Why Sexual-Harassment Legislation Stalled in the Senate

The women of the Senate are confused, annoyed, and frustrated.

When the omnibus was being hammered out last month, the widespread assumption was that it would include measures reforming how Congress deals with sexual misbehavior in its own ranks. A bipartisan collection of senators had been negotiating the fine print and, going into the home stretch, most expected some version of it to be included in the massive spending bill. (At least one office had a celebratory press release all ready to roll.) After all, the unruly House had managed to pass its reform legislation in February—unanimously no less. Surely the oh-so-respectable Senate wouldn’t fall behind on such a hot topic, especially with harassment scandals continuing to take down lawmakers (including, most recently, Blake Farenthold and Elizabeth Esty). What senator would want to risk being seen as propping up the existing system, which is universally regarded as an abject disaster?

Mitch McConnell, as it turns out. As Hill reformers are itching to rant about it (though mostly in private), late in the omnibus talks, the Republican leader suddenly turned skittish on harassment legislation. According to three sources with direct knowledge of the negotiations, speaking on condition of anonymity due to the confidential nature of the negotiations, McConnell had problems with a provision that would make individual members financially responsible for harassment and discrimination settlements against them. (Currently, members can use taxpayer dollars to handle such unpleasantness.) More specifically, McConnell was said to be more-or-less OK with putting members on the hook for harassment, but discrimination liability was too much for him to swallow. And so the omnibus left the station sans a reform package.

When asked about this sticking point (and specifically the harassment vs. discrimination distinction), McConnell’s office sent me a variation on a statement they’d released before: “As you are aware, Leader McConnell supports members being personally, financially liable for sexual misconduct in which they have engaged. There is a bipartisan group that is continuing to work on legislation. I don’t yet have a prediction on when that will be completed.”

Note that this does not address matters of discrimination, as opposed to “sexual misconduct.”

As for when the bipartisan group will complete its work, lawmakers aren’t holding their breath. The omnibus was considered by far the best shot at getting any reform adopted, the perfect opportunity to pass a measure quickly and quietly, without endless nattering about which provisions did or did not make the final cut. Now, even reform advocates don’t see a clear way forward, especially with the midterms making McConnell extra skittish about tackling any legislation. Maybe some other vehicle will come up to which they could attach a reform bill. Maybe it could move forward as a stand-alone measure. Maybe it could be “hotlined”—that is, passed by unanimous consent without a bunch of noisy, public debate. But no one seems optimistic about any of these paths. “We don’t have a lot of opportunities,” one Democratic aide lamented.

The sense that McConnell is inclined to let this issue fade away makes reformers all the grumpier. Senator Kirsten Gillibrand is particularly fired-up about the jam-up, as are fellow Democrats Amy Klobuchar and Patty Murray. (Klobuchar’s team led negotiations for her party during the omnibus horse-trading and remains neck-deep in ongoing talks.) But this is not a typical red vs. blue situation. Post-omnibus, the Democratic trio of women drew up a letter to leadership urging renewed action. Every female senator from both sides of the aisle quickly signed on.

The bipartisan letter grabbed headlines and elicited scads of positive feedback, reformers say. Unfortunately, none of it was from the one man who matters: McConnell. “Republican leadership just kind of shrugged its shoulders,” a Democratic staffer said. “We were disappointed by the lack of response from McConnell. It wasn’t a big blow up. He just didn’t really acknowledge the letter. We didn’t get any kind of official response.”

What can reformers do to get things back on track? No one knows—though multiple aides report that their bosses are wracking their brains for ways to keep the issue alive.

Case in point: Last week, during hearings for a nominee to the Equal Employment Opportunity Commission, Murray used her opening statement to talk about workplace harassment in general, in the process taking a direct swing at McConnell’s foot-dragging with respect to Congress. The money quote:

Now I’m proud that the female senators on both sides of the aisle are taking this issue seriously. There have been a number of steps taken, and bills introduced, to combat and prevent sexual harassment, both here in Congress, and in workplaces across the country. However, it’s been really unfortunate to see a lack of urgency or action from Republican leaders here in Congress. Leader McConnell has yet to allow a vote on legislation to reform how sexual harassment claims are handled here in Congress.

More tenuously, there has been talk of Senate men (at least on the Democratic side) putting together a letter to leadership expressing support for the women’s letter. This is, the men of the Senate are well aware, not simply a Women’s Issue. But that idea hasn’t quite gelled yet (at least not enough for anyone to discuss publicly).

And so goes the quest to keep the heat on. “We’re not going to stop talking about this,” the Democratic aide asserted. “When it wasn’t in the omnibus, did people not expect us to say anything? Did they think people were going to let this die?”

The fact that the House has done its part just makes this all the more embarrassing, noted the aide. “They’re usually the more difficult chamber.”

Maybe. But as House members know better than anyone, many a legislative crusade has died on McConnell’s doorstep. So unless reformers can figure out a way to get the iron-fisted majority leader to say “MeToo,” Congress may very well miss its reform moment.