Module 40: The Twenty-Seventh Amendment

Who Sets the Pay of the People Who Set the Pay

Every legislature faces an awkward fact. The people who write the laws are also the people who receive the paychecks those laws create. A member of Congress who votes for a raise is voting on her own income. The Twenty-seventh Amendment is the Constitution's answer to that conflict, and it is a modest answer. It does not forbid a raise and it does not set a salary. It says only that a change in congressional pay must wait until the voters have had a chance to respond.

The amendment also has the most unusual history in the document. Congress proposed it on September 25, 1789, the same day it sent the States the other proposals that became the Bill of Rights. It then sat unfinished for 202 years and was added to the Constitution on May 7, 1992.¹ That is more than two centuries after Congress proposed it.² The story involves James Madison, a pay raise in 1873 that angered Ohio, a college student's paper in 1982, a state-by-state letter campaign, and a legal opinion from the Department of Justice written days before the Archivist signed the certificate.

This lesson follows the amendment from the Federal Convention to the present. It covers the text, the 1787 and 1788 arguments over congressional pay, Madison's 1789 proposal, the first round of State action, the 1873 Ohio protest, the modern ratification campaign, the certification, the Article V questions that the 202 years raised, and what the amendment does and does not do today. A section on Idaho covers the State's ratification on March 23, 1989, and an Idaho constitutional provision that takes a very different approach to the same problem.

A word about the sources. Many details of this history come from the Constitution Annotated, the Congressional Research Service and the House Manual, which cite earlier scholarship such as Richard Bernstein's 1992 Fordham Law Review article on the amendment. Where a detail in this lesson rests on a news feature or a single secondary source, the footnote says so. The Verify Independently box near the end applies with extra force to this lesson, because several of the widely repeated facts about the amendment differ between sources.

What pay did Congress receive at the start

The first pay law, passed in 1789, set a per diem. The CRS history table shows $6 a day for each Senator and Representative beginning March 4, 1789, with the Senate rate rising to $7 in 1795 under the same law and returning to $6 in 1796.³ A per diem meant a member was paid for days in attendance, so a longer session paid more. The table shows an annual $1,500 salary beginning in December 1815, per diems again from March 1817, and a flat $3,000 salary beginning in December 1855.³ Those details matter later, because the fight that revived interest in the amendment in 1873 was a fight over a salary that Congress raised by statute and made retroactive.

The Text

The whole amendment is one sentence:

"No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."¹

The House Manual prints it as section 258 and gives it a heading that describes its operation: timing of a law varying congressional compensation.⁴ Each part of the sentence carries weight, and a careful reader should take the parts in turn.

"No law"

The amendment speaks to laws. Congress sets its own pay "by Law" under Article I, section 6, which says that Senators and Representatives "shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States."⁵ The amendment attaches a delay to the thing the original clause already required, an act of lawmaking.

"Varying the compensation"

The verb is "varying," and it is neutral. A law that lowers pay varies it just as much as a law that raises pay. The Constitution Annotated describes the effect as preventing laws that modify Members' compensation from taking effect until after an intervening election.² Madison's own words in 1789 spoke in the same neutral way: his draft covered any law "varying the compensation last ascertained."⁶ This matters in practice, because a later section shows that the main twenty-first century fight over congressional pay has been about freezes and withholding, not raises.

"Shall take effect"

The delay applies to taking effect, not to passing. Congress may enact a pay law at any time. The law simply cannot operate until the condition is met. The distinction is the one the D.C. Circuit used in Boehner v. Anderson to decide which law counted: the court looked at when the law that created the adjustment was enacted and when it began to operate, not at the date of each later payment.⁷

"An election of Representatives shall have intervened"

The trigger is an election of Representatives, and all House seats are up for election every two years. The text names the House even for the Senate's own pay. A change in Senators' pay waits for a House election, not a Senate election, because there is always one every two years, while only some Senate seats are on the ballot in any cycle. The word "intervened" means the election must fall between enactment and effectiveness. A law passed in January of an even-numbered year can take effect after the November election of that year. A law passed in the weeks just after an election needs the next one.

The purpose is the point of the whole amendment. A member who votes for a raise knows that voters will be able to answer at the next election before the raise reaches her. The vote is on the record, and the reckoning comes before the money does.

The Convention and the Ratification Debates, 1787 and 1788

August 14, 1787

The delegates at Philadelphia had to decide who would pay members of Congress and who would set the rate. On August 14, 1787, they considered a draft that let the States pay their own members of Congress. Gouverneur Morris moved to change it so that Congress would set salaries for its members, to be paid from the national treasury. Morris argued that "there could be no reason to fear that they would overpay themselves."⁵ Madison agreed that state-controlled pay would make the national government too dependent on the States, though he favored a fixed limit on salaries in the Constitution itself. The delegates approved the Morris approach and rejected a fixed amount.⁵ The Constitution's final language is Article I, section 6: compensation "to be ascertained by Law."⁵

The Constitution Annotated notes the consequence. The original Constitution did not stop a law that raised or cut members' pay from taking effect before the next election.⁵ Joseph Story wrote in 1833 that the omission of "some constitutional mode of fixing the pay of members of congress, without leaving the subject to their discretion, formed in some minds a strong objection to the constitution."⁸

The ratifying conventions

The objection was voiced in the State conventions. In Pennsylvania in December 1787, delegate William Findley asked: "What can be a greater source of corruption than for the legislature to appoint officers and fix salaries?"⁸ Edmund Randolph, who refused to sign the Constitution at Philadelphia, listed in an October 10, 1787 letter to the Virginia House of Delegates a proposed amendment to keep members of Congress from determining their own salaries.⁸

