Debates in the Federal Convention on Congressional Compensation

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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 concerns that motivated the proposal and ratification of the Twenty-Seventh Amendment grew out of debates at the Federal Convention about compensating Members of Congress. Prior to the Constitution’s drafting, many of Great Britain’s American colonies—and, later, the states in their constitutions—adopted the British House of Common’s “ancient practice” of compensating legislators for their services.1 Generally, state legislators set their compensation by law, which was paid out of the state’s treasury.2 Similarly, under the Articles of Confederation, states were responsible for compensating their delegates to the Confederation Congress.3 As Justice Joseph Story noted in his Commentaries on the Constitution of the United States, the American preference for compensating legislators had a longstanding pedigree.4 Its purposes were to ensure that a pool of talented people from all economic backgrounds would serve as legislators and to reduce the potential for corruption that might result if legislators received compensation from other sources.5 These historical practices informed the Framers’ deliberations at the 1787 Constitutional Convention.6

At the beginning of the Federal Convention in Philadelphia, Virginia Governor and Convention delegate Edmund Randolph proposed a blueprint for the national government in a series of resolutions known as the “Virginia Plan.” 7 This plan addressed compensation for Members of the proposed bicameral national legislature.8 An early draft stated that Members of the Senate and House of Representatives would receive “liberal stipends, by which they may be compensated for the devotion of their time to public service.” 9

Convention delegates debated the issue of congressional compensation on many occasions. Concerns about legislator corruption featured prominently in these discussions.10 During several debates, the delegates argued about whether Members of Congress’ compensation should be determined by the Constitution, the Members themselves, or the state governments.11 An ancillary debate about Congress’ power to set its pay grew out of these discussions.12

One group of delegates maintained that the Constitution should “fix” salaries for Members of Congress according to an objective standard. During one June 1787 debate, James Madison argued that it would be “an indecent thing” to permit Members of Congress to “regulate their own wages.” 13 Madison believed that the Members of the national legislature would be “too much interested to ascertain their own compensation” and that they might “put their hands into the public purse for the sake of their own pockets.” 14 Instead of adopting this “dangerous” path, Madison proposed tying Members’ salaries to the average price of a commodity, such as wheat.15

Other delegates disagreed with Madison’s view and argued that Members of Congress should determine their compensation by law. For example, Nathaniel Gorham, a delegate from Massachusetts, contended that Members of Congress should have the flexibility to adjust their salaries “from time to time,” noting that state legislators had often done so without incident.16 Under this proposal, Members’ salaries would be paid out of the national treasury17 and Congress could adjust its compensation in order to take account of future circumstances.18

A third group of Convention delegates argued that each state government—rather than the Constitution or Congress—should determine compensation for its Members of Congress, which would be paid out of the state’s treasury.19 Delegates who supported this arrangement argued that it would allow each state to adopt the amount of compensation that it deemed reasonable20 and prevent states from unwillingly contributing a disproportionate amount of funds to Members’ salaries.21 Proponents also maintained that, by setting Members’ compensation, states could ensure that Senators, whom state legislatures would elect, would not “lose sight of their constituents” when serving in the nation’s capital.22

Delegates who opposed allowing each state to determine its own Members’ compensation independently of the other states, such as Alexander Hamilton, contended that this arrangement would allow state legislatures to exercise too much control over Members of Congress.23 In this vein, opponents noted that individual states would control Members’ salaries despite the fact that “the whole nation has an interest in the attendance and services of [all of] the members.” 24 Opponents also argued that frugal states might reduce salaries to such a degree that talented people would not want to serve in Congress.25

