The 27th Amendment prevents members of Congress from granting themselves pay raises during the current session. Rather, any raises that are adopted must take effect during the next session of Congress.
The text of what will become the 27th Amendment is included in the first 12 amendments to the Constitution sent to the states. Only 10 amendments, what are known as the Bill of Rights, are ratified on Sept. 25, 1789. Congressional pay raise restrictions are not ratified when only six of the necessary 11 states approve the amendment.
In Coleman v. Miller, the U.S. Supreme Court holds that any proposed amendment for which Congress does not specify a ratification deadline remains in play. States, the Court says, may continue to consider the amendment regardless of how long it has been since it was proposed.
The pay limitation provision was dormant until 1978, when Wyoming legislators ratified the amendment after a congressional pay increase to which they objected. In 1982, while searching for a research topic, University of Texas graduate student Gregory Watson learned about two amendments sent to the states that were never ratified along with the Bill of Rights. The amendment on congressional pay raises was still viable because it did not contain a “sunset provision” limiting the time for ratification. Watson lobbied state legislatures to ratify the forgotten amendment, and 33 additional states passed it between 1983 and 1992.
On May 7, the 27th Amendment is ratified after approval by the Michigan Legislature. Both houses of the 102nd Congress — acting separately — adopt concurrent resolutions agreeing that the 27th Amendment is indeed validly ratified, despite the unorthodox period of more than 200 years for the completion of the task. On May 18, Don W. Wilson, Archivist of the United States, certifies that the 27th Amendment is part of the Constitution.
In Boehner v. Anderson, Rep. John Boehner and 27 other members of Congress, 108 defeated congressional candidates, and 14 other individuals and organizations challenge provisions of the Ethics Reform Act. The Act gave an immediate, onetime salary increase to members of Congress and, in subsequent years, an annual cost-of-living increase to their salaries and pensions. They argue that the automatic cost-of-living increases and the automatic raise every four years violates the 27th Amendment because both plans effectively grant a pay increase for legislators before a new congressional session begins. The Court of Appeals for the District of Columbia holds that Boehner has the legal right to challenge the law, but then rules against him. Because the cost-of-living increase takes effect after the election of new representatives, it does not violate the 27th Amendment. Since the four-year raise system had not yet taken effect, the court dismisses Boehner’s challenge.
In Operation Rescue Nat’l v. United States, Operation Rescue, an anti-abortion group, sues Sen. Edward Kennedy for statements he made in support of legislation prohibiting violent anti-abortion protests. Kennedy says he cannot be sued based on statements he made on the floor of the Senate or statements concerning pending legislation. Operation Rescue argues that the statute that grants immunity is unconstitutional because it gives legislators an immediate benefit in violation of the 27th Amendment. The Massachusetts District Court notes that the 27th Amendment is rooted in “a fear that corruption would result if the legislature … increased the salaries of public offices for the benefit of its own members.” The Court then rules that legislative immunity is not compensation recognized under the 27th Amendment. “Official immunity does not exist simply for the personal or private benefit of members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.”
In Schaffer v. Clinton, Rep. Bob Schaffer and three others challenge the automatic cost-of-living increases in the Ethics Reform Act of 1989 as a violation of the 27th Amendment. They argue that the automatic increases effectively grant legislators raises before a new congressional session begins. The District Court dismisses three of the plaintiffs (a state legislator and a taxpayer and a voter), on the ground that they are not harmed by the law and thus have no legal right to bring the case. Although the District Court finds that Schaffer could bring the lawsuit, it dismisses his case, finding that the 27th Amendment is not violated by the automatic pay increases. According to the court, the cost-of-living raises accomplish the goal of the 27th Amendment because they “eliminate the possibility that Congress will grant itself a new pay raise during its current session.” The U.S. Court of Appeals for the 10th Circuit dismisses the appeal because that Schaffer is not the appropriate person to bring the case – by receiving the pay increase, he did not suffer any real injury.