[Congressional Record Volume 141, Number 2 (Thursday, January 5, 1995)]
[Senate]
[Pages S439-S456]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995
The Senate continued with the consideration of the bill.
[[Page S440]] The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Mr. President, we are now on the bill to extend coverage
to the Congress? Is that the bill before the Senate?
The PRESIDING OFFICER. That is correct.
Mr. STEVENS. Mr. President, there has been some comment concerning my
activities regarding this bill at the end of last session. I want to
state for the Record what happened.
Right toward the end of the session, there was an attempt to call up
the bill. I had an appointment with a physician to check a basic
problem--we thought it was a sheared hamstring muscle--and I asked my
friend from Mississippi, Senator Lott, if he would object to bringing
the bill up until I had a chance to see it. The Rules Committee had one
version of the bill and I believe Governmental Affairs had another. I
wanted a chance to examine that bill. To my dismay at the time, the
problem I perceived I had was not the problem and 14 hours later I
underwent a very serious, major operation on my spine. I never returned
to the Senate.
I did not intend to block the bill. I did have a request that I be
able to see the bill, but since I never got back to the Senate, to my
knowledge no attempt was made after that time to raise the bill. But I
have heard comment again this morning, in the press, that I had
filibustered the bill. That is not true and I think the Record should
show my request was a request to examine the bill. I never had the
opportunity to do that since I never got back to the Senate during that
part, the last part of the Senate, due to that operation.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. BUMPERS. I thank the Chair.
(The remarks of Mr. Bumpers and Mr. Leahy pertaining to the
introduction of S. 151, S. 152, S. 153, S. 154, S. 155, S. 156, and S.
157 are located in today's Record under ``Statements on Introduced
Bills and Joint Resolutions.'')
Mr. GRASSLEY. Mr. President, I am very pleased that the first bill
that the 104th Senate will consider is the Congressional Accountability
Act. This bill presents the opportunity to show the country that the
Senate has listened to the American people. We will demonstrate that
the new Senate knows that the American people want us to end business
as usual.
I appreciate the leadership that Senator Lieberman has provided on
this legislation over the years. He is equally committed to reforming
Congress. Our views on this legislation are identical. And I am pleased
that the task of congressional coverage has benefited from a bipartisan
approach.
I also wish to thank Senator Dole for bringing up this legislation.
His commitment to this legislation is outstanding. He is a true
reformer in the best sense of the word. And he is committed to ending
the injustices that have existed for congressional employees for so
many years. The majority leader established a number of working groups
to advise him on measures that should be taken in the 104th Senate.
Senator Fred Thompson and I cochaired the Working Group on
Congressional Coverage. I know that Senator Thompson has worked hard on
this legislation, and I appreciate his assistance in this effort. It is
an auspicious beginning to his career as a Senator. Other members of
the working group included Senators Nickles, Gorton, Smith, Stevens,
Abraham, Coats, and Hutchison.
Moreover, our efforts to ensure congressional compliance with the
laws it passes benefited from Senator Roth's willingness to let this
legislation be brought to the floor immediately. Additionally, Senator
Glenn worked on the issue over quite a few years when he chaired the
Governmental Affairs Committee. I am also delighted that this bill has
dozens of cosponsors, from both parties, all parts of the country, and
all across the ideological spectrum.
This bill represents the culmination of an effort that I began
several years ago, when I first attempted to offer an amendment to a
civil rights bill that would have brought Congress under labor and
employment laws. That attempt failed, as did my attempt to amend the
Americans With Disabilities Act in 1989.
My amendment was accepted by the then-Senate leadership but was
rendered ineffective in conference. And I was not even allowed to offer
my amendment to the family leave bill when the Senate debated it in
1991.
Congress can no longer refuse to live by the laws it passes. The time
is long overdue for Congress to correct this practice, and that is what
this bill does. It completes the process begun in 1991 when the Senate
passed the Grassley-Mitchell amendment applying the substantive
provisions of the civil rights laws to the Senate. As I said back then,
it was a good beginning--but only a beginning. So it is with some
measure of satisfaction that I find myself speaking in favor of a bill
that would finally require Congress to comply with a host of employment
laws it has enacted for the private sector.
Mr. President, since the 1930's Congress has passed laws that flowed
from the assumption that Washington knew best. Congress set up
burdensome statutory requirements on the operation of small businesses
in this country. The burdens were increased through regulations issued
by executive branch agencies pursuant to the statute.
At the same time, Congress repeatedly exempted itself from the
effects of those laws. Laws governed America, but not Congress. Workers
were granted rights, but congressional workers were not. Those who made
the laws did not live by them. Congress was immune from the excesses of
the regulatory state. Congress became removed from the way its work
affected everyone else.
In this country, no one is above the law. But just as the Presidency
suffered a tremendous loss of public confidence when an individual
thought he was above the law, Congress suffered as Members thought they
were above the law. Indeed, to me, this was one of the major reasons
why Congress lost touch with the people. And it was one of the ways by
which Congress displayed arrogance. Millions of Americans complained
about the overreach of the Federal Government, but Congress, through
its exemption from the law, could not know the depth of feeling from
the grassroots. In November, the American people demanded that Congress
be affected by the laws it passes. A number of Members who thought
Congress should be above the law are no longer Members and no longer
above the law.
Let me remind my colleagues of someone who lost an earlier election,
former Senator George McGovern.
Senator McGovern believes that Congress has enacted unnecessary
regulatory burdens that are strangling small business. Senator McGovern
admits that he did not feel that way when he was a Member of this body,
but he learned the reality of the operation of that legislation when he
ran a small business after leaving office. I appreciate that Senator
McGovern now says that he would have legislated differently had he
known what the actual effects would have been.
But Members of Congress learning of the effects of their votes only
after leaving office will not solve the problem. Then, it is too late.
Only if Members of Congress live with the consequences of their votes
will the problem that Senator McGovern identified be corrected.
I think that President Clinton has this issue exactly right as well.
When we send this bill to him, he will sign it. As he stated in a July
1992 interview, ``It's wrong for Congress to be able to put new
requirements on American business as employers and then not follow that
rule as employers themselves. They exempt themselves, historically,
from all kinds of rules that private employers have to follow. And I
think that one of the things that happens to people in government is
they forget what it's like to be governed. They don't have any idea
what it's like to be on the receiving end of a lot of these rules and
regulations.''
Of course, the Founding Fathers would be astonished to know that
Congress had exempted itself from so many laws that it passed for the
private sector. James Madison in Federalist 57 wrote that one of the
primary guarantees of the people's liberty came from Congress living by
whatever laws it passed. Madison wrote that Congress ``Can pass no law
which will not have its full operation on themselves and
[[Page S441]] their friends, as well as on the great mass of society.
This has always been deemed one of the strongest bonds by which human
policy can connect the rulers and the people together. It creates
between them the communion of interest * * * of which few governments
have furnished examples, but without which every government degenerates
into tyranny * * * if this spirit ever be so far debased as to tolerate
a law not obligatory on the legislature as well as on the people, the
people will be prepared to tolerate anything but liberty.''
Mr. President, Madison was right. Of course, the low esteem in which
Congress is currently held reflects the fact that there is no longer
congruence of interests between the governors and the governed. The
American people will no longer tolerate a law not obligatory on the
legislature as well as the people.
Under Madison's principle, because Members of Congress would be
careful before they infringed their own liberties, the people's
liberties would be zealously protected.
Unfortunately, the corollary to the principle was equally true.
Members of Congress who could protect their own liberties while
infringing on the liberties of others were much more likely to fail to
protect others' liberties. Congress enjoyed privilege through
exemption. The time has come to end congressional royalism. The time
has come to end the exemptions. Now, Congress must finally live under
the same laws it passes for everyone else, to fulfill Madison's promise
of the Constitution. And, now, employees of Congress must finally gain
the same rights that their counterparts in the private sector enjoy.
Like my colleagues, I take the notion of representative government
very seriously. We are not Senators for ourselves. We do not hold this
job as a matter of personal privilege. We are here to represent the
interests of our constituents, our States and our country, and for no
other reason. I think that exemptions from the operation of law
interfere with representative government. I wonder how we truly can
represent people who live by one set of laws when we live under
different laws. Under the current system, our votes on various
regulatory issues reflect our interests and not our constituents'. This
must change if representative government is truly to function.
When we pass this bill, we begin to restore the American people's
faith in Congress. We will do so in five respects. First, we ensure
that Members of Congress will know firsthand the burdens that the
private sector lives with. By knowing those burdens, Congress may
decide that the laws indeed are burdensome. That realization may lead
to necessary reform of the underlying legislation. It is true that
there will be additional costs imposed on Congress if this legislation
passes. However, these are costs that the private sector has had to
live with for years. And the Congressional Budget Office has estimated
that costs of compliance will be only about $3-to-$4 million.
While that is a considerable sum, it represents, for instance, only a
fraction of the amount that Congress recently voted for a subway system
to connect the Senate office buildings with the Capitol.
The second benefit of requiring that Congress live under the laws it
passes for others concerns future social legislation. If Congress knows
that it will be bound by what it passes, Congress will be more careful
in the future to respect the liberties of others.
Third, passage of the bill will mean that congressional employees
will have the civil rights and social legislation that has ensured fair
treatment of workers in the private sector. Congress is the last
plantation. It is time for the plantation workers to be liberated.
Maybe it is more accurate to say that Congress and the judiciary are
the last two plantations. Curiously, the only people who do not have to
comply with the law are those who make the law and those who decide the
cases under those laws. The judiciary has often interpreted legislation
to be burdensome, perhaps in some instances, to be more burdensome than
even the exempt Congress intended. Of course, an exempt judiciary has
no reason to interpret the statute in a way to protect freedom. Under
this bill, the judiciary will have to come up with a plan to provide
coverage for its employees as well. I look forward to that proposal,
and to enactment of legislation to cover the judiciary.
The fourth general result of this legislation will be a public
recognition that Congress has again discovered that it is subject to
the will of the people, not the other way around. Congress will no
longer be above the law. Members of Congress will no longer be first
class citizens with unjustifiable special privileges.
And fifth, Members of Congress will learn themselves of the
litigation explosion that is choking small business in the country.
When they see directly the litigation produced by the laws they pass,
Congress will be very careful about creating additional liabilities for
the private sector and additional work for the Federal courts. When
they see how alternative dispute resolution operates, Members of
Congress may appreciate the wisdom of encouraging additional
alternative dispute resolution for all sorts of claims brought in the
Federal courts.
Every indication from polls, election returns, and the mail that we
have received from constituents shows that nothing makes Americans
madder than knowing that they have to live by laws that their
Representatives in Congress do not. They are well justified in their
anger. When we pass this bill, we will show them that we recognize the
unfairness of the existing exemptions and the legitimacy of their
concerns.
S. 2 is the pending business under unusual circumstances. It has not
been considered by any committee in this Congress. Nonetheless, it
bears a close resemblance to S. 2071 from the 103d Congress.
That bill was the subject of hearings in the Governmental Affairs
Committee, and it was approved by the committee for floor
consideration.
Unfortunately, the bill was not able to be considered before the
Congress adjourned, despite the fact that the other body had passed
similar legislation.
Although the Governmental Affairs Committee did issue a report to
accompany S. 2071, this particular bill does not have a committee
report. Although S. 2 is quite similar to S. 2071, there have been
changes made in consultation with leaders from the other body.
Accordingly, it will be necessary, in lieu of a committee report, for
me to first describe the bill generally, and then to detail each aspect
of the bill.
S. 2 begins with the basic premise that the laws that govern the
private sector should govern Congress unless it can be shown that
important differences between Congress and the private sector justify
some amount of change. The provisions of S. 2 also flow from a belief
that judicial enforcement of the laws against the Congress is vital if
those laws are to meaningfully apply.
I strongly disagree with the implications of today's Washington Post
article on the congressional coverage bill. That article implies that
Congress is already covered under many of these laws and already lives
under them, and that all that is changing is the remedies. That
analysis misses the point. Let me provide an analogy.
The Soviet Union's Constitution guaranteed the rights to freedom of
speech, freedom of assembly, fair trial, and other rights that are
similar to the American Constitution. They existed on paper. Any Soviet
citizen could pull out that document and see that those rights existed.
But of course, the rights guaranteed by the American Constitution are a
reality and the rights guaranteed by the Soviet Constitution were an
illusion. The reason for the difference: The American Constitution is
enforced by an independent judiciary and the Soviet Constitution was
not. The Soviet rights were nothing because there was no remedy.
Similar to the Soviet Constitution, it is true that some of the laws
this bill will apply to Congress already can be found in the United
States Code as applying to Congress. But the remedies to make those
rights exist in more than name only do not.
``The history of liberty is the history of procedures for protecting
liberty,'' Justice Frankfurter once wrote, and until this bill is
passed, congressional employees lack the remedies necessary to protect
liberty.
