The pressure on Congress to do something about sexual harassment is mounting. Senator Al Franken’s public apology for grabbing women inappropriately, Congressman John Conyers stepping down from his position on the House Judiciary Committee after reports of confidential sexual-harassment settlements, and the very real possibility that Roy Moore—who faces multiple allegations of sexual molestation and sexual assault—will soon represent Alabama in the Senate have put the issue front and center. And all of these stories are happening under the shadow of a president who has faced multiple accusations of sexual assault and who has displayed very little sympathy for those who are trying to improve this situation.
Some experts predict that as a result of all these stories, as well as the multiple scandals coming out of the private sector, this will be the “Year of the Woman” just as it was in 1992. They anticipate that the fallout from the scandals will be the possibility that large numbers of female candidates will be elected in 2018, greatly increasing the number of women in Congress, who currently only make up a little less than 20 percent of lawmakers. If that happens, the new blood could transform Congress and create a new culture on Capitol Hill. We might be on the cusp of finally having a Congress where all male politicians treat their peers and their staffers with the full respect accorded by the law. The era of the skirt chasers and touchy hands will end.
Or so they hope.
The last time Congress faced a moment of reckoning like this, it failed to pass strict rules governing sexual harassment that would ensure accountability. That is why we are where we are today. The pattern was one that has played out many times before. In moments when there is great pressure for reform, legislators are often reluctant to go as far in fixing themselves as they are in dealing with other branches of government or with the private sector.
The missed opportunity of the 1990s began in October of 1991, when the Senate confirmation hearings for Clarence Thomas, President George H.W. Bush’s nominee for the Supreme Court, revealed how little sensitivity there was in Congress toward the challenges that women face in the workplace. During the hearings, the news media broke the story that there were allegations that Thomas sexually harassed Anita Hill, an African American law professor at the University of Oklahoma who had worked with Thomas when he headed the Equal Employment Opportunity Office under Ronald Reagan.
Her testimony was shocking. “After a brief discussion of work,” she told the committee, “he would turn the conversation to a discussion of sexual matters. His conversations were very vivid. He spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes.” What struck many observers was how hard it was for the senators to take her seriously. Wyoming Republican Alan Simpson’s response was to ask: “If what you say this man said to you occurred, why in God’s name when he left his position of power or status or authority over you, and you left it in 1983, why in God’s name would you ever speak to a man like that the rest of your life?” When she tried to explain her concern for her professional future and reminded the senator that this kind of response was not uncommon in cases of harassment, he simply said it was “incredible” to him that they still spoke. Democrats such as Senator Joseph Biden, the chairman of the committee, did not try to bring the hearings under control when Hill came under attack.
The handful of female legislators in the Senate decried the behavior of male colleagues, who constituted 98 percent of the upper chamber. They vowed to change the culture of Congress and worked to recruit a large number of female candidates to run in the 1992 elections. When there were four victorious female candidates (Patty Murray, Carol Mosely Braun, Dianne Feinstein, and Barbara Boxer) in the Senate elections—while Maryland’s Barbara Mikulski won reelection—and a significant surge in the House and in state legislators, the media reported on “The Year of the Woman.”
It was a moment when things should have changed and much did. These female legislators brought a huge number of new issues to the table, and their presence as elected officials had an impact on what kinds of behavior was deemed permissible, certainly in the public settings of committee hearings and the congressional dining hall. The ultimate victory would come in 2007, when Nancy Pelosi became the female first speaker of the House in American history.
Yet when it came to Congress as a workplace, the accomplishments were more limited. The nub of the problem was that, unlike the executive branch, there had not been civil-service protections for jobs on Capitol Hill. Congress has resisted any kind of institutional infringement on its prerogatives based on claims about the constitutional separation of power. Ohio Democratic Senator John Glenn and others called Capitol Hill “The Last Plantation” as a result of these exemptions. His original reference was to the congressional insulation from civil-rights laws, but by the 1990s, he and others were using the term to talk about gender relations as well. The independent management of members’ offices, which has also been a sacrosanct principle, prevented almost any kind of serious centralized oversight of members and their staff. Beneath these constitutional and managerial issues has been the ongoing fear that any type of stringent rules would merely become weapons for politically motivated attacks using employees to smear the reputation of members.
Unexpected momentum to change the status quo came again in 1995 after Republicans took over both chambers of Congress. Although many Republicans had been resistant when there were efforts to pass legislation creating more stringent rules about sexual relations on the Hill, under Speaker Newt Gingrich the GOP decided to take on the issue. Extending civil-rights and workplace-protection laws on the congressional labor force had been one of the promises that Republican candidates had made when telling their supporters that they wanted to transform Capitol Hill.
Republicans were eager to demonstrate that they could take this issue seriously as the party was reeling from a scandal of its own. Oregon Republican Robert Packwood, a champion of women’s rights issues, was found to be guilty of sexual misconduct. News stories and an investigation by the Senate Ethics Committee had provided the public with shocking detail about the senator grabbing women by their hair and reaching down beneath their clothes. With Republicans like Mitch McConnell speaking out about what the committee was finding, there were predictions that the Senate might vote to expel him by a two-thirds vote when the investigation was done.
