Members of Congress, including South Carolina Rep. Jim Clyburn, are suing for an increase in pay, as well as retroactive pay starting in 2018. (Stock photo by Krisanapong Detraphiphat/Getty Images)
COLUMBIA — South Carolina’s congressional delegation could stand to collectively gain more than $3 million in backpay, along with a salary hike, if a federal lawsuit attempting to raise Congress’ pay prevails.
The case, filed in Washington in 2024, is an inversion of one that played out in South Carolina last year, when state legislators attempted to raise their monthly stipends intended for expenses outside the Statehouse.
The state Supreme Court threw out the increase because the state constitution prohibits legislators increasing their own pay. They can vote to increase the pay of a future Legislature, following the next general election, but not mid-term.
The U.S. Constitution includes a similar rule in the 27th Amendment, which was ratified in May 1992.
But the argument in the federal lawsuit is the opposite of what the state lawsuit argued.
Members of Congress, including South Carolina Rep. Jim Clyburn, contend the amendment also bans reductions in pay, and that Congress has done so through years of frozen salaries.
Clyburn, who joined the lawsuit nine months after its filing, is among five former and current congressmen listed as plaintiffs, though they’re suing to get backpay for everyone affected. Former U.S. Rep. Rodney Davis, an Illinois Republican, led the lawsuit, filed in the federal Court of Federal Claims in Washington, D.C.
They’re officially suing the United States. The lead attorney is Ken Cuccinelli, former attorney general for Virginia and a deputy secretary for the Department of Homeland Security in the first Trump administration.
If a judge rules in their favor, every member of Congress could receive retroactive pay dating back to March 2018, six years before the lawsuit’s filing. The legal challenge attempted to award pay dating back to 1993, the first year following enactment of the 27th Amendment. But a federal judge decided in September 2024 damages must max out at six years because of a statute of limitations.
Still, each of South Carolina’s seven U.S. representatives and two senators — and potentially four former congressmen — could receive hundreds of thousands of dollars in retroactive pay, depending on the lawsuit’s outcome.
Nationwide, the potential cost to taxpayers is nearly $69 million, according to National Taxpayers Union Foundation, which opposes the lawsuit.
Members of South Carolina’s delegation who’ve been in office since 2018 stand to receive at least $419,000 each. That’s as of Sept. 4, 2025, the last date attorneys submitted calculations in court documents. They are Clyburn, the state’s only Democrat in Congress, as well as GOP Reps. Joe Wilson and Ralph Norman, and Sens. Lindsey Graham and Tim Scott.
The amounts decrease for those elected post-2018:
Those dollar figures are all as of the September calculations.
With the clock still ticking as salaries remain capped, those numbers could increase, depending on how a judge decided to calculate damages and when the lawsuit is ultimately resolved.
Even if the courts decide not to award backpay but agree the cap was unconstitutional, everyone in Congress could see a nearly $80,000 hike in their base salary — from $174,000 to more than $253,000 annually — based on what the raises would have been, according to court documents.
After hearing arguments last month, federal Judge Eric Bruggink is weighing how to rule. Decisions on the monetary amounts would come after a ruling, though an appeal is almost certain from either side: The congressmen or the U.S. Department of Justice.
The legal fight has pitted two of the state’s representatives against each other.
Norman, who is also running for governor, has criticized Clyburn’s participation in the lawsuit. He’s also filed a resolution to officially eliminate the automatic pay increases Congress hasn’t taken since 2009.
“Congress is the only place in America where you can fail the people you represent and still expect a raise,” Norman said in a statement. “That’s not public service. That’s a broken system.”
Clyburn’s office declined to comment on the case. Spokespeople for the rest of the congressional delegation did not respond to calls and emails requesting comment.
When Congress passed the Ethics Reform Act in 1989, it stripped legislators of most side hustles. In exchange, however, the law guaranteed automatic annual cost of living adjustments in an effort to keep up with inflation.
The adjustments are supposed to follow either federal estimates of how much the cost of living had increased that year or executive orders from the sitting president, who could decide how much of an increase federal workers would get that year.
“The hope was that, by using an automatic, objective device for determining (cost-of-living adjustments), there would be no occasion for salaries to trigger political debate on an annual basis,” Judge Bruggink wrote in a preliminary opinion on the case, which declined to dismiss it outright.
That was not to be. During the 31 years between the passage of the 27th Amendment and the lawsuit’s filing, Congress rejected its own pay raises 21 times, attorneys for the legislators suing noted.
“An unsympathetic observer might note that this predicament is of Congress’ own making; after all, Congress sets its own pay,” Bruggink wrote.
Legislators aren’t arguing Congress can’t freeze its pay at all. Instead, like in the South Carolina case, the issue is about timing. The 27th Amendment doesn’t require a certain level of payment, but it does set boundaries on when that pay can change.
By passing pay freezes in non-election years or while an election is already underway, as occurred nearly every time over that span, Congress robbed voters of the chance to weigh in on the decision at the polls, argued lawyers for the suing congressmen.
All of the case’s plaintiffs voted for a freeze at some point, argued attorneys for the U.S. Department of Justice in court documents. If Congress wanted a pay increase, it could have accepted one, attorneys wrote.
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Under the revised ethics law, a raise would involve no legislation at all, since the increases are automatic, the Department of Justice argued.
A lawsuit is “the wrong forum for plaintiffs’ apparent regret over the political victories they were unable to obtain — or worse yet, affirmatively voted to prevent — while in office,” attorneys for the Department of Justice wrote.
Changing congressional pay also changes how much they receive in retirement benefits, the original lawsuit said.
Any arguments about underpaid retirement, however, needed to go through a federal agency before coming to the courts, which they did not in this case, Bruggink wrote.
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congresspayCourtesy of South Carolina Daily Gazette
