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The 27th Amendment to the Constitution of the United States stipulates that:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

This was meant to restrict members of Congress from voting themselves free money, by forcing them to win reelection before they could take advantage of raises in pay, and is unambiguous in cases where a law simply changes, up front, the pay of members of Congress; once the law to change their pay has been passed, they have to wait until after the next general election before the change in pay can take effect.

However, the text of the amendment does not specify whether the requirement for "an election of Representatives [to] have intervened" requires

  • that changes in Congressional pay not come into effect until the next election of Representatives following the passage of the law that alters Congressional pay,

or whether it instead requires

  • that changes in Congressional pay not come into effect until the next election of Representatives following the event that triggers the law's alteration of Congressional pay.

For laws that simply straight-up change the pay of members of Congress, there is no ambiguity, as the passage of the law is the event that causes it to alter Congressional pay, making the two readings equivalent.

However, one could easily imagine a law where these two readings aren't equivalent.

For example, a law might be passed saying that, if Congress can't agree on a budget in time to prevent a government shutdown, they forfeit their pay for the duration of the shutdown; in such a case...

  • The first reading would merely prevent the law from coming into effect until after the first election of Representatives following its passage. After this point, the law could, without violating amendment #27, immediately forfeit Congressional pay right from the start of a government shutdown, without needing to wait for further elections.

In contrast...

  • The second reading would, for each shutdown, prevent Congressional pay from being forfeited until after the first election of Representatives following the start of the shutdown (as, for this hypothetical law, the triggering event for the loss of Congressmembers' pay - the event that actually causes their pay to be cut off - is the occurrence of a government shutdown), which would, as government shutdowns very rarely drag on all the way until the next election, render such a law effectively toothless.

Which of these readings of the 27th Amendment is the correct one? Has this even been decided?

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The amendment restricts when a change in law takes effect. The amendment does not restrict all laws, just those "varying the compensation for the services of the Senators and Representatives". A law could be passed this session automatically increasing (or decreasing) congressional pay by 5% per annum, and could take effect after the 2022 elections have taken place in November. Like all constitutional amendments, we do not get an authoritative interpretation of the meaning of the words until someone sues someone else and SCOTUS says what it means.

Shaffer v. Clinton, 54 F. Supp. 2d 1014 is a case almost on point, precisely over whether COLAs violate the 27th Amendment. The Executive branch (defendants) sought dismissal and certain Congressmen and citizens (plaintiffs) sought summary judgment, "asserting there is no genuine issue as to any material fact remaining in dispute and plaintiffs are entitled to judgment as a matter of law". The case was dismissed with prejudice without much mention of the merits

the annual COLAs provided by the Ethics Reform Act of 1989 are not independent laws under the Twenty-seventh Amendment

and that

Adjustments to congressional salaries under the Ethics Reform Act are not discretionary acts of Congress. The adjustments are calculations performed by nonlegislative administrative staff, following a specific formula provided by Congress in the Act

This provides a good basis for thinking that a future court would reach the same "failure to state a claim" dead end, but in lieu of something above the level of U.S. District Court, Colorado would be necessary to make the conclusion "a matter of settled law". What you propose does not require making more than one law, and then a bunch of administrative calculations that does not involve Congress.

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  • I already knew about the lawsuit re: COLAs, but decided to ask anyways, on the grounds that one could conceivably argue that COLAs are actually a way of keeping "the compensation for the services of the Senators and Representatives" constant (by adjusting their nominal pay to compensate for changes in the real value of the U.S. dollar).
    – Vikki
    Jun 7 '21 at 23:53
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    @Vikki-formerlySean: I would argue that they aren't constant at all and are changes...but they are authorized by a law enacted in 1989, and are already in effect. The point of the amendment, to me, is technically, "a" Congress can't give itself a pay raise...it gives the "next" Congress a pay raise.
    – sharur
    Jun 8 '21 at 0:21
  • @sharur: Not arguing with you, just pointing out a point one could conceivably try to argue.
    – Vikki
    Jun 8 '21 at 0:23
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    @Vikki-formerlySean likewise, sorry, that's an expression I use in actual day-to-day life. I apologize if the came off as aggressive or picking a fight.
    – sharur
    Jun 8 '21 at 0:35

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