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A Sleeping Amendment Concerning Congressional Compensation Is Later Revived


Friday, Sep. 27, 2002

On September 24, 1789, in the first-ever effort to amend the new Constitution, Congress submitted to the states twelve amendments designed to resolve problems that had arisen during the ratification debates. By 1791, ten of these, relating to individual rights and liberties - the "Bill of Rights" - had been adopted. But two, relating to the structure and operations of the legislative branch, were passed over.

The second, however, was awakened after a two-hundred-year snooze, and is now part of the Constitution. Now called the Twenty-seventh Amendment, it places limitations on Congress' increasing its members' compensation without an intervening election.

This Rip Van Winkle amendment's revival is a telling tale on many levels - yet one that is little known. It was a student, interestingly, who found the sleeping amendment, and pursued the work started two hundred years earlier by James Madison and the First Congress. I tracked him down and spoke to him about his successful one-man constitutional campaign.

The Two Sleeping Amendments: Congressional Apportionment and Pay

A bit of background, first. In 1787-88, Anti-Federalists, who opposed a new constitution, made a powerful and persuasive case for their position during the ratification debates. They contended that not only did the new constitution, unlike most state constitutions, fail to provide protections for individual rights with a Bill of Rights, but it also failed to address the size and compensation of the Congress. These failures, they said, gave unrestricted powers to the new government.

Article I of the Constitution, creating the legislative branch, only provided temporarily for the size of the House of Representatives. It allocated sixty-five House seats among the states, with no more that one Representative for every thirty thousand people (with each slave being counted as three-fifths of a person) and each state having at least one Representative. But it was silent on Congressional salaries.

Proponents of the new constitution were hammered by opponents on these issues. Size and pay were not esoteric questions of political theory; rather, they were easily understood by the public. For this reason, the First Congress proposed that the first amendment to the Constitution control the size of the House of Representatives, and the second amendment prohibit Congress from voting itself a pay raise without an intervening election of the House of Representatives.

In March 1789, when the First Congress convened, James Madison had already been studying a pamphlet published by Virginia printer Augustine Davis, who had gathered more than two hundred proposed amendments to the Constitution recommended by the ratifying conventions. Madison had initially thought amendments unnecessary. But after corresponding with Thomas Jefferson and George Washington, he decided otherwise.

Accordingly, Madison sought to adopt amendments that would assure the public's trust in the new government, bring the states of North Carolina and Rhode Island back into the Union, honor the promises the Federalists made in campaigning for the Constitution, and remedy the defects that the ratification debates had made apparent.

Madison was anything but alone. Indeed, the House of Representatives ultimately would adopt seventeen amendments to send to the states. The Senate, however, cut the number back to twelve. The House then agreed upon the twelve, after some changes in language. (Senate debate on these amendments was not recorded, for at that time the Senate met behind closed doors, without an official recorder.)

Actually, Madison wanted to amend the text of the Articles of the Constitution, rather than tacking on a Bill of Rights and further amendments. But Congressman Roger Sherman disagreed.

Sherman felt to interweave amended text with the current text of the Constitution would destroy the fabric of the Constitution - which he believed was an act of the People, whereas amendments were acts of state governments. Sherman's approach was adopted, and set the precedent for all future amendments, which followed, rather than altering, the document's text.

Failure To Ratify The Congressional Compensation and Size Amendments

Article V of the Constitution requires that three-fourths of the states must ratify any amendment for it to be part of the law of the land. By December 15, 1791, eleven of the fourteen states of the Union - the necessary three-fourths - had approved ten of the twelve proposed amendments (proposed amendments three through twelve). They had not, however, approved the original first and second proposed amendments, relating to Congressional compensation and apportionment.

Between submission to the states in 1789 and December 1791, the first proposed amendment (relating to Congressional apportionment) was ratified by ten states and rejected by one. Meanwhile, the second proposed amendment (on Congressional pay) was adopted by six states and rejected by five states.

Accordingly, in 1791, the ten adopted amendments were renumbered, and made the first ten amendments to the Constitution - known as the Bill of Rights.

Because no time limit had been placed on ratification of these initial amendments by Congress, the two amendments which had not been ratified simply remain in a limbo-like state of existence somewhere between life and death. The subject of the two amendments that were not ratified was addressed by legislative action, when Congress wrote a law dealing with apportionment and salaries.

Time has shown that the proposed first amendment would have been less than a provident law for Congressional apportionment. In contrast, time only has exacerbated the issue of Congressional pay - and, in particular, the issue of Congress' giving itself a pay raise without voters' being able to express their views on the matter.