S. 2 will apply 11 laws to Congress that are either completely or
partially
[[Page S442]] inapplicable now. Those 11 laws are the Federal Labor
Standards Act of 1964, title VII of the Civil Rights Act of 1964, the
Americans With Disabilities Act of 1990, the Age Discrimination in
Employment Act of 1967, the Family and Medical Leave Act of 1993, the
Occupational Safety and Health Act of 1970, the Federal Service Labor
Management Relations Act, the Employee Polygraph Protection Act of
1988, the Worker Adjustment and Retraining Notification Act, the
Rehabilitation Act of 1973, and the Veterans Reemployment Act.
The bill provides different mechanisms for enforcement of these laws
that correspond to their application to the private sector.
If the underlying law provides for a private right of action in
court, one model is followed. If the law would be administratively
enforced in the private sector, then it is to be administratively
enforced against Congress.
For example, the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Rehabilitation Act of 1973, title I of the
Americans With Disabilities Act of 1990, the Family and Medical Leave
Act, the Fair Labor Standards Act, the Employee Polygraph Protection
Act, the Worker Adjustment and Retraining Notification Act, and the
Veterans Reemployment Act provide for enforcement through a private
right of action in court. Under S. 2, any employee who alleges a
violation of these statutes may also bring a private action in Federal
district court. This represents the first time that this relief has
ever been available to congressional employees. Before the employee may
sue in court, however, the employee must exhaust administrative
remedies available to him or her. These administrative remedies are the
counseling and mediation provisions that now govern Senate employees
under the Government Employee Rights Act from 1991 that Senator
Mitchell and I drafted.
I would now like to generally describe the operation of the
legislation, and then detail its individual provisions.
The purpose of S. 2 is to fully apply antidiscrimination and employee
protection laws to Congress.
The bill has eight key elements:
First, rights and protections under key antidiscrimination and
employment statutes would fully apply to the House of Representatives,
the Senate, the Architect of the Capitol, the Congressional Budget
Office, and the Office of Technology Assessment.
Second, a new Office of Compliance would be established to handle
claims and issue rules. The office would be headed by an independent
board of directors, removable only for cause.
Third, for statutes providing a private right of action, an employee
who believes there has been a violation could receive counseling and
mediation services from the new office.
Fourth, if such an employee's claim is not resolved by counseling or
mediation, the employee may file a complaint with the office and
receive a trial and decision from an independent hearing officer. This
decision may be appealed to the board and to the U.S. Court of Appeals.
Fifth, instead of filing a complaint with the office after counseling
and mediation, the employee may choose to file an action in U.S.
District court where a private sector employee could also bring a
lawsuit in court. A jury trial may be requested under applicable law.
Sixth, for underlying statutes providing for administrative
enforcement exclusively, the office will enforce the statutes
administratively. The employee could obtain Court review for actions
the office brought that were resolved adversely to the employee.
Seventh, since the General Accounting Office, the Government Printing
Office, and the Library of Congress are already covered by
antidiscrimination and employee protections laws, coverage would be
expanded and clarified in certain regards.
Additionally, the Administrative Conference will undertake a study of
the application of these laws to the three instrumentalities, and will
recommend any improvements in regulations and procedures and for any
legislation.
Eighth, to ensure compliance with these laws by the judicial branch,
the Judicial Conference will undertake a study to determine how
employees of the judiciary will obtain the rights and remedies
conferred by these laws.
background and need for legislation
Current law creates a patchwork of rights and protections for
employees of the Senate, the House of Representatives, and the
congressional instrumentalities.
Although Congress has made significant progress in extending
employment laws to congressional employees, important gaps remain. The
remaining exemptions, and significant differences in the manner and
extent to which rights under these laws can be enforced, perpetuate the
perception, and in at least some cases, the reality--of a double
standard of special privilege for the legislative branch. This feeds
the growing public cynicism about Congress.
coverage and gaps in coverage of the senate, the house of
representatives, and the congressional instrumentalities.
First, the Senate.--A number of major antidiscrimination and
employment laws enacted in this century did not cover one or both
Houses of Congress. Several laws, including Fair Labor Standards Act,
the Age Discrimination in Employment Act, and the Civil Rights Act
Amendments of 1972, were originally enacted without coverage for
congressional employees, even while executive branch employees were
expressly covered. The Federal Service Labor-Management Relations
Statute and section 19 of the Occupational Safety and Health Act
established special programs for the executive branch, different from
the corresponding programs for the private sector, but, again, Congress
did not cover itself.
The Employee Polygraph Protection Act and the Worker Adjustment and
Retraining Notification Act did not apply to the Federal Government at
all. Veterans reemployment provisions gave employees of Congress a
Ramspeck remedy, but did not provide the private right of action and
court access that private sector veterans enjoy.
Over the past 15 years or so, and accelerating in the 1990's,
Congress has taken considerable steps to apply these laws to itself. As
far back as the 94th Congress, 1975-76, the Senate adopted Senate
Resolution 534, which prohibited employment discrimination in the
Senate on the basis of race, color, religion, sex, national origin, or
handicap, and which encouraged the hiring of women and members of
minority groups.
With the passage of the Americans with Disabilities Act in 1990,
rights as established in the antidiscrimination laws were accorded to
Senate employees.
Enforcement, however, was through internal procedures before the
Select Committee on Ethics, rather than through executive branch
agencies or the courts. This act also obligated the Senate not to
discriminate against members of the public on the basis of disability.
Title III of the Civil Rights Act of 1991, also known as the
Government Employee Rights Act, reaffirmed the prohibition against all
kinds of employment discrimination in the Senate.
The 1991 act also established an Office of Senate Fair Employment
Practices [OSFEP] and proved an internal Senate enforcement procedure
consisting of: First, counseling, second, mediation, third, formal
complaint and hearing before a board of three independent hearing
officers, and fourth, review of the decision by the Senate Select
Committee on Ethics.
Finally, an appeal may be taken from the Ethics Committee decision to
the U.S. Court of Appeals for the Federal Circuit.
Rights and protections under the Family and Medical Leave Act of 1993
have also been extended to Senate employees. These rights are
enforceable through the procedures established in the Civil Rights Act
of 1991.
Thus, Senate employees enjoy the rights and protections of all of the
antidiscrimination laws, as well as the Family and Medical Leave Act,
albeit with a different enforcement mechanism than is provided in the
private sector or the executive branch. However, the Fair Labor
Standards Act and the Equal Pay Act do not apply to the Senate.
[[Page S443]] Also, Senate employees do not have a right to trial in
U.S. District Court, but they do have a right to trial before a panel
of independent hearing examiners, and judicial review by a U.S. Court
of Appeals.
Second, the House of Representatives.--In 1988, the House of
Representatives adopted the Fair Employment Practices Resolution, House
Resolution 558, 100th Congress, which has been renewed and codified in
House rule 51. This rule specifics that personnel actions shall be free
from discrimination based on race, color, national origin, religion,
sex, disability, or age.
In adoption, the protections of the Fair Labor Standards Act, the
Equal Pay Act, and the Family and Medical Leave Act have been made
applicable to the House.
The House established an Office of Fair Employment Practices that has
a 3-step process to be used by employees alleging discrimination:
First, counseling and mediation, second, formal complaint, hearing by a
hearing officer, and decision by the office, and third, final review of
the decision of the office by an eight-member panel composed of four
members of the Committee on House Administration and four officers and
employees of the House.
Thus, House employees enjoy rights and protections against
discrimination, as well as rights under the Fair Labor Standards Act,
the Equal Pay Act, and the Family and Medical Leave Act.
However, the House process of enforcing and redressing these rights
and protections is somewhat less independent than that in the Senate,
and it affords no judicial review.
Third, the instrumentalities--The various congressional
instrumentalities have been made subject to some of these
antidiscrimination and employee protection laws, but not to others.
Coverage is uneven.
The three largest instrumentalities--the General Accounting Office
[GAO], the Government Printing Office [GPO], and the Library of
Congress [LOC] are subject to these laws to much the same extent as
executive branch agencies, although enforcement mechanisms frequently
differ. Thus, the employees of these instrumentalities enjoy most of
the rights and protections of the antidiscrimination laws, including
the right to bring actions in U.S. District Court.
These employees also have the rights and protections of the Family
and Medical Leave Act, the Fair Labor Standards Act, and the Federal
Service Labor-Management Relations statute.
These three instrumentalities, as Federal agencies, are also subject
to the requirements of section 18 of the Occupational Safety and Health
Act, and related provisions of section 7902 of title 5, United States
Code, and they each have implemented compliance programs.
However, under statute and established practice, certain of these
instrumentalities have internal enforcement or grievance mechanisms
where executive branch agencies would be subject to external regulation
by other agencies.
The Architect of the Capitol, the Congressional Budget Office, and
the Office of Technology Assessment have substantially more limited
coverage. Employees of the Architect of the Capitol enjoy rights and
protections under the antidiscrimination laws, and were recently
authorized to bring claims to the GAO Personnel Appeals Board.
However, these employees have rights under the Fair Labor Standards
Act and the Family and Medical Leave Act that are not subject to
external enforcement, and they are not covered under any labor-
management law. Employees of the CBO have the same rights and
protections as House employees, and can bring claims to the House OFEP
under House rule 51.
Employees of OTA enjoy the rights and protections of
antidiscrimination statutes and the Family and Medical Leave Act, but
not the Fair Labor Standards Act. OTA has established its own internal
grievance procedure.
Last Congress, significant efforts were undertaken to remove the
exemptions Congress has granted itself.
Compliance with Federal laws for the legislative branch was also a
major issue for the Joint Committee on the Organization of Congress,
which was charged in 1993 with presenting a legislative reorganization
plan.
There was a near consensus among the Senators and members of the
House of Representatives who testified before the joint committee that
congressional exemptions should end.
At hearings before the Governmental Affairs Committee on June 29,
1994, Dr. Norman Ornstein, resident scholar at the American Enterprise
Institute, stated:
There is no subject now that inflames the public more, when
it comes to Congress, than this one [congressional coverage].
He therefore urged that Congress get ``caught up with the curve of
public opinion,'' or else Congress ``may be forced to take action that
is far more destructive of the prerogatives of the institution, and of
the taxpayers' purse,'' than the proposals now being considered for
enactment.
Members who testified or spoke at the Governmental Affairs
Committee's hearing in June and at its meeting to mark up S. 2071 in
September, were also nearly unanimous in supporting extension of
coverage. Concern was expressed about reported and perceived
inadequacies in existing employee rights and protections in the
legislative branch.
For example, there was concern about the high rate of workers'
compensation claims by employees of the Architect of the Capitol, and
about a GAO report documenting apparent inequities in the employment
and hiring policies of the Architect.
Also, studies were cited showing that the grievance process provided
by the Office of the Architect was underutilized, presumably because of
a lack of trust in the process, and that a sizable percentage of House
and Senate employees expressed reluctance to use their respective
grievance procedures because of a lack of trust.
Additionally, the final report of the Joint Committee on the
Organization of Congress stated: ``Witnesses were uniformly
dissatisfied with the performance of the House Office of Fair
Employment Practices [OFEP], which was established in 1989.'' H. Rep.
No 103-413, vol. II, at page 147 (December 1993).
They also expressed concern that an underutilization was caused by
lack of employee trust in the process.
summary of proposal
A. What laws should apply?
The guiding principle expressed by more than one member of the
committee in considering this legislation is that Congress should be
subject to the same laws as apply to a business back in a home State.
The only exception should be where different rules are necessary to
enable Congress to fulfill its constitutional and legislative
responsibilities.
This bill would apply 11 key anti-discrimination and employee-
protection laws to the Congress. These laws are:
Title VII of the Civil Rights Act of 1964,
The Age Discrimination in Employment Act of 1967,
The Rehabilitation Act of 1973,
The Americans with Disabilities Act of 1990,
The Family and Medical Leave Act of 1993,
The Fair Labor Standards Act of 1938,
The Employee Polygraph Protection Act of 1988,
The Worker Adjustment and Retraining Notification Act,
The Veterans Reemployment Act,
The Occupational Safety and Health Act of 1970, and
The Federal Service Labor-Management Relations Statute.
B. Bicameral structure
Some Senators believe that to authorize executive branch agencies to
enforce antidiscrimination and employment laws against Congress would
create a dangerous entanglement between these two branches of
Government.
They think the legislative branch must be free from executive branch
intimidation, real or perceived, and the enforcing agency must likewise
be free of real or imagined intimidation by the legislative branch.
The view has also been expressed that the Constitution requires each
House to govern itself, independently of the other House. However, S. 2
creates a Bicameral Office of Compliance. Self-government is an
essential constitutional obligation of each House, but establishment of
a single office to
[[Page S444]] implement these laws jointly for the Senate and House
would not infringe on any essential Senate or House prerogative.
Indeed, laws cannot be enforced in a fair and uniform manner--and
employees and the public cannot be convinced that the laws are being
enforced in a fair and uniform manner--unless Congress establishes a
single enforcement mechanism that is independent of each House of
Congress.
