Violating the Twenty-Seventh Amendment

In March 1873, Congress was about to adjourn and decided to vote itself a retroactive pay increase of $7,000.  This was an especially sweet deal for lame-duck members like John Bingham who did not have to face the wrath of the voters. Unfortunately for him, outrage at this “Salary Grab” led the next Congress to rescind the bonus.

I think this is the only time that the command of the Twenty-Seventh Amendment was violated (“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”).  Of course, that Amendment was not in force then, but is there another examples of a congressional pay hike that was contrary to this text?

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6 Responses

  1. Brett Bellmore says:

    Every last one of them since it was ratified. We must distinguish between violating an amendment, and violating the court ruling gutting it.

  2. JoeJP says:

    The USSC did not rule on the 27A and as usual the fact Brett thinks something was “gutted” doesn’t quite show that it is.

  3. Josh Urquhart says:

    Neither case determined that there was a violation, but the DC Circuit addressed this issue in 1994 (30 F.3d 156), and the Tenth Circuit considered a case in 2001 (240 F.3d 878). The former was brought by current Speaker Boehner to challenge COLA provisions. The court in an opinion by then-judge RBG decided that he had standing as a legislator (in an analysis that I think is a bit tortured), but ruled against him on the merits. In the second case, the court refused to hear the dispute for a lack of standing.

    By the way, in case you’re interested, it turns out that constitutional salary restrictions are hugely important at the state level. Indeed, there is a plausible argument to be made that they are a huge impetus for why state courts generally permit state taxpayer lawsuits — they are involved in a substantial number of the early cases in which state courts adopt that permissive standing rule. (Also important in the early state taxpayer standing jurisprudence are single subject appropriation rules.)

    To see that plausible argument fleshed out a bit, with pretty numbers and tables and everything, tune in to the Fordham Law Review in the fall!

  4. JoeJP says:

    Spring brings yet another cliffhanger.

  5. Josh Urquhart says:

    Hey, my teaser was more enlightening than the stupid Dark Knight Rises trailer.

  6. Joe says:

    So, is the article out? Almost Winter!