WASHINGTON — Members of Congress may be in line for thousands of dollars in retroactive pay, along with a sizable raise, if a yearslong legal fight over their salaries ends in their favor — a potential outcome that could cost taxpayers millions.
The case advanced significantly last month, when a federal court ruled that a group of current and former lawmakers could proceed with their challenge seeking higher congressional compensation.
The lawmakers argue that Congress violated the 27th Amendment by repeatedly blocking cost-of-living increases to their own pay, effectively undoing a 1989 law designed to keep congressional salaries aligned with inflation.
Should the courts side with the plaintiffs, taxpayers could be required to cover at least $69 million in back pay, according to an estimate from the National Taxpayers Union.
Mindful of public backlash over the appearance of enriching themselves, lawmakers have left their annual salaries unchanged at $174,000 for nearly 20 years. Privately, however, frustration has grown over pay that has not kept pace with rising costs.
“Seventeen years, I have gotten people from my side and people from the other side saying, ‘Can’t we fix this?’” Rep. Steny Hoyer (D-Md.), a former House majority leader and one of the plaintiffs, said during an appropriations hearing last month.
“Our goal is to stop the continual violations of the Constitution as it relates to Congressional pay,” Ken Cuccinelli, the attorney representing the lawmakers, told The Post in an email. “As a policy matter, I would note that Congressional pay on an inflation-adjusted basis is the lowest it has been since 1954.”
Cuccinelli — a former Republican attorney general of Virginia who also served as acting deputy Homeland Security secretary during President Trump’s first term — organized the class-action lawsuit with Hoyer and Reps. Rick Crawford (R-Ark.) and James Clyburn (D-S.C.) as plaintiffs, joined by former Reps. Rodney Davis (R-Ill.) and Ed Perlmutter (D-Colo.).
The exact number of current and former members who could receive back pay remains uncertain and is one of the questions that Federal Claims Court Judge Eric Bruggink asked both sides to address in filings due later this summer.
Other outstanding issues include how potential damanges will be calculated, with individual lawmakers due between $225,000 and $420,000.
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Apart from back pay, a federal court win could lead to lawmakers receiving automatic salary increases each year.
That would mean every member of Congress could see their pay hiked to more than $253,000 per year — an increase of 45%, according to estimates.
In an added twist, former lawmakers could then appeal to the federal Office of Personnel Management to have their pensions increased, adding more money to the taxpayers’ tally.
Demian Brady, vice president of research at the National Taxpayers Union Foundation, told The Post if lawmakers want a raise, then they should vote to give themselves a raise, not rely on the court to find in their favor.
“Because of all these perplexing questions, and because the damages will fall on taxpayers through higher deficit spending and potentially higher long-term liabilities, and also because of the reputational harm this will do to Congress as an institution, I’ve urged the lawmakers to drop their case,” he said.
“They should seek higher pay by convincing their colleagues to vote for higher pay instead of suing taxpayers.”
Supporters of higher pay for legislators note that they often have to maintain two residences — one in their district and one in Washington DC, one of the most expensive real estate markets in the US.
Members of Congress last received a pay adjustment in 2009, when their salary was increased to its current level from $169,300, a bump of 2.8%.
Since the 27th Amendment was ratified in 1992, Congress has rejected its own pay raises 21 times.
The plaintiffs argue that violates the 27th Amendment, which states that no law “varying” lawmaker compensation “shall take effect, until an election of Representatives shall have intervened.”
Judge Bruggink agreed the amendment applies in this case.
“Laws varying congressional compensation are ineffective to the extent they seek to effectuate a change in congressional compensation before an election intervenes,” he wrote in his opinion advancing the case.