S. 2 would create a new independent enforcement office within the
legislative branch. An independent board of directors would be
appointed by the majority and minority leadership of each House,
removable only for cause. However, the deputy directors of the office,
one for each House, will develop the regulations that govern each
House, and forward them to the board for notice and comment procedures.
The board would then issue regulations, and the accompanying
documentation would detail any departures from the recommendations of
the deputy directors.
Ultimately, each body would adopt its own regulations, which, so long
as they comported with the terms of this act, could take into account
differences between the two bodies. Specifically, the board would be
responsible for developing rules to apply the antidiscrimination and
employment laws to Congress, and Congress would retain the power to
approve these rules.
Regulations would become effective by a vote of the respective body,
or by both bodies in the event that the regulations in question covered
joint employees.
The regulations would have to be consistent with the rules developed
by executive branch agencies, unless the board determined for good
cause that a different approach would be more effective for the
implementation of the rights and protections conferred by the
underlying statutes.
The ultimate responsibility for developing, issuing, and approving
the rules would remain within the legislative branch. Regulations could
gain the force of law if both Houses approved them and presented them
to the President for signature.
Although the validity of the regulations could not be challenged upon
their promulgation, they could be challenged collaterally by aggrieved
employees during enforcement actions. Regulations adopted with the
force of law could be challenged only on the basis of their
constitutionality, and also only collaterally.
The bicameral and legislative enforcement approach contained in S. 2
is an effort to accommodate the views of those who adamantly oppose
executive branch enforcement of these statutes. Some who oppose the
interference of the executive branch claim that the Constitution
prohibits the executive branch involvement that the private sector
lives with under these laws.
Indeed, some of my colleagues maintain that judicial enforcement of
these laws to Congress violates the separation of powers.
I am aware of no case law that establishes that subjecting Congress
to the same executive and judicial branch enforcement mechanism that
the private sector faces violates the Constitution.
And if it were entirely up to me, I suppose that I would have
introduced as S. 2 a one-page bill that simply ended the exemptions and
required Congress to live under the same laws that it passes for
everyone else. I would have provided the same remedies for enforcement
that apply outside Congress.
I would have executive branch enforcement of the laws, such as EEOC
enforcement of the civil rights laws and Labor Department enforcement
of the minimum wage laws.
However, S. 2 recognizes the strong feelings of the Members who
disagree with me.
So long as the legislative branch agency enforcing the laws is not a
tool of the Members, and so long as the underlying statutes are
expressly incorporated through legislation to apply to Congress, the
regulations must conform to the regulations, and the regulations can be
challenged in court if they subvert the statutes that must apply to
Congress, I am willing to accept legislative enforcement.
But that does not mean that I agree that there would be any
constitutional impediment to executive branch enforcement. Indeed, I
have always been puzzled by the separation of powers argument in the
context of congressional coverage.
The Justice Department enforces the criminal laws against Members of
Congress, and the courts hear such claims and render judgment. Surely
imprisonment is a much greater intrusion against a Member than is a
citation for an OSHA violation.
Nonetheless, in recognition of the strong feelings of some of my
colleagues, S. 2 provides for administrative enforcement of these laws
by an agency within the legislative branch. That requires that S. 2 be
a lengthier bill. An administrative mechanism for enforcing 11 laws and
permitting judicial review of the decision cannot be written on 1 piece
of paper.
C. Claims procedures and judicial review
The new office would be responsible for handling and adjudicating
employee claims where the underlying statute provides for a private
right of action. An employee would first receive counseling and
mediation services.
If the claim cannot be resolved at this stage, the employee could
request that a hearing officer be assigned to conduct a formal
administrative hearing on the employee's claim. After the hearing,
either party could appeal to the board of directors. If necessary, they
could than appeal the decision to the U.S. Court of Appeals for the
Federal circuit.
In lieu of a hearing, the employee may bring an action in Federal
district court. Allowing access to district courts makes the available
remedies more like those available to both private-sector and
executive-branch employees. Courts and judges do not have the complex
interactions with Congress that executive agencies have, so the risk of
intimidation would not arise.
Furthermore, politically motivated claims can be made in other
forums, regardless of whether access to district court is allowed.
For claims arising under statutes that do not provide for a private
right of action, the employee would proceed to the office to obtain
counseling and mediation, as described above.
However, in lieu of the private right of action or executive branch
administrative enforcement, the office, if the General Counsel so
determined, would pursue the claim itself. The aggrieved party at the
end of the administrative process could obtain court review of the
decision with the court of appeals for the Federal circuit.
D. Labor-management relations
In the context of the labor-management relations area, I am concerned
that congressional coverage does not create any conflicts of interest.
For example, there might be concern if legislative staff belonged to a
union, that union might be able to exert undue influence over
legislative activities or decisions.
Even if such a conflict of interest between employees' official
duties and union membership did not actually occur, the mere appearance
of undue influence or access might be very troubling. Furthermore,
there is concern that labor actions could delay or disrupt vital
legislative activities.
The bill would apply the Federal service labor management relations
statute, rather than the private-sector National Labor Relations Act.
The Federal service law includes provisions and precedents that address
problems of conflict of interest in the governmental context and that
prohibit strikes and slowdowns.
Furthermore, as an extra measure of precaution, the reported bill
would not apply labor-management law to Members' personal or committee
offices or other political offices until the board has conducted a
special rulemaking to consider such problems as conflict of interest.
Those rules would also not go into effect until considered and
enacted by Congress.
E. Cost considerations
Some Members expressed concern that application of laws to the
legislative branch would impose large and unpredictable costs on the
taxpayer.
The Congressional Budget Office disagrees. The CBO cost estimate
predicts costs of about $1 million in the first two fiscal years, and
$4 to $5 million in subsequent years. However, unlike S.
[[Page S445]] 2071, S. 2 does not permit covered employees to be
offered compensatory time in lieu of overtime pay. That is the rule
that applies to the private sector.
There might be some additional cost of complying with this provision.
But with respect to employees whose work schedule is highly irregular
because of the irregular Senate and House schedule, the board would
develop comparable regulations to those governing private sector
workers with irregular work hours.
Since the new leadership has committed itself to a more family
hospitable work schedule, the amount of overtime is likely to be less
in any event.
There will also be costs that CBO did not take into account because
S. 2, unlike S. 2071, requires OSHA inspections.
However, the additional costs are likely to be small in relation to
the normal sums Congress spends.
F. Application to instrumentalities
In an attempt to bring order to the chaos of the way in which the
relevant laws apply to congressional instrumentalities, S. 2 divides
the instrumentalities into two groups.
The three largest instrumentalities, the General Accounting Office,
Library of Congress, and Government Printing Office, already have
coverage and enforcement systems that are identical or closely
analogous to the executive branch agencies.
Notably, employees in each of these agencies already have the right
to seek relief in the Federal courts for violations of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, and the Fair
Labor Standards Act, and they are covered under the same provisions of
the Family and Medical Leave Act as executive branch employees.
Employees in each of these instrumentalities also already are assured
of the right to bargain collectively, with a credible enforcement
mechanism to protect that right. For these three instrumentalities, S.
2 clarifies existing coverage in certain respects, and expands coverage
under the Americans with Disabilities Act.
It makes few changes with respect to the Government Printing Office
because of separation of powers concerns raised by the Department of
Justice that GPO is an executive branch agency that should not be under
the supervision of a congressional office of compliance.
Additionally, S. 2 directs the administrative conference to study the
application of each of these laws to these entities, and to make
recommendations for any improvements in such regulations or procedures
to ensure they are at least comparable to those required by this act.
The board is directed to complete this study within 2 years after
passage of this act.
The remaining instrumentalities, including the Architect of the
Capitol, the Congressional Budget Office, and the Office of Technology
Assessment, are brought within the same new rules, procedures, and
remedies as this bill would apply for House of Representatives and
Senate employers and employees.
This will allow for a consolidated application and administration of
these laws. It will also extend to these employees, for the first time,
the right to bargain collectively, and it will provide a means of
enforcing compliance with these laws that is independent from the
management of these instrumentalities.
For employers of these instrumentalities, by strengthening the
enforcement mechanisms, this bill attempts to transform the patchwork
of hortatory promises of coverage into a truly enforceable application
of these laws.
Dividing the instrumentalities in this manner will reduce the
adjudicatory burden on the new office of compliance by excluding from
its jurisdiction the approximately 15,000 employees of GAO, GPO, and
the Library of Congress.
It also has the advantage of using the apparatus that will already be
necessary to apply these laws to the 20,000 employees of the House and
Senate to the remaining approximately 3,000 employees of the Architect,
Botanic Gardens, CBO, and OTA.
So, Mr. President, the time to act is now, and I urge my colleagues
to vote for this bill without any undue delay.
Senator Glenn will probably tell us that years before I came to the
Senate, through resolutions he tried to bring and did successfully try
to bring attention to this matter on the floor of this body. When I
first made that attempt several years ago, it failed, as did my attempt
later on in 1989 to end this situation by amending the Americans With
Disabilities Act. My amendment at that time was accepted by the then
Senate leadership. But in a sense I think they did it because they knew
that they would render it ineffective in conference, and it was
rendered ineffective in Congress. At a later time I tried to correct
this inequity, and I was not even allowed to offer my amendment to the
family leave bill when it was first debated in the Senate in 1991.
Congress can no longer refuse to live by the laws that it passes.
This bill ends that refusal. The time then is long overdue for Congress
to correct that practice of congressional exemption, and this bill does
that. It completes the process begun in 1991 when the Senate passed the
Grassley-Mitchell amendment applying the substantive provisions of the
civil rights law to the Senate. As I said back then, it was a good
beginning, but it was only a beginning. So we are back today.
So it is with some measure of satisfaction that I find myself
speaking in favor of a bill that would finally require Congress to
comply with a host of employment laws that we have exempted ourselves
from over four or five decades and that, during that period of time,
have been applied to the entire private sector.
Mr. President, since the 1930's, Congress has passed laws that flowed
from the assumption that Washington knows best. Congress set up
burdensome statutory requirements on the operation of small business in
this country. The burdens were increased through regulation issued by
executive branch agencies albeit pursuant to the statute. At the same
time Congress repeatedly exempted itself from the effects of those
laws. Laws govern America but somehow do not apply the same way to
employment practices on the Hill. Workers were granted rights but
congressional workers were not. Those who made the laws did not have to
live by them. Congress was immune from the excesses of the regulatory
state. Congress was removed from the way its work affected everyone
else. In other words, we, because those laws did not apply to us, did
not really know how egregious they were upon the private sector
employers of this country.
In this country no one is above the law. But just as the Presidency
suffered a tremendous loss of public confidence when an individual
thought he was above the law 20 years ago, Congress suffered as Members
thought we were above the law by letting these exemptions or lack of
applicability apply to us. Indeed, to me this was one of the major
reasons why Congress has lost touch with the American people and people
are cynical about the process of government, cynical about public
servants doing well and intending well and understanding what needs to
be done.
Of course, this exemption was one of the ways by which Congress has
displayed arrogance. Millions of Americans complained about the
overreach of the Federal Government. But Congress, through its
exemption from the law, could not know the depth of feeling from the
grassroots of America. So in November of every other year, the people
have an opportunity to express their view. The American people in
November 1994 demanded that Congress be affected by the laws it passed.
A number of Members who thought Congress should be above the law are no
longer Members, and, of course, no longer above the law.
Let me remind my colleagues of someone who lost an earlier election,
former Senator George McGovern, because he has a very good lesson to
teach us in regard to the exemption of ourselves from laws that apply
to the private sector. Senator McGovern believes that Congress has
enacted unnecessary regulatory burdens that are strangling small
business. Senator McGovern admits that he did not feel that way when he
was a Member of this body, but he learned the reality of the operation
of that legislation when he ran a small business after he left public
life. I appreciate that Senator McGovern now says that he would have
legislated differently had he known what the actual effects would have
been as
[[Page S446]] he found them to be applicable to his small business.
But Members of Congress' learning of the effects of their votes only
after leaving office will not solve our problem because after you leave
office it is too late for you as an individual to do anything about it.
Those of us who are here today can do something to end this unfair
situation because only as Members of Congress live with the
consequences of their votes will the problem that Senator McGovern
identified be corrected. And I believe that S. 2 corrects that
situation.
I think that President Clinton as well has this issue exactly right.
When we send this bill to him I believe, based on what he has said in
the past, he will sign it because he did state in a July 1992
interview:
It is wrong for Congress to be able to put new requirements
on American businesses, employers, and then not follow that
rule as employers themselves. They exempt themselves
historically from all kinds of rules that private employers
have to follow. And I think that one of the things that
happens to people in government is they forget what it is
like to be governed. They do not have any idea what it is
like to be on the receiving end of a lot of rules and
regulations.
That is President Clinton as Candidate Clinton. He could not have
said it any better than any of us who believe this situation is wrong
and why it ought to be ended. And I think that is a clear-cut statement
that President Clinton would support our efforts today, and supporting
those efforts then would sign the legislation that, hopefully, we will
pass.
