Twenty-seventh Amendment

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

The Twenty–seventh Amendment places a control on Congress’s power to raise the wages of its own members. As the legislative body of the United States, Congress does make the laws which set the salaries of senators and representatives. To prevent Congress from misusing this power, the Twenty–seventh Amendment states that any law that Congress passes to raise the pay of members of Congress will only become law after the next election of the House of Representatives.

This delay gives citizens a chance to vote for or against the representatives who passed the congressional pay raise, before those representatives can benefit from the raise. Members of the House of Representatives serve a two-year term, so an election of representatives will occur relatively soon after any pay raise is passed into law. Members of the Senate serve for six years, so senators do sometimes benefit from pay raises that were passed during their term. However, there are only one hundred senators, two from each state, while there are 435 representatives in the House. Therefore, the majority of members of Congress will be held responsible in an election before they can benefit from any pay raise that is passed during their term of office.

The Twenty–seventh Amendment is unique among the constitutional amendments, because the ratification process took 203 years to complete. When the Twenty–seventh Amendment was first proposed in 1789, by Virginia statesman James Madison, it was meant to be the Second Amendment. However, it did not gain enough support at that time for ratification. Over the next two centuries only two other states ratified the amendment; a campaign in the 1980s led to ratification by thirty-two more states, and the amendment finally became law.

Ratification Facts

Proposed:

Submitted by Congress to the states on September 25, 1789.

Ratification:

Ratified by the required three-fourths of states (thirty–eight of fifty) on May 7, 1992. Declared to be part of the Constitution on May 19, 1992.

Ratifying States:

Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; Delaware, January 28, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791; Ohio, May 6, 1873; Wyoming, March 6, 1978; Maine, April 27, 1983; Colorado, April 22, 1984; South Dakota, February 21, 1985; New Hampshire, March 7, 1985; Arizona, April 3, 1985; Tennessee, May 23, 1985; Oklahoma, July 10, 1985; New Mexico, February 14, 1986; Indiana, February 24, 1986; Utah, February 25, 1986; Arkansas, March 6, 1987; Montana, March 17, 1987; Connecticut, May 13, 1987; Wisconsin, July 15, 1987; Georgia, February 2, 1988; West Virginia, March 10, 1988; Louisiana, July 7, 1988; Iowa, February 9, 1989; Idaho, March 23, 1989; Nevada, April 26, 1989; Alaska, May 6, 1989; Oregon, May 19, 1989; Minnesota, May 22, 1989; Texas, May 25, 1989; Kansas, April 5, 1990; Florida, May 31, 1990; North Dakota, March 25, 1991; Alabama, May 5, 1992; Missouri, May 5, 1992; Michigan, May 7, 1992; New Jersey, May 7, 1992.

The Question of Paying Congress

The subject of who should pay representatives to the national legislature was the topic of long debate at the 1787 Constitutional Convention in Philadelphia. Anti-Federalists at the convention favored strong state governments where most of the political power rested with the states. Some anti-Federalist delegates, such as Oliver Ellsworth of Connecticut and Hugh Williamson of North Carolina, proposed that state governments should pay their own national representatives, and the individual state legislatures could then decide how much to pay their own members of congress.

The Federalists, who favored a strong central government, argued against this idea. Led by such backers of strong federal power as Virginians James Madison and George Mason, the Federalists insisted that having the separate states pay their own representatives would be a bad idea. First, it would make the representatives almost completely independent of the federal government, and that would weaken the central structure of the country. Also, wealthy states would be able to pay their Congresspeople much more than smaller, poorer states, and this discrepancy would create an unfair imbalance among the members of Congress.

During the Continental Congresses (First Continental Congress, 1774-76; Second Continental Congress, 1778–79), individual colonies had paid their own representatives. Since the colonial treasuries had often been unstable, the result had been that many delegates had been paid irregularly or not at all. Madison made this point, saying that if legislators were not paid regularly and fairly well then many people might not be interested in the job. Only those who could afford to accept low salaries would run for Congress. Elbridge Gerry, a delegate from Massachusetts, said, “It would seem to be a maxim of democracy to starve the public servants,” according to Constitutional Amendments: 1789 to the Present.

Furthermore, if Congressmen were to be paid by the federal government, who would decide how much they would be paid? Many delegates felt it would be dangerous to allow members of Congress to set their own salaries; it would be too easy for them to pay themselves too much. Madison’s suggestion was that the wages should be set by comparing them to some standard cost, like the price of wheat. Other delegates, such as Gouverneur Morris of Pennsylvania, felt that the members of Congress could be trusted to make the laws that set their rate of pay.

