Twenty-Seventh Amendment

Introduction

The Twenty-Seventh Amendment provides: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” Ratified in 1992, the Twenty-Seventh Amendment was originally proposed as part of the Bill of Rights in 1789 but was not ratified until 202 years later — the longest ratification period in American constitutional history. The amendment prohibits Congress from giving itself an immediate pay increase; any change to congressional compensation may take effect only after the next election of representatives has occurred.

The Twenty-Seventh Amendment holds the record for the longest delay between proposal and ratification, and its ratification raised novel constitutional questions about the timeliness of proposed amendments. The amendment’s journey from the First Congress to the states to final ratification is a remarkable story of constitutional persistence.

Origins in the Bill of Rights

The Twenty-Seventh Amendment was originally one of twelve amendments proposed by the First Congress on September 25, 1789. These twelve amendments included the ten that became the Bill of Rights, plus two that were not initially ratified: one concerning congressional apportionment (which was never ratified) and one concerning congressional pay (which became the Twenty-Seventh Amendment).

The congressional pay amendment was drafted by James Madison, who was concerned about Congress abusing its power to set its own salaries. The amendment ensures that representatives must face the voters before a pay increase takes effect, creating a mechanism of popular accountability. Voters could express their approval or disapproval of a pay increase at the ballot box before the increase became law.

The Initial Ratification Effort

The congressional pay amendment was ratified by six states in 1789-1791 — Delaware, Maryland, North Carolina, South Carolina, Vermont, and Virginia — but fell short of the eleven states then required for ratification. The amendment was largely forgotten for nearly a century as the nation focused on other constitutional issues.

The amendment was briefly revived in 1873 when the “Salary Grab Act” — a retroactive pay increase for members of Congress — generated public outrage. Several additional states ratified the amendment in the 1870s and 1880s, but the amendment still fell short of the required number of states. The amendment then lapsed into obscurity for another century.

The Modern Ratification Campaign

The Twenty-Seventh Amendment was revived in the 1980s by Gregory Watson, a University of Texas undergraduate student who wrote a term paper arguing that the amendment was still pending and could be ratified. Watson’s professor gave the paper a C grade, but Watson was undeterred and launched a letter-writing campaign to state legislatures urging them to ratify.

Watson’s campaign gained momentum gradually, with Maine ratifying in 1983 and Colorado in 1984. As state legislatures considered the proposal, many were attracted by the simplicity of the pay limitation and the opportunity to limit congressional power. The campaign accelerated in the late 1980s and early 1990s, particularly after scandals involving congressional pay and perks.

The Ratification of 1992

Michigan became the thirty-eighth state to ratify on May 7, 1992, providing the three-fourths majority required. The Archivist of the United States certified the amendment on May 18, 1992, declaring it ratified and part of the Constitution. The amendment had been pending for 202 years, 7 months, and 10 days — by far the longest ratification period in American history.

The ratification raised significant constitutional questions. The Supreme Court had held in Dillon v. Gloss (1921) that amendments must be ratified within a “reasonable time,” and Congress had routinely set seven-year deadlines for amendments since the Eighteenth Amendment. However, no deadline had been attached to the Twenty-Seventh Amendment, and the Court had also held in Coleman v. Miller (1939) that the question of whether an amendment is timely is a political question for Congress to decide.

Constitutional Questions

Congress and the courts accepted the amendment’s validity without litigation. The House of Representatives considered and rejected resolutions declaring the amendment invalid or setting a new ratification period. The Supreme Court has not directly addressed the amendment’s constitutionality but has cited it as valid constitutional text.

The amendment’s ratification raises questions about the limits of the amendment process. If an amendment may remain pending indefinitely, there is no temporal limit on the ratification process. Some scholars argue that the Dillon requirement of reasonable time should limit amendments without deadlines, while others argue that Coleman leaves the question to Congress’s political judgment.

The Amendment’s Effect

The Twenty-Seventh Amendment prohibits congressional pay changes from taking effect until after an election of the House of Representatives. This does not prevent Congress from increasing its pay; it merely delays the effective date until after the next election. The amendment applies to both increases and decreases in compensation, though decreases could take effect immediately under the amendment’s text.

Congress has complied with the amendment since its ratification. The Ethics Reform Act of 1989, which provided for automatic cost-of-living adjustments for members of Congress, was amended after the Twenty-Seventh Amendment’s ratification to ensure that any pay increase would take effect only after an intervening election. The amendment has been effective in ensuring that voters have an opportunity to hold representatives accountable for pay decisions.

Relationship to Other Congressional Compensation Laws

The Twenty-Seventh Amendment applies only to laws varying the compensation of senators and representatives. It does not apply to benefits, perquisites, or other forms of compensation that are not “compensation” within the amendment’s meaning. The scope of the term “compensation” has been debated, with most commentators limiting it to salary rather than benefits, pensions, or allowances.

The amendment does not prevent cost-of-living adjustments that are automatic and nondiscretionary, nor does it apply to changes in tax laws or other general legislation that might incidentally affect members of Congress. The amendment’s narrow scope ensures that Congress can adjust pay to account for inflation while maintaining the principle of electoral accountability for salary changes.

Conclusion

The Twenty-Seventh Amendment limits Congress’s ability to raise its own pay, requiring that pay changes take effect only after the next House election. The amendment’s extraordinary ratification history — proposed in 1789 and ratified in 1992 — demonstrates that constitutional amendments can remain viable over extended periods and that citizen activism can achieve constitutional reform. The amendment serves as a constraint on congressional self-dealing and a reminder that the people retain ultimate authority over the Constitution and their representatives.