Of course, the Founding Fathers would have been astonished to know
that Congress had exempted itself from so many laws that it passed
applying to the private sector. James Madison in Federalist Paper 57
wrote about this issue. He wrote that one of the primary guarantees of
people's liberty came from Congress having to live under the laws that
we apply to the entire Nation. Madison wrote that:
Congress can pass no law which will not have its full
operation on themselves and their friends as well as on the
great mass of society. This has always been deemed one of the
strongest bonds by which human policy can connect the rulers
and the people together. It creates between them the
communion of interest of which few governments have furnished
examples but without which every government degenerates into
tyranny.
If this spirit ever were so debased as to tolerate a law not
obligatory on the legislature as well as on the people,
the people will be prepared to tolerate anything but
liberty.
That is Federalist Paper 57.
Mr. President, Madison was right. Of course, the low esteem in which
Congress is currently held reflects the fact that there is no longer
congruence of interest between the governors and the governed. The
American people will no longer tolerate a law not obligatory on the
legislature as well as the people. Under Madison's principle, because
Members of Congress would be careful before they infringe their own
liberties, the people's liberties would then be zealously protected.
Unfortunately, the corollary to that principle was equally true.
Members of Congress who could protect their own liberties while
infringing on the liberties of the mass of society were much more
likely, then, to fail to protect everyone else's liberties. Congress
enjoyed privilege through exemption. The time has come to end
congressional royalism. The time has come then to simply say that there
will no longer be an environment of two sets of laws in America--one
for Pennsylvania Avenue and the other for the rest of the country, in
Main Street America. No longer will there be two sets of laws, one for
this town and this Hill and one for the rest of the country. One set of
American people, one set of laws.
So now Congress must finally live under the same laws that pass for
everyone else. We do this to fulfill Madison's promise of what was
meant in the Constitution. And, thus, employees of Congress will
finally gain the same rights that their counterparts in the private
sector enjoy.
Like my colleagues, I take the notion of representative government
very seriously. We are not Senators for ourselves. We do not hold this
job as a matter of personal privilege. We are here to represent the
interests of our constituents in our States and in our country. And we
are here for no other reason. I think that exemptions from the
operation of the law thus interfere with representative government. I
wonder how we truly can represent people who live under one set of laws
when we live under another set of laws. Under the current system, our
votes on various regulatory issues reflect our interests and not those
of our constituents. This must change if representative government is
to truly function as intended by Madison.
When we pass this bill, we begin to restore the American people's
faith in Congress. We will do so in five respects.
First, we will ensure that Members of Congress know firsthand the
burdens that the private sector lives with. By knowing those burdens,
Congress may decide that the laws indeed are burdensome. That
realization may lead to necessary reform of the underlying legislation.
It is true that there will be additional costs imposed on Congress if
this legislation passes. However, these are costs that we must realize.
We have to be cognizant of the fact that the private sector has to live
with these costs and has had to do it in some instances for the last
six or seven decades. And as far as the cost of this bill to Congress,
the Congressional Budget Office estimated that cost of compliance will
be about $3.4 billion. Now, while this is a considerable sum, Mr.
President, it represents, for instance, only a fraction of the amount
Congress recently voted in for a subway system to connect the Senate
office buildings with the Capitol.
The second benefit of requiring that Congress live under the laws it
passes for others concerns future social legislation. If Congress knows
that it will be bound by what it passes, Congress will be very careful
in the future to respect the liberties and rights of others.
Third, passage of the bill will mean that congressional employees
will have the civil rights and social legislation that has ensured fair
treatment to workers of the private sector. So then Congress thus
becomes the last plantation for our workers. It is time for the
plantation worker to be liberated. Maybe it is more accurate to say
that Congress and the judiciary are the last two plantations. Senator
Glenn stated that plantation point of view 20 years ago, so I give him
credit for that.
Curiously, the only people who do not have to comply with the laws
are those who make the laws and those who decide the cases under the
laws, meaning the members of the judiciary. The judiciary has often
interpreted legislation to be burdensome, and perhaps in some instances
to be more burdensome than even the exempt Congress intended. Of
course, an exempt judiciary has no reason to interpret the statute in a
way to protect freedom. They will have to come up with a plan to
provide coverage for their employees as well. I look forward to that
proposal and to the legislation to cover the judiciary, which might
then really be the last plantation.
The fourth general result of the legislation will be public
recognition that Congress has again discovered that it is subject to
the will of the people and not the other way around. Congress will no
longer be above the law. Members of Congress will no longer be first-
class citizens with unjustifiable special privileges.
Fifth, Members of Congress will learn themselves of the litigation
explosion that is choking small business in this country. When Congress
sees directly the litigation produced by the laws we pass, Congress
will be very careful about creating additional liabilities for the
private sector and additional work for the Federal courts. When
Congress sees how alternative dispute resolutions operate, maybe
Members of Congress will appreciate the wisdom then of encouraging
additional alternative dispute resolution for all sorts of claims
brought in the Federal courts, to reduce the burden of the Federal
court, to have a way of settling disputes in a less adversarial
environment and a les costly environment.
Every indication from polls, from election returns, and from our mail
is that all of these show that nothing makes Americans more mad than
knowing that they have to live by laws that their representatives in
Congress do not have to follow. Of course, we believe they are well
justified in their anger. When we pass this bill, we will show them
that we recognize the unfairness of the existing exemptions and the
legitimacy of their concerns.
[[Page S447]] Mr. President, S. 2, as we know, is the pending
business, and it is the pending business under somewhat unusual
circumstances, because it has not been considered by any committee in
this Congress. Nonetheless, I want to say that it bears a very close
resemblance to S. 2071 from the last Congress. That bill was the
subject of hearings in the Governmental Affairs Committee, and it was
approved by the committee before consideration. Unfortunately, it was
not possible to consider the bill before Congress adjourned, despite
the fact that the other body had overwhelmingly passed a similar piece
of legislation.
So, Mr. President, in conclusion of my opening statement, the time is
to act now. I hope that my colleagues will vote for this bill without
any undue delay or any particular destructive amendments.
Senator Glenn is going to seek the floor in just a moment. As I
indicated once before in this debate, when Senator Glenn was a freshman
Member of this body he was aware of this inequitable situation. He has
worked hard with lots of us and he worked hard before a lot of us came
here to bring attention to this inequitable situation, unfair
situation. Inequitable in the sense that we as employers do not have
the same laws apply to us as private sector employers do, unfair in the
sense that congressional employees and Hill employees do not have the
same rights as private sector employees have under the employment and
discrimination laws and safety laws that affect private--and that
assures safety and employment fairness--sector employees.
Senator Glenn studied this issue hard, and I suppose in his early
days even had more trouble than I did in trying to get the people to
appreciate that this dual standard of law was wrong. But he had some
resolutions passed very early. I want to commend him for using that
method to try to rectify this situation for employees on the Hill. But
most importantly, in the time that I have been in the Senate, I want to
say that I have found Senator Glenn very cooperative with my efforts to
extend these laws. I appreciate very much his efforts to do that.
I yield the floor.
Mr. GLENN addressed the Chair.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
Mr. GLENN. Mr. President, I thank you.
Floor Privileges
Mr. GLENN. Mr. President, I ask unanimous consent that Jill
Schneiderman of Senator Daschle's staff be granted floor privileges for
the duration of the Senate's consideration of S. 2.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GLENN. Mr. President, I have listened very closely to Senator
Grassley's presentation here this afternoon. It certainly has been
excellent. It certainly covered the legislation in great detail. That
was to be expected because he has worked on this for a long time and
has been involved with it basically--not for press purposes--because he
believes in it and because he believes in what is right for the rest of
the country is right for Capitol Hill. I agree with that.
The late great Senator Sam Ervin, who was also a great constitutional
scholar, once said that Congress is ``like a doctor prescribing
medicine for a patient that he himself would not take.'' I agree with
that statement by Sam Ervin because by enacting laws for others and
then exempting ourselves we have done great damage to the public
perception of Congress.
I do not find any more of a hot button item wherever I travel in Ohio
and other parts of the country than this particular item because I find
that people are especially irritated that we do not have to follow the
rules like everybody else. There were some reasons why the rules were
exempted earlier. I will address that in just a moment. It was not done
just to make life easier for us here. There were some genuine concerns
about how they would be administered. But businessmen and others--but
especially businessmen--tell me that we in Congress cannot understand
the real impact of our laws because we do not have to follow them back
here on Capitol Hill.
There is an even more important principle at stake it seems to me;
and, that is, to continue to deprive our employees of the full
protection of the law is flat wrong. We passed laws for the rest of the
country that said that employers should treat their employees in a
certain way, that OSHA laws should be at administered against
businesses, institutions, colleges or public buildings or whatever,
that EPA would take certain actions and so on out there. But then we
say but we will not let those things apply here on Capitol Hill.
Let me be clear. I am not just talking about our legislative and our
administrative personnel that many people think of when you think of
Capitol Hill staffers. We think of our administrative personnel. But we
must remember there are also the cleaning crews, the police, the
restaurant workers, the parking lot attendants, the plumbers, the
window washers, and so on, all of the workers who do not enjoy the same
rights as every other American not employed by Congress. That is what
it comes down to. Is it right that we do this for our own people
employed here on Capitol Hill? Is it right that they have the same
protections as everyone else? I cannot come to any conclusion but that
certainly it is right that we pass this kind of legislation.
So I am very pleased that in these opening days of the 104th Congress
we can finally do what is right for these people and eliminate this
congressional double standard under which we have enacted laws that
apply to everyone but ourselves.
This reform is long overdue. Our efforts to apply the law on Capitol
Hill go back many years. My own personal efforts, which Senator
Grassley referred to a little while ago, go clear back to 1978. I had
not been here too long. In 1978 I had been here I guess at that time
about 3 years. I was sworn in early 1975. I proposed a resolution to
assure that all Senate employees would be protected against employment
discrimination just as other people were all over the country, and
explained why we needed this resolution. I said that I viewed Congress
as ``the last plantation.'' That got the ire of some of my colleagues.
They were not happy with me for making that kind of a statement. But
the employees knew what I said was true because we were treating
ourselves here, we were treating Capitol Hill, as the last plantation
that was a law only unto itself. The resolution did not pass in 1978.
It is only in the last few years that we have finally enacted
substantial legal protection for Senate employees. Our Senate employees
are now covered under the civil rights laws and certain other
employment laws. But they can take their cases to the U.S. Court of
Appeals.
Despite this progress we still have an unacceptable patchwork quilt
of coverage and exemption here on Capitol Hill. It has not been easy to
solve this problem. My guiding principle has been that we in Congress
should be subject to the same laws as applied to a business back in our
home State.
I recognize the unique nature of life on Capitol Hill, the unique
nature of the Congress and how it does business here. So every single
law cannot apply in exactly the same way as they are administered back
home. But most of them can. Many Members also believe that the
Constitution requires us to preserve substantial independence of the
Senate and of the House of Representatives--in other words, the
separation of powers under the Constitution. One branch does not have a
superior position over another branch of Government. It is the checks
and balances of our Government that we do not wish to throw away. The
concern of a lot of people about this separation of powers is not
simply a matter of personal prerogative or ego. For the private sector,
these laws are normally implemented by the executive branch and the
judicial branch. But many Senators, both Democrats and Republicans,
have expressed genuine concern about politically motivated prosecutions
that might result if we ignore the principle of separation of powers as
we apply these laws to Congress.
Last year, the majority leader, Senator Mitchell, asked me as
chairman of the Governmental Affairs Committee to try and find a
bipartisan solution. I started with the excellent bill introduced last
year by Senators Lieberman and Grassley, and then together with them,
with Senators
[[Page S448]] Lieberman, Grassley and other Senators from both sides,
we worked hard to reach a solution, and I think we succeeded. We
included even a stronger application of the laws to Congress, and we
also included stronger protection of the constitutional independence of
the House and Senate. Our legislation won broad, bipartisan support,
but it was unfortunately blocked on the Senate floor in the closing
days of the 103d Congress.
I am very gratified that our solution to congressional coverage now
stands, I believe, an excellent chance of being enacted by the new
Congress. There have been two different bills introduced. One is the
bill we have before us today, and the other was introduced on
congressional accountability yesterday by Senator Daschle, our new
Democratic leader, as part of a comprehensive congressional reform
proposal. Senator Daschle's proposal includes a number of reforms of
the way Congress does business, including not only congressional
coverage, but also including measures on lobbying disclosure and gifts
to Members.
These essential measures, which I support, were also blocked along
with congressional coverage at the end of the last Congress. That bill
is not the one that is before us now. The bill before us now is the one
just on congressional coverage that Senators Grassley, Dole, and
Lieberman have submitted.
Senator Dole has made this a top-priority legislative proposal, and I
am very happy with that. With this strong bipartisan support that we
have for this legislation, I am very optimistic that congressional
coverage legislation can be promptly enacted--and I hope very promptly.