After lengthy debate, the delegates finally hammered out the language of Article 1, Section 6, Clause 1, the Compensation Clause of the United States Constitution: “The Senators and Representatives shall receive a Compensation for their services, to be ascertained by Law, and paid out by the Treasury of the United States.” The first salary set by Congress in 1789 for representatives and senators was six dollars per day.

James Madison (1751–1836)

Born into a family of wealthy plantation owners in Port Conway, Virginia, James Madison was a sickly child who developed a lifelong love of books and learning. In his youth he learned to read Greek, Latin, and Spanish as well as English, and, in 1771, he graduated from the College of New Jersey (later Princeton University) after studying philosophy and theology. Madison was also a scholar of government and politics, and his knowledge in these areas made him an important figure in the early history of the United States. In 1776, Madison was elected to the Virginia Constitutional Convention, where he helped create the government of that state. In 1780, he became the youngest member of the Continental Congress in Philadelphia, where he served from 1780 to 1783 and in 1787. From 1784 to 1786 he served as a representative in the Virginia state legislature.

A set of rules called the Articles of Confederation had been drawn up in 1776 (and ratified in 1781) to help the new states unite into a nation, but these articles provided the federal government with so little power that they made governing difficult. James Madison joined New York lawyer and politician Alexander Hamilton to call for a convention to frame a new constitution, one with a more powerful central government. The result was the Constitutional Convention, which met in Philadelphia in 1787.

James Madison contributed so much of his knowledge and leadership in the formation of the Constitution that he is often called the “Father” or “Master Builder” of the Constitution. After the Constitution was written, Madison, along with Hamilton and another New York lawyer and statesman, John Jay, wrote dozens of letters to newspapers under the name “Publius” to try to convince Americans to ratify the new government. After the Constitution was ratified in 1789, Madison wrote a list of twelve amendments to the new Constitution. These were presented to Congress and ten were eventually ratified and made into law as the Bill of Rights.

Madison continued to serve the new government as a representative to Congress from the state of Virginia from 1789 to 1797. In 1801 he went to work for the executive branch of the government as secretary of state for his close friend and fellow Virginian, Thomas Jefferson. Madison served as secretary of state under Jefferson for two terms, then, in 1808 was himself elected to be the fourth president of the United States.

Madison was more skillful as a political scholar than as a leader and his presidency is best remembered for the mistakes he made that led to the War of 1812, sometimes called the “Second War of Independence.” Madison, determined to stop British attacks on American ships at sea, placed an embargo on the British. This action prevented British ships from entering U.S. ports or selling their goods in the United States. The British fought back, and war was declared. The young United States was not prepared for war, and the war was not a popular one. Business owners, angry because the war was costing them money, called it “Mr. Madison’s War.” The worst point for the United States came in 1814, when the British overran Washington, D.C., and burned the White House, forcing the Madisons to flee to Virginia. However, the war ended shortly thereafter, with many compromises on both sides, and Madison’s popularity as a president increased as the country became more prosperous, partly as a result of new trading arrangements with Britain that came out of the war.

After his second term as president, Madison retired from public life to his estate in Montpelier, Virginia. He was much respected by the citizens of his time as one of those who helped create the new nation. Madison was a productive writer and nine volumes of his papers and writings were collected by Gaillard Hunt in 1900 and published as The Writings of James Madison, His Public Papers and His Private Correspondence.

The Long History of “Madison’s Amendment”

Shortly after the Constitution was ratified in 1789, James Madison proposed a list of amendments to the new document. The second of these amendments, intended to place a limit on Congress’ ability to set its own salaries, read, “No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” Madison included this amendment because a variety of citizens, mostly in letters to newspapers, had raised fears that Congress had too much power by being able to set their own salaries.

By 1791, when the first ten amendments to the new Constitution (commonly called the Bill of Rights) were ratified, only six states had approved the amendment about changes in congressional salaries: Maryland, North Carolina, South Carolina, Delaware, Vermont, and Virginia.

“Madison’s Amendment,” as it came to be called, disappeared from public view for many years. Though the amendment contained no time limit for ratification in its wording, most people believed that the amendment had failed. However, the subject of how much Congress paid its own members continued to arouse both interest and suspicion among citizens, and, occasionally, both politicians and voters remembered James Madison’s amendment.

Paying Congress in the Nineteenth Century.

The next major change in congressional salaries occurred in 1817, when Congress voted not only to raise salaries, but to change its payment method from a daily sum (“per diem”) to a yearly salary. Many citizens were against this change, and the public outcry caused Congress to repeal the new salary law. During the next election, angry voters rejected many of the Congressmen who had voted for the increase, and Congress did not attempt another salary change for forty years.