Congressional Apportionment: Why The Amendment Was Unwise

The first proposed amendment, however, looked to the future. It provided a formula to adjust the size of the House of Representatives to accommodate the nation's population growth.

Under the proposed amendment, there was to be one Representative for every thirty thousand persons, until the House had one hundred members; then there would be one Representative for every forty thousand, until the House had two hundred members. If and when one Representative would have fifty thousand constituents, Congress was to provide new ratios.

Had this amendment been adopted, the House of Representatives would have become massive. The United States population reached 250,000,000 in 1990. Under the first proposed amendment, the House would have grown to 5,000 members.

By legislation, however, Congress has locked the number of House members at 435, which has worked well. This first proposed amendment for Congressional apportionment is best left sleeping forever.

Congressional Salaries: A Long-Sleeping Amendment Is Revived

The second proposed amendment on Congressional salaries, however, went thorough an unusual two-hundred-and-three-year ratification process. Today, it is the Twenty-seventh Amendment, but notwithstanding its standing as the law of the land, it has yet to be enforced.

The First Congress experienced bitter and divisive debates over Congressional salaries. Sadly, the intervening two centuries have not much improved the debate.

Years, even decades, often pass without Congress addressing its compensation. There always have been, and probably always will be, people who believe members of the House and Senate are either paid too little or too much - and those of the latter belief are quite resistant, of course, to salary change.

For example, in 1817 Congress tried to increase its salaries, placing them on an annual rather than per diem basis. But the public outcry was so severe, Congress repealed the effort, and its members did not dare adjust their salaries for another forty years.

Under the 1975 law, members of Congress were still forced to vote for the COLAs - and thus to take flack for raising their own salaries. Later, this law was amended so that unless the Congress votes down a COLA, it automatically takes effect.

Reviving The Proposed Second Amendment: A Student's Campaign

Nowadays, many both inside and outside Congress are unhappy with the way Senators and Representatives take such good care of their compensation - salaries, health benefits, and countless perks.

In 1982, Gregory D. Watson, a twenty-year-old college sophomore majoring in economics at the University of Texas, Austin, was looking for a topic for a paper in his course on government. While browsing, Watson found the un-ratified 1789 Congressional compensation amendment.

After a bit more digging, Watson also found that six states had ratified it, and five had rejected it. But then he discovered that another state, years later, had ratified it, too.

In 1873, during the second term of the Grant administration, Congress increased its salary from $5,000 a year to $7,500 - retroactively, giving each member a $5,000 windfall. The great "Salary Grab" as it was known, produced public clamor, forcing the Congress to repeal their salary increase.

Also in 1873 - as Watson discovered - the Ohio General Assembly ratified the Congressional compensation amendment, eighty-four years after it had been submitted by Congress. The ratification was, in effect, a protest of the Salary Grab, for the 1789 amendment outlawed this very type of action the Salary Grab represented. The Amendment stated simply that: "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."

Watson decided that since the 1789 amendment had no time limit on it, it was still viable, and could be adopted by other states. After all, the issue of Congress' voting itself pay raises remained a problem.

Watson wrote up his analysis, recommending that the 1789 amendment be adopted by the rest of the states. Watson's government professor was unimpressed and gave him only a "C" for his efforts. But he remained intrigued by what he had discovered.

Gregory Watson undertook his own campaign to get the 1789 Congressional compensation amendment to become part of the Constitution. Remarkably, he succeeded. I wanted to learn more, so I tracked him down.

When Watson started, he believed only seven states had ratified what is now the Twenty-Seventh Amendment: Maryland, North Carolina, South Carolina, Delaware, Vermont and Virginia - all of which had ratified between 1789 and 1791 - plus Ohio, which had ratified in 1873. But he needed thirty-eight states total - three-quarters of fifty - to make it the supreme law of the land.

Watson told me he thought his best chance was to start with states where both the House and Senate of the state's legislature were controlled by one party. So he started with Maine. Maine bought his arguments and ratified in 1983. Then in 1984, Colorado did the same.

After State Legislatures magazine reported the new ratifications, another state, Wyoming, reporting that it had ratified the 1789 amendment too - back in 1977. Much like Ohio in 1873, Wyoming had done so to protest a Congressional pay raise.

Watson's one-man bandwagon soon attracted a few big name players, who wanted to join him. Paul Gann, the California tax gadfly who with Howard Jarvis had authored California's Proposition 13 (limiting state property taxes), was one of them. Gann started a movement to get all states to adopt the 1879 compensation amendment.