Legislation can be briefly summarized in five key elements. First,
all of the rights and protections under the civil rights laws and other
employment statutes, and the public access requirements of the
Americans With Disabilities Act, would apply to the legislative branch.
This includes the Senate, the House of Representatives, and our support
agencies. Second, a new compliance office would be established within
the legislative branch to handle claims and issue rules. This
compliance office would be headed by an independent five-person board
of directors, removable only for cause and appointed by the leadership.
This board is a new proposal here, in that this takes away most of
the concerns of those people who were primarily concerned about the
separation of powers and what would happen if we had an overzealous
executive branch of Government trying to enforce a Clean Air Act or an
OSHA law on Capitol Hill and pushing too hard for it, wanting to exact
a pound of flesh in some other area in response. That has been a
concern that people have expressed throughout the years. So this board
goes a long way toward declaring our independence and our capability in
making sure that all of the laws are adhered to here on Capitol Hill
and making that administration of those laws the purview of this five-
person board of directors.
I think it is unfortunate that we have to create a new enforcement
bureaucracy at a time when we are more concerned about streamlining
Government. But many Members, as I say, still believe it would violate
the constitutional separation of powers to have the executive branch
enforce these laws against Congress.
A third point. Any employee who believes there has been a violation
could receive counseling and mediation services from the new office. I
would anticipate that most of the problems could be resolved at that
counseling and mediation level. But if the employee's claim is not
resolved by counseling or mediation, then the employee can carry this
further. They can file a complaint with the compliance office and
receive a hearing and decision from a hearing officer. This decision
may be appealed. Then, in turn, if they are not happy with what comes
out of the first two steps, it may be appealed to the board for the
board's direct action, or after that, even to the U.S. Court of
Appeals. That is a lengthy process, but it is one that certainly gives
the employees all kinds of access to make sure that their complaint is
adequately dealt with.
Fourth, instead of filing a complaint with the compliance office
after counseling and mediation, another track that can be followed is
that the employee may elect to go directly and sue in the U.S. district
court, just as any businessman across this country can do, or any
individual across the country can do if they have a problem with their
employer, or whatever. Further, a jury trial may be requested under
normal applicable law.
Fifth, the board will appoint a general counsel who will enforce
OSHA, collective bargaining requirements, and other laws.
So I am very pleased that there now appears to be bipartisan support
for the Congressional Accountability Act. I will certainly be as
pleased as anyone when it is finally adopted. This is not all brand
new, make no mistake about it. The congressional coverage legislation
is not completely new in that congressional coverage legislation was
adopted by the Democratically-controlled House of Representatives last
year. Congressional coverage legislation was sent to the Senate floor
from our Governmental Affairs Committee last year. Unfortunately, it
died in the final days of the Senate last year in that scorched Earth
atmosphere which we all deplore, when we saw Members opposing just for
the sake of opposing and sometimes killing legislation they themselves
even supported.
But that is behind us now and we are on to a new day here. I
certainly want to let everyone know that while we went through some
trials and tribulations last year, we are ready to move on.
I think the American people are ready to move on and see this kind of
legislation in particular get passed. That is easier said than done
sometimes, but I think it is high time that we started to put the
national interests first and to calculate our actions based not on
narrow political calculations of today, or on who may gain more
political advantage by supporting or opposing this particular piece of
legislation. We should be doing this on what is best tomorrow for the
United States of America, for the whole country.
If Republicans and Democrats alike can just remember that, I think we
are going to have a great session through this coming year. I think the
Congressional Accountability Act is a good place to start.
I talked about the last plantation a little while ago. The last
plantation, I think, we now can eliminate and bring into the 20th
century with this particular piece of legislation. So I am very happy
to be supporting it.
Mr. President, earlier in the remarks by my distinguished colleague
from Iowa, he mentioned the costs and other impacts of the
Congressional Accountability Act. I have a one-page summary of where
those expenses are anticipated to occur, and I ask unanimous consent
that this be printed in the Record at the end of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. GLENN. Briefly summarizing, one new compliance office is
estimated to cost about $1 million a year for 2 years during startup.
It will be $2 to $3 million a year thereafter, including enforcement
procedures and OSHA inspections.
Settlements and awards to employees can run from a half million to a
million dollars a year.
Federal labor-management relations, possibly a million dollars a
year. We do not know on that. There is no good way to estimate that.
OSHA concerns are a little uncertain also, but those mainly have been
taken care of around Capitol Hill, so there should not be much
expenditure on that.
Applying fair labor standards to the Capitol police force will cost
probably around $800,000 a year or so. On other employees it was
difficult to estimate on that as to what the fair labor standards
application could bring in the way of costs.
Antidiscrimination laws, polygraph protection, plant closing, and
veterans rehiring are things for which we do not anticipate there would
be any major expense.
The bottom line then is that the total estimated cost CBO has run
out--and this was included in our Governmental Affairs report last year
in a CBO letter at pages 44 and 49 of the Governmental Affairs
Committee report, if anybody wants to refer to it--
[[Page S449]] described these costs that I just enumerated here
briefly, and came to the bottom line that a total estimate would be
about $1 million per year for the first 2 years and a $4 to $5 million
total thereafter. But it is a very, very uncertain amount. So compared
to the problem we are solving, I think that is a fairly modest
expenditure.
Mr. President, the Congressional Accountability Act would apply a
number of Federal workplace safety and labor laws to the operations of
Congress. But one of the main things it also provides is the new
administrative process I outlined for handling complaints and
violations of these laws. And that is new.
While it is true that some of these laws have applied to Capitol Hill
in the past, there has not been an enforcement mechanism. There has not
been a way for an aggrieved employee to exercise their rights and have
justice prevail.
One of the major provisions is the administrative process for
handling complaints that I just described a few moments ago. Let me go
through once again some of the major provisions of this act.
First, it will have the application of workplace protection and
antidiscrimination laws. S. 2 would apply several Federal laws
regarding employment to the operation of legislative branch offices and
provide an administrative process for handling complaints and
violations.
The following laws would be applied to legislative branch employees:
Under the general title of antidiscrimination laws, we have title VII
of the Civil Rights Act of 1964; we have the Age Discrimination in
Employment Act of 1967; we have title I of the Americans With
Disabilities Act of 1990; and we have the Rehabilitation Act of 1973.
Those are all under the antidiscrimination laws.
Next, under the general heading of public services and
accommodations, under ADA, the Americans With Disabilities Act, under
title II, the Americans With Disabilities Act of 1990, which prohibits
discrimination in Government services provided to the public. Another
provision under title III, Americans With Disabilities Act of 1990,
applies to the rest of those provisions.
Under the general heading of workplace protection laws, the Fair
Labor Standards Act of 1938, which concerns minimum wage, equal pay,
maximum hours, regulations, and protection against retaliation would
now apply. These regulations will be promulgated by the board that
tracks executive branch regulations. These regulations will take into
account those employees whose irregular work schedules depend directly
on the Senate. There has been some concern expressed by Senators about
how that would work.
Others, under workplace protection laws, are the Occupational Safety
and Health Act of 1970, the Family and Medical Leave Act of 1993, the
Employee Polygraph Protection Act; the Worker Adjustment and Retraining
Act, which requires a 60-day notice of office closing or mass layoffs,
which would not normally apply on Capitol Hill, until you think of the
fact that we have the Government Printing Office and the Library of
Congress and others where such layoffs might possibly occur.
Another portion under the workplace protection laws is the Veterans
Reemployment Act. It grants veterans the right to return to their
previous employment, with certain qualifications, if reactivated or
drafted.
Further, under the general heading of labor-management relations, the
Federal Service Labor-Management Relations Statute of 1978 would apply,
and the application to personal or committee staff or other political
offices would be deferred until rules are issued by the new Office of
Compliance.
Under covered employees, the compliance provisions for the preceding
laws would apply to staff and employees of the House, the Senate, the
Architect of the Capitol, Congressional Budget Office, Office of
Technology Assessment and, of course, the newly recreated Office of
Compliance.
Employees of congressional instrumentalities such as the General
Accounting Office, Library of Congress, and Government Printing Office
will be covered under some of these laws but a study will be ordered to
discern current application of these laws to the instrumentalities and
to recommend ways to improve procedures. Some of these entities or
instrumentalities already have their own internal rules and regulations
that they have applied that we want to bring into harmony with this new
legislation, and that will be done over a little period of time.
Let us go through protections and procedures for remedy. The bill
provides the following five-step process similar to current Senate
procedure for employees with claims of violations of civil rights or
Americans With Disabilities Act. For employment discrimination laws,
violation of family and medical leave protection, violation of fair
labor standards, and violations of laws regarding polygraph protection,
plant closings, and veterans reemployment violations, the procedure
would be as follows:
Step 1 would be a counseling service, which can last for 30 days and
must be requested within a 6-month statute of limitations.
Step 2, mediation services, which last for 30 days and must be
pursued within 15 days.
Step 3, if the claim cannot be resolved, then a formal complaint and
trial before an administrative hearing officer may ensue.
Step 4, after the hearing, if the party feels that they still have
not received proper treatment, any aggrieved party may appeal to the
Office of Compliance's board of directors, to the board itself. And
that does not even end it.
Step 5, if necessary, any aggrieved party may then appeal to the U.S.
Court of Appeals for normal judicial review.
The bill would also allow employees to bring suit in Federal district
court after the mediation step, without going up to all the rest of
that ladder, rather than proceeding, if they choose to do that, rather
than proceeding to the administrative hearing and all those five steps
I just mentioned. And if they went to district court, the remedy could
include the right to a jury trial. The option to seek district court
redress could occur only after an employee went through the counseling
and mediation process. So that is required whatever happens and
whichever track the person might choose to go.
With respect to discrimination based on race, color, religion, sex,
or national origin, remedies would include reinstatement, back pay,
attorneys fees, and other compensatory damages.
For claims under the ADA title II and title III relating to
discrimination in Government services, the bill provides the following
steps:
Step 1 would be for a member of the public to submit a charge to the
general counsel of the Office of Compliance. No. 2, the general counsel
may call for mediation. Step 3, the general counsel may file a
complaint which would go before a hearing officer for decision. Step 4
would be an appeal to the board. And step 5 would be an appeal to the
U.S. Court of Appeals.
For violation of OSHA, the bill provides the following procedures:
Step 1, employees may make a written request to the general counsel
to conduct an inspection.
General counsel will also inspect all facilities at least once each
Congress, most likely using some detailees from the Labor Department to
help since they are experienced in that area. But the authority would
rest with the general counsel to do that. Step 2, citations may be
issued by the general counsel. Step 3, disputes regarding citations
will be referred to a hearing officer. Step 4, appeal of hearing
officer decisions go to the board. Step 5, the board may also approve
requests for temporary variances. Step 6, appellate court review of
decisions of the board, if it gets that far.
Now, in this area, there would be a 2-year phase-in period for the
OSHA procedures to allow inspection and corrective action. The survey
also would be conducted to identify problems and to prepare for
unforeseen budget impact. Penalties would not apply under the OSHA
provisions because this would result only in shifting accounts in the
Treasury; in other words, the Government finding itself in one area and
putting the Treasury over in the other area.
The following process applies to violations of collective bargaining
law:
[[Page S450]] Step 1, petitions will be considered by the board and
could be referred by the board to a hearing officer; step 2, charges of
violation would be submitted to the general counsel, who will
investigate and may file a complaint. The complaint would be referred
to a hearing officer for a decision subject to appeal to the board
again. Step 3, negotiation impasses would be submitted to mediators.
Step 4, court of appeals review of board decisions will be available
except where appellate review is not allowed under the Federal Service
Labor-Management Relations Statute.
Now, employees who are employed in a bona fide executive,
administrative, or professional capacity--in other words, those
committee staff or personal staff who are not covered by the minimum
wage and maximum hour provisions--and interns, are also exempted.
Otherwise, remedies for violations of rights of all other employees
under the FLSA will also include unpaid minimum or overtime wages,
liquidated damages, and attorneys fees or costs. I note the exemption
there, that professional employees would not be covered in that same
way. These remedies would apply to the nonprofessional employees only.
Now, let me address briefly the Office of Compliance. S. 2 will
establish an independent nonpartisan Office of Compliance to implement
and oversee application of antidiscrimination worker protection laws.
Under rulemaking, the office will promulgate rules to implement the
statutes. Congress may approve and change by joint resolution rules
issued by the office. Rules would be issued in three separate sets of
regulations. One, the House; two, the Senate; three, joint offices and
instrumentalities. Rules for each Chamber would be subject to approval
by that body, or to grant the force and effective law by joint
resolution. Rules for joint offices and instrumentalities would be
subject to approval by concurrent resolution.
Membership. The office will be headed by a five-member board which
will be appointed to fixed, staggered terms of office. The board will
be appointed jointly by the Senate majority leader, the Senate minority
leader, the Speaker of the House, and the House minority leader.
Membership may not include lobbyists, Members, or staff except for
Compliance Office employees. The Chair will be chosen by the four
appointing authorities from within the membership of the board.