At the Virginia convention in June 1788, Patrick Henry objected that members could fix their pay "by themselves, without limitation or restraint," and that they could "indulge themselves in the fullest extent" by making it "as high as they please." Madison answered that state legislatures had not abused the power to set their own pay and that members who tried it would earn "general detestation." He also answered a worry from the other direction, that Congress might cut pay so low that "only the rich" could serve, by pointing out that the voters could elect other members to reverse such a law.⁸ Virginia ratified the Constitution on June 25, 1788.⁸

Three conventions put the concern into formal recommendations. The New York convention, ratifying in July 1788, recommended that "the compensation for the Senators and Representatives be ascertained by standing laws; and that no alteration of the existing rate of compensation shall operate for the benefit of the Representatives until after a subsequent election shall have been had." North Carolina and Virginia recommended amendments on the same worry.⁸ The New York language is close to the final text of the amendment, and the Constitution Annotated says these recommendations informed Madison's draft in the First Congress.⁸

Madison's Proposal, 1789

On June 8, 1789, early in the First Congress, Madison introduced a set of resolutions to amend the Constitution. The Constitution Annotated says many of them drew from the recommendations of the State ratifying conventions and were meant to ease the concerns of Anti-Federalists, who feared the new government would take power from the States and threaten individual rights.⁶ His third resolution said that "no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives."⁶

Madison explained why he wanted it. He conceded that Congress was unlikely to abuse the power. Still, he said, there was "a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets."⁶ The phrase is blunt, and it makes the argument well. The amendment was less a response to a scandal than a design correction: no one should hold unchecked power over a payment to himself.

The August 14, 1789 House debate

The House spent only a short time on the proposal. On August 14, 1789, Representative Theodore Sedgwick of Massachusetts worried that members might reduce their own pay so far that qualified people would stay away from the House. Madison replied that the amendment might not be "absolutely necessary," but that it would not keep Congress from attracting enough qualified members.⁶ The exchange shows that the delay applies to cuts as well as raises, and that its supporters saw it as a modest safeguard.

Twelve proposals go to the States

After revisions in both chambers and approval by two-thirds of each, Congress submitted twelve amendments to the States on September 25, 1789.⁶ Ten became the Bill of Rights. One, on apportionment, has never been ratified. The remaining one, on congressional pay, is the subject of this lesson.² The Constitution Annotated calls it the "Congressional Pay Amendment" before 1992 to avoid confusing it with the many amendments ratified in between, and this lesson follows that convention when it speaks of the proposal before ratification.²

Six States, Then Silence

The House Manual lists the first six ratifications: Maryland on December 19, 1789; North Carolina on December 22, 1789; South Carolina on January 19, 1790; Delaware on January 28, 1790; Vermont on November 3, 1791; and Virginia on December 15, 1791.⁴ By the end of 1791 only six of the then-existing fourteen States had ratified, short of the eleven needed for three-fourths.⁹

The reason the pay amendment stalled while the ten others succeeded is not clearly given in the sources this lesson opened. The Constitution Annotated records only that the States ratified ten of the proposals as the Bill of Rights in 1791 while the pay amendment fell short.² A reader should resist the neat explanations that appear in popular accounts. The sources here show the count, not the motive.

The Court's 1921 aside

The amendment resurfaced in an unexpected place. In Dillon v. Gloss (1921), the Supreme Court upheld the seven-year ratification deadline Congress had placed in the proposed Eighteenth Amendment. In explaining why it read a reasonable-time limit into Article V, Justice Van Devanter wrote that the other view would mean that "four amendments proposed long ago, two in 1789, one in 1810 and one in 1861, are still pending," and that "To that view few would be able to subscribe, and in our opinion it is quite untenable." The Court concluded that "the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal."¹⁰ One of the two 1789 amendments the Court had in mind was the pay amendment. The Court called the idea that it could still be ratified untenable. The pay amendment was ratified anyway, and the Constitution Annotated says the reasonable-time language was afterward regarded as nonbinding.¹¹¹²

Ohio, 1873, and the Salary Grab

The amendment's first revival came not from a scholar but from an angry State legislature. On March 3, 1873, the last day of the 42nd Congress, Congress passed a law that raised the pay of its members from $5,000 to $7,500 a year, a 50 percent increase, and made the increase retroactive to the start of that Congress nearly two years earlier. The press called it the "Salary Grab."¹³ The CRS table confirms the numbers: the law, at 17 Stat. 486, set $7,500 effective March 4, 1871. A second law, at 18 Stat. 4, restored $5,000 effective January 20, 1874.³

Ohio's General Assembly responded by ratifying the pay amendment on May 6, 1873, about two months after the raise.⁴ The Constitution Annotated says the Ohio legislature ratified "to protest a congressional pay raise."⁹ That one ratification is a clear illustration of what the amendment was designed to prevent. A retroactive raise voted on the last day of a Congress, with nearly half the members leaving, is the kind of change the amendment would have delayed until the voters returned or replaced them.¹³

The nineteenth century

Ohio's ratification did not complete the amendment. It was the seventh State, counting Virginia as the sixth in 1791. The Constitution Annotated adds that during the nineteenth century members of Congress, responding to State petitions, introduced resolutions to propose amendments on compensation. Those efforts did not produce a new proposal.⁹ Then the amendment slept. The next ratification on the Manual's list came on March 6, 1978, when Wyoming ratified, 105 years after Ohio.⁴

Wyoming, 1978

The House Manual lists Wyoming's ratification on March 6, 1978. The Constitution Annotated says that Watson "later discovered" it.⁴⁹ The sources this lesson opened do not state why Wyoming acted. The CRS history table shows that a raise to $57,500 had taken effect on March 1, 1977, a year before.³ That is a fact worth noting, but it does not prove Wyoming's motive, and this lesson does not claim it.

