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 Supreme Court has not decided any cases interpreting the Twenty-Seventh Amendment. However, in 1994, one federal court of appeals panel rejected a Twenty-Seventh Amendment challenge to congressional pay legislation.1 In Boehner v. Anderson, Congressman John Boehner contended that provisions in the Ethics Reform Act of 1989 violated the Twenty-Seventh Amendment.2 These provisions automatically adjust salaries and pensions for Members of Congress each year to account for increases in the cost of living unless Congress declines the adjustment.3 Boehner argued, among other things, that half of the annual adjustments (i.e., those taking effect in odd-numbered years) were “laws” that would modify pay for Members of Congress without an intervening election, violating the Twenty-Seventh Amendment.4
The D.C. Circuit Court of Appeals held that the cost-of-living adjustment mechanism did not violate the Twenty-Seventh Amendment.5 Assuming, without deciding, that the Amendment applied to a law enacted before the Amendment’s ratification in 1992, the court determined that the Ethics Reform Act of 1989 “did not cause any adjustment to congressional compensation until after the election of 1990 and the seating of the new Congress.” 6 Thus, the court determined that the relevant “law” for purposes of the Twenty-Seventh Amendment was the Ethics Reform Act provision, enacted in 1989, rather than each subsequent automatic, annual pay adjustment.7 Because the Act, enacted in the 101st Congress, had taken effect after the seating of a new Congress on January 1, 1991, no Twenty-Seventh Amendment violation had occurred.8
Because of a lack of Supreme Court precedent, it is unclear whether various novel statutory mechanisms for regulating Members’ pay might comply with the Twenty-Seventh Amendment. For example, in 2013, Congress enacted the “No Budget, No Pay Act.” 9 After a certain date, the Act would have temporarily withheld the payment of Senators’ or Representatives’ salaries until a Member’s respective house of Congress had agreed to a “a concurrent resolution on the budget for fiscal year 2014 pursuant to section 301 of the Congressional Budget Act of 1974.” 10 In an effort to comply with the Twenty-Seventh Amendment, the Act would have released the funds for Members’ salaries on the last day of the 113th Congress if no budget resolution had been adopted in accordance with the Act’s terms.11 Because each chamber passed a budget resolution prior to the Act’s deadline, Members’ pay was not withheld pursuant to the Act. As a result, the law was never tested in court.
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Footnotes
- 1
- Boehner v. Anderson, 30 F.3d 156, 162 (D.C. Cir. 1994). See also Schaffer v. Clinton, 240 F.3d 878, 882–86 (10th Cir. 2001) (determining that Representative Bob Schaffer lacked Article III standing to maintain a Twenty-Seventh Amendment challenge to the cost-of-living adjustment provision of the Ethics Reform Act of 1989), cert. denied sub nom. Schaffer v. O’Neill, 534 U.S. 992, 992 (2001).
- 2
- Boehner, 30 F.3d at 158. The plaintiff also challenged the Act’s changes to the quadrennial pay raise system. Id. The Ethics Reform Act modified the quadrennial pay system by conditioning an adjustment to Members of Congress’s pay (recommended by the President as informed by a pay adjustment commission) on Congress’s enactment of a statute approving the pay adjustment. See id. at 163. It also required that an election of Representatives have intervened before such a law could take effect. Id. The court held that the plaintiff’s challenge was not ripe for review. Id. Boehner also argued that a separate law cancelling the 1994 cost-of-living adjustment violated the Twenty-Seventh Amendment because it “varie[d] his compensation without an intervening election of Representatives.” However, the court declined to consider this argument. Id. at 162–63.
- 3
- See id. at 158.
- 4
- Id. at 161.
- 5
- Id. at 158, 162.
- 6
- Id. at 162.
- 7
- See id.
- 8
- Id.
- 9
- Pub. L. No. 113-3, § 3, 127 Stat. 51, 51–53 (Feb. 4, 2013).
- 10
- Id.
- 11
- Id.