Settlement award reserves, payment of rewards for House and Senate
employees, will be made from a new single contingent appropriations
account. All settlements and judgments must be paid from funds
appropriated to the legislative branch and not from a Governmentwide
judgment account. There will be no personal liability on the part of
Members.
Mr. President, I think that is a rather complete rundown of this. I
think it is only fair we apply the laws to our employees here on
Capitol Hill that are applied to the rest of the country. I hope we can
have this legislation approved very shortly. I hope we can keep
amendments to a minimum. I do not know whether there are any amendments
proposed to be brought up this afternoon.
I yield the floor.
Exhibit 1
Summary of Costs and Other Impacts of Congressional Accountability Act
The CBO letter, at pages 44-49 of the GAC Report (and the
CBO letter for the House bill) describes the following costs:
1. New compliance office: $1 million/year for 2 years,
during start-up.
$2-3 million/year thereafter, including enforcement
procedures and OSHA inspections.
2. Settlements and awards to employees: $0.5-1 million/
year.
3. Federal labor-management relations: $1 million/year for
lawyers and personnel officers.
4. OSHA: Existing standards--will require change in
practices rather than significant additional space or cost.
Possible future standards--e.g., ergonomic equipment; air
quality--without specific standards, cost cannot be
predicted.
5. Fair Labor Standards: Capitol police--$0.8 million/year.
Other employees--CBO could not estimate.--CBO assumed the
compliance office would have wide discretion in establishing
rules and in allowing compensatory time in-stead of overtime.
This is incorrect: bill requires private-sector rules.
6. Anti-discrimination laws--no additional cost, because
these requirements already apply under statutes or rules.
7. Polygraph protection--no effect; polygraphs are not
used.
8. Plant closing--no effect; no mass layoffs are
anticipated.
9. Veterans rehiring--not scored by CBO; added to the
legislation this year.
Total Estimate: $1 million/year for the 2 years, $4-5
million/year thereafter.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. THOMPSON. Mr. President, I thank the Chair, and I rise in support
of the bill.
Mr. President, it has been my privilege to have been cochairman of a
working group with Senator Grassley to try to pull together various
parts of this legislation and help get it to the floor.
I am fully cognizant of the fact that those of us who are newcomers
to this legislative process, indeed, stand on the shoulders of giants.
There have been so many who have done so much in this area: Senator
Grassley, Senator Lieberman, Senator Glenn and others. I am delighted
to be a part of that, and to be part of this strong bipartisan effort
here in my first opportunity to address this body.
Mr. President, Senators Grassley and Glenn have very aptly gone over
the details of this legislation. It is indeed complex. It involves
several pieces of complex litigation and applicability to those already
existing laws. They have gone over this in detail. I will not.
I would like to make some basic observations, however, starting with
the proposition that the people spoke in a very loud voice in this last
election. We can disagree as to what the people were saying in many
respects, and we do. We have spent a lot of time trying to interpret
the voice of the people in these last few weeks. However, I think there
is one thing we cannot or should not disagree on. That is, in large
part, they were saying that they want a change of the way we have done
business in Washington, DC, Mr. President, specifically in the Congress
of the United States.
I cannot think of a better example of the way that we have been doing
business in times past than this whole business of exempting Congress
from the laws that other people have to live under. So today, I think
that what this bill does is take a step in the right direction. It
takes a step away from that and toward accountability. It stands for
the basic proposition that those who make the laws in this country have
to live under the laws that they make, as other citizens do.
Those of us who have just come off the campaign trail, perhaps, have
an additional insight into this matter. Those here with us today have
spoken many times and labored in the vineyard for many years on this
bill. Those of us on the other end of the spectrum have just come from
being a part of campaigns where the people's voice was most recently
heard.
Mr. President, not only are the people in America for this
legislation, the people in America demand this legislation. I would
suggest that the people in my State of Tennessee, and I would guess the
people across this Nation, wonder why it took so long to pass a
proposition that seems to be so imbued in basic common sense. So
perhaps that day has changed. I hope we are winning it now, as I speak.
Mr. President, in the first place, it is the fair thing to do. That
has been so aptly discussed and described by earlier speakers today.
Second, Mr. President, I would like to bring up an additional point,
and that is, in my observation, the people of this country, in many
respects, are unfortunately losing confidence in our country's
institutions. People more and more, I believe, Mr. President, are
feeling alienated from their Government in this country. I think that
that certainly has to do with the Congress of the United States. I
believe that people more and more feel that the Congress has lost touch
with people who work hard, pay their taxes, obey the laws and
regulations, and are seldom heard from except when additional revenues
are needed.
So, I believe that this legislation is the first of many reforms that
we will be discussing here in the next several days that will help
restore the confidence that the people must have in the people's branch
of Government, the Congress of the United States. We cannot stop this
cynicism and this feeling of alienation, Mr. President, by ourselves.
But the Congress of the United States can stop contributing to it.
[[Page S451]] Mr. President, I believe in the years to come that this
body will be a messenger of bad news to the American people if we do
our job, if we are responsible. When we look at the economic picture
down the road, when we look at the budgetary problems we will be facing
in this country, we will not always have good news to bring to the
American people.
I believe the American people are up to it. However, I believe when
we deliver that message, the American people must be able to trust the
messenger, and I think, again, that is what we are about here today,
the first step in that process.
In addition to those reasons, I think that another pretty commonsense
proposition applies, and that is that, if the Congress of the United
States had to live under the laws they passed for everybody else, maybe
we would not have so many laws and, thereby, maybe we would not have so
many regulations.
I think it has become entirely too easy in this country, in this
Congress, to spend other people's money and regulate other people's
lives. That is what I believe Congress has spent too much time on for
too many years.
I think for the first time under this legislation, Members of
Congress, who understandably are concerned with cost, understandably
are concerned with inconvenience and all of these other things, for the
first time will start to realize the problems that people out in the
country who have to live under these laws have experienced. And maybe,
just maybe, we might want to, in the future, reconsider some of the
laws that have already been passed and some of the regulations that
have been promulgated pursuant to those laws.
I think, in looking at this legislation, legislation of much detail,
much work, that there are a couple basic criteria that I look for:
No. 1, that it be comprehensive, and when I study this legislation, I
see that every comparable law here is, indeed, applied to Congress.
Second, there must be access to the court system. I examined this
legislation and, indeed, we do have access to the court system. Those
bringing actions against the officers and Members of Congress of the
United States, indeed, have court access. It is not just the laws under
this legislation that will apply to Congress but the regulations will
also.
Also, Congress under this legislation does not exempt itself from the
numerical limitations that are afforded to small businesses which would
exempt Congress from coverage under many of these laws. So I think we
are moving in the right direction.
Is the legislation perfect? I would say not. Could it go further?
Indeed, I would like to see it go a bit further, but I think that we
can revisit this at times in the future. I think the question of
ultimate liability is something that perhaps needs to be revisited.
Surely we can come up with a solution whereby Congressmen and
Congresswomen and Members of the Senate are not faced with imminent
bankruptcy constantly, on the one hand, and, on the other hand, the
taxpayers are not left with a bill that we might run up on them.
I would think that, with the use of insurance and other measures, we
could do better perhaps than that. But I think this is a strong--very
strong--first step in the right direction. I wholeheartedly support it,
not only because it is the right thing to do, but it will be to the
benefit of the American people and, I believe, to the ultimate benefit
primarily of the Congress of the United States. Thank you.
Mr. LIEBERMAN addressed the Chair.
The PRESIDING OFFICER (Mr. Smith). The Senator from Connecticut.
Mr. LIEBERMAN. I thank the Chair.
Mr. President, I am privileged to rise in support of this measure and
am delighted not only to join the real pioneers in this effort--Senator
Glenn and Senator Grassley--but to speak after our new colleague, the
Senator from Tennessee, who has spoken eloquently. I am privileged to
work with him on a bipartisan basis on behalf of this bill.
He made reference to the elections that just occurred and the message
that was sent to us. I was thinking after this election, there is an
old story about a politician who lost an election by a lot, he got
clobbered. In the traditional election night speech, he got up and
said, ``The people have spoken, but did they have to speak so loudly?''
I think the answer in this case is, obviously, the people did feel
they had to speak loudly, and what they were speaking for was change,
change in the status quo and, I think, demanding a Government that
responds to their problems, that deals efficiently with those responses
and that, most of all, gets its own house in order.
I do not know what my colleagues may have found as they were out
there this year. I was out there myself, grateful for the support of
the people of Connecticut to send me back here. But I found an
increasing number of people--and I would say it is a majority out
there--who really do not care whether you are Republican or Democrat.
What they care about is what you are doing and what have you done. They
are not going to judge by labels, as so often happens. They are going
to judge by the record of accomplishment or lack of accomplishment.
All of that brings me to this measure, which I think is at the heart
of responding to the demand for a change in the status quo, for a
demand to a leaner, more responsive Congress, to a demand for
legislation that reflects the real world, that reflects the thinking of
Members of Congress who understand what is happening out there and who
play by the same rules that everybody else plays by, who are forced to
live by the same rules that everybody else lives by, and that will act
on a bipartisan basis in the interest of America. I think all of that
comes together in this piece of legislation.
The measure we are considering today, S. 2, is an improved version of
the successive congressional compliance measures which Senator Grassley
and I authored last year, beginning with S. 2071. This latest bill, if
enacted, will, as those who have spoken before me said, apply to
Congress and its support offices all of the laws regarding civil
rights, fair labor practices, disability, family medical leave,
veterans, reemployment, health and safety that Congress has applied
over the years to the executive branch of the Government and to the
private sector as well.
Every public opinion poll that I have seen--to tell you the truth you
do not need a public opinion poll, it is kind of common sense--
indicates that the people of America are ardent, enthusiastic, just
about unanimous in their support of this legislation.
I am greatly encouraged that the leaders of this new Congress have
placed this bill at the forefront of our business for the opening days
of this session. This is a measure that passed the House overwhelmingly
on a bipartisan basis last year and was stopped from coming up here at
the closing day of the 103d Congress on a procedural objection, an
unusually and rarely used procedural objection.
But the mood is different this year. I think passing this bill will
show that we have collectively realized that Congress simply cannot
continue to do its business as usual and we can no longer live above
the law. It is not just that the public will not stand for it, they
should not stand for it, and we should not stand for this kind of
double standard. It undercuts the basic trust that is a precondition of
our democracy, the trust that has to exist between those who are
privileged to serve and govern and those who are governed, those who
send us here to represent them.
Mr. President, we must pass this bill with strong enforcement,
including the right for claims to be heard in court, not just because
it has symbolic value but because it is right. By passing this bill, we
demonstrate a commitment to the principles that are in all the laws
that we have applied to the private sector.
At the end of June 1994, the Senate Governmental Affairs Committee,
which I am privileged to serve on, held a hearing on this subject and
took a close look at all the issues involved. The committee realized
that there is a complex problem that requires well-considered
solutions, particularly to the general problem of uneven coverage.
So we went ahead, Senator Grassley and I, Senator Glenn and other
members of the Governmental Affairs Committee, and worked on some ways
to solve these problems. Since then, this group, and others, has done
everything
[[Page S452]] possible to address the tough legal and constitutional
issues in a way that is fair to our employees. It forces us to live in
the real world according to the real law but also has some respect for
the special constitutional status of the legislative branch.
The bill that we are considering today builds upon that committee
substitute to H.R. 4822, which was reported out by the Governmental
Affairs Committee last September. I think this bill remains true to
virtually all the defining principles and provisions found in H.R.
4822. Like that bill, this measure we are considering establishes an
independent office to function as a legislative branch equivalent of
the executive enforcement agencies.
Substituting this independent agency for the executive agencies, I
think, responds to a genuine argument, which is separation of powers
and, in another sense, ends Congress' ability to sit or hide behind the
separation of powers argument as an excuse for inaction.
We have dealt with that argument. We have solved that problem. There
is no longer that constitutional excuse or argument for inaction.
Some of the strongest arguments that were made against this measure
can also I think be put to bed now. At times opponents claimed it would
cost billions to implement and even require the construction of new
office buildings by Congress. But the testimony that the committee
received in June as well as CBO's analysis of the committee-reported
bill showed that such fears are not well founded. There is no new OSHA
space requirement for offices, projecting the impact of the provisions
of this bill. Indeed, the Architect of the Capitol and the
Congressional Budget Office have anticipated little, if any, additional
expense for OSHA compliance.
Mr. President, passage of this legislation will really go a long way,
or at least, let me put it this way, at the outset of the 104th
Congress take the large first step in the direction of restoring the
public's trust in this institution.
The history of this and companion legislation is interesting. As I
looked back at the record, 1938 was the first time that Congress
exempted itself from coverage under a relevant Federal employment law
when it passed the Fair Labor Standards Act. Congressional staff were
not covered by the wage and hour provisions contained in that act. And
that precedent, unfortunately, became a tradition of congressional
self-exemption from Federal employment laws over the course of the
succeeding 56 years since 1938. Right now, Congress is wholly or
partially exempt from the relevant provisions of the 11 major Federal
employment laws with which this bill deals.