Gregory Watson and the Letter Campaign

This section describes Gregory Watson only in his public role: a student who wrote a paper on a constitutional question and then, as a private citizen, petitioned State lawmakers. The public record of that effort is documented by the Constitution Annotated, the scholarly literature it cites and a National Public Radio feature.

The paper

In 1982, Watson was an undergraduate at the University of Texas at Austin. For a government course he wrote about a constitutional process. As he told NPR, he was reading a book that included a chapter on amendments that Congress had sent to the States but that were never ratified: "this one just jumped right out at me." The unratified text was the pay amendment. He wrote his paper to argue that it was still alive, because Congress had set no deadline.¹⁴ The Constitution Annotated, citing Bernstein's article, records the same facts: a 1982 paper for a political science class arguing that the amendment could still be adopted because Congress had imposed no deadline.⁹

The paper received a C. According to NPR, the teaching assistant graded it, and Watson appealed to the course instructor, who left the grade standing. The Constitution Annotated reports that the instructor reportedly called the amendment a "dead letter."¹⁴⁹ Watson's response, as he told NPR, was: "I'm going to get that thing ratified."¹⁴ In 2017, thirty-five years later, the instructor signed a form changing his grade to an A.¹⁴

The campaign

Watson, as NPR tells it, calculated that he needed 38 legislatures and counted nine that had already approved the amendment, so he needed 29 more. The Manual's list, read strictly, shows eight before Maine: the six from 1789 to 1791, Ohio and Wyoming. One possible explanation for NPR's nine is a ninth State, Kentucky, discussed below. He wrote to members of Congress asking whether they knew anyone in their home States who might carry the amendment. Most did not answer. Senator William Cohen of Maine did. Cohen passed it to someone in Maine, it reached the Maine Legislature and Maine ratified it in 1983.¹⁴ The Manual lists Maine on April 27, 1983.⁴

From there Watson wrote directly to State lawmakers across the country, "dozens of letters" by NPR's account.¹⁴ Colorado followed in 1984. The ratifications then came in waves, covered in the next section. The Constitution Annotated, again citing Bernstein, summarizes the result: more than 30 State legislatures ratified between the mid-1980s and the early 1990s, responding to public opposition to congressional pay increases.⁹

What the campaign shows

Two points are worth drawing out. First, a ratification campaign can run without a national organization, yet it still depends on the public mood. The Constitution Annotated ties the success of the 1980s to public opposition to congressional pay increases.⁹ Watson found lawmakers who would carry the resolution, and voters in many States were receptive to the idea. Second, he later said he wanted to show "that one extremely dedicated, extremely vocal energetic person could push this through."¹⁴ That is his own characterization of the effort. A reader can credit his persistence and still note that every ratification was a vote by a State legislature, in the process Article V prescribes.

NPR also reports that Watson turned to another unfinished matter in 1995, when he found that Mississippi had never ratified the Thirteenth Amendment and urged its legislature to do so. NPR adds that, because of a filing error, the Mississippi ratification was not officially recorded until 2013.¹⁴

The Wave of Ratifications, 1983 to 1992

The House Manual's list allows a year-by-year count. After Maine in 1983 and Colorado in 1984, five States ratified in 1985: South Dakota on February 21, New Hampshire on March 7, Arizona on April 3, Tennessee on May 23 and Oklahoma on July 10. New Mexico, Indiana and Utah followed in February 1986. Four States ratified in 1987 (Arkansas, Montana, Connecticut and Wisconsin), three in 1988 (Georgia, West Virginia and Louisiana), and seven in 1989 (Iowa, Idaho, Nevada, Alaska, Oregon, Minnesota and Texas).⁴ The 1989 count is the busiest year of the campaign. Kansas and Florida added two in 1990 and North Dakota one in 1991.⁴

A caution about the numbers. NPR says "three each in 1986, 1987 and 1988," while the Manual's list has four in 1987. The difference is small and the Manual is the official compilation, so this lesson uses the Manual's dates and counts. A reader who finds slightly different numbers in popular sources should compare them to the Manual's list.¹⁴⁴

The final push, May 1992

By the Manual's list, Alabama and Missouri ratified on May 5, 1992, and Michigan on May 7. Michigan was the 38th State in the Manual's order, and the Manual states that "Ratification was completed on May 7, 1992." New Jersey ratified the same day, 39th in order.⁴ NPR's account has Watson listening on the phone as Michigan's House of Representatives voted.¹⁴ Illinois followed on May 12, 1992, and California on June 26, 1992.⁴

After completion

Ratifications kept coming after the amendment had become part of the Constitution: Rhode Island on June 10, 1993; Hawaii on April 26, 1994; Washington on August 12, 1995; Kentucky on March 21, 1996; and Nebraska on April 1, 2016.⁴ Counting every State in the Manual's list, 46 have ratified. Four States do not appear on it: Massachusetts, Mississippi, New York and Pennsylvania. That last statement is this lesson's own comparison of the Manual's list with the fifty States, and a reader should treat it as such.⁴

A discrepancy over Kentucky

Kentucky's 1996 ratification raises a puzzle. The Wikipedia article on the amendment reports that Kentucky had in fact ratified the pay amendment on June 27, 1792, in its first month of statehood, and that the 1996 action repeated it. The article also reasons that if Kentucky's 1792 vote counts, Michigan was not the 38th State and Alabama completed the amendment on May 5, 1992. The article cites an 1809 compilation of Kentucky statutes, which this lesson did not open, so it is not presenting the 1792 ratification as established.¹⁵ It is flagged here because it would explain why NPR counts nine States before Maine, and because it would change which State was the 38th.

