Understanding the Twenty-Seventh Amendment

The Twenty-Seventh Amendment to the U.S. Constitution has a curious history. It was part of the earliest discussion in the 1780s of what should be fixed in that document, but it wasn’t actually enacted until 1992. And now some of our current Congress, in the same week that body had one of its televised readings of (most of) the Constitution, is moving to violate the amendment.

The Twenty-Seventh Amendment is quite simple:

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

In other words, Congressmen couldn’t vote to change their own pay; they could change pay only for the people whom voters approved in the next election. James Madison drafted those words in 1789, the second of nineteen amendments he proposed and the second of twelve that the whole Congress approved and sent to the states for ratification.

(Incidentally, that shows the fallacy of arguing that Madison and his colleagues saw the First Amendment or Second Amendment as so important that they put them at the top of the list. They listed the amendments to match the order of the constitutional articles they amended. New rules about administering Congress came first, then limits on what laws that legislature could pass, and so on.)

Within a few months, enough states had ratified ten of the first Congress’s twelve amendments that they became part of the Constitution. (Some states skipped the vote after it seemed unnecessary.) But only seven states ratified the Twenty-Seventh, and nobody even seems to have noticed Kentucky’s vote. Ohio approved the amendment in 1873, Wyoming in 1978, and then a concerted push in the 1980s amassed the required supermajority of states.

By that time members of Congress were already cannily delaying pay increases until after the next election or linking them to the cost of living, thus making the Twenty-Seventh Amendment practically moot.

However, a recent proposal from the U.S. House runs counter to the amendment’s language. Madison, a smart lawyer with a broad knowledge of political practices, composed the text to forbid any law “varying the compensation” for members of Congress. He didn’t restrict that prohibition only to laws raising pay or benefits, or even lowering them for that matter. Such language was easily available from the article about the President’s pay, which “shall neither be increased nor diminished during the Period for which he shall have been elected.”

Madison knew that colonial legislatures, including the Massachusetts General Court in the 1760s, delayed paying mandated salaries to royal appointees as a form of leverage over those officials. Parliament enacted the Townshend duties in part to collect revenue that the imperial government could use to pay those officials, thus insulating them from public pressure. We should therefore interpret Madison’s general phrase “varying the compensation” to cover timing as well as amount.

Leaders of the U.S. House are now pushing a proposal to hold back pay from members of Congress (i.e., the U.S. Senate) until their body passes a budget—a provision they call “No Budget, No Pay.” But the Twenty-Seventh Amendment renders such a law unconstitutional.

Furthermore, in their reading of the Constitution, Representatives might have noticed that it does not require Congress to pass a budget. The word “budget” never appears in the document. The Constitution does give Congress the “Power To lay and collect Taxes,” “To borrow money on the credit of the United States,” and “To coin Money, [and] regulate the Value thereof.” It requires that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” But our modern annual budgeting process dates to 1921.

The “No Budget, No Pay” proposal thus elevates the annual budget, which isn’t part of the Constitution, while setting aside the Twenty-Seventh Amendment, which is.