the amendment did so.
In 1992, in Boehner v. Anderson, the provisions of the Ethics Reform Act were challenged. The Ethics Reform Act gave an immediate salary increase to members of Congress and an annual cost-of-living increase to their salaries and pensions. The Supreme Court ruled that because the cost-of-living increase takes effect after the election of representatives, it does not violate the Twenty-Seventh Amendment.
In 1997, in Operation Rescue Nat’l v. United States, Operation Rescue argued that the statute that grants immunity to Congress members for statements they made on the Senate floor or statements concerning pending legislation is unconstitutional because it gives legislators an immediate benefit in violation of the Twenty-Seventh Amendment. The Supreme Court ruled that legislative immunity is not compensation recognized under the Twenty-Seventh Amendment. The Court stated that official immunity does not exist “simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by ensuring the independence of individual legislators.”
In 2001, in Schaffer v. Clinton, the Colorado District Court held that the Twenty-Seventh Amendment is not violated by automatic pay increases. The court stated that the cost-of-living raises align with the goal of the Twenty-Seventh Amendment because it eliminates the possibility of Congress increasing its pay during the current session. The U.S. Court of Appeals for the 10th Circuit dismissed the appeal, and the case never made it to the Supreme Court.
Controversies
The main controversy surrounding the Twenty-Seventh Amendment is the legality of the ratification process. Despite the fact Congress did not attach a time limit to the ratification of this amendment, some scholars argue that Article V suggests a relatively simultaneous approval of a proposed amendment between when Congress votes on it and when the states ratify it. Others add that the size of the Senate and House of Representatives and the number of states changed drastically between 1789 and 1992. Scholars who reject the Twenty-Seventh Amendment argue there was never a “magic moment” where two-thirds of both Houses of Congress and three-quarters of the states agreed to the amendment. In addition, these scholars say there are several constitutional amendments that Congress has approved but the states have not ratified yet, which could become law if this process is determined to be valid. For example, they question whether the Corwin Amendment, which would have preserved slavery in the states where it was legal in 1861, could be ratified in the future by the states with no new attempt to get Congress to approve it.
Why Care?
Despite the controversy, the Twenty-Seventh Amendment has become a critical part of the U.S. Constitution. This amendment is very important because without it, legislators could increase their pay without limitation, and the public would have no say.
