The Proposed 28th Amendment: Fact or Fantasy?


By Square Peg





I recently received a chain email asking me to support the ‘Proposed 28th Amendment to the U.S. Constitution.’ The email included a heartrending photo of a proud young serviceman who had been permanently disfigured, presumably in the line of duty. The text of the message protested that while the men and women who bravely serve in our military retire with half of their pay after 20 years of service, our Congressional representatives can retire with full pay after only four years in a cushy office job.
The dramatic email went on to say that we should all support a new constitutional amendment that “Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.”
The email did not include a petition to be signed, the contact information of any individual or organization, or any method to actually take action in support of the proposed amendment. However, after a brief search I found a website with a petition that could be signed electronically, which claimed to have gathered nearly 30,000 responses.
I have heard, as I am sure you have, that Congress members can retire with full pay after just one term, approve their own pay raises, don’t pay social security, get free health care for life, and are free from prosecution for sexual harassment. Their kids don’t have to repay their student loans, and they have voted themselves exempt from Obamacare.
Is all or any of this true? If it is, why am I wasting my time writing this when I could be running for Congress? Would a constitutional amendment really level the playing field for the Congressional elite and the average American Joe?
I let my fingers do the walking through the internet and found that this email or versions of it have been circulating since 2009. According to David Emery, who wrote about the “Proposed 28th Amendment” in the Urban Legends section of in February 2010, the whole concept is based on inaccurate information. A similar chain email supporting the “Congressional Reform Act of 2011” is based on the same misconceptions.
Emery claims that “while there is some historical truth to the claim that Congress has occasionally exempted itself from laws that apply to the rest of us, the argument outlined above is largely outdated and inaccurate.” In fact, many Congressional inequities were addressed by the Congressional Accountability Act or CAA back in 1995.
Starting eighteen years ago, the CAA applied a dozen key civil rights, labor, and health and safety laws to Congress and its agencies, requiring them to follow the same laws as private businesses and other federal employees. Before 1995, Congress members and many other legislative employees were exempt from these laws. It’s shocking to think that Congress was ever excluded from these rules and easy to see why it would boil the blood of any patriot.
The laws imposed on Congress by the CAA include some of the fundamental laws that have shaped our modern society in recent decades. The list includes Title VII of the Civil Rights Act of 1964 (protection from sexual harassment and discrimination in employment based on race, religion, gender, or national origin), the Occupational Safety and Health Act of 1970 or OSHA (ensures workplace safety), the Family and Medical Leave Act of 1993 (leave from work for family or medical reasons), and the Americans with Disabilities Act of 1990 (access to public places for people with disabilities).
The act also swelled the bureaucracy by founding the United States Congress Office of Compliance to enforce it. Ironically, the CAA, which was meant to guarantee that Congress is subject to the same rules as the rest of us, also created a dispute resolution process so that violators don’t have to go to federal court like everyone else.
Actually, Congressional delegates do enjoy some privileges that the rest of us don’t. For example, Article I, Section 6 of the U.S. Constitution protects them from arrest while meeting to perform their congressional duties “except Treason, Felony and Breach of the Peace.” The idea was to protect them from persecution by their own government, like when King Charles I of England tried to have his critics in the British Parliament arrested in 1642. Charles lost his head in the English Civil War that soon followed.
But surely the Founding Fathers did not intend that Congress should become a privileged class above the reach of equality and justice, and according to they have not. All, really – every one, of the allegations about Congress that I mentioned earlier are revealed by this nonpartisan, nonprofit organization as false.
According to Brooks Jackson, who wrote a piece in March 2011 analyzing The Congressional Reform Act of 2011 for, “This latest rant against Congress has been circulating since the start of the year, urging passage of a “reform act” to correct abuses of power by Congress. But as we often find with these chain messages, the author doesn’t know very much about the subject. He or she (the author is anonymous, of course) repeats a number of false claims that we have debunked before.”
In other words, Congressional pay raises are based on a cost of living formula and occur automatically unless Congress votes to stop them like they did in 2010 and 2011. (See H.R. 5146 from April 2010.) Members of Congress have the same Federal Employees Health Benefits Program as millions of other federal employees and retirees. The program offers a variety of private health care plans that comply with the new health care reform laws.
Justin Bank, also of wrote in 2007 that “It is also false that Congress can retire after only one term with full pay, and false that they don’t pay into Social Security. Members elected after 1983 participate in the Federal Employees Retirement System. Members elected before 1983 participate in the older Civil Service Retirement Program. In both cases, they contribute to the plans at a slightly higher rate than ordinary federal employees. How much members of Congress receive upon retirement depends on their age, length of government service, and the configuration of their plan.”
But the good news is that in spite of the prevalence of provoking emails based on myth and misinformation, there are still plenty of legitimate reasons to be pissed off at the politicians on both sides of the aisle. Their childish inability to work together, their massive overspending that would cripple any private business or household budget, and let’s not forget the sequester, are all valid reasons for us to pay attention to what’s going on in Washington and to hold our representatives accountable for their actions. Maybe I’ll start an anonymous chain email about it.