In 1855, Congress did switch to a yearly salary, and in 1866 salaries were raised by sixty–six percent. There was little opposition to those moves, and only seven years later, in 1873, Congress passed a law raising its salaries once more. Enraged citizens called the 1873 law the “Salary Grab Act,” and it not only raised congressional wages by another fifty percent per year, but also made the raise retroactive to 1872, which meant that Congress would receive the higher pay for the previous year of their service as well. Voter opposition to the higher salary was so great that many members of Congress returned their raises.

In 1873, in response to the Salary Grab Act, the state of Ohio retrieved and ratified Madison’s congressional salary amendment. There was considerable interest in such an amendment, and other amendments were proposed to limit Congress’s powers to raise its pay, but the issue was eventually dropped again. These actions did influence Congress, however, and in 1874 it repealed the 1873 increase and did not attempt to raise wages again for another thirty years.

Developments in the 1900s.

Congress did not receive the fifty percent wage increase it passed in 1873 until 1907, when legislators voted to raise their salaries to $7,500 per year. Another increase, passed in the 1920s, brought salaries to $10,000 per year in 1925. However, the economic hardship of the Great Depression in the 1930s caused Congress to make an unexpected move—to lower congressional salaries. By 1933, salaries of legislators were back down to $8,500 per year.

Salaries of Congresspeople did not continue to go down, however, and the legislature developed methods for avoiding public disapproval as it went about the business of raising its members’ pay. Congress set up first the Commission of Judicial and Congressional Salaries in 1953 and then the President’s Commission of Executive, Legislative, and Judicial Salaries in 1967. The purpose of these boards was to recommend salary raises for government officials. In this way it could appear to voters that an independent commission was responsible for raising legislative salaries, preventing voters from becoming too angry with Congress.

In 1978, however, another congressional pay raise caught the attention of the state legislators of Wyoming. Once more, they looked to Madison’s forgotten amendment to solve the problem. Because the amendment contained no time limit on its ratification, the Wyoming legislature, like the Ohio legislature before it, insisted that it was still a valid amendment. In order to send a message to the United States Congress that unreasonable pay raises would not be tolerated, the Wyoming legislature voted in 1978 to ratify the amendment, becoming the eighth state to do so.

A Very Effective Term Paper.

What happened next is a clear example of how an individual can cause change in a democratic political system. In 1982, Gregory Watson, a thirty-year-old student at the University of Texas at Austin, wrote a paper for his government class. As his subject, he chose Madison’s forgotten amendment. Watson, an aide to a Texas state senator, argued that the amendment raised an issue that was still important and that since there was no time limit placed on its ratification, Madison’s amendment could (and should) still be passed into law.

Watson’s professor did not agree with his argument and gave him a “C” on his term paper. However, a low grade did not stop Watson from pursuing his interest in the amendment about congressional pay raises. He began a campaign to revive Madison’s amendment and make it the Twenty–seventh Amendment to the Constitution. To do this, he wrote letters and called representatives in state legislatures around the country, encouraging them to begin the process to ratify the amendment in their state.

Watson’s efforts paid off. In 1983, Maine voted to ratify the new amendment, joined in 1984 by Colorado. Other states followed quickly, and, by 1992, forty states had approved the Twenty–seventh Amendment, two more than the thirty–eight required for ratification.

An Atmosphere of Mistrust

While Gregory Watson’s political work on behalf of the Twenty–seventh Amendment is an inspiring example of citizen activism, his work alone does not account for the quick passage of a 203-year-old amendment. Another important factor was a general lack of confidence in the ethical values of Congress. In the late 1980s and early 1990s many citizens no longer trusted members of Congress to act fairly and honestly. According to Ruth Ann Strickland in her article in the December 1993 issue of PS: Political Science & Politics, a Gallup poll reported that in 1989 only thirty-two percent of American citizens trusted Congress. By the 1991 Gallup poll, that number had gone down to eighteen percent!

This mistrust was partly due to a series of scandals in Congress that had become public in the 1980s and 1990s. News reports had revealed behavior on the part of senators and representatives that appeared to the public to be abuses of power and privilege. For example, members of Congress had access to free postage for large mailings to voters in their districts, and many abused this privilege to send out frequent mailings to advance their own careers. Unlike average citizens, members of Congress were not charged a fee for writing checks when they did not have the money in the bank account to cover the check, and many members of Congress abused this privilege by writing many checks they knew would not be covered. Large retirement pensions, free health insurance, free parking, even free haircuts in the congressional barber shop, all became topics of angry comment.

