The Twenty-Seventh Amendment and Congressional Compensation Part 1: Introduction

The Twenty-Seventh Amendment and Congressional Compensation Part 1: Introduction

Legal Sidebari

The Twenty-Seventh Amendment and
Congressional Compensation Part 1:
Introduction
March 14, 2023
This Legal Sidebar post is the first in a six-part series that discusses the Twenty-Seventh Amendment to
the Constitution, which prevents laws that modify Members of Congress’s compensation from taking
effect until after an intervening congressional election. During the 117th Congress, the Sergeant at Arms
fined three Members of the House of Representatives for entering the House Chamber without wearing
masks during the COVID-19 pandemic. The Members declined to wear masks to protest a House
resolution and policy requiring them to do so. Because the fines were deducted from their salaries without
an intervening House election, the Members challenged the mask policy in federal court as a violation of
the Twenty-Seventh Amendment. In Massie v. Pelosi, a D.C. federal district court judge dismissed the
Members’ complaint, determining that the mask policy was consistent with the Twenty-Seventh
Amendment because the disciplinary fines did not modify the Members’ annual salaries designated in the
Ethics Reform Act of 1989. (In August 2022, a federal judge dismissed a similar challenge to fines for
violating rules on security screening.)
As a result of these federal district court decisions, which have been appealed to the U.S. Court of
Appeals for the D.C. Circuit, Congress may be interested in the history and scope of the most recently
ratified amendment to the Constitution. Additional information on this topic is published in the
Constitution Annotated: Analysis and Interpretation of the U.S. Constitution.
Historical Background
The Twenty-Seventh Amendment prevents laws that modify Members of Congress’s compensation from
taking effect until after an intervening congressional election. The Supreme Court has not decided any
cases interpreting the Twenty-Seventh Amendment. Nonetheless, the unusual circumstances of the
Amendment’s ratification, which occurred more than 200 years after Congress initially proposed it, have
raised important questions about Article V’s process for amending the Constitution.
The Twenty-Seventh Amendment’s history spans more than two centuries from the Colonial Era to the
1990s. Generally, the governments of Great Britain’s American Colonies—and, later, the state
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governments—followed the “ancient” British practice of compensating legislators. Consistent with this
practice, the Constitution’s Framers determined that Members of the proposed bicameral national
legislature would receive compensation for their services. However, at the 1787 Federal Convention, the
Framers debated whether compensation for Members of Congress should be determined by the
Constitution, the Members themselves, or the state legislatures. Ultimately, the Framers determined that
the national government would compensate Members of Congress for their services in amounts set by
congressional legislation.
The original Constitution, which took effect in 1789, did not prevent federal laws that increased or
decreased Members’ compensation from becoming operative before the next congressional election.
Some delegates to the state conventions who met to consider the Constitution’s ratification viewed the
absence of an intervening electoral check on Congress’s power to set its own pay as a flaw in the
Constitution’s design. When ratifying the Constitution, several state conventions recommended
amendments to the nation’s charter to address concerns that Members of Congress would abuse the power
to set their pay.
Early in the First Congress, James Madison, then a Virginia congressman, introduced a series of
resolutions proposing to amend the Constitution. Many of these resolutions drew from the
recommendations of the state ratifying conventions. The third resolution prohibited any “law varying the
compensation” of Members of Congress from becoming operative “before the next ensuing election of
Representatives.” On September 25, 1789, Congress proposed a similarly worded Congressional Pay
Amendment. It was submitted to the states for ratification along with an amendment addressing
congressional apportionment and the ten amendments that became the Bill of Rights upon their
ratification in 1791.
By the end of 1791, six states had ratified the Congressional Pay Amendment. In 1873, the Ohio
legislature ratified the Amendment to protest a congressional pay raise. Thereafter, the Amendment lay
dormant until the late 20th century when it was rediscovered by Gregory D. Watson, then an
undergraduate student at the University of Texas at Austin. Watson wrote a paper for a political science
class arguing that the states could still ratify the Amendment and subsequently urged state legislatures to
adopt it. From the mid-1980s to the early 1990s, more than 30 state legislatures ratified the Amendment,
responding to the American public’s opposition to congressional pay increases. The National Archivist
proclaimed the Twenty-Seventh Amendment to have been ratified on May 7, 1992, more than two
centuries after Congress had initially proposed it.
Click here to continue to Part 2.

Author Information

Brandon J. Murrill

Legislative Attorney

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