[Congressional Record Volume 141, Number 4 (Monday, January 9, 1995)]
[Senate]
[Pages S621-S645]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    CONGRESSIONAL ACCOUNTABILITY ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of S. 2, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 2) to make certain laws applicable to the 
     legislative branch of the Federal Government.

  The Senate resumed consideration of the bill.
  Pending:

       Ford/Feingold amendment No. 4, to prohibit the personal use 
     of accrued frequent flyer miles by Members and employees of 
     the Congress.

  The PRESIDING OFFICER. Now pending before the Senate is amendment No. 
4.
  Mr. GLENN. Mr. President, we had this legislation on the floor last 
week, of course, and continue it today. We will continue it tomorrow. 
The time is limited on this.
  I wanted to rise and let all the people watching in the offices, all 
the different staffs, as well as the individual Senators, know that it 
is my understanding--and I ask my distinguished colleague from Iowa to 
comment on this, too--it is my understanding that the majority leader 
has indicated that he wished to end this bill, if at all possible, by 7 
o'clock tomorrow evening, Tuesday evening.
  Now, I presume that is correct. I know we will try to end by a 
certain time. I was just told a few moments ago that the time expressed 
is 7 tomorrow evening.
  That being the case, there are no amendments on the Republican side. 
They are all on the Democratic. If we are to meet that deadline, it 
means that people had better get their amendments together and get them 
over here. We have no time agreements at this point, so anyone can take 
up as much time as they want on the floor.
  But we do have a number of amendments still pending, and if people 
expect to make certain of not getting frozen out with their proposals, 
then they better get over here this afternoon. We will have some 
tomorrow morning. But people should be cognizant of the fact that 
tomorrow is conference day also where we will be out of session 
temporarily, or in recess, from about 12:30 to 2:15, so we lose a block 
of time in the middle of the day.
  As I see it right now, with the number of amendments still left, 
there is not going to be time for getting them all in right now even if 
people started coming to the floor now. I hope people are not going to 
wait until late tomorrow afternoon and then bump up against the 7 
o'clock deadline and then want the floor managers, Senator Grassley and 
myself, to try to make some special arrangement for them, because that 
is not likely to be possible. I encourage people who have amendments to 
get them together, get them over here and consider them this afternoon 
while we have time. We have quite a bit of time. It is 20 minutes to 4. 
We can consider several amendments. We have nothing pending at the 
moment. I urge my Democratic colleagues to get them together and get 
over here. Thank you.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, let us take a look at the amendments 
that might be brought up. I hope they will not all be brought up:
  One by Senator Bryan dealing with pensions. One by Senator Byrd that 
is described as a relevant amendment. We have four by Senator Feinstein 
dealing with campaign finance reform. We have one by Senator Ford that 
is an amendment pending dealing with frequent flier miles. Also, 
another one described as a relevant amendment. We have a manager's 
amendment by our friend Senator Glenn. Senator Graham, of Florida, has 
an amendment that is in the process of being drafted of which we have 
no description. Senator Kerry has an amendment dealing with leadership 
PAC's and campaign fund conversion for personal use. Senator Lautenberg 
has an amendment that is described as a relevant amendment. Senator 
Leahy dealing with employment rights. Senator Levin, another one 
described as relevant. Senator Reid, described as relevant. And Senator 
Wellstone has several, two that deal with gift ban, three that deal 
with campaign finance reform, one with health care, and two described 
as relevant.
  I think that anybody in this body or anybody listening throughout the 
country would probably realize that each of these amendments, at least 
those that we have a description of, are legitimate subjects for 
discussion within this body. Most of them--not all of them--but most of 
them have already been alluded to by the Senate majority leader by his 
saying that before just a few short months are up, all of these issues 
will be discussed. The issue of gifts and the issue of lobbying reform 
have all been described by Senator Dole, the majority leader, as issues 
that he intends to give any Member of this body an opportunity to go as 
indepth as they want to on any of these issues.
  So there is not any issue on this set of pending amendments that will 
not have an opportunity to be discussed; in [[Page S622]] other words, 
it will have an opportunity to be discussed the first half of this 
year, for sure.
  So I urge my colleagues who are very sincere about what they are 
trying to accomplish through these amendments to maybe not offer these 
amendments on the bill that is before us.
  Then that brings me to further discussion of the bill that is before 
us, because this is a bill that the people of this country have been 
demanding that we pass for quite a few years now, to correct a 
situation where in this country there are two sets of laws: One for 
Capitol Hill and one for the rest of the country; one for Pennsylvania 
Avenue, DC, and the other for Main Street, USA; where there is one set 
of laws for the Congress as an employer, or we individual Senators and 
Congressmen and women as employers because we hire staff, and another 
set of laws for every other employer in America. There is one set of 
protections for people in the private sector whose employees are 
protected by the employment, safety and civil rights laws, but no 
protection, or very little protection, for employees on Capitol Hill.
  We have a situation of one set of laws applying to one part of the 
country and those laws not applying to Capitol Hill. Under the laws 
that apply outside Capitol Hill, employers of America can be 
intimidated and harassed and fined and maybe even put out of business 
by regulators and inspectors and various employees of Federal 
enforcement agencies coming around to their place of business to 
enforce those laws; whereas we, as an institution of Congress and an 
employer and we as individual Senators--and we happen to be employers 
of staff--we do not have to worry about that sort of intimidation and 
harassment and fined by regulators coming around and inspecting our 
offices and looking into our employment practices because we are not 
covered by those laws.
  We have a situation where the private-sector employers understand 
that intimidation and they understand the egregiousness and the cost of 
legislation on their operation. We on Capitol Hill, because we have 
exempted ourselves from this series of legislation since the 1930's, do 
not know about that cost, do not know about the paying a fine, do not 
know about the intimidation that the private sector feels.
  So for a long period of time--and I have been involved in sponsoring 
this legislation for 7 or 8 years--but for a long period of time, 
people in the private sector, understanding the unfairness of the 
situation, the American people have asked Congress to end that 
situation of dual statutes. They have asked Congress to end the unfair 
situation where we have exempted ourselves from this legislation.
  The legislation that passed the House of Representatives did that. It 
passed unanimously in the other body. Senator Dole made a commitment a 
long time ago, after the Republicans had become the majority again as a 
result of the last election, that this bill would be No. 1 up on the 
floor of this body.
  So we have the Congressional Accountability Act, a bipartisan bill 
sponsored by myself and by Senator Lieberman of Connecticut, to carry 
on from where the House left off, to end this situation. We discussed 
this bill all day Thursday, all day Friday and today is the third day. 
We are going to be on it, as Senator Dole said, until about 7 o'clock 
tomorrow night when we hope to pass it. Four days to pass legislation 
that unanimously has passed the House of Representatives and which 
everyone agrees is a situation that should be rectified.