Certification, May 1992

On May 13, 1992, six days after Michigan's ratification, the Justice Department's Office of Legal Counsel issued an opinion on the amendment. Its headnote states that the amendment, "originally proposed by Congress to the States for ratification in 1789, and having been ratified by three-fourths of the States, has been ratified pursuant to Article V and is accordingly now part of the Constitution." It adds that under 1 U.S.C. section 106b the Archivist was, "upon receipt of formal instruments of ratification from the requisite number of States," required to publish the amendment with a certificate that it had become valid.¹⁶

The statute is the key. Under the National Archives and Records Administration Act of 1984, the Archivist of the United States certifies that an amendment has been ratified after receiving official notice from three-fourths of the States. The Constitution Annotated reports that the Archivist at the time, Don W. Wilson, did so on May 18, 1992, on the advice of the Office of Legal Counsel, and proclaimed the amendment ratified as of May 7, 1992. The certificate was published at 57 Federal Register 21187.⁹¹⁷ The Manual refers to this as a certificate "of the Archivist dated May 18, 1992."⁴

Congress responds

The Constitution does not require Congress to confirm a ratification. Congress did so anyway. The House adopted H. Con. Res. 320 on May 20, 1992 (the Manual cites the Congressional Record for May 19 and May 20). The Senate adopted its own concurrent resolution, S. Con. Res. 120, and a simple resolution, S. Res. 298, citing May 20. The Manual says the House acted to "quell speculation over the efficacy of a ratification process spanning two centuries," and that "Neither House considered the concurrent resolution of the other."⁴ The Constitution Annotated describes the action as each House recognizing the amendment as adopted.⁹ This lesson did not find the vote counts in the sources it opened, and it does not report them.

The 1868 precedent

The Manual points to a model: the 1868 concurrent resolution declaring the Fourteenth Amendment ratified.⁴ In Coleman v. Miller, the Court had treated that resolution as an example of Congress's role in promulgating an amendment. The Constitution Annotated cautions that the Fourteenth Amendment presented special circumstances, because some of the States that ratified had reorganized their governments under Reconstruction, so the precedent may not settle the question.¹¹

Questions Article V Had Never Had to Answer

The Constitution Annotated says the "unusual circumstances" of the amendment's ratification more than 200 years after its proposal "have raised important questions about Article V's process for amending the Constitution."¹¹ Four stand out.

Is there an implicit time limit?

Article V sets no deadline. Beginning with the proposal that became the Eighteenth Amendment in 1917, Congress has specified a seven-year limit for every proposal except the one that became the Nineteenth Amendment.¹² The pay amendment, proposed in 1789, had none. In Dillon the Court wrote that ratification "must be within some reasonable time after the proposal" and called the idea of a 1789 amendment still pending "quite untenable."¹⁰ In Coleman v. Miller (1939), a case about the Child Labor Amendment proposed in 1924, the Court treated the effect of earlier rejection and of the passage of time as questions for Congress rather than the courts. It wrote that the question of the efficacy of ratifications "in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment."¹⁸ The Constitution Annotated says the Dillon language was afterward regarded as nonbinding.¹²

The Office of Legal Counsel rejected the implicit-limit idea in 1992. It wrote that "[t]he implicit time limit thesis is thus deeply implausible, because it introduces hopeless uncertainty into that part of the Constitution that must function with a maximum of formal clarity if it is to function."¹¹ Its reasoning, as the Constitution Annotated summarizes it, was that States would not otherwise know whether they could still ratify.¹¹ The Archivist's certification suggests that, when Congress sets no deadline, an amendment remains pending until three-fourths of the States ratify it.¹¹ The Supreme Court has decided no case on the point.²

Does Congress have a role in declaring ratification?

After the Archivist certified, each House passed a resolution. The Court had suggested in Coleman that Congress promulgates amendments. The Office of Legal Counsel took the other view, writing that "congressional promulgation is neither required by Article V nor consistent with constitutional practice."¹¹¹⁹ The sources describe the question as unsettled.¹¹

Can a State ratify after rejecting?

The Constitution Annotated reports that New Hampshire and New Jersey had each rejected the pay amendment before ratifying it, and that the Archivist, by accepting their ratifications, "implicitly endorsed" the idea that a State may ratify after rejecting.¹¹ New Hampshire's ratification is listed on March 7, 1985, and New Jersey's on May 7, 1992.⁴ The same question about the Fourteenth Amendment had been decided by Congress's 1868 resolution, which the Court described in Coleman, saying the political departments "determined that both were ineffectual in the presence of an actual ratification."¹⁹

Can a State rescind?

The pay amendment's ratification did not require an answer to this question. The Constitution Annotated raises it in the same discussion and cites Idaho v. Freeman on the rescission question. In that 1981 decision the federal district court in Idaho wrote that "Until the technical three-fourths has been reached, a rescission of a prior ratification is clearly a proper exercise of a state's power granted by the article V phrase 'when ratified' especially when that act would give a truer picture of local sentiment regarding the proposed amendment." The Supreme Court later vacated that decision as moot.¹⁹ The Idaho connection is covered in the Idaho section below.