1: 3 Joseph Story, Commentaries on the Constitution of the United States § 849 (1833). Up until the mid-17th century, the British compensated members of the House of Commons for their services. Id. The British ceased to compensate these members by the time the Framers met in Philadelphia to draft the Constitution. Id.
2: Id.
3: See, e.g., Articles of Confederation of 1781, art. V, ¶ 3 ( “Each state shall maintain its own delegates in a meeting of the states, and while they act as members of the committee of the states.” ). Similarly, colonial legislatures were responsible for compensating their delegates to the Continental Congresses. See Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 501–02 (1992). Some colonial and state legislatures withheld delegates’ salaries in an effort to save money or exert pressure on Congress to further the state’s interests. See id.
4: 3 Story, supra note 1, § 851.
5: Id. However, as one commentator has noted, early in American history many states imposed property qualifications for holding political office that “helped to exclude from the [state legislatures] most of those who would rely on the salaries they might expect to receive as members.” Bernstein, supra note 3, at 501.
6: Id. at 499.
7: 1 The Records of the Federal Convention of 1787, 20 (Max Farrand ed., 1911)[hereinafter Farrand’s Records](Madison’s notes, May 29, 1787). James Madison played a key role in drafting the Virginia Plan. Bernstein, supra note 3, at 502.
8: 1 Farrand’s Records, supra note 7, at 20.
9: Id.
10: E.g., 1 Farrand’s Records, supra note 7, at 373–74 (Madison’s notes, June 22, 1787). Concerns about legislator corruption motivated the Framers to include the Ineligibility Clause in the original Constitution. This Clause, which shares some similarities with the later-ratified Twenty-Seventh Amendment, prohibits a Member of Congress from being appointed to a federal civil office that was created, or had its compensation increased, during the Member’s elected term. For additional information, see ArtI.S6.C2.2 Ineligibility Clause (Emoluments or Sinecure Clause) and Congress. Another provision, often called the Incompatibility Clause, forbids a Member from simultaneously holding any Office under the United States. See ArtI.S6.C2.1 Overview of Federal Office Prohibition.
11: 1 Farrand’s Records, supra note 7, at 215–16 (Madison’s notes, June 12, 1787). See also Id. at 372 (Madison’s notes, June 22, 1787).
12: See sources cited supra note 11.
13: 1 Farrand’s Records, supra note 7, at 216 (Madison’s notes, June 12, 1787). During the same June 12, 1787, debate, on the motion of Benjamin Franklin, the delegates unanimously agreed to strike out the word “liberal” before “stipends.” Franklin expressed concerns that the inclusion of that term might lead to abuse. Id. at 216 (Madison’s notes, June 12, 1787).
14: Id. at 373–74 (Madison’s notes, June 22, 1787).
15: Id. at 216 (Madison’s notes, June 12, 1787). See also Id. at 373 (Madison’s notes, June 22, 1787) (statement of James Madison) (agreeing that the state legislatures should not set compensation for Members of Congress, but arguing that the Constitution should fix compensation according to a standard “that would not vary with circumstances” ).
16: Id. at 372 (statement of Nathaniel Gorham). At least some state constitutions in existence at the time of the Founding contemplated that state legislatures would set salaries for public officers of the various branches of government. See, e.g., S.C. Const. of 1776 art. XXXIV ( “That the following yearly salaries be allowed to the public officers undermentioned: The president and commander-in-chief nine thousand pounds; the chief justice and the assistant judges, the salaries, respectively, as by act of assembly established. . . and all other public officers shall have the same salaries as are allowed such officers, respectively, by act of assembly.” ); Mass. Const. of 1780 pt. 2, ch. I, § 3, art. II ( “The expenses of travelling to the general assembly and returning home, once in every session, and no more, shall be paid by the government out of the public treasury, to every member who shall attend as seasonably as he can, in the judgment of the house, and does not depart without leave.” ).
17: 1 Farrand’s Records, supra note 7, at 373 (Madison’s notes, June 22, 1787). See also 3 Story, supra note 1, § 854 ( “If it be proper to allow a compensation for services to the members of congress, there seems the utmost propriety in its being paid out of the public treasury of the United States. The labour is for the benefit of the nation, and it should properly be remunerated by the nation.” ).
18: 1 Farrand’s Records, supra note 7, at 373 (Madison’s notes, June 22, 1787) (statement of James Wilson). See also 3 Story, supra note 1, § 855 ( “If fixed by the constitution, [compensation] might, from the change of the value of money, and the modes of life, have become too low, and utterly inadequate. Or it might have become too high in consequence of serious changes in the prosperity of the nation. It is wisest, therefore, to have it left, where it is, to be decided by congress from time to time, according to their own sense of justice, and a large view of the national resources.” ).
19: 1 Farrand’s Records, supra note 7, at 373 (Madison’s notes, June 22, 1787) (statement of Roger Sherman). See also id. at 427–28 (Madison’s notes, June 26, 1787) (recording a debate over whether Senators should be paid out of the state or national treasuries).
20: Id. at 371–72 (Madison’s notes, June 22, 1787) (statement of Oliver Ellsworth).
21: Id.
22: 2 Farrand’s Records, supra note 7, at 290 (Madison’s notes, Aug. 14, 1787).
23: 1 Farrand’s Records, supra note 7, at 373 (Madison’s notes, June 22, 1787). See also 2 Farrand’s Records, supra note 7, at 290 (Madison’s notes, Aug. 14, 1787) (statement of Oliver Ellsworth). See also 3 Story, supra note 1, § 855 ( “If the compensation had been left, to be fixed by the state legislature, the general government would have become dependent upon the governments of the states; and the latter could almost, at their pleasure, have dissolved it. Serious evils were felt from this source under the confederation, by which each state was to maintain its own delegates in congress; for it was found, that the states too often were operated upon by local considerations, as contradistinguished from general and national interests.” ).
24: 1 Farrand’s Records, supra note 7, at 372 (Madison’s notes, June 22, 1787) (statement of Edmund Randolph).
25: Id. at 372 (Madison’s notes, June 22, 1787) (statement of Nathaniel Gorham); Id. at 373 (Madison’s notes, June 22, 1787) (statement of James Madison). See also Id. at 216 (Madison’s notes, June 12, 1787) (statement of George Mason) (noting, in addition, that if compensation for Members of Congress varied among the states, “an inequality would be felt among them” ). Some delegates also argued that states distant from the national capital would bear a greater cost in compensating their Members for traveling to the nation’s capital than closer states. 2 Farrand’s Records, at 290–91 (Madison’s notes, Aug. 14, 1787).