Pay Raise Amendment Wins Ratification : Law: After 203 years, Michigan becomes 38th state to back ban on midterm salary increase for members of Congress. Legal questions arise.

Ending a process that began 203 years ago, Michigan on Thursday became the 38th and deciding state to ratify a constitutional amendment that would bar Congress from raising the pay of members during their term in office.

If the amendment is ruled legal, as expected, James Madison, who wrote both the Bill of Rights and the pay raise amendment, will be the author of the earliest and most recent amendments to the Constitution.

“There is a seeming impropriety,” Madison once said, “in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets; there is a seeming indecorum in such power, which leads me to propose a change.”

Madison’s idea was popular at the time, when members of Congress were paid $6 a day, or less than $1,000 a year, plus a $6 stipend for every mile they traveled to attend sessions. In the intervening 200 years, congressional pay has reached $129,500 a year, but the public scorn for lawmakers who raise their own pay has changed little.

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

Later Thursday, New Jersey joined Michigan and became the 39th state to approve the amendment.

Even while proponents hailed the action, legal questions arose about whether ratification carried out over two centuries was valid. The Constitution itself is silent on the question, but the U.S. Supreme Court has commented on it.

In a 1921 ruling on the 18th Amendment, the court offered a non-binding observation that ratification of the pay raise amendment should have occurred soon enough to reflect the will of the people at the time. In recent years, to avoid such problems, Congress has usually established a time period, such as seven years, for states to ratify an amendment.

House Speaker Thomas S. Foley (D-Wash.) and Senate Majority Leader George J. Mitchell (D-Me.) have requested legal advice on whether an amendment approved by the 1st Congress in the 18th Century has become a legal dead letter. But Foley and his Republican counterpart, Robert H. Michel, endorsed the spirit of the amendment. “For future generations, it ought to be an abiding principle,” Michel said.

The nation’s chief executive, President Bush, has no role in amending the Constitution. Instead, a little-known official--U.S. Archivist Don W. Wilson--has the authority to proclaim adoption of an amendment. A spokeswoman said Wilson, who could act on his own or seek the advice of Congress, has not reached a decision.

A spokesman for the archivist’s office said it had not yet received the legal instruments of ratification from the legislatures that voted most recently and would make no decision on whether ratification had been accomplished until they are reviewed.

The Constitution has been unchanged since 1971, when the 26th Amendment gave 18-year-olds the right to vote. Three-fourths of the states, or 38, are required to ratify an amendment.

In Madison’s time, when there were only 15 states, the pay raise amendment required approval by 11. Maryland ratified first, on Dec. 19, 1789, and five other states approved over the next two years. But nearly a century elapsed before Ohio gave its blessing in 1873.

Another century went by before Wyoming ratified it in 1978, but the process picked up steam in the 1980s and 35 state legislatures had approved the Madison amendment by last August.

The final states needed came rapidly this week. Legislatures in Missouri and Alabama voted approval Tuesday and Michigan and New Jersey followed by two days. Other states are poised to approve and could add to the total, indicating that public concern over lawmakers’ self-approved pay increases remains a strong issue.

Actually, the House followed Madison’s proposal when it approved a 40% pay raise in 1989 that did not take effect until Jan. 1, 1991, after the off-year elections in 1990. The Senate, however, adopted a pay increase in July, 1991, that took effect immediately to retain parity of Senate and House members’ salaries.

Another issue that may arise is whether cost-of-living increases received each year by members of Congress would be forbidden if the Madison amendment is incorporated in the Constitution.

They are now added to congressional pay automatically, based on changes in an employment cost index, issued by the Labor Department, which is the broadest gauge of pay raises for blue-collar and white-collar workers. The congressional raises are one-half of a percentage point below that figure and are capped at 5% a year.

Rep. Vic Fazio (D-West Sacramento), chairman of a House appropriations subcommittee dealing with legislative branch appropriations, said he has asked for a General Accounting Office study of whether the Madison amendment would affect the cost-of-living escalator system.

THE NEXT STEP

The constitutional amendment on congressional pay raises now goes to Don W. Wilson, chief of the National Archives. He could delay the amendment while seeking guidance from Congress, issue a conditional certificate of ratification or issue a final certificate proclaiming the amendment ratified. House Speaker Thomas S. Foley (D-Wash.) would not speculate on what Congress might do if the issue goes there. If Congress did not act, the question of the measure’s validity would go to the Supreme Court. Despite any congressional action, challenges could be raised by anyone on either side of the issue.