Is any of this settled?

No Supreme Court case interprets the amendment, and the Court has never decided these four questions as a matter of Article V.² What exists is a body of practice: the Archivist's certification, the Justice Department's opinion, the resolutions of both Houses and the fact that no one has challenged the amendment's validity in court in the sources this lesson found. Whether that practice would bind a future dispute is an open question.

What the Amendment Does Today

The Supreme Court has decided no case interpreting the Twenty-seventh Amendment.² What exists is a small group of lower court decisions and a body of congressional practice.

Pay freezes are not the amendment at work

Many people assume that the amendment explains why Congress has not raised its pay in years. It does not. According to the CRS, Members of Congress last received a pay adjustment in January 2009, when salary rose 2.8 percent to $174,000. Since then every scheduled adjustment has been denied by statute, and CRS lists the laws, from P.L. 111-8 in March 2009 to P.L. 119-37 in November 2025. The freeze has generally been written into a larger bill, usually an appropriations bill, without a separate vote.³ Those are laws that deny a raise. They are not delayed by the amendment, and no sources this lesson opened say the amendment caused them. They are results of ordinary politics.

The CRS also notes that the Ethics Reform Act of 1989 established an automatic annual adjustment formula tied to the Employment Cost Index, which takes effect unless Congress statutorily denies or revises it. CRS counts 13 adjustments accepted and 23 denied under the formula, including every year from 2010 through 2026.³ The current rates are $174,000 for most Members, $223,500 for the Speaker and $193,400 for the President pro tempore of the Senate and the majority and minority leaders of both chambers.³

Boehner v. Anderson: the cost-of-living adjustment

The most important decision is Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994). Representative John Boehner argued that provisions of the Ethics Reform Act violated the amendment. The part that matters most is the claim that the annual cost-of-living adjustments, half of which would take effect in odd-numbered years, were laws varying pay without an intervening election. The court of appeals held that the mechanism did not violate the amendment. Assuming without deciding that the amendment applied to a law enacted before its ratification in 1992, the court found that the Act "did not cause any adjustment to congressional compensation until after the election of 1990 and the seating of the new Congress." The relevant "law," the court determined, was the 1989 provision, not each later automatic adjustment.⁷ The House Manual lists the district court decision at 809 F. Supp. 138 (D.D.C. 1992), affirmed by the D.C. Circuit.⁴

Schaffer v. Clinton: standing

In Schaffer v. Clinton, 240 F.3d 878 (10th Cir. 2001), the Tenth Circuit decided that Representative Bob Schaffer lacked Article III standing to challenge the cost-of-living adjustment. The Supreme Court denied review.⁷ The Manual cites the earlier district court decision in the same case as upholding cost-of-living adjustments under the 1989 Act.⁴

No Budget, No Pay

In 2013, Congress enacted the No Budget, No Pay Act, Public Law 113-3 (February 4, 2013). It directed that Members' pay be withheld until each Member's chamber adopted a budget resolution, with a provision releasing the withheld pay on the last day of the 113th Congress if no resolution had passed, an effort to comply with the amendment.⁷⁴ Each chamber adopted a budget resolution before the deadline, so no pay was withheld and the law was never tested in court.⁷ Because no court has ruled, it is unclear whether such mechanisms would comply with the amendment.⁷

Questions this lesson does not answer

The sources do not say how the amendment applies to benefits such as pensions and allowances, or to a law that changes pay for only some Members. A reader with an actual case should read the cases in the table and any newer decision, because this lesson did not search for decisions after those listed. This lesson also did not verify a May 2026 federal claims decision that the Wikipedia article on the amendment mentions, and it does not rely on it.¹⁵

Myths and Misreadings

Myth: The amendment forbids Congress from giving itself a raise

The text delays; it does not forbid. A raise enacted in one Congress can take effect after the next House election. The text covers any "law varying the compensation," so pay cuts wait too.¹²

Myth: The amendment is why Members have not had a raise since 2009

The CRS says Member pay has been frozen by statutes denying the annual adjustment, mostly inside larger bills.³ Those are decisions of Congress. The amendment would delay a raise; it does not deny one.

Myth: Congress ratified it in 1992

The States ratify under Article V. In 1992 the Archivist certified the amendment under 1 U.S.C. section 106b, and the Houses of Congress afterward adopted resolutions recognizing it.⁹¹⁷⁴ The Constitution does not require congressional confirmation, and the Constitution Annotated says as much.⁹

Myth: It was part of the Bill of Rights

It was proposed on the same day as the amendments that became the Bill of Rights, one of twelve sent to the States. The ten that were ratified in 1791 became the Bill of Rights. An apportionment amendment has never been ratified, and the pay amendment was ratified long afterward and became the Twenty-seventh.²⁶

Myth: One grade caused the amendment

The story of the C is accurate as reported by NPR and the Constitution Annotated, and it is a good lesson in persistence. But the amendment became law because three-fourths of the State legislatures voted for it over about ten years, with Congress having left it open since 1789.¹⁴⁹⁴ The student started a campaign. The legislatures finished it.

Myth: Courts have ruled the cost-of-living adjustments unconstitutional

The reverse is true. The D.C. Circuit upheld the mechanism in Boehner and the Tenth Circuit found no standing in Schaffer.⁷

Questions People Ask

Does the amendment apply to the President or federal judges?

No. It names "Senators and Representatives" only.¹

Can Congress cut its own pay immediately?

The text covers any law "varying" pay, which includes a cut, so a pay-cut law waits for an election of Representatives. No court has squarely addressed a cut.¹²

What about the annual cost-of-living adjustment?