Ralph Nader also joined the effort, urging that the amendment, be adopted. And much later a few members of Congress would make noise on behalf of the amendment, too. But as I see it, none of these "heavies" (my word, not Watson's) had any real impact. Rather they came and were gone. Yet Watson, like the Energizer bunny, kept at it.

Working on his IBM Selectric typewriter at home and on weekends, Watson, who had become a legislative assistant with the Texas State Legislature, kept papering state legislatures. His goal was to get the proposed amendment ratified by the two-hundredth anniversary of its passage by Congress - September 1989. He didn't make it, but he came close.

The Final Push That Made the Amendment Part of the Constitution

On March 29, 1989, The Washington Post picked up the story. Watson had twenty-seven of the thirty-eight needed states. Several members of Congress had taken notice, and were encouraging their states to adopt the amendment. But, as the Post reported, constitutional scholars were very dubious.

Dellinger was referring to the Supreme Court's holding in Coleman v. Miller. However, this case sets no time limit. Rather, the decision leaves it to Congress to decide if it reflects a "contemporary consensus." Greg Watson, not an attorney, believed he was gathering a contemporary consensus, so he kept going.

Seven states ratified in 1989, two more in 1990, and in 1991 one more. Watson was on the home stretch. By the spring of 1992 Michigan and New Jersey were racing to become the thirty-eighth state and make it law. Michigan won the race, but New Jersey became the thirty-ninth state, followed by Illinois and California - taking the total number of ratifying states to forty-one. On May 18, 1992 the Archivist of the United States, Don W. Wilson, ruled the Twenty-seventh Amendment ratified.

Congress did not know what had hit them. Speaker Tom Foley thought maybe the House should hold hearings, but then he decided that if the Archivist had certified it, that was good enough for him.

Senate President pro tempore Robert Byrd said it was for the Congress to determine when and whether the Constitution has been amended, and they had not yet done so. Congress, however, knew that if it challenged the Amendment, it would be playing a dangerous political game with a highly sensitive subject - members' compensation.

Accordingly, on May 20, 1992 the Senate voted 99 to 0 to approve the new Twenty-seventh Amendment, and the House voted its approval 414 to 3.

A Remarkable Effort By A Single Citizen

Remarkably, and singlehandedly, Greg Watson had amended the Constitution. Today, he is forty years of age, and a man who works three jobs, and seven days a week. In short, he is not a man of great means. Yet he spent his own money to mail countless papers to legislatures throughout the country, and to pay the long distance phone bill so he could give assistance. Watson says he also did all of his own research, running his campaign at nights and on weekends, using his own time.

Why? Based on my conversation with Watson, he strikes me as a concerned citizen - actually, a kind of super-citizen. He is modest and self-effacing - not someone seeking his fifteen minutes of fame. Rather, he is a person who sincerely believed this amendment, if ratified, would improve the Constitution in just the manner the First Congress had sought.

"The American people want a Congress that is honest, that has integrity. This Amendment is one vehicle by which some degree of decorum can be restored," Watson was quoted as saying in May 1992.

Had she ever said anything about the lousy grade she gave him? He laughed, and said that a reporter had tracked her down, and told her Watson had gotten the Constitution amended. She was quite embarrassed, and called to apologize for giving him only a "C."

How Long Can Congress Ignore The Twenty-Seventh Amendment?

After my conversation with Watson, I thought: There's only one problem with Gregory Watson's efforts - so far they have been for naught. Congress has totally ignored the Twenty-seventh Amendment, proceeding as if it did not exist. In addition, there has been a lively scholarly debate as to whether the Twenty-seventh Amendment is, in fact, the supreme law of the land.

Since 1997, Congress has taken four COLAs - and remained silent. Congress takes the position that they these pay raises are based on a law that existed before the Twenty-seventh Amendment.

Thus, they claim they have not passed a law in violation of the Amendment's prohibition; rather, they are just following a pre-existing law. The problem with this argument, though, is that the Amendment effectively repeals contrary prior Congressional enactments - or at least renders them unable to be enforced now, after it has been passed.

So far no one has been able to get standing in a federal court to force the Congress to comply with the Constitution, or to test the validity of this amendment. For that reason, I'm sending this column to the best plaintiff's constitutional lawyer I know -- Alan Morrison of Public Citizen in Washington, DC.

If anyone can find a way to resolve these not unimportant questions, I'm confident it is Public Citizen. And I have no doubt that Gregory Watson is himself a public citizen - one with the country's best interests in mind, and one who would like to see his efforts enforced, as well as recognized as valid constitutional law.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States

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