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CRS Annotated Constitution

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Section 6. Clause 1. The 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. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Clause 2. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office[p.126]under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Compensation, Privileges

Congressional Pay

With the surprise ratification of the Twenty–Seventh Amendment,370 it is now the rule that congressional legislation “varying”—note that the Amendment applies to decreases as well as increases—the level of legislators’ pay may not take effect until an intervening election has occurred. The only real controversy likely to arise in the interpretation of the new rule is whether pay increases that result from automatic alterations in pay are subject to the same requirement or whether it is only the initial enactment of the automatic device that is covered.

That is, from the founding to 1967, congressional pay was determined directly by Congress in specific legislation setting specific rates of pay. In 1967, a law was passed that created a quadrennial commission with the responsibility to propose to the President salary levels for top officials of the Government, including Members of Congress.371 In 1975, Congress legislated to bring Members of Congress within a separate commission system authorizing the President to recommend annual increases for civil servants to maintain pay comparability with private–sector employees.372 These devices were attacked by dissenting Members of Congress as violating the mandate of clause 1 that compensation be “ascertained by Law[.]” However, these challenges were rejected.373 Thereafter, prior to ratification of the Amendment, Congress in the Ethics Reform Act of 1989,374 altered both the pay–increase and the cost–of–living–increase provisions of law, making quadrennial pay increases effective only after an intervening con[p.127]gressional election and making cost–of–living increases dependent upon a specific congressional vote. Litigation of the effect of the Amendment is on–going.375

Privilege From Arrest

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted.376It does not apply to service of process in either civil377 or criminal cases.378Nor does it apply to arrest in any criminal case. The phrase “treason, felony or breach of the peace” is interpreted to withdraw all criminal offenses from the operation of the privilege.379


370 See infra.
371 P. L. 90–206, Sec. 225, 81 Stat. 642 (1967), as amended, P. L. 95–19, Sec. 401, 91 Stat. 45 (1977), as amended, P. L. 99–190, Sec. 135(e), 99 Stat. 1322 (1985).
372 P. L. 94–82, Sec. 204(a), 89 Stat. 421 .
373 Pressler v. Simon, 428 F.Supp. 302 (D.D.C. 1976) (three– judge court), affd. summarily, 434 U.S. 1028 (1978); Humphrey v. Baker, 848 F.2d 211 (D.C.Cir.), cert. den. 488 U.S. 966 (1988).
374 P.L. 101–194, 103 Stat. 1716 , 2 U.S.C. Sec. 31 (2), 5 U.S.C. Sec. 5318 note, and 2 U.S.C. §§ 351 –363.
375 Boehner v. Anderson, 809 F.Supp. 138 (D.D.C. 1992) (holding Amendment has no effect on present statutory mechanism).
376 Long v. Ansell, 293 U.S. 76 (1934).
377 Id., 83.
378 United States v. Cooper, 4 Dall. (4 U.S.) 341 (C.C. Pa. 1800).
379 Williamson v. United States, 207 U.S. 425, 446 (1908).
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