No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The original Constitution, which took effect in 1789, did not prevent federal laws that increased or decreased Members of Congress’ salaries from becoming operative before the next congressional election. This became a source of tension during debates in many of the state ratifying conventions.1 In particular, Anti-Federalists, who opposed the Constitution’s ratification because of concerns that the national government would become too powerful relative to the states and threaten individual rights, expressed the view that Members of Congress should not set their own pay.2 For example, at the Virginia ratifying convention in June 1788, Patrick Henry, an Anti-Federalist and staunch opponent of ratifying the Constitution, objected to allowing Members of Congress to determine their compensation “by themselves, without limitation or restraint.” 3 He stated that Members “may therefore indulge themselves in the fullest extent” by making their compensation “as high as they please.” 4 Henry argued that having the state legislatures fix Members’ compensation would impose some measure of restraint on the national legislature.5
James Madison, who played a key role in drafting the Constitution and served as a delegate to the Federal Convention, defended the Congressional Compensation Clause at the Virginia ratifying convention. Madison contended that allowing state legislatures to determine congressional pay would make the national government too dependent on the state governments.6 Madison noted that, historically, state legislatures had not abused the privilege of setting their own compensation.7 He also argued that Members of Congress who engaged in such practices would incur the “general detestation” of their constituents.8
When ratifying the Constitution, conventions in New York, North Carolina, and Virginia recommended amendments to address concerns that Members of Congress would abuse the power to modify their compensation.9 For example, New York delegates recommended several amendments to the Constitution when they ratified the document in July 1788.10 One recommended amendment would have required “[t]hat 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.” 11 These recommendations informed Madison’s introduction of draft amendments to the Constitution in the First Congress.
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Footnotes
- 1
- For example, in December 1787, during the Pennsylvania ratifying convention, delegate William Findley asked: “What can be a greater source of corruption than for the legislature to appoint officers and fix salaries?” Pennsylvania and the Federal Constitution 1787–1788, 775 (John Bach McMaster & Frederick D. Stone eds., 1888) (Wilson’s notes, Dec. 5, 1787) (statement of William Findley). Despite these concerns, the Pennsylvania legislature ratified the Constitution on December 12, 1787. Intro.6.3 Constitutional Convention.
- 2
- See Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 508 (1992). Less than a month after the Constitution was submitted to the states for ratification, Edmund Randolph, who represented Virginia at the Federal Convention, wrote to the Virginia House of Delegates to explain why he was one of three delegates who refused to sign the nation’s proposed charter. Randolph feared that, by signing the proposed Constitution, he would be unable to justify his pursuit of “amendments” to the document in the state ratifying conventions. In his letter, Randolph expressed support for various amendments to the Constitution, including one that would prevent Members of Congress from determining their own salaries. Letter from Edmund Randolph to the Speaker of the Virginia House of Delegates (Oct. 10, 1787), reprinted in 3 The Records of the Federal Convention of 1787, 123–27 (Max Farrand ed., 1911) [hereinafter Farrand’s Records]. Despite his objections, Randolph later voted in favor of ratification at the Virginia convention. See David Loyd Pulliam, The Constitutional Conventions of Virginia from the Foundation of the Commonwealth to the Present Time 37 (1901). See also 2 Farrand’s Records, supra note 2, at 632–33 (recording Federal Convention delegate Elbridge Gerry’s objections to the Constitution, including Congress’s “unlimited power. . . over their own compensations” ). For further discussion of Anti-Federalists’ concerns about Members of Congress setting their own pay, see Bernstein, supra note 2, at 509–13.
- 3
- 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 368 (2d ed. 1836) [hereinafter Elliot’s Debates].
- 4
- Id.
- 5
- Id.
- 6
- Id. at 369.
- 7
- See id. at 369–70.
- 8
- See id. Madison also responded to concerns that Members of Congress would lower their compensation such that “only the rich” would “fill the offices of senators and representatives.” Id. at 372. He argued that the people of the United States could respond by electing other Members to reverse such a law. Id. The Virginia Convention narrowly ratified the proposed Constitution on June 25, 1788. Intro.6.3 Constitutional Convention.
- 9
- Bernstein, supra 2, at 514. For more on the debate over the Bill of Rights, see Intro.3.2 Bill of Rights (First Through Tenth Amendments).
- 10
- 1 Elliot’s Debates, supra note 3, at 330.
- 11
- Id.