Adding to this atmosphere of mistrust, Congress proposed a large raise in pay for its members in 1989. This fifty–one percent increase would have raised annual congressional salaries from $89,000 to $135,000. Many citizens were outraged, pointing out that the original salary of $89,000 put members of Congress among the wealthiest one percent of U.S. wage earners. Concerned activists such as Connecticut lawyer Ralph Nader led the protest, forming groups like the Congressional Accountability Project, Citizens Against Government Waste, the National Taxpayers’ Union, and Citizens for a Sound Economy, to fight what they saw as congressional abuses of power. These groups, along with the general attitude revealed by the Gallup polls, caused Congress to lower their proposed raise in salary. However, by 1991, members of the House of Representatives were earning $125,000, and members of the Senate were earning $101,900. These substantial raises, which Congress gave to itself, helped ease the ratification of the Twenty–seventh Amendment. Voters were eager to support a law that would place some controls on Congress’ ability to raise its members’ salaries.

Ralph Nader (1934–)

Ralph Nader was born and raised in Winstead, Connecticut, the son of Lebanese immigrants. He graduated from Princeton University in 1955 and got his law degree from Harvard in 1958. While he was in law school, Nader studied lawsuits that arose from automobile injuries, and he became interested in unsafe automobile designs. After working as a lawyer in Connecticut, he moved to Washington, D.C., in 1963 and got a job with the U.S. Department of Labor. In 1965, he published his first famous book, Unsafe at Any Speed, an investigation of the U.S. automobile industry. In Unsafe at Any Speed, Nader showed how automobile manufacturers themselves were responsible for many auto accidents because they did not have high enough safety standards and did not spend enough of their profits on research for making cars safer.

This marked the beginning of Ralph Nader’s long career in consumer protection. Consumer protection means making sure that businesses treat their customers fairly and provide goods and services that are safe and reliable. Nader’s research about automobile safety led directly to the passage in 1966 of the National Traffic and Motor Vehicle Safety Act, which gave the government the power to set safety standards for all vehicles sold in the United States. He then turned his attention to other consumer issues. Working with a team of committed lawyers, who soon came to be called “Nader’s Raiders,” Nader published dozens of studies, calling for government regulation of a wide range of consumer products and services. These included baby food, insecticide, mercury poisoning, banking and many more.

The work of Nader and his associates led to the creation of many concerned consumer groups, including Public Citizen, Commercial Alert, the Center for Auto Safety, the National Insurance Consumer Organization and the Health Research Organization. Most of these groups work the same way Nader did when he published Unsafe at Any Speed: first investigating to find the facts and publishing reports about them; then bringing lawsuits against those who use unfair or unsafe practices; and finally putting pressure on members of Congress to make laws against those practices.

Along with working to protect the rights of consumers, Ralph Nader has also worked hard to protect the rights of citizens. Through such groups as Congress Watch, the Center for Responsive Law, and the Congressional Accountability Project, Nader has encouraged citizens to educate themselves about political issues and participate in government.

Nader ran for president of the United States in 1996 and again in 2000 and 2004. Nader did not really expect to become president, but he ran because he felt there was little real difference between the Democratic and Republican parties. Nader felt that by voting for him, citizens could express their dissatisfaction with the two major parties. Nader received 700,000 votes in 1996, even though he only campaigned a fraction as much as the two major candidates, Democrat Bill Clinton and Republican Robert Dole. Nader’s candidacy in the extraordinarily close 2000 election, according to many analysts, was an even more significant factor than it had been in the preceding election. In the 1996 and 2000 elections, Nader ran as a member of the Green Party. In 2004, he ran as an independent.

Some people do not approve of Nader’s work for the rights of consumers, and others do not agree with his politics, but most do agree that Ralph Nader is honest and sincere in his commitment to social justice and fair business practices. Though Life magazine named him one of the 100 most influential people of the twentieth century, Nader has not adopted a celebrity lifestyle and is almost as famous for his simple life as for his political work. He continues to live in a tiny apartment in the town where he grew up and does not own a car or use a computer. Still, Nader believes that the work of one simple man can have a big effect. “Every major movement for social justice in this country,” he says, “started with a handful of people,” according to Mother Jones writer Ken Silverstein.

