With the surprise ratification of the Twenty-Seventh Amendment,429 it is now the rule that congressional legislation “varying”— decreasing or increasing—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.430 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.431 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.432 Thereafter, prior to ratification of the Amendment, Congress, in the Ethics Reform Act of 1989,433 altered both the pay-increase and the cost-of-living-increase provisions of law, making quadrennial pay increases effective only after an intervening congressional election and making cost-of-living increases dependent upon a specific congressional vote. A federal court of appeals panel ruled that the cost-of-living-increase provision did not violate the Twenty-Seventh Amendment, and that a challenge to the quadrennial pay raise provision was not ripe.434
- See discussion under Twenty-Seventh Amendment, infra.
- Pub. L. 90–206, § 225, 81 Stat. 642 (1967), as amended, Pub. L. 95–19, § 401, 91 Stat. 45 (1977), as amended, Pub. L. 99–190, § 135(e), 99 Stat. 1322 (1985).
- Pub. L. 94–82, § 204(a), 89 Stat. 421.
- Pressler v. Simon, 428 F. Supp. 302 (D.D.C. 1976) (three-judge court), aff’d summarily, 434 U.S. 1028 (1978); Humphrey v. Baker, 848 F.2d 211 (D.C. Cir.), cert. denied, 488 U.S. 966 (1988).
- Pub. L. 101–194, 103 Stat. 1716, 2 U.S.C. § 31(2), 5 U.S.C. § 5318 note, and 2 U.S.C. §§ 351–363.
- Boehner v. Anderson, 30 F.3d 156, 163 (D.C. Cir. 1994).