In Boehner v. Anderson the D.C. Circuit upheld the mechanism, treating the 1989 law as the relevant law because it took effect after an intervening election.⁷

Why does the text say "election of Representatives" and not just "an election"?

The House stands for election every two years, so a House election always falls within the delay. Senate elections come at staggered intervals, with only some seats on each ballot. The sources this lesson opened do not explain the drafters' choice, so this lesson offers that reading only as a way to understand the text.¹

Did every State legislature vote for it?

No. The Manual lists 46 States, and four are not on the list.⁴

Where can I find the official list of State ratification dates?

The House Manual lists each date in a note to the amendment, and the National Archives publishes the text with the proposal and ratification dates.⁴¹ Some popular sources differ from the Manual on a few dates and counts, so compare them against it.

Landmark Cases and Opinions

The Supreme Court has decided no case interpreting the amendment. The table lists the two Supreme Court decisions that shaped how its ratification was understood, the lower court cases on pay adjustments, the Idaho decision on rescission and the Justice Department opinion that supported the certification.

The Idaho Connection

Ratification. Idaho ratified the Twenty-seventh Amendment on March 23, 1989, according to the House Manual. Counting down the Manual's list through May 7, 1992, Idaho was the 27th State to ratify, after Iowa on February 9, 1989 and before Nevada on April 26, 1989. Seven States ratified in 1989, the busiest year of the campaign.⁴ This lesson did not find the Idaho legislative record of the ratification, so it does not say which bill or resolution carried it, who sponsored it or how the vote went.²⁰

Idaho's own answer to the conflict. Idaho handles the problem of legislators setting their own pay in a different way from the federal amendment. Article III, section 23 of the Idaho Constitution begins: "The legislature shall have no authority to establish the rate of its compensation and expense by law." It creates a citizens committee on legislative compensation of six members, three appointed by the governor and three by the supreme court, who must be citizens of Idaho other than public officials holding an office to which compensation is attached.²¹

The committee must, on or before the last day of November of each even-numbered year, "establish the rate of compensation and expenses for services to be rendered by members of the legislature during the two-year period commencing on the first day of December of such year." Those rates are filed with the secretary of state and the state controller. They apply for the two years unless, before the twenty-fifth legislative day of the next regular session, the Senate and House "by concurrent resolution" reject or reduce them. If they reject the rates, the rates prevailing at the time of the previous session remain in effect. The section adds: "No change in the rate of compensation shall be made which applies to the legislature then in office except as provided herein."²¹

The statutes follow the constitution. Idaho Code section 67-406 says each member shall receive compensation and expenses "in accordance with rates established by the citizens' committee on legislative compensation."²² Section 67-406b says no member "shall receive any compensation for services rendered or expenses incurred as a legislator, except as set by the committee," and repeats the schedule.²³

The contrast. The federal amendment leaves Congress in charge of its pay and adds a delay so voters can respond. Idaho's provision removes the legislature from the setting of its pay, while leaving it a check: it can reject or reduce but, on the text, cannot raise the committee's rates. Both address the same conflict of interest, and each fits the design of its government. This lesson does not claim that one approach is better.²¹

Idaho and the rescission question. The Constitution Annotated cites Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), for the proposition that a state may rescind a ratification before three-fourths is reached. The Supreme Court vacated the decision as moot in NOW, Inc. v. Idaho, 459 U.S. 809 (1982), so it is not binding authority.¹⁹ The case is relevant here because the pay amendment's ratification history raised the question of whether States can reverse their positions at all, and Idaho's federal court wrote on that subject. This lesson did not open the opinion.

What this lesson did not find. This lesson did not find an Idaho appellate decision applying the Twenty-seventh Amendment. The amendment governs federal pay, and the Idaho Constitution and Code govern the pay of Idaho legislators, so a state-law case on the federal amendment would be unusual. That is a statement about this lesson's search, not a finding that none exists. Idaho's history notes show section 67-406 was last amended in 2009 and section 67-406b in 1994.²²²³

Where This Shows Up for Officials, Reporters and Citizens

The congressional staffer weighing a pay provision

A staffer, Marguerite Callahan, in an invented Representative's office, is asked whether a proposed provision tying pay to a budget deadline raises an amendment problem. She starts with the three questions the text asks. Is there a law that varies pay? When does it take effect? Has an election of Representatives intervened? She then reads the 2013 No Budget, No Pay Act, which released withheld pay on the last day of the Congress as a way to comply with the amendment, and notes that the law was never tested in court. She tells the Representative that the question is unsettled, because no court has ruled on that kind of mechanism.⁷⁴

The reporter checking a pay claim

Reporter Desmond Alvarado hears a candidate say, "Congress voted itself a raise last year." He checks the CRS table and the list of denied adjustments. The most recent adjustment was January 2009, and CRS lists the laws that denied each later one. The claim, as stated, is wrong for the period CRS covers. He reports what the table shows and asks the candidate which law the claim refers to.³

The Idaho citizen reading the compensation committee's report

A resident, Harold Brennan, in an invented Idaho town, wants to know what legislators are paid and who decided. He learns that a citizens committee sets the rate in even-numbered years, that the rates are filed with the secretary of state and the state controller, and that the Senate and House can reject or reduce them by concurrent resolution before the twenty-fifth legislative day. He calls the secretary of state's office and asks for the most recent filing. He does not assume the federal amendment applies to Idaho legislators, because the federal text names only Senators and Representatives.²¹²³¹