Senator Glenn, as I have indicated earlier, in 1978 really was the
pioneer here in authoring a bill that sought to correct this problem.
In 1991, Senator Grassley and then Senate Majority Leader Mitchell
coauthored the Government Employees Rights Act, also known as GERA,
which gave employees of the Senate partial coverage under the Civil
Rights Act of 1964, the Age Discrimination and Employment Act of 1967,
and the Americans with Disabilities Act of 1990. GERA created this
Office of Senate Fair Employment Practices, and an administrative
complaint process administered by the office designed to fill the role
of the Federal district courts as set forth in the statutes in
question. It also provided Senate employees with a review of their
decisions in the Court of Appeals for the Federal Circuit.
Mr. President, Members of Congress are still faced with the fact that
there is more to do, and that is what the legislation before us intends
to do. Private sector employers are particularly and understandably
angry and aggrieved by the knowledge that Congress does not subject
itself to the most demanding legal and regulatory burdens that Congress
imposes on them, particularly the small business community.
Congressional exemption from Federal employment laws I think has also
had an adverse effect on the legislative branch work force and its
right to equal protection under the law. This is not just a matter of
symbolism. It is not even just a matter of equity, though it is a
matter of equity. This is kind of a reverse of the golden rule here in
this case. This bill is saying let us do unto ourselves as we have done
unto others. But beyond those principles, there is a real problem out
there and that is the rights of those who work for us, for the
Congress.
The Architect of the Capitol, for instance, which has no independent
enforcement of its OSHA program, is plagued by one of the highest
worker compensation claim rates of all the Federal agencies. Employees
of the Senate exempted from the Fair Labor Standards Act have no
guaranteed means of securing financial or other compensation for
overtime. No employee of the House of Representatives or the Senate may
bring a civil action in Federal district court to remedy violations of
the Civil Rights Act of 1964 and other Federal antidiscrimination
statutes, all of which provide employees in the private sector with
exactly that right to pursue their grievances in Federal court.
So there is a real problem out there. This is not symbolism. It is
not just principle, though both of those are important. There is a real
problem of our workers. The vast majority of legal inequities that may
be endured by employees of the House and Senate can be remedied at
minimal cost to the Congress by adoption of this measure.
Mr. President, I would briefly like to focus on some of the
constitutional concerns that have been raised. Most frequently, again,
we have heard about the separation of powers argument, but using this
broad-based argument I think distorts the historical intent of the
separation of powers doctrine. The basic idea is to limit each branch
to a certain set of powers subject to checks by the other two branches
so that no one branch can accumulate a level of power that becomes
tyrannical in its effect on the public or the private citizen.
In Buckley versus Valeo, a 1975 case, the Supreme Court, citing the
history of the separation of powers principle, wrote:
James Madison, writing in the Federalist Paper No. 47,
defended the work of the Framers against the charge that
these three governmental powers were not entirely separate
from one another in the proposed Constitution. He asserted
that while there was some admixture, the Constitution was
nonetheless true to Montesquieu's well-known maxim that the
legislative, executive and judicial departments ought to be
separate and distinct.
And they went on to say that it was a demonstration of Montesquieu's
meaning when he wrote:
When the legislative and executive powers are united in the
same person or body, there can be no liberty, because
apprehensions may arise lest the same monarch or senate
should enact tyrannical laws to execute them in a tyrannical
manner.
In other words, the separation of powers principle was to preclude
any one branch of the Federal Government from seizing a degree of power
that could be used against another branch of the Government or the
citizenry in a tyrannical fashion without check from the other branch.
But this was affected by another view of Madison which goes right to
the point of this legislation, writing in Federalist 47 that the
separation of powers principle was not designed to insulate one branch
of the Government or its servants from the rule of law. In other words,
each branch was to be strong and independent, to resist a
centralization of power.
But that did not mean that anyone branch of the Government or its
servants should be above the law or exempted from the law. And in
Federalist 57, Madison wrote the Congress can make no law which will
not have its full operation on themselves and their friends as well as
on the great mass of the society. ``This has always been deemed''--and
I am continuing with Madison's words--``one of the strongest bonds by
which human policy can connect the rulers and the people together. It
creates between them the communion of interest and sympathy of
sentiments, of which few governments have furnished examples but
without which every government denigrates into tyranny. If it be asked
what is to restrain the Congress from making legal discriminations in
favor of themselves and a particular class of society, I answer,''
Madison said, ``the genius of the whole system. The nature much just
and constitutional laws. And above all the vigilant and manly spirit
which actuates the
[[Page S453]] people of America, a spirit which nourishes freedom and
in return is nourished by it. If this spirit is ever so far debased as
to tolerate a law not obligatory on the legislature as well as on the
people,'' Madison wrote, ``the people will be prepared to tolerate
anything but liberty.''
Powerful words from one of the great founders and framers of our
country. I think they speak to us today because history has taken us in
a direction that he feared but did not believe would occur. And it is
that drift that brings us to introduce this legislation so that Members
of Congress and the institution will not be above and separate from the
law.
Mr. President, a final point, if I may, on the question of cost.
Because this new bill was just introduced yesterday, there clearly has
not been time to receive a cost estimate from the Congressional Budget
Office. Yet I would suggest to my colleagues that it is fair and
reasonable to draw some pretty firm conclusions from the CBO estimate
of the bill reported by the Governmental Affairs Committee last
September because this measure is so similar to that measure. We also
received a cost estimate from CBO on last year's House-passed bill and
the estimates CBO arrived at in both cases were far, far lower--not
only than the opponents of the measure feared--but, frankly, than most
of the supporters of legislation expected or thought possible.
CBO estimated that both versions, the House-passed version last year
and the one reported out of Governmental Affairs, would cost about $1
million for the first 2 years of effect, as the new independent office
gears up, and $4 to $5 million in the third, fourth and fifth years.
Much of the cost expected in fiscal years 1997 and 1998 is the cost of
working out collective bargaining agreements. So once the cost of that
is taken care of, the overall price tag should actually dip back down
by the beginning of the second 5-year budget cycle of effect.
When you look at the total cost figures projected, I think we also
have to realize that the Senate and House offices of fair employment
practices will already cost us almost $1.2 million in this fiscal year.
So the marginal cost of the bill we are considering would be even less
than the CBO estimate.
Mr. President, in the bill's most expensive year as projected by CBO,
fiscal year 1998--which would have been, under last year's estimate the
4th year of effect, projected legislative branch spending would be in
the neighborhood of $2.5 billion. Therefore, as a percentage of our
total operating budget for that year, the bill reported by the
Governmental Affairs Committee--according to the CBO estimate--would
only have amounted to 1/5 of 1 percent of the total operating budget of
the Congress. I think that figure is worth repeating. The cost of the
bill would be 1/5 of 1 percent in the year when the bill would have
been most expensive. Allocating that tiny fraction of our annual budget
would enable Congress to comply with the same laws that we force
everyone else to live with, to repair the ruptured relationship between
this institution and the people who control it, for whom we work, and
to do what is right.
Mr. President, I ask unanimous consent that the full text--noting the
presence of my friend and colleague from Alaska here--the full text of
my speech be printed in the Record as read.
I thank the Chair and I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska is recognized.
Mr. STEVENS. Mr. President, I intend to support this bill because I
support a continuation of our efforts to bring Congress under the same
laws that apply to the private sector. But I have some serious
reservations about this proposal. Contrary to what my friend from
Connecticut has just said, I think that the estimates for the cost of
this proposal are absurd.
Next week we are going to consider a bill to ban unfunded mandates on
States and local governments. Today, we are considering a bill to
create an unfunded mandate for Congress to be paid for by the taxpayer.
The Rules Committee is already in the process of cutting 15 percent
from the budgets of every committee in the Senate. We have been asked
to cut $200 million from the congressional budget over the next 2
years. But I have not heard anyone suggest where we are going to get
the money we need to pay for this bill, in light of these cuts that we
already face. And, contrary to what you have just heard and what many
people believe, I believe complying with the laws contained in this
bill is going to cost the taxpayers a lot of money. If it will not, why
are all of the business people of this country complaining about the
application of these laws to them now?
We have just heard that it is going to cost us $1 million a year. I
am making the Senate a commitment as the new Senate Rules Committee
chairman, we will keep track of the costs of this bill year by year,
and report them to the Senate.
In 1991, with my support, we brought the Senate under the following
laws that are contained in this bill: The Civil Rights Act, the
Americans With Disabilities Act, the Age Discrimination Act, and the
Rehabilitation Act. Congress included itself in the Family and Medical
Leave Act when it passed that law. We still do not know what those will
cost the Congress.
In the last Congress I joined then-chairman of the Rules Committee,
my good friend from Kentucky, Chairman Ford at that time, directing the
Architect of the Capitol to bring the Senate wing of the Capitol into
compliance with the Occupational Safety and Health Act.
The Architect is now at work on that with the Department of Labor to
bring us into compliance. We do not know what the cost will be. The 5-
year cost of our current compliance efforts under one--one thing alone,
employment discrimination laws, will be about $5 million. And I think
these are just a fraction of the spending that will be needed to bring
about compliance with this bill.
I am not against the concept. I think we should face the same laws we
impose on the private sector. But we should not stand here and say that
this estimate of $1 million a year is a reliable estimate. We should
keep in mind the congressional bureaucracy alone created by this bill
will cost at least $15 million over the 5 five years. And it does not
include the cost of damage awards and attorneys' fees. But don't
forget, the taxpayers must pay these costs.
We are trying to apply the same laws to Congress that apply to the
private sector. But again I say to the Senate, if it will cost so
little to apply them to the Congress, why is the American public in the
private sector complaining so loudly? The estimates we are getting are
like a lot of other estimates we get from the Congressional Budget
Office, in my opinion. And we are going to keep track of them for the
Senate. That is why I am here now. I want to make the commitment to the
Senate. We are going to watch the costs under this bill. We are going
to report them every year. And I am going to ask the Senate to take
action to modify some of these laws for both the private sector and the
Congress when I show what it really costs the Congress to comply with
these laws.
Mr. GRASSLEY. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. INHOFE addressed the Chair.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, I rise in strong support for the
Congressional Accountability Act. I really cannot believe that we are
debating this issue as if it is something we might or might not do in
light of what happened on November 8. It is this kind of reform which
will help restore Congress as the truly representative body it was
intended to be.
The fact that Congress has routinely exempted itself from laws and
regulations which affect virtually every other person, business, and
organization in the land says volumes about the arrogance of power,
about the insulation of Washington from the real world, about the gulf
which has come to exist between the people and those who are elected to
represent them.
[[Page S454]] The Congressional Accountability Act is closely related
to several of the other things that were discussed in the Contract With
America, such things as overburdened regulations, such things as term
limitations.
You know, many of us in Congress have our own stories that we can
tell from back in the real world. I was, among other things, a
developer. I can remember one time, in order to get, down on the coast
for a six-story development, a dock permit, I had to check with 26
Federal and State agencies in order to get that permit. It could have
just as well been done with one.
And I think therein lies one of the better arguments for term limits.
The fact if you have people who are out in the real world and know what
the tough regulations are and what they do to your competitiveness,
then they would not behave the way they do.
I understand that earlier today our colleague from Iowa told the
story about George McGovern. And I remember that so well, because I was
there when the statement was made that after a lifetime in public
service he had this burning desire to fulfill a lifetime dream and
build that hotel. I guess it was in Connecticut. And he built it. And
then, before he knew it, the health department started beating him up,
the IRS started beating him up, and the EPA started beating him up, and
he went into, I believe, Chapter 11. I would have to paraphrase him.
But the exact quote was given by the Senator from Iowa this morning,
the thrust of which is, If I had known how tough it was in the real
world, I would have voted differently when I was in the U.S. Senate.
Mr. President, to take another example. We ought to recall the very
illustrative experience that one of my colleagues from the other body,
Representative John Boehner, experienced, where he invited an inspector
from OSHA, the Occupational Safety and Health Administration, to come
in and look at his three-room office that he had there in the, I
believe it was, Cannon Office Building. When they did, they found six
safety violations, including a lack of an evacuation plan.
I might suggest to my colleagues that if we do not pass this bill, we
might all want to install an evacuation plan in our offices.
They went on to look at some of the other areas of Government right
here in the Capitol, I believe, in the Architect's Office. They said
that in the event that we had to comply with the OSHA requirements,
that it would cost over $1 million to come up to compliance.
And there is a historic precedence for this. James Madison, in his
writing in 1788 in the Federalist Papers, said:
Congress can make no law which would not have its full
operation on themselves and their friends as well as on the
great mass of society. This has always been deemed one of the
strongest bonds by which human policy can connect the rulers
and the people together. Without this communion of interests,
every government degenerates into tyranny.
