No con­gress­man a judge in his own cause: The en­dur­ing teach­ing of the 27th Amend­ment

The Washington Times Daily - - CELEBRATING FREEDOM - By Dr. Alan Gib­son Alan Gib­son, Ph.D., is pro­fes­sor of po­lit­i­cal sci­ence at Cal­i­for­nia State Univer­sity, Chico. His re­search in­ter­ests fo­cus on the po­lit­i­cal thought of James Madi­son and the study of the Amer­i­can found­ing. He has held fel­low­ships from the

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.

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