The teacher building a lesson on persistence

A civics teacher, Ruth Ostrander, in an invented Idaho school, uses the amendment to teach how an amendment is made. She has students trace the campaign through the Manual's list, noting that a student's paper began it and that every ratification was a legislature's vote. She asks them to compare two accounts of the same facts, the Manual's year-by-year list and NPR's description of the pace, and to find where they differ.⁴¹⁴

Related Modules

• Module 6, Amending the Constitution: Article V, deadlines and the ratification process.
• Module 2, Article I: Congress: the Compensation Clause of section 6.
• Module 1, From the Charters to Philadelphia: the Convention and the 1787 debates.
• Module 16, Article VII: Ratification: how the Constitution itself was ratified.
• Module 5, Federalism and the States: the States' role in amendment.
• Module 24, The Tenth Amendment: another amendment proposed in 1789.
• Module 37, The Twenty-Fourth Amendment: an earlier modern amendment.
• Module 38, The Twenty-Fifth Amendment: the amendment ratified in 1967.
• Module 39, The Twenty-Sixth Amendment: the preceding amendment, ratified in 1971.

Sources & Further Reading

Primary Sources

• National Archives, The Constitution: Amendments 11-27
• House Manual (116th Congress), Amendment XXVII and ratification notes
• Dillon v. Gloss, 256 U.S. 368 (1921)
• Coleman v. Miller, 307 U.S. 433 (1939)
• Office of Legal Counsel, Congressional Pay Amendment, 16 Op. O.L.C. 85 (1992)
• 1 U.S.C. section 106b

Idaho Law and Records

• Idaho Const. art. III, sec. 23
• Idaho Code sec. 67-406
• Idaho Code sec. 67-406b

Secondary Sources and Further Reading

• Constitution Annotated, Amendment XXVII: Overview
• Constitution Annotated: The Congressional Compensation Clause and the Federal Convention
• Constitution Annotated: Congressional Compensation and Debates over Ratification
• Constitution Annotated: Proposal of the Congressional Pay Amendment
• Constitution Annotated: Ratification of the Twenty-Seventh Amendment
• Constitution Annotated: Scope of the Twenty-Seventh Amendment
• Constitution Annotated: Implications for the Article V Amendment Process
• Constitution Annotated, Article V: Congressional Deadlines for Ratification
• Constitution Annotated, Article V: Effect of Prior Rejection or Rescission
• CRS Report 97-1011, Salaries of Members of Congress
• NPR, The Bad Grade That Changed The U.S. Constitution (2017)
• Northwestern IPR Working Paper WP-05-07, The Salary Grab of 1873 (draft)

