No congressman a judge in his own cause: The enduring teaching of the 27th Amendment
The Constitution’s 27th Amendment — sometimes known as the “Compensation” or “Rip Van Winkle” amendment — reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”
Consistent with its explicit language and original purpose, this amendment ostensibly at least requires our national legislators to “pay forward” any salary increase that they vote themselves and successfully face their constituents during re-election to accept it.
The 27th Amendment, it will be remembered, was originally the second of 12 proposals sent to the states by Congress for ratification in September 1789. But the “Compensation amendment” — along with the original first amendment that regulated increases in the number of representatives to keep pace with population growth — became stillborn in 1791, when only six of the 11 necessary states approved it.
But while the original first amendment offered an unworkable plan for bolstering representation and was quickly rendered obsolete by acts of Congress that increased and eventually fixed the number of House members at 435, the “Compensation” amendment expressed concerns about corruption and self-dealing by politicians that never became irrelevant. When the popularity of Congress collapsed in the 1970s, as a result of economic recession and several high-profile congressional scandals involving favoritism to vested interests, outright bribery, and sexual misconduct, the ratification process for it was restarted in 1982 and completed a decade later. Two hundred and two years after its original submission to states, the “Rip Van Winkle” became fundamental law.
Why should we care about the 27th Amendment on the 225th anniversary of the Bill of Rights?
One common answer points to this remarkable story of its resurrection and ratification. That story is all about citizen Gregory Watson, a relentless, strategic and intelligent University of Texas undergraduate and later state legislative assistant who was the necessary, if not sufficient, cause of ratification.
Angered by the middling grade and snarky comments he received on a research paper in which he proposed reigniting the ratification of Madison’s then-forgotten “Compensation” amendment, Watson singularly tugged it through the ratification process. He wrote letters, made calls, spent his own money when he had little to spare, plead and cajoled until bipartisan support for the amendment ensured its passage on May 5, 1992.
Watson certainly provides us with a remarkable story of one citizen’s ability to create change. What is seemingly never pointed out, however, is that the amendment does not seem to have been necessary or helpful in either of its original goals.
A vigilant public, which has consistently proven its willingness and ability to chasten Congress throughout American history, already stood between Congress and unmerited and exorbitant salary increases.
Furthermore, the 27th Amendment failed almost immediately to secure the other goal that Watson and its champions sought: abolishing the “sneaky” procedures for salary increases Congress developed in the 1970s and eventually embedded in the Ethics Reform Act of 1989.
These regulations, which are still in place, make salary increases for members of Congress automatic unless they explicitly reject them. They also ensure that increases are modest, if not nominal, by indexing salary increases to changes in private sector wages and to general salary increases for other federal employees. Finally, they cap salary increases altogether at 5 percent.
To the consternation of Watson and others who fought for the “Compensation” amendment, federal courts swiftly dismissed 27th Amendment challenges to the congressional cost of living adjustment (COLA) system. Pay increases under the COLA system meet constitutional muster under the 27th Amendment, federal courts have held, because they do not take effect until after an intervening election and do not require the passage of new legislation.
The federal courts have also dismissed 27th Amendment challenges based upon standing issues and the claim that the issues raised by opponents of the COLA system are political questions incapable of generating standards for judicial resolution. Considered from Watson’s perspective, the federal courts put the Rip Van Winkle amendment back to sleep almost immediately after he woke it up!
The most important reasons for reconsidering the 27th Amendment on the 225th anniversary of the Bill of Rights are found in the ethical axiom underlying it, namely: the proposition that “no man is allowed to be a judge in his own cause,” the importance of that axiom in James Madison’s political thought, and its potential lightning, if taken seriously, as a foundation for countering public corruption by office holders today.
In contrast to Watson and 20th century champions of the “Compensation amendment,” Madison did not believe that members of Congress were likely to abuse their power to set their own salaries. Abuse of this power, Madison presciently observed at the Virginia Ratifying Convention, would be deterred by “the certainty of incurring the general detestation of the people.”
The primary problem that the “Compensation amendment” addressed, in Madison’s eyes, was that, by giving members of Congress the right to determine their own salary, it had made them judges in their own causes. Such an arrangement, Madison protested, had created a “seeming impropriety” and “seeming indecorum” in the political system. By preventing members of Congress from dipping their hands in the public coffers, this amendment, he maintained, would remove the appearance of impropriety that drained public faith in the government and the politicians who ran it.
Such concerns for conflicts of interest ran throughout Madison’s career, were the source of numerous rules and restrictions that he favored to prevent public officials from taking part in proceedings in which they stood to benefit, and were at the core of his normative vision of an impartial republic.
Today, with or without the 27th Amendment, corrupt members of Congress would be foolish to pursue a public path to private riches through their power to set their own salaries. Too many, much easier roads are open. The ability of former members of Congress to cash in immediately upon their retirement as lobbyists on the connections made during their years in Congress is only the most common and obvious.
As Americans celebrate the 225th anniversary of the Bill of Rights, we would do well to remember and renew Madison’s opposition to self-dealing politicians. If Madison was right — that trust and legitimacy go hand in hand with impartial procedures that establish decorum in government — this seems as good a place as any to begin restoring the trust politicians need to govern and the faith that our political institutions require and merit.