June 24, 2011 – Amendment XXVII of the United States Constitution – Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute
No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.
Congress is required by Article I, section 6 of the Constitution to determine its own pay. Prior to 1969, Congress did so by enacting stand-alone legislation. From 1789 through 1968, Congress raised its pay 22 times using this procedure. Initially members were paid per diem. The first annual salaries, in 1815, were $1,500. By 1968, pay had risen to $30,000. Since 1969 two other methods may also be used to increase the pay of members: automatic annual adjustments and a commission process. By 2009, the annual salary of Congressmen and Senators had risen to $174,000. So, even allowing for inflation, Congress has not demurred in paying itself well. The issue of constitutional constraints over the effecting of pay increases, therefore, is no minor matter.
The Twenty-seventh Amendment prohibits any law that changes – increasing or decreasing – the salary of members of the United States Congress from taking effect until the next two-year term of office for the Representatives. This allows members of Congress to reflect on potential voter rage before dipping into the pockets of their taxpayer-electors. It is the most recent amendment to the United States Constitution, ratified in 1992, just shy of 203 years after its initial submission in 1789.
The long history behind the Twenty-seventh Amendment is curious and unprecedented. Its origins lie in very early suggestions from two founding states. During the 1788 North Carolina and Virginia Conventions – called to consider the original Constitution that emerged from Philadelphia – wordings almost identical to those ratified in 1992 were requested of Congress.
Representative James Madison presented this proposed amendment to the House of Representatives in 1789. It became the second of the twelve Constitutional amendments originally submitted by the 1st United States Congress for ratification by the states on September 25, 1789. The last 10 of these would be ratified as the so-called Bill of Rights by December 15, 1791.
The proposed compensation amendment did not fare well in the hands of the states. Between 1789 and 1791, it was ratified by the legislatures of only six states – Delaware, Maryland, North Carolina, South Carolina, Vermont and Virginia – out of the ten states then required by the Constitution. As more states entered into the union, so the ratification threshold slowly increased under the three-quarters rule. The proposed amendment was then largely ignored for the better part of a century.
Ohio was the only additional state to approve the amendment over that time-period, when its General Assembly voted in favor in 1873. This ratification vote was a method of protesting the so-called Salary Grab Act of that year, providing not only for a substantial Congressional pay raise, but making that pay raise retroactive. Almost another century would then pass until the proposed amendment was ratified by Wyoming in 1978, once again as a protest against another outrageous Congressional pay increase. The numbers required for ratification, however, remained painfully short of those required.
Young students following this invaluable educational program should be interested to note that the issue was brought to the attention of the public once again by a person very like you. In 1982, Gregory Watson, a twenty-year-old undergraduate at the University of Texas at Austin, wrote a term paper arguing the case for ratifying the amendment. For this contribution, Watson received a ‘C’ grade from his professor. Note that a ‘C’ grade in 1982, prior to the grade inflation that would follow, was an entirely respectable, though not a spectacular, evaluation.
Undeterred by this modest grade, Watson embarked on a one-man campaign for the amendment’s ratification. From his home in Austin, he wrote letters to state legislators across the country, typing each one out separately on an electric typewriter. Fortuitously his missives arrived on the desks of elected representatives, many of whom were confronting voter rage about their own budget-busting pay increases. As symbolic gestures, primarily to immunize themselves from such voter alienation, state legislatures began to ratify the amendment, rationally calculating that the requisite threshold of thirty-eight states would never be achieved.
Their expectations turned out to be misplaced. The tally of ratifying states began to rise. Maine signed off first (1983), followed by Colorado (1984). Then the ratifications began to flood, as the dam burst its banks. Five states followed in 1985, three more in 1986, four more in 1987, three more in 1988, seven in 1989, and two in 1990. Now the amendment was close, and the numbers slowed, as ratification became a real possibility. North Dakota slipped across the line in 1991, apparently as the 35th state to ratify. Under the close scrutiny of a watchful public, Alabama and Missouri surrendered on May 5, 1992. Michigan broke the log-jam two days later, apparently providing the crucial 38th vote.