To demonstrate that they were serious, the Republicans took the issue up as soon as the session started. Within a few weeks, the House and Senate passed the Congressional Accountability Act of 1995 by huge bipartisan margins. The new law applied 13 federal labor and anti-discrimination laws to Congress. The legislation established an Office of Compliance, under the control of Congress, to handle employment cases when they arose. The measure enabled the over 30,000 workers on the Hill to make claims in federal court—following mediation and counseling that would be handled through the Office.
Republican Christopher Shays of Connecticut, who co-sponsored the bill, explained, “If a law is right for the private sector, it is right for Congress.” Democratic Senator Joseph Lieberman called it the “Golden Rule” since Congress would do to “ourselves as we have done unto others …” The only dissenting vote came from West Virginia Democrat Robert Byrd, who said that even this went too far in subjecting the legislative branch to external oversight. The proponents reminded Byrd that the Office of Compliance, which would control the process, would prevent that. When President Clinton signed the bill into law, he proclaimed that: “It is about time that Congress lived by the same laws it places on the private sector.”
There were many employees on the Hill who were skeptical that the law would really change anything. The old timers had heard about reform in previous eras, only to see legislators exempt themselves from serious punishment. Eddie Moore, who did janitorial work for the architect of the Capitol, told a New York Times reporter that “Nothing has changed, and nothing is likely to change. This is still Congress.”
He was right. The most important problem with the legislation was that Congress continued to maintain the constitutional barrier to external oversight. By continuing to abide by this principle on these employment issues, it was virtually guaranteed that enforcement would be toothless. The EEOC, for instance, would have no authority to shape how legislators handled sexual harassment. The Office of Compliance, which had a Settlements and Award Fund to pay out settlements, was in fact as much a way for Congress to protect itself as it was a mechanism to protect workers. “Congress, once again, has elected to police itself,” wrote Robert Turner, a conservative legal expert who had advised Senator Robert Griffin.
The second problem was the manner through which the Office of Compliance would handle cases that emerged. The office does not provide anything comparable to the human-resources departments found in private-sector offices. There was to be very little accountability or transparency even when the office paid out settlements to accusers. The new process created a 30-day cooling-off period where they had to continue going to work while being counseled about workplace rights. Then there would be a 15-day waiting period during which to decide whether to bring this to mediation. If the accuser chose mediation, they would be required to sign a non-disclosure agreement. Mediation would last for 30 more days. When that period ended, there would be 30 more days for a “cooling-off” period before a worker could file a formal complaint. At this point in a very long process, a formal settlement, paid for through taxpayer money, required the signature of a nondisclosure agreement. There would be little information about how the process worked or the cases it dealt with. Legislators could be shielded from the public fallout over these incidents.
“It was a system set up in 1995,” California Democrat Jackie Speier recently complained, “to protect the harasser. We say zero tolerance, but I don’t believe that we put our money where our mouths are.” In a 2016 survey by Congressional Quarterly, four out of 10 women reported that they saw sexual harassment as a problem in Congress while one in six had personally been victimized.
What will Congress do about the current mess? Will this be another Anita Hill moment, where Congress fails to implement effective changes after the heat of the scandals fade? If Congress is going to do more than make promises about a changed “culture,” they need to put into place much a stricter and transparent process for handling these cases that holds legislators accountable.
The Member and Employee Training and Oversight on Congress Act, co-sponsored by Jackie Speier and Senator Kristin Gillibrand, is a good start to addressing these problems by raising awareness through mandatory training and strengthening the process to offer more protection to the accuser. According to The Hill, only 10 percent of women working in Congress even know that the process for dealing with harassment exits.
The information surrounding financial settlements and the process through which these are resolved need to provide better mechanisms for allowing the press and the public to know what has transpired. Expenses must be accounted for, as they are in the rest of congressional operations.
The process needs to be streamlined so that it is speedier and less cumbersome, creating less time for workers to find themselves subject to threats from the attorneys of members seeking to protect themselves. The kinds of confidentiality agreements required of accusers must be reformed as well. “Because the process is so broken,” one employment lawyer argued in The Washington Post, “people choose to either not engage in the process or, once they engage it, to settle their claims for a fraction of what their claims are worth, because the process is so traumatizing to people. Who would go through all of this and be muzzled for life for three months’ severance if the system wasn’t stacked [against the victim]? I think the answer is: nobody.”
This is also the moment when there needs to be a full-blown legal debate about whether the separation of power really should insulate Congress from these kinds of tightly-enforced workplace rules or whether there is a way for legislators to be regulated by some kind of external or independent body that can make sure rules are enforced. Given that members are subject to criminal prosecution (as was evident with the Abscam scandal), the protections are not as impregnable as often thought.
A change in the “culture” can only go so far.
Rules, regulations, and enforcement are the only mechanisms that can revolutionize what work is like in the House and Senate, and make sure that the kinds of improprieties becoming public on a daily basis finally become a thing of the past.
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