James Madison proposed the 27th Amendment in 1789, but it didn’t enter the U.S. Constitution until 203 years later when Michigan in 1992 became the 38th state to ratify the proposal. Yet it remains little known — and completely ignored.
The amendment is short and concise. “No law, varying the compensation for the services of senators and representatives,” it reads, “shall take effect, until an election of representatives shall have intervened.”
The purpose is to prevent members of Congress from voting themselves immediate raises. Under the amendment, any legislation that varies the salaries of senators or House members may not become law until representatives face voters, which occurs every two years.
But many of the men and women elected to represent the people in Washington are nothing if not resourceful when it comes to enriching themselves. So for the past 27 years, Congress has paid the 27th Amendment no heed without consequence. And it’s about to do so again.
The Associated Press reported last week that “some senior House lawmakers” are “quietly exploring” whether to accept a raise for the first time since 2009. Here’s the kicker: If they do so, they will boost their pay through a legislative mechanism that doesn’t require a vote and represents a cynical effort to neuter the 27th Amendment.
Back in 1989, when it became clear that the pay raise amendment might eventually be ratified, Congress passed the Ethics Reform Act. It includes automatic “cost-of-living” pay hikes for senators and representatives unless they specifically vote to decline them. Following certification of the amendment, Congress on four or five occasions accepted the raises before “an election” had “intervened,” with members arguing they had not violated the Constitution because they were simply following legislation that was enacted prior to the ratification of the 27th Amendment. This is unconvincing and self-serving sophistry.
In addition, even when Congress votes to keep pay frozen — as it has every year for the past decade — it is acting illegally under the 27th Amendment. As attorney Eric Fish pointed out in 2013 on the lifeofthelaw website, the amendment makes no distinction between pay hikes and pay freezes that take effect before an election intervenes. It applies to any bill that alters congressional salaries.
Instead of the annual political theater over congressional pay, Congress should exhibit a modicum of respect for the 27th Amendment and repeal the compensatory cruise-control provision of the Ethics Reform Act. If Nancy Pelosi and Steny Hoyer feel they deserve a pay increase, let them have the gumption to introduce legislation to that effect, make their case to their constituents and live with the results. The Constitution demands it.