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Congress Backs Madison, but Does It Really Matter? Amendment Action Leaves COLAs in Dispute

By Bill McAllister
Washington Post Staff Writer
Thursday, May 21, 1992; Page A23

Congress bowed to James Madison's wishes yesterday and acknowledged in a pair of extraordinary votes that his 202-year-old prohibition on midterm congressional pay raises had become part of the Constitution.

But even as members of the House and Senate were passing resolutions that some lawyers described as pointless, new questions were being raised about whether the newly proclaimed 27th Amendment will prohibit Congress from securing the automatic pay increases that were part of a 1989 law.

Duke University law professor Walter Dellinger, a constitutional law specialist, said yesterday that the Madison amendment "locks in" the midterm cost-of-living adjustments (COLAs) voted three years ago as part of the Ethics in Government Act. Congress cannot now attempt to reject any pay increase because Madison's amendment "prevents Congress from varying its own pay up, down or sideways," Dellinger said.

Members of the House and Senate declared yesterday by wide margins that the amendment had become effective May 7 with its ratification by the Michigan legislature, the 38th state. Several constitutional authorities had said the congressional action was unnecessary, but sponsors said the votes were critical to erase any question of whether Congress believes the 24-word amendment was valid despite the two centuries that it took to win the required approval of three-fourths of the states.

During a floor debate Tuesday, Rep. Jack Brooks (D-Tex.), sponsor of the House resolution, said the amendment "has the same meaning, the same goal, the same aim and the same intended effect when it was ratified in 1992 as it did when it was first ratified in 1789."

Rep. Dick Zimmer (R-N.J.) called Madison's proposal as "every bit as fresh today as it was more than 200 years ago. . . . What Madison and what ratifiers of this amendment wanted to protect the public against was the ultimate congressional perk – the ability to raise our own salaries without consulting with our employers, the people who elect us."

But sponsors of the resolutions were cautious in their descriptions of what they were doing. Sen. Robert C. Byrd (D-W.Va.) told the Senate on Tuesday that its vote should not be regarded as "a precedent or model for any other amendment." In the future, amendments should be ratified by "contemporaneous action" of Congress and the states, Byrd said.

The Senate voted 99 to 0 yesterday to endorse a package of three resolutions Byrd offered on the issue. It declared that four other amendments submitted to the states without a time limit were dead, including a 1789 amendment that by now would have expanded the House to 10 times its current size.

The House voted 414 to 3 to state its approval of the Madison amendment. Rep. Don Edwards (D-Calif.), chairman of the House Judiciary subcommittee on civil and constitutional rights, supported the resolution and urged the House leadership to address "through legislation" the issue of whether the midterm COLAs are valid.

Consumer advocate Ralph Nader, a leading critic of the 1989 congressional pay increase legislation, and a number of House members have charged that the COLAs can be implemented only after an election. "I think it is clear to me that COLAs under the passage of this amendment will no longer be allowed," said Rep. John A. Boehner (R-Ohio).

House Speaker Thomas S. Foley (D-Wash.) has contended that they will be proper because the legislation establishing COLAs was fully operational by the time the amendment was effective. In Tuesday's House debate, Rep. Neal Smith (D-Iowa) sounded a warning similar to that of Dellinger, cautioning that the amendment's prohibition on "varying" the salary of members between elections could prevent them from cutting their pay as well as increasing it through a COLA.

Smith also differed with most of his colleagues over whether the amendment had been properly approved by the states. "The principle of contemporary consensus, the principle that should be followed in amending the Constitution, is too important to ever waive just because it appears popular at the moment," he told the House.

© Copyright 1992 The Washington Post

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