Sexual Predators on the Hill

The recent avalanche of rev­e­la­tions about sex­u­al harass­ment in high-pro­file work­places include alle­ga­tions against the longest serv­ing mem­ber in the House, John Cony­ers. The press and the pub­lic seem stunned to learn that Rep­re­sen­ta­tive Cony­ers con­fi­den­tial­ly set­tled a sex­u­al harass­ment claim brought by his long-term staffer, Mar­i­on Brown, using $27,000 of tax­pay­er mon­ey. Even mem­bers of Con­gress act sur­prised and out­raged when ques­tioned about this set­tle­ment. Yet the pro­ce­dures that led to this pay­out are no secret. They’re set forth in the pub­lic record in a statute iron­i­cal­ly enti­tled The Con­gres­sion­al Account­abil­i­ty Act; they’ve been in effect for two decades; and every mem­ber of the 1995 House and Sen­ate vot­ed in favor of them.

These pro­vi­sions escaped atten­tion when they were enact­ed in 1995 because Con­gress includ­ed them in a larg­er bill that looked like a big step toward major reform. Decades ear­li­er, Con­gress had passed a host of impor­tant employ­ment laws, includ­ing the Fair Labor Stan­dards Act of 1938, estab­lish­ing min­i­mum wage and over­time pay; the Civ­il Rights Act of 1964, pro­hibit­ing dis­crim­i­na­tion based on race, col­or, reli­gion, sex, or nation­al­i­ty; the Age Dis­crim­i­na­tion in Employ­ment Act of 1967; the Amer­i­cans With Dis­abil­i­ties Act of 1990; the Occu­pa­tion­al Safe­ty and Health Act of 1970, man­dat­ing safe­ty reg­u­la­tions in the work­place; and many oth­ers. These laws apply to all employ­ers with more than a hand­ful of employ­ees, except for one – Con­gress. Con­gress exempt­ed itself from their require­ments, leav­ing the 30,000 employ­ees of the leg­isla­tive branch unprotected. 

Dur­ing the 1994 Con­gres­sion­al cam­paigns, Repub­li­cans promised a new “Con­tract with Amer­i­ca.” One of the contract’s tenets was the nov­el idea that Con­gress ought to be sub­ject to the laws it impos­es on every­one else. The first law passed by the 104^th Con­gress was The Con­gres­sion­al Account­abil­i­ty Act. It pro­vid­ed that eleven fed­er­al employ­ment law statutes, includ­ing the laws men­tioned above, would apply to Con­gress from there on. The Act sailed through the House and Sen­ate with­out a sin­gle no vote. The press hailed it as a long over­due reform mea­sure, and mem­bers of Con­gress rushed to the micro­phones to take cred­it for final­ly mak­ing them­selves account­able for their behav­ior in the workplace. 

But there was a catch lurk­ing in the statute’s shad­ows that received almost no sun­light until a few weeks ago. Title IV of the Act allows an

employ­ee of the leg­isla­tive branch to file a com­plaint against a mem­ber of Con­gress only after com­plet­ing a one-sided review pro­ce­dure. For exam­ple, if a female staffer wants to take action against a mem­ber of Con­gress for sex­u­al­ly harass­ing her, she must first sign a con­fi­den­tial­i­ty agree­ment. Then she must sub­mit to coun­sel­ing for up to 30 days and attend medi­a­tion meet­ings for at least 30 more days. Only at the end of anoth­er 30 day cool­ing off peri­od after medi­a­tion can she final­ly file her for­mal com­plaint. She must then choose between demand­ing an inter­nal hear­ing before a hear­ing offi­cer or fil­ing a civ­il suit in fed­er­al court, either of which will take many months, if not years, to reach a con­clu­sion. While the pro­ceed­ings grind for­ward, she con­tin­ues to work with the mem­ber of Con­gress she has com­plained about unless she resigns or he fires her.

Best of all for mem­bers of Con­gress, the Act pro­hibits hear­ing offi­cers and courts from requir­ing them to pay a dime out of their own pock­ets for these claims. The U.S. Trea­sury pays all dam­age awards and set­tle­ments out of tax­pay­er funds. The Act also sweeps puni­tive dam­ages off the table. Puni­tive dam­age awards cre­ate a pow­er­ful incen­tive to pur­sue claims because they dri­ve the cost of set­tle­ments and total dam­ages much high­er, so nat­u­ral­ly Con­gress was care­ful to immu­nize itself from that risk.

