A bipartisan measure meant to increase protections for congressional employees who complain of sexual harassment and other workplace discrimination could make the process more cumbersome and less transparent, experts on employment law and advocates for victims and government transparency said this week.
Critics agree that the 23-year-old Congressional Accountability Act is long overdue for reform. But they said this one — expected to get broad support when it comes before the House as early as next week — could introduce more problems than it solves, possibly because it was compiled in a rush to respond to the #MeToo movement and the resulting wave of sexual harassment allegations in American institutions.
“It’s much more of a political statement than serious legislation,” said Kevin Mulshine, a former inspector general of the Architect of the Capitol who served as the senior adviser and counsel to the congressional Office of Compliance in the 1990s. The OOC was created by the original 1995 law to oversee congressional civil rights, labor and workplace safety disputes.
Watch: House Harassment Bill on Fast Track, but Maybe Moving Too Fast?
Sponsors pointed out that the House Administration Committee held lengthy public hearings on congressional harassment policies and said the bill brings Congress in line with regulations that have been in place in the private sector for years.
“This is a very well-researched, thoroughly vetted bill,” said Rep. Bradley Byrne, a former labor and employment lawyer. “Anyone critical of this bill is just looking for something to be critical of.”
The Alabama Republican said the bill is expected to come to the floor early next week and pass under suspension of the rules, a procedure that speeds the passage of noncontroversial bills.
The measure attempts to address some of the main critiques of the current system that have emerged in recent months. It would require lawmakers to reimburse the Treasury for settlements of harassment claims and mandate the publication of such settlements twice a year. House employees alleging harassment would be provided “immediate access” to an advocate to provide legal advice and representation, and to support them through OOC and Ethics Committee proceedings.
The bill would prohibit sexual relationships between lawmakers and staff, and between staff when one is a subordinate.
It also creates a new office — the Office of Employee Advocacy — that would potentially provide free legal services to thousands of employees on the Hill and in district offices across the country.
“You’re creating a new bureaucracy,” said Les Alderman, an attorney who has represented multiple congressional employees in harassment and discrimination cases. “It’s a really well-intentioned idea, but in practice it’s going to be a disaster.”
The bill would create substantial new duties for the existing general counsel of the OOC, who is charged with conducting investigations and enforcing provisions of the 1995 act. Under the bill, the general counsel would be granted subpoena powers to conduct investigations of employee claims. The office would then submit reports of its findings to the executive director of the OOC and the House Ethics Committee.
“This is an area the general counsel has never performed any role in,” Mulshine said. “The original act was put together so you would not have a prosecutorial general counsel taking the employees through the process. The employees themselves had the complete burden to advance their case.”
He added that the bill does not give the general counsel any discretion over which cases merit investigation. And it does not give the general counsel a defined role in any resulting hearings.
The bill also does not address how an expanded general counsel’s office and the new Office of Employee Advocacy would be funded.
Byrne, the Alabama House member, said the new office and expanded responsibilities were necessary to create “balance” for staff members in a system that has traditionally been weighted against them. He said he had no doubts that Congress would appropriate enough money to cover new costs associated with the bill.
“I’m a fiscal conservative and I’m not concerned,” he said. “I think everyone understands that we have to make substantial changes in Congress, and that’s why this is going pretty far.”
Some critics warned that the provisions in the bill could make it harder for victims to pursue their complaints in civil court, where testimony and public documents could provide a fuller account of what happened to them.
Alderman said he is concerned that the bill’s proposed 30-day timeline for employees to file civil suits after they have filed a formal complaint could make that option difficult for them.
“The good side of a jury trial is it’s open to the public, to journalists, the damages are far higher, there’s a better appellate review process,” he said. “This is cutting off access to the courts.”
Beyond 30 days, only employees whose cases are found to have “no reasonable cause” after the general counsel’s investigation can file civil suits.
The bill requires that the OOC issue a report every six months on settlements. But what’s included is far less than what’s typically made public in court proceedings.
The report would include only the name of the member’s office involved — not the names of any staff members accused — along with the violations, the amount of an award and whether the lawmaker has paid the settlement, if he was found to have been personally responsible.
Nor does the bill prohibit members from insisting that their accusers sign confidentiality or non-defamation agreements, which would limit what they could say about their case, Alderman said.
Another provision of the bill, requiring members to pay for their own settlements, could make them more reluctant to settle, Alderman and other critics said. And that could reduce the number of complaints that appear in the OOC report.
Sponsors defended those provisions. They said the bill is meant to encourage mediation during the investigation, and the 30-day deadline to file a civil suit ensures that the process moves quickly without wasting federal resources on cases that will ultimately be resolved in court.
Any claim that has resulted in a settlement will be automatically referred to the House or Senate ethics committee. That, supporters have said, will go a long way to restore transparency to the process.
“Our duty is to uphold the integrity of the House and the institution, and we want to make sure that our members abide by the code of conduct so that the institution is viewed as abiding by not only the laws of our country but the highest levels of conduct,” she said. “I believe this is incredibly important work, and the Ethics Committee is taking these matters very seriously.”
The Office of Congressional Ethics, an independent board that investigates reports of misconduct by House members and refers them to the House Ethics Committee, may see its powers curtailed under the bill.
Under the current process, one of the only ways that the public learns the details of an allegation against a member is when the OCE refers an investigation found to merit “further review” to the Ethics Committee. In most cases, the committee is then required to release the OCE report on its findings.
But the bill would prohibit the OCE from initiating or continuing investigations once an employee files an official claim of alleged misconduct.
The general counsel would be required to submit written reports of its findings to the House or Senate ethics committee. The OOC would conduct a hearing in certain cases, but the bill does not clarify whether that report would become public or how it would be used once it had been submitted.
While the country was distracted by the government shutdown, House leaders used the opportunity “to purposely defang the Office of Congressional Ethics and undermine its role in upholding high ethical standards in the House of Representatives,” Meredith McGehee, an ethics advocate who testified at the congressional hearings that led to the creation of the office, said late last week. McGehee is the executive director of the open-government group Issue One.
The OCE has been the target of periodic attacks — especially from members who have been the subject of its investigations — since its inception in 2008. Most recently, House Republicans voted to gut the office in January 2017, and were met with such an outcry that they scrapped the plan less than 24 hours later.
Some OCE supporters said this week they had raised their concerns with congressional staffers, who said they would be open to revisions and that the intent was to streamline the investigative process by limiting the number of offices involved in complaints.