Pay Curb Move Gains Momentum : 1789 Amendment Comes Back to Haunt Congress

By an accident of history, the past may be catching up with Congress.

A little-noted and long-forgotten constitutional amendment--among the first 12 sent for ratification to the new United States of America in 1789--has recently become noticed again, and increasing numbers of states are ratifying or considering ratification of the amendment to restrain Congress where it would hurt the most.

It forbids U.S. senators and representatives to raise their own pay until an election is held.

“My constituents get very upset every time Congress passes a pay raise, and they have no say about it,” said state Sen. Melvin A. Shute, a Republican in Maine, where the current push began with ratification in 1983. “The people are really upset . . . . Ratification could happen easily once the ball gets rolling.”

And rolling it is. With little organization and even less opposition, three states have ratified the obscure amendment since Jan. 1, when congressional pay rose $2,500 to $75,100. Nine states have ratification proposals pending. Oklahoma and Minnesota could ratify soon.

The amendment says: “No law, varying the compensation for the services of the senators and representatives, shall take effect, until an election of representatives shall have intervened.”

“If they want to raise the pay, let them stand for reelection before they take it,” said Minnesota state Sen. Don Anderson, a Republican who expects ratification in his state this year. “It’s an expensive proposition (serving in Congress). It’s a rat race, and I don’t begrudge their wages. It’s a fairness issue.”

In Maine, Shute was moved to sponsor ratification by Gregory D. Watson, a 23-year-old Austin, Tex., gadfly who stumbled onto the forgotten amendment in March, 1982, when researching the equal rights amendment for a college course. He said he came across the amendment “totally by accident in the little library here in Austin.”

Fresh in his mind, however, were tax breaks that Congress had given itself in December, 1981, said Watson, who calls himself the “national coordinator” of the drive for ratification. The tax breaks were included in a black-lung benefits bill, where, Watson said, “they thought nobody would notice.”

Avoided Direct Vote

In describing the 1981 maneuvers, the Congressional Quarterly Almanac said: “Shying from a pay increase during a time of budget restraint, Congress instead gave its members several less direct methods of increasing their take-home pay . . . but were able to avoid voting directly on an outright pay increase.”

“What you find is a very arrogant attitude, an arrogant institution,” Watson said. Of the existing system, which automatically awards Congress higher salaries without a vote, he said: “They have set up a very cozy mechanism to receive a pay raise without a public vote. I have no objection to congressional pay raises as long as there is a public vote. It’s not so much how much as how.”

“I’m not even sure they’re paid enough because of the cost of living in Washington and going back and forth,” said Republican state Rep. Don Mielke of Colorado, a constitutional history buff who dusted off the amendment and guided its ratification in his state in 1984. “It’s the accountability. It’s the whole concept of accountability, that the people should know and decide if (a raise) is justified. It’s a good idea even if there weren’t abuses.”

The amendment was the second of 12 referred to the states by the first Congress in 1789. By this quirk of history, it carries no deadline for ratification, as proposed amendments do today. Ten of the 12 proposed amendments eventually were ratified and, in 1791, went into force as the Bill of Rights. The other proposal is a now-outdated measure that would have spelled out how congressional seats would be allocated.

Only six states ratified the pay raise amendment: Maryland, North Carolina, South Carolina, Delaware, Vermont and Virginia. The amendment was then forgotten until 1816, when Congress raised its pay--from $6 a day when in session to $1,500 a year--and the states threatened to revive the amendment. But enough incumbents, including Daniel Webster, were turned out of office by outraged voters so that the new Congress backed off the pay hike.

In response to a Reconstruction-era raise, Mielke said, Ohio ratified the amendment in 1873, and, 105 years later, in 1978, Wyoming, also concerned about rising congressional pay, followed suit. That made eight states.

In 1983, Maine made it nine.

However, it was not until Colorado’s ratification in 1984 that the amendment began drawing broad attention.

State Legislatures, a magazine published by the Denver-based National Conference of State Legislatures, wrote a tongue-in-cheek article on the amendment, noting that “if the (current rate of ratification) holds, the amendment should be added to the Constitution in 2069, by which time congressional salaries are conservatively predicted to be $60,000 a day.”

But the response was more serious, and ultimate ratification may occur much sooner. As a result of the article, Republican state Sen. Peter Kay successfully proposed ratification in Arizona, as did Republican state Rep. Scott N. Heidepriem in South Dakota.

“It’s sort of a message to Congress, a statement to be fiscally prudent,” Kay said. “But, if this were ratified, it would be more than a message. It would be a deterrent to Congress.”

“It makes good sense as a matter of public policy. There’s a real current of bitterness--we don’t think they’re accountable,” Heidepriem said. “They pass laws and impose them on everyone else--equal employment, occupational safety--and then exempt themselves. It won’t be a pivotal point in history if it passes, but it’s a small step to better government.”

South Dakota ratified the amendment in February, the 11th state to do so. New Hampshire followed on March 7, and Arizona became the most recent state to ratify, on April 3.

25 More States Needed

To date, ratification has been voted in 13 of the 38 states necessary to amend the Constitution, with no deadline for the 25 others needed.

In addition to Oklahoma and Minnesota, there are resolutions calling for ratification pending in Connecticut, Georgia, Iowa and Wisconsin, according to Public Affairs Information, a legislative monitoring service.

Watson, now an aide to a Texas state representative who introduced the amendment there, said that measures are pending in Indiana and Missouri also.

This is the first year since 1791 that a sizable number of legislatures has even weighed the proposal. Watson expects the amendment to be introduced in two more states this year, and he and Mielke have their sights set on full ratification by 1989--the 200th anniversary of the U.S. Constitution.

“It would be fantastic,” Mielke said, “to show the Constitution is a living document with ideas that are alive today.”