A Twenty-Seventh Amendment Challenge

The Twenty-seventh Amendment is more than a bizarre constitutional curiosity. It is more than a supreme example of citizen participation. It has been used as an argument to invalidate congressional legislation. In 1999, four individuals (U.S. Congressman Bob Schaffer from Colorado; Missouri state senator Walt Mueller; U.S. taxpayer John Stoeffler; and Gregory D. Watson himself, the national coordinator of the Political Movement to Ratify the 27th Amendment) challenged the Cost of Living Adjustment (COLA) provision of the Ethics Reform Act of 1989.

The COLA provision provides for automatic annual cost of living adjustments for many government officials, including members of the U.S. Congress and federal judges. Schaffer, Watson, and the other plaintiffs contended that these annual adjustments violated the Twenty-seventh Amendment. A federal district court rejected their arguments, ruling that the COLAs were not independent laws passed by Congress. The district court reasoned:

Adjustments to congressional salaries under the Ethics Reform Act are not discretionary acts of Congress. The adjustments are calculations performed by non-legislative administrative staff, following a specific formula provided by Congress in the Act. Members of Congress do not participate in the calculation of pay increases. In removing members of Congress from the pay adjustment process, the Ethics Reform Act accomplishes the goal of the Founding Fathers manifested in the Twenty-seventh Amendment. The Act eliminates the possibility that Congress will grant itself a new pay raise during its current session.

On appeal, the 10th U.S. Circuit Court of Appeals affirmed the district court but did not comment on the merits of the case. Instead, the 10th Circuit ruled in Schaffer v. Clinton (2001) that Congressman Schaeffer did not have legal standing to bring the case. The appeals court reasoned that if the congressman thinks he has been injured by the law, “he can remit the portion of his pay he believes is unconstitutional to the Treasury.”

Schaeffer appealed to the U.S. Supreme Court, which declined to hear the case in October 2001.

Do Proposed Amendments Live Forever?

It is not uncommon for amendments to the Constitution to be proposed without including a time limit. In fact, in 1921, J. J. Dillon challenged his arrest for importing liquor by stating that the Eighteenth Amendment, which made importing liquor illegal, was not a valid amendment. It was not valid, Dillon argued, because it did include a time limit on its ratification, and the Constitution did not authorize time limits. Dillon did not win his case. The Supreme Court ruled that Congress had the right to place a time limit on an amendment.

Still, lawyers, politicians, and legal scholars have continued to argue about the Twenty–seventh Amendment. Did those who wrote the Constitution really intend for an amendment to remain open to ratification for hundreds of years? Many members of Congress felt that the amendment was too old and should not have continued to be valid. Most members of Congress were unwilling to speak out against an amendment controlling Congress’s ability to raise salaries, however, because it was a very popular amendment among voters. Voters might see opposition to the amendment as simply the legislators’ desire for more money.

Dick Howard, constitutional law professor of the University of Virginia, and Norman Ornstein of the American Enterprise Institute, have argued that the amendment was not “timely.” That is, the first six ratifications were so old that they no longer reflect what the people in those states think now. Others, including Hamilton Fish, congressional representative of New York in 1993, said that the fact that so many states ratified the amendment in the 1980s proved that the amendment is still a timely one. In fact, Laurence Tribe, a law professor at Harvard University, argued that the Twenty–seventh Amendment’s long history makes it even more legitimate, because voters across two centuries have agreed that it is an important law.

FOR MORE INFORMATION

Books

Kyvig, David E. Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995. Lawrence: University of Press of Kansas, 1996.

Palmer, Kris E., ed. Constitutional Amendments, 1789 to the Present. Farmington Hills, MI: Thomson Gale, 2000.

Periodicals

Denning, Brandon P., and John R. Vile. “Necromancing the Equal Rights Amendment.” Constitutional Commentary 17 (2000).

Hanlon, Michael C. “The Need for a General Time Limit on Ratification of Proposed Constitutional Amendments.” Journal of Law and Politics 16 (2000).

Paulsen, Michael Stokes. “A General Theory of Article V: The Constitutional Lessons of the Twenty-seventh Amendment.” 103 Yale Law Journal 677 (1993).

Sifry, Micah L. “Public Citizen No.1.” The Nation (December 20, 1999).

Silverstein, Ken. “Candidate Nader—He May Be the Most Intensely Private Man Ever to Seek Public Office. What Makes Ralph Run?” Mother Jones (July 2000).

Strickland, Ruth Ann. “The Twenty–seventh Amendment and Constitutional Change by Stealth.” PS: Political Science & Politics 26 (December 1993).

Web Sites

Dean, John. “The Telling Tale of the Twenty-Seventh Amendment: A Sleeping Amendment Concerning Congressional Compensation Is Later Revived,” Findlaw Writ, September 27, 2002. (accessed September 15, 2007).