It would later be discovered that the Kentucky General Assembly had actually ratified all twelve amendments during that state’s initial month of statehood, making Missouri the 38th state to ratify. The official record of the federal government, nevertheless, still recognizes Michigan as the 38th state to ratify.
Because the Twenty-seventh amendment had taken more than 202 years to ratify, a few self-seeking members of Congress challenged its validity. Under the U.S. Supreme Court’s landmark decision in Coleman v. Miller, 307 U.S. 433 (1939), any proposed amendment that has been submitted to the states for ratification and that does not specify a ratification deadline may be ratified by the states at any time. In Coleman, the Supreme Court further ruled that the ratification of a constitutional amendment is political in nature. It cannot be assigned to the judiciary for oversight.
On May 18, 1992, the Twenty-seventh amendment was officially certified by Archivist of the United States, Don W. Wilson. On May 19, 1992, it was printed in the Federal Register, together with the certificate of ratification. In so doing, the Archivist had acted under statutory authority granted to his office by the Congress under Title 1, section 106b of the United States Code.
Immediately, Tom Foley (Democrat), Speaker of the House of Representatives, called for a legal challenge and Senator Robert Byrd (Democrat) of West Virginia scolded Wilson for certifying the amendment without waiting for Congress to scrutinize its validity. The Archivist held his ground and on May 20, 1992, under the authority recognized in Coleman, and in keeping with the precedent first established regarding ratification of the Fourteenth Amendment, each house of the 102nd Congress passed a version of a concurrent resolution agreeing that the amendment was validly ratified despite the 202 years that it had taken. Interestingly, the two versions of the resolution were never reconciled by the entire Congress.
From the perspective of public choice, difficulties in ratifying the Twenty-seventh amendment are understandable. The Federalists recognized from the outset the existence of a fundamental problem that over-shadows any constitutional or compound republic: who guards the guardians? It is an evident fact of life that $100 bills are rarely left lying on the sidewalk. If the representatives of the people can vote moneys into their own pockets without penalty, the expectation is that they will gladly so do.
What is true for the federal goose is equally true for the state gander. So state politicians, called upon to constrain their federal counterparts, unless hard-pressed by their own voters, will not willingly put a money-bags constraint around necks that quickly might metamorphose into their own. The more highly remunerated a state’s legislators are, the less likely they are to vote the federal ratification into law. Massachusetts, New York and Pennsylvania have not ratified the Twenty-seventh amendment. We do not need to strain our little grey cells to understand why this is so!
Even with the Twenty-seventh amendment in place, politicians find wiggle room around it in the form of annual cost-of-living adjustments (COLAs). COLAs have been upheld against legal challenges based on the Twenty-seventh amendment. In Boehner v Anderson 30 F.3d 156 (D.C. Cir, 1994) the United States Court of Appeals for the District of Columbia Circuit ruled that the Twenty-seventh amendment does not impact on annual COLAs. In Schaffer v. Clinton 240 F.3d.876 (10th Cir. 2001) the United States Court of Appeals for the Tenth Circuit ruled that receiving such a COLA does not grant members of Congress standing in federal court to challenge that COLA. The Supreme Court refused to grant certiorari in either case, and so has never ruled on those legal precedents.
Why should it not surprise us that the federal courts are turning a blind eye to Congressional maneuvers around the Twenty-seventh amendment? Once again, public choice saves us from straining those little grey cells. Federal salaries are related directly to Congressional salaries, by Congressional legislation. It is a rare judge or justice who is prepared to challenge a maneuver that puts money directly into his or her own pocket.
The Founders strove mightily to protect the People from the potential predations of their own representatives. Ultimately, however, only the People can protect themselves by exercising eternal vigilance at the ballot box over the behavior of the agents that they dispatch to and from Washington.
It is surely appropriate that those who guard the guardians should be the People in whose interest the Founders crafted such a beautiful Constitution, designed to protect their lives, liberties, and properties, and to allow them to engage in the pursuit of happiness as they individually define that glorious goal.
Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). All books are available at www.amazon.com. See also www.thelockeinstitute.org and www.charlesrowley.wordpress.com.