Footnotes

1. National Archives, The Constitution: Amendments 11-27, https://www.archives.gov/founding-docs/amendments-11-27. Text of the Twenty-seventh Amendment, headed "Originally proposed Sept. 25, 1789. Ratified May 7, 1992."
2. Constitution Annotated, Amendment XXVII, Overview of the Twenty-Seventh Amendment, Congressional Compensation, https://www.law.cornell.edu/constitution-conan/amendment-27/overview-of-the-twenty-seventh-amendment. Source for the statements that the Supreme Court has decided no case interpreting the amendment, that Madison introduced the pay resolution early in the First Congress, that six States had ratified by the end of 1791, and that Ohio ratified in 1873 to protest a pay raise.
3. Ida A. Brudnick, Congressional Research Service, Salaries of Members of Congress: Recent Actions and Historical Tables, Report 97-1011 (updated May 6, 2026), https://www.everycrsreport.com/reports/97-1011.html. Source for Table 1 (salary adjustments since 1789), the $174,000 rate since January 2009, the leadership rates, the three methods of adjusting pay and the list of denied adjustments.
4. Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 116th Congress, Amendment XXVII, section 258 and note 18, https://www.govinfo.gov/content/pkg/HMAN-116/html/HMAN-116-pg123.htm. States that the amendment was proposed on September 25, 1789; that a certificate of the Archivist dated May 18, 1992 declared it ratified by "39 of the 50 States"; lists every State ratification date from Maryland (December 19, 1789) to Nebraska (April 1, 2016); says "Ratification was completed on May 7, 1992"; and describes House Concurrent Resolution 320, Senate Concurrent Resolution 120 and Senate Resolution 298 of May 1992, Public Law 113-3, Boehner v. Anderson and Schaffer v. Clinton. Every State date in this lesson is from this list.
5. Constitution Annotated, Amendment XXVII, The Congressional Compensation Clause and the Federal Convention, https://www.law.cornell.edu/constitution-conan/amendment-27/the-congressional-compensation-clause-and-the-federal-convention. Source for the August 14, 1787 debate (Farrand's Records, Madison's notes), Gouverneur Morris's remark and the text of Article I, section 6, clause 1.
6. Constitution Annotated, Amendment XXVII, Proposal of the Congressional Pay Amendment, https://www.law.cornell.edu/constitution-conan/amendment-27/proposal-of-the-congressional-pay-amendment. Source for Madison's June 8, 1789 resolution (1 Annals of Cong. 451), his statement at 457, the August 14, 1789 House exchange with Representative Sedgwick (id. at 756-57) and the submission of twelve amendments on September 25, 1789.
7. Constitution Annotated, Amendment XXVII, Scope of the Twenty-Seventh Amendment, https://www.law.cornell.edu/constitution-conan/amendment-27/scope-of-the-twenty-seventh-amendment. Source for Boehner v. Anderson, Schaffer v. Clinton and the No Budget, No Pay Act.
8. Constitution Annotated, Amendment XXVII, Congressional Compensation and Debates over Ratification of the Constitution, https://www.law.cornell.edu/constitution-conan/amendment-27/congressional-compensation-and-debates-over-ratification-of-the-constitution. Source for William Findley's question in Pennsylvania, Edmund Randolph's letter, Patrick Henry and Madison at the Virginia convention (3 Elliot's Debates 368-72), the New York recommended amendment and Joseph Story's observation.
9. Constitution Annotated, Amendment XXVII, Ratification of the Twenty-Seventh Amendment, https://www.law.cornell.edu/constitution-conan/amendment-27/ratification-of-the-twenty-seventh-amendment. Source for the six-of-fourteen States by the end of 1791, the eleven needed, Ohio in 1873, Watson's 1982 paper, the later change of his grade, the more than 30 State ratifications from the mid-1980s to the early 1990s, the Archivist's proclamation of May 18, 1992 on the advice of the Office of Legal Counsel, 57 Fed. Reg. 21187 and 1 U.S.C. 106b.
10. Dillon v. Gloss, 256 U.S. 368 (1921), argued March 22 and decided May 16, 1921, opinion of Justice Van Devanter, https://www.law.cornell.edu/supremecourt/text/256/368. All quotations are from this text.
11. Constitution Annotated, Amendment XXVII, Implications for the Article V Amendment Process, https://www.law.cornell.edu/constitution-conan/amendment-27/implications-for-the-article-v-amendment-process. Source for the questions about an implicit time limit, congressional promulgation and ratification after rejection, and for the quotation from the Office of Legal Counsel.
12. Constitution Annotated, Article V, Congressional Deadlines for Ratification of an Amendment, https://www.law.cornell.edu/constitution-conan/article-5/congressional-deadlines-for-ratification-of-an-amendment. Source for the seven-year deadline practice since 1917 and the description of Dillon v. Gloss and Coleman v. Miller.
13. Jeffery A. Jenkins, Lee J. Alston, Kara Gorski and Tomas Nonnenmacher, Who Should Govern Congress? The Salary Grab of 1873 and the Coalition of Reform, Northwestern University Institute for Policy Research Working Paper WP-05-07, https://www.ipr.northwestern.edu/documents/working-papers/2005/IPR-WP-05-07.pdf. A working paper marked as a draft. Used only for the name "Salary Grab," the March 3, 1873 date, the 50 percent figure and the retroactive effect.
14. Matt Largey, "The Bad Grade That Changed The U.S. Constitution," NPR, May 5, 2017, https://www.npr.org/2017/05/05/526900818/the-bad-grade-that-changed-the-u-s-constitution. Source for the account of Gregory Watson's 1982 paper, his letters to Congress and State legislators, Senator William Cohen's response, the pace of the ratifications and his later work on the Thirteenth Amendment in Mississippi. A broadcast feature, not a court record or legislative journal.
15. Wikipedia, "Twenty-seventh Amendment to the United States Constitution," https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the_United_States_Constitution, opened for this lesson. A secondary and non-authoritative source, used only to flag two points (Kentucky's reported 1792 ratification and a reported May 2026 federal claims decision) that this lesson could not verify against a primary source. Its list of ratification dates differs from the House Manual on several dates; this lesson uses the Manual.
16. U.S. Department of Justice, Office of Legal Counsel, Congressional Pay Amendment, 16 Op. O.L.C. 85 (May 13, 1992), https://www.justice.gov/olc/opinion/congressional-pay-amendment. Headnote quoted from the page; the full opinion is attached there as a PDF that this lesson did not read beyond what the Constitution Annotated quotes from it.
17. 1 U.S.C. section 106b, https://www.law.cornell.edu/uscode/text/1/106b. Directs the Archivist to publish an amendment with a certificate specifying that it has become valid when official notice of adoption is received. Added by the National Archives and Records Administration Act of 1984, Pub. L. 98-497, 98 Stat. 2280, 2291, as the Constitution Annotated records.
18. Coleman v. Miller, 307 U.S. 433 (1939), reargued April 17 and 18 and decided June 5, 1939, https://www.law.cornell.edu/supremecourt/text/307/433. All quotations are from this text.
19. Constitution Annotated, Article V, Effect of Prior Rejection of an Amendment or Rescission of Ratification, https://www.law.cornell.edu/constitution-conan/article-5/effect-of-prior-rejection-of-an-amendment-or-rescission-of-ratification. Source for the text of Article V, the account of Coleman v. Miller and the 1868 Fourteenth Amendment precedent, and the citation to Idaho v. Freeman, 529 F. Supp. 1107, 1150 (D. Idaho 1981), vacated as moot, NOW, Inc. v. Idaho, 459 U.S. 809 (1982).
20. This lesson did not find the Idaho legislative record of the 1989 ratification (the bill or resolution number, the votes or the sponsors) and did not search the Idaho session laws. The date comes from the House Manual. The absence of detail here is a limit of this lesson's research.
21. Idaho Constitution, art. III, sec. 23 (compensation of members), https://legislature.idaho.gov/statutesrules/idconst/ArtIII/Sect23/. Full text read for this lesson.
22. Idaho Code section 67-406 (compensation and mileage of members of legislature), https://legislature.idaho.gov/statutesrules/idstat/Title67/T67CH4/SECT67-406/. History note: 1921, amended 1947 and 2009.
23. Idaho Code section 67-406b (compensation and expenses), https://legislature.idaho.gov/statutesrules/idstat/Title67/T67CH4/SECT67-406B/. History note: added 1967, amended 1976 and 1994.