Those like Madison who wrote our Constitution intended that Members
of Congress would not be part of some elitist aristocracy, out of touch
with the people, insulated from the real world. Rather, they intended
Members of Congress to be themselves the same farmers and shopkeepers
and business men and business women and merchants who expected to
deserve the Government that we finally got--``of the people, by the
people, and for the people.''
With this reform, this Congressional Accountability Act, we will take
one small step following so many others in our history to help ensure
that such a Government shall not perish from the Earth.
This reform, like our reform of the discharge petition process--Mr.
President, you remember that well from the other body--will serve as a
predicate for many other reforms that we surely will be considering and
are really adamantly demanded by the people as a result of the
revolution of November 8.
I cannot imagine there is one Member of this body who would go back
to his State and look a constituent in the eye and say, ``We will take
care of you. We know what is best for you. You just do what we say. And
yet, that is not going to apply to us. You know, we live in an ivory
tower with impenetrable walls, so we are insulated from many things
that you folks are not insulated from.''
This eliteness was shot down in the revolution of November 8.
So, Mr. President, I urge my colleagues to vote in favor of this
measure.
I yield the floor.
Mr. WELLSTONE addressed the Chair.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Thank you, Mr. President.
Mr. President, first of all, let me thank my colleagues, Senator
Grassley, Senator Glenn, Senator Lieberman, and others, for their fine
work on this piece of legislation.
I know that my colleagues on the other side of the aisle--and I
assume that includes you, Mr. President, are going to be caucusing at
3:15. And I certainly will not take more than 10 minutes, if that.
Mr. President, a little later on, it would be my honor to be on the
floor with an amendment with Senator Levin, and, I am sure, Senator
Feingold, Senator Lautenberg, I know the minority leader also feels
very strongly about this. I think it will be a very important amendment
when we do have the debate on this amendment before the Senate.
This amendment deals with lobbying disclosure, but with a special
focus on the gift ban. This is a piece of legislation that probably
Senator Levin and Senator Cohen, among others, have exerted tremendous
leadership on.
My strong interest in this, Mr. President, has been on the gift ban
part. I have heard my colleagues for the last several hours speak with
a considerable amount of eloquence about the mood in the country. I
think probably Senator Glenn from Ohio did this as well as any would
when he talked about how strongly he feels about this piece of
legislation and the fact that it is above and beyond the politics of it
all; that is to say, it certainly does not look very good when we try
to live by other workplace rules than the people that we represent.
Well, I think from the point of view of the right thing to do, and
that is what Senator Glenn has focused on, this piece of legislation is
extremely important. But, Mr. President, if we are going to talk about
congressional accountability, I think that we can do much better.
I believe that this amendment, which will later on be on the floor of
the Senate at least before this bill is finally voted up or down that
deals especially with the gift ban, is extremely important.
Mr. President, when my colleagues talked about what they have heard
back home from the people they represent in our different States, I can
just tell you that in the cafes in Minnesota, there just is not even
any debate about the following proposition. And the following
proposition is as follows: It is just simply wrong for Senators to be
receiving gifts in the form of paid trips for recreation or meals or
tickets to athletic games, or whatever the case, from lobbyists and
others.
I mean, Mr. President, to the 99.99 percent of people in the country,
it is wrong because this, to them, represents a process where people
attempt to buy access, to buy influence. Though I am not talking about
the individual wrongdoing of any Senator, because I do not think that
that is the issue and I would certainly hope that there is very little
of that, or maybe in the best of all worlds none of that, the fact of
the matter is that this amendment which, in part, deals with ending
these gifts, the giving of these gifts and the taking of these gifts,
is an amendment that has everything in the world to do with
accountability.
Mr. President, we can do a lot of things to change the political
culture here in Washington. We can do a lot of things to make this
political process more open and more honest and more accountable. We
can do a lot of things to rebuild the trust of people in this political
process. But, Mr. President, I just will tell you, and I would say this
to my colleagues as well, that cutting committees or cutting some staff
may be fine. It may be the appropriate thing to do. Certainly, the
focus on living by the same workplace rules is a huge step in the right
direction. But if we are serious about making this process more
accountable and more open and more
[[Page S455]] honest and a process that the people can more believe in,
then there is not one reason in the world why Senators, on this bill,
would not want to make us accountable. It is called the Congressional
Accountability Act.
One of the ways we can be accountable to the people we represent is
to say to them in no uncertain terms that we are not going to be at the
receiving end of these gifts. We are not going to take them, not
because necessarily taking these gifts that are sometimes lavished upon
us has anything to do with any kind of corruption, but rather because
we know it does not look good, we know Senators do not need it, and we
know people want to have trust in this process. We will simply say to
them by passing this amendment that, indeed, we agree with the people
we represent on this question.
Mr. President, one of the interesting things about this amendment, of
course, is that toward the very end of the very end, indeed, the very
end of the last Congress, the 103d Congress, while there was some
disagreement about some features of the lobby disclosure gift ban
bill--and I want to focus just on the gift ban part, because that is
what I have been working on for several years--as a matter of fact,
toward the very end of the session, I believe that the majority leader,
along with 36 or 37 of his colleagues, came out on the floor,
supporting the gift ban provision. So there is strong bipartisan
support. I have somewhere in my documents the names of every Senator
who supports that gift ban, Democrats and also Republicans.
So from my point of view, it is the beginning of the session. I do
not think it is just my point of view, but I think it will be the point
of view of colleagues on both sides of the aisle, and I think it has to
be the point of view of colleagues on both sides of the aisle because
it is the collective point of view of people within our country that if
we are going to get off to the right start--and we will talk about
reform, and we will say we want to make this process more open and
accountable, and we will talk about congressional accountability--then
there is not one reason for any further delay in getting serious about
accountabilities. I do look forward, later on, with Senator Levin and
the minority leader, and Senators Feingold and Lautenberg, and I am
sure other Senators as well on both sides of the aisle, to having this
discussion.
I certainly hope that my colleagues will vote for this very important
amendment. Mr. President, I will not argue that this amendment will be
the final step that we should take. I think it greatly strengthens this
bill. We have been putting off this gift ban for too long a period of
time. Over and over and over again, we have put off taking action on
it. I think that that is unconscionable. I think we want people to
believe in this institution. I think we want people to believe in the
legislation we pass. And I think the way that that will happen is when
people believe in the political process. That is what this amendment is
all about.
Now, I do hope that some time in the near future, we can also deal
with another part of this which has to do with campaign finance reform.
I think, ultimately, if we want to talk about accountability, the whole
mix of money and politics is another part of the equation, and I do
look forward to that discussion and that debate and those amendments
when that happens on the floor of the Senate, as well.
But, again, Mr. President, I do not want to take up any more time. I
understand that my colleagues are going to be maybe breaking for
conference, at least on the other side, and if other Senators want to
speak right now, I will be glad to simply be done.
So, Mr. President, I conclude my remarks for now. I see other
Senators on the floor. I hope I did not take too much time. I wanted to
alert Senators that this amendment will be coming up.
The PRESIDING OFFICER (Mr. Helms). The Senator from New Hampshire.
Mr. SMITH. Mr. President, I thank the Senator from Minnesota. I
realize there is a conference pending at approximately 3:15. I would
like to have my views heard on this very important piece of legislation
which I strongly support.
I want to congratulate Senator Grassley on the fine job he has done
in his leadership on this issue. I am in very strong support of S. 2,
the Congressional Accountability Act of 1995. Mr. President, I am
pleased that the Senate is now addressing itself to this issue,
finally. It is a very important matter, assuring that Congress obeys
the same laws by which it requires the rest of the Nation to abide.
That is certainly not an unreasonable approach to take, I think.
It is an issue in which I have long been interested, and I am pleased
to have served with Senator Grassley on the Senate Republican working
group that developed the proposal that is now embodied as S. 2.
Mr. President, we are all aware that public opinion polls, whether we
like it or not, consistently report that the American people hold
Congress as an institution in very low regard. The people's lack of
esteem for Congress is based in large part on the perception that
Congress is an arrogant and imperial body that has placed itself above
the law. We should not be doing things to enhance that perception. It
should be the opposite.
Unfortunately, in modern times at least, this perception has been
well grounded in reality. For decades, Congress has routinely--
routinely--exempted itself from a wide range of laws governing such
matters as civil rights, employment discrimination, sexual harassment,
workplace safety, and on and on and on.
In a very real sense, then, Congress indeed has placed itself above
the law. That decidedly was not what the Founding Fathers of our great
Nation intended. They have been amply quoted here, and there is the
possibility of repetition; I would like to quote a couple of more
times. In Federalist No. 57, Madison assured the American people that
under the Constitution, Congress would not abuse its lawmaking power
because ``it can make no law which will not have its full operation on
themselves and their friends.''
So Madison was very clear about that. Later, as a Member of the first
Congress, Mr. Madison spoke on the floor of the House of
Representatives about the important principle that all laws should be
made to operate as much on the lawmakers as upon the people.
It is amazing when you go back and read the words of these founders,
Mr. President. They were so brilliant, and so many times we walk away
from their logic. It is interesting to hear contemporaries interpret
their words almost 180 degrees differently from what they intended when
the Founders wrote them.
Mr. President, Madison was not alone in articulating this principle
that Congress should not be above the law, but rather under it. And in
his manual of parliamentary practice, Thomas Jefferson, another pretty
well-known founder, noted that ``the framers of our Constitution took
care to provide that the laws should bind equally on all, and
especially that those who make them shall not exempt themselves from
their operation.''
Sadly, however, all too often the Congress has seen fit to ignore the
solemn principle that those two great founders, Madison and Jefferson,
so clearly enunciated.
In recent years, mounting public pressure for change has prompted a
movement toward reform with respect to congressional coverage, and in
response to that call for change in the 103d Congress, I, among others,
introduced legislation to deal with it. Mine was S. 579, the Equity for
Congress Act.
The principal difference between the bill that I introduced, the
Equity for Congress Act and the other congressional coverage bills in
the last Congress, is that the bill I introduced would have kept the
Congress out of the business of policing itself with respect to its
compliance with the laws that my bill would have made applicable to the
legislative branch.
So under the bill that I introduced, there would have been no office
of compliance created within the legislative branch. Rather, the
executive and judicial branches would have enforced the laws with
respect to Congress in the same manner in which it has done in the
private sector.
But I still believe the approach to enforcement taken under the
Equity for Congress Act in the last Congress is
[[Page S456]] the right approach. A number of Members of the Senate and
House objected to this approach, however. It is a parliamentary body,
and we sometimes have to compromise a bit. They use the separation of
powers as the grounds for not wanting to do that. Their concern is
focused particularly on what they see as a potential for partisan
motivation in the manner in which the executive branch might enforce
the law.
In an effort to ensure the broadest possible support for, as well as
speedy enactment of, congressional coverage legislation, I agreed to
support this compromise, the compromise embodied by the bill before us
now, S. 2.
Under this compromise, congressional employees who believe that their
employer--congressional employer--is violating one of the laws made
applicable to the Congress by S. 2 have a choice, they have a choice
that is a compromise here. After counseling, they can either file a
formal complaint with the new congressional office of compliance or
they can go directly to the courts.
The only highly limited exceptions are with respect to those
substantive laws that do not afford an analogous right to go to court
to other persons who are not congressional employees.
So, I agreed to support this compromise. It is a good compromise and
a reasonable compromise because it is consistent with the spirit of the
proposal I introduced. I congratulate Senator Grassley for his
leadership and his willingness to discuss this matter and to listen to
those of us who wanted to make some changes.
Mr. President, I believe that it is imperative that we should move
forthwith to take this important step toward restoring the confidence
and the trust of the American people in their Congress. Acting promptly
to place the Congress under the same laws by which it expects the rest
of society to abide will send a powerful message to the American people
that we got the message. We got the message that the reign of an
arrogant and imperial Congress is over. By moving expeditiously, we in
the Congress can send that clear and unmistakable message to the
American people that we are committed to true and honest reform.
Finally, Mr. President, I believe that S. 2 has another equally
important purpose. Beyond moving to restore the confidence of the
American people in their Congress, I believe the enactment of the
Congressional Accountability Act will help us to make better laws. If
we have to live under the laws we make, we will make better laws. Some
say we ought to make a lot less laws, and I totally agree. Others say
we ought to repeal one for every one we pass. That sounds like a good
idea as well.
But learning firsthand what effects the laws that are passed have on
those to whom the law applies will give Congress a unique and
invaluable way in which to learn by experience what is wrong with those
laws.
Moreover, living under those laws will give Congress a powerful
disincentive. It will think twice before passing laws which it would
not want to live under.
So I am hopeful, in conclusion, that one spinoff from this excellent
piece of legislation will be that we may look at some of these laws
that are so onerous on the American people and on many businesses
throughout the country and change some of them, as well, when we
realize how bad they really are.
I thank you, Mr. President. I thank the Senator from Iowa for his
courtesy, and I yield the floor.
Mr. GRASSLEY addressed the Chair.
The PRESIDING OFFICER. The able Senator from Iowa.
Mr. GRASSLEY. Mr. President, I ask unanimous consent to add Senator
Hutchison as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________