  But we have not spent much time in debate on the floor of this body 
discussing the merits of the legislation. We have had speeches by the 
Democratic manager, Senator Glenn, myself, Senator Lieberman, the main 
cosponsor, Members on both sides of the aisle gave some opening 
statements about why they support the legislation but no amendments to 
change the basic legislation.
  We had 6 or 7 amendments last week, all of them tabled, unrelated 
amendments to the Congressional Accountability Act that we had to deal 
with because under the rules of the Senate those amendments can be 
offered even if they do not concern the subject matter of the basic 
underlying legislation.
  Again, I would say, as I said about the amendments that are pending, 
that might be offered yet today and tomorrow, there was not a single 
issue that has been offered by my colleagues that is not a legitimate 
subject for discussion on the floor of this body. But again, whether 
those amendments were Thursday or Friday or today and tomorrow, they 
all fit into the category of issues that Senator Dole is going to give 
everybody an opportunity to participate in the debate and bills where 
those amendments are more germane to the subject.
  So I think, since there is not opposition to the underlying 
legislation, we ought to be able to just get this behind us and move on 
and respond to what the people said in the election on November 8; that 
they no longer wanted business as usual in Washington, DC. And there is 
no better example of business as usual than for Congress to continue 
its exemption from employment and safety and civil rights laws that 
apply to the rest of the Nation but have not applied to us.
  The House has demonstrated, for sure, it is not business as usual 
because they passed the bill with just a few minutes of discussion and 
unanimously. I wish we could do as well in the Senate. It looks as if 
the legislation will pass and we will end this dual system of 
lawmaking, and end our exemptions, but it is just taking a little bit 
longer than it should.
  It is also important that we move on to other important pieces of 
legislation that are in the contract that we have with America: 
Unfunded mandates, the next bill that will be coming up on the floor of 
this body, so that we do not make policy here in Washington and then 
make Governors and legislators and mayors and councils raise their 
local taxes to pay for a policy we will not pay for here in Washington. 
Then we move on to a constitutional amendment requiring a balanced 
budget, and then move on to a line-item veto, welfare reform, then 
moving term limits for Members of Congress, tort reform, and two or 
three other things such as tax relief and crime that we have a contract 
with America to pass within the first few months.
  Then we have still the part of the year, the spring, the summer and 
the fall, when most of the work around here gets done in the late night 
hours. Maybe we will not have to work so late at night so long as we 
are working early in the year.
  So I appreciate that scheduling and that better management of the 
calendar. But there will be plenty of opportunities to deal with all 
these very important amendments that my colleagues want to offer to 
this bill even though they are not relevant to the bill. I hope we will 
see some of these amendments not actually offered, and I hope that we 
can get agreement to time limits on these amendments when they will be 
offered.
  I wish, as my good friend, Senator Glenn, has already stated, 
Senators would come over here and offer these amendments.
  I am going to yield the floor, but before I do, Mr. President, I 
would like to have a section-by-section analysis of the legislation 
that Senator Lieberman and I have introduced submitted and printed in 
the Congressional Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Section-by-Section Analysis


                         Section 1--Short Title

       This act may be cited as the ``Congressional Accountability 
     Act of 1995''.