The Act cre­at­ed the Office of Com­pli­ance (“OOC”) to admin­is­ter the com­plaint review pro­ce­dure. It con­sists of a five mem­ber Board of Direc­tors, which appoints an Exec­u­tive Direc­tor, who hires staff, medi­a­tors, and hear­ing offi­cers. The Act pro­vides that Congress’s lead­er­ship appoints the Board mem­bers, which gives employ­ees lit­tle con­fi­dence in the OOC’s will­ing­ness to bite the hand that feeds it. Rep­re­sen­ta­tive Jack­ie Speier recent­ly said the OOC “is a place that has real­ly been an enabler of sex­u­al harass­ment for these many years because of the way it’s con­struct­ed.” She esti­mates that eighty per­cent of the employ­ees who have spo­ken to her office about sex­u­al harass­ment have not filed claims for that reason.

Since 1996, the Trea­sury has paid out 17.2 mil­lion dol­lars for 268 claims under the Act. This includes claims for vio­la­tions of all eleven of the employ­ment laws cov­ered by the Act. Because of the secre­cy pro­vi­sions, we don’t know how many claims involved sex­u­al harass­ment. In fact, we know almost noth­ing about these claims because the House and Sen­ate Com­mit­tees that have the pow­er to require the OOC to give them the infor­ma­tion had nev­er asked for it in the twen­ty year life of the Act until a few weeks ago when Mar­i­on Brown’s claim against Rep­re­sen­ta­tive Cony­ers hit the air­waves. If the OOC has respond­ed to that recent request, Con­gress has not yet seen fit to make the infor­ma­tion public.

Pen­e­trat­ing this veil of secre­cy to a small degree, the press uncov­ered details about two past sex­u­al harass­ment claims. Accord­ing to these

reports, the Trea­sury paid $100,000 in 2010 to two young male staffers to resolve sex­u­al harass­ment claims against Rep­re­sen­ta­tive Mas­sa of New York. He resigned under pres­sure short­ly after­wards. In 2014, the Trea­sury paid $84,000 to Lau­ren Greene, a staffer who worked for Rep­re­sen­ta­tive Far­en­thold of Texas, for a civ­il law­suit she filed against him for sex­u­al harass­ment. As of this writ­ing, Rep­re­sen­ta­tive Far­en­thold has suc­cess­ful­ly resist­ed calls for his resignation.

On Novem­ber 15, Rep­re­sen­ta­tives Speier and Com­stock intro­duced the “Me Too” bill to amend the Act. The Me Too bill removes the require­ment that an employ­ee sign a con­fi­den­tial­i­ty agree­ment before mak­ing a claim, pro­tects the employ­ee from retal­i­a­tion for fil­ing a claim, offers legal rep­re­sen­ta­tion to the employ­ee, pro­vides that coun­sel­ing and medi­a­tion are vol­un­tary only, and requires a mem­ber of Con­gress to reim­burse the Trea­sury for dam­ages paid for per­son­al con­duct. As best I can tell, only forty-nine rep­re­sen­ta­tives have for­mal­ly endorsed it to date, but it’s ear­ly, and the tem­per­a­ture is ris­ing every day. 

When I was an attor­ney and lat­er an exec­u­tive, I han­dled a lot of sex­u­al harass­ment claims in the pri­vate sec­tor. Most exec­u­tives and man­agers I worked with were well-inten­tioned. With train­ing and edu­ca­tion, they tried hard to do the right thing. But there were some bad actors out there, peo­ple who behaved self­ish­ly and irre­spon­si­bly no mat­ter how much train­ing, coun­sel­ing, warn­ings, and dis­ci­pline they received. In my expe­ri­ence, the only way to deal with those peo­ple was to hit them with max­i­mum pun­ish­ment: ter­mi­na­tion of employ­ment, full pub­lic dis­clo­sure, big honk­ing finan­cial penalties. 

Con­gress under­stands this when it pass­es laws that apply to the rest of us, but its enthu­si­asm for pun­ish­ment seems to with­er when it points its guns at its own mem­bers. For twen­ty years it has pre­tend­ed to hold its mem­bers account­able while shield­ing them from the con­se­quences of their actions. Enough of the faux reform.

If Con­gress tru­ly wants to elim­i­nate the sex­u­al­ly hos­tile atmos­phere on the Hill, it should pub­lish a list of names of all of the accused, the details of the claims against them, and the amounts of mon­ey paid out on each one; the House and the Sen­ate should demand res­ig­na­tions from the preda­tors and expel those who refuse to resign; and Con­gress should pass the Me Too bill now.

That’s what should hap­pen and it should go down with bru­tal swift­ness, but with Congress’s track record on self-reg­u­la­tion, I’m not hold­ing my breath.