                            Title I--General

                        Section 101--Definitions

       This section defines terms used throughout this act, as 
     follows:
       (1) The term ``Board'' means the Board of Directors of the 
     Office of Compliance, which has authority under this act to 
     promulgate regulations for the implementation of the laws 
     made applicable by this act and to review decisions of 
     hearing officers in cases brought under the dispute 
     resolution process created by this act.
       (2) The term ``Chair'' means the Chair of the Board of 
     Directors of the Office of Compliance.
       (3) The term ``covered employee'' means any employee of the 
     House of Representatives, the Senate, the Office of the 
     Architect of the Capitol, the Congressional Budget Office, 
     the Office of Technology Assessment, the Office of 
     Compliance, the Capitol Police, the Capitol Guide Service, or 
     the Office of the Attending Physician. It does not include 
     employees of the General Accounting Office, Library of 
     Congress, or Government Printing Office. [[Page S623]] 
       (4) The term ``employee'' includes an applicant for 
     employment and a former employee.
       (5) The term ``employee of the Office of the Architect of 
     the Capitol'' means employees of the Office of the Architect, 
     the Botanic Garden, or the Senate restaurants.
       (6) The term ``employee of the Capitol Police'' includes 
     any member or officer of the Capitol Police.
       (7) The term ``employee of the House of Representatives'' 
     means an individual occupying a position the pay for which is 
     disbursed by the Clerk of the House of Representatives, or 
     other official designated by the House of Representatives, or 
     any employment position in an entity that is paid through 
     funds derived from the Clerk-hire allowance of the House of 
     Representatives, but not any such individual employed by the 
     Capitol Police Board, the Capitol Guide Board, the Office of 
     the Attending Physician, the Congressional Budget Office, 
     Office of Technology Assessment, or the Office of the 
     Architect of the Capitol.
       (8) The term ``employee of the Senate'' means, any 
     individual whose pay is disbursed by the Secretary of the 
     Senate, excluding such individuals employed by the Capitol 
     Police Board, the Capitol Guide Board, the Office of the 
     Attending Physician, Office of Technology Assessment, Office 
     of Compliance, or the Office is of the Architect of the 
     Capitol.
       (9) The term ``employing office'' means a personal office 
     of the Member of the House of Representatives or the Senate, 
     or joint office, or any office under the authority of an 
     individual who has final authority to appoint, hire, 
     discharge, or set the terms of employment of an employee, as 
     well as contractors and consultants. The office of compliance 
     created by this act will issue rules concerning the 
     ``employing office'' of minority staff of committees.
       (10) The term ``Executive Director'' means the Executive 
     Director of the Office of Compliance.
       (11) The term ``general counsel'' means the general counsel 
     of the Office of Congressional Fair Employment Practices.
       (12) The term ``Office'' means the office of compliance.

                    Section 102--Application of Laws

       Section 102(a) enumerates the statutes, as prescribed by 
     this act, that are made applicable to the legislative branch. 
     These are (1) the Fair Labor Standards Act of 1938; (2) Title 
     VII of the Civil Rights Act of 1964; (3) the Americans with 
     Disabilities Act of 1990; (4) Age Discrimination in 
     Employment Act of 1967; (5) Family and Medical Leave Act of 
     1993; (6) Occupational Safety and Health Act of 1970; (7) 
     Federal Service Labor Management Relations Act; (8) Employee 
     Polygraph Protection Act of 1988; (9) Worker Adjustment and 
     Retraining Notification Act; (10) Rehabilitation Act of 1973; 
     (11) Veterans Reemployment Act.
       Section 102(b) requires the Board of review statutes and 
     regulations relating to the terms and conditions of 
     employment and access to public services and accommodations. 
     Beginning on December 31, 1996, and every 2 years thereafter, 
     the Board is to report on whether these provisions apply to 
     the legislative branch, and to what degree, and whether 
     provisions inapplicable or less than fully applicable should 
     be changed to govern Congress. Thus, the Board will review 
     laws already in existence at the time of enactment that are 
     not addressed or fully addressed by this act, and will, in 
     the future consider as well legislation enacted after the 
     enactment of this act. Each report will be printed in the 
     Congressional Record and referred to the House of 
     Representatives and Senate committees of appropriate 
     jurisdiction.
       Section 102(b) requires each committee report accompanying 
     a bill or joint resolution relating to terms and conditions 
     of employment or access to public services or accommodations 
     to describe the manner in which the bill applies to Congress. 
     In the event the provision is not applicable to Congress, the 
     report will contain a statement of reasons for its 
     inapplicability. If such requirement is not followed, it 
     shall not be in order for either House to consider the bill. 
     On a majority vote of that House, this point of order can be 
     waived.

             Title II--Extension of Rights and Protections

   Section 201--Rights and Protections Under Laws Against Employment 
                               Procedures

       Civil Rights. Section 201(a) sets forth the basic rights to 
     freedom from employment discrimination on the basis of race, 
     color, religion, sex, national origin, age, handicap, or 
     disability, that are extended to all employees covered under 
     this act. By defining the rights guaranteed under this act by 
     reference to existing statutes, the Act incorporates the 
     interpretations of those rights as developed in case law.
       Applicable remedies. In addition to setting forth the 
     rights to freedom from employment discrimination, this 
     section (in subsection (b)) sets forth the remedies available 
     to employees who prove a violation of those rights in 
     proceedings before hearing officer, or in Federal district 
     court. With respect to claims of discrimination on the basis 
     of race, color, religion, sex, or national origin, the 
     remedies are those that would be available to private 
     employees under sections 706(g) and 706(k) of title VII (42 
     U.S.C. Sec. 2000e-5(G), 2000e-5(k)), including reinstatement, 
     back pay, and attorney's fees. For these claims, the Act 
     incorporates the waiver of sovereign immunity from interest 
     for delay in payment that applies to the executive branch 
     under section 717(d) of title VII (42 U.S.C. Sec. 2000E-
     16(d)), as provided in section 225(b). Employees are also 
     entitled to compensatory damages available under section 1977 
     and sections 1977(A)(a) and (b)(2) of the revised statutes 
     (42 U.S.C. Sec. 1981, 1981A(a), (b)(2)). Damages under title 
     VII may not exceed, for each employee, and without regard to 
     the size of the employing office, $300,000, the same maximum 
     figure that applies to large private employers.
       With respect to age discrimination claims, employees are 
     entitled to the same remedies as are available under section 
     15(c) of the Age Discrimination in Employment Act (29 U.S.C. 
     Sec. 633a(C)) available to Federal employees who prove age 
     discrimination. The waiver provisions of section 7(f) of that 
     Act also apply to covered employees. 29 U.S.C. 626(f). In 
     regard to claims of discrimination on the basis of handicap 
     within the meaning of section 501 of the Rehabilitation Act 
     of 1973 (29 U.S.C. Sec. 791), employees are entitled to the 
     same remedies as are available to Federal employees under 
     section 505(a)(1) of that act (29 U.S.C. Sec. 794a(a)(1)), as 
     well as the compensatory damages provisions described above 
     under Title VII. For claims of discrimination on the basis of 
     disability within the meaning of sections 102-104 of the 
     Americans With Disabilities Act of 1990, employees are 
     entitled to the remedies as are available under section 107 
     of that Act (42 U.S.C. Sec. 12117(a)), as well as the title 
     VII compensatory damages.
       As under current law with respect to Federal employees, 
     punitive damages are not available for any claims under this 
     section.
       Section 201 is also made applicable to instrumentalities of 
     Congress.
       Effective date. This section is effective one year after 
     enactment.

Section 202--Rights and Protections Under the Family and Medical Leave 
                                  Act

       Family and medical leave. This section provides employees 
     with the rights to family and medical leave provided to 
     private employees under sections 101 through 105 of the 
     Family and Medical Leave Act of 1993. For purposes of 
     applying those sections, the term ``eligible employee'' as 
     used in the Family and Medical Leave Act is defined so that a 
     covered employee within the Senate, the House of 
     Representatives, or of the Congressional instrumentalities 
     covered by this act, earns his or her entitlement to family 
     and medical leave without respect to transfers between 
     employing offices. For example, once an employee has been a 
     covered employee for at least twelve months, and works for at 
     least 1250 hours during the previous twelve months, he or she 
     is an eligible employee for purposes of family and medical 
     leave, irrespective of whether he or she changes employing 
     offices.
       This section makes title I of the Family and Medical Leave 
     Act, rather than title II, applicable to the General 
     Accounting Office and the Library of Congress, beginning one 
     year after the date of completion of the study referred to in 
     section 230.
       Applicable remedies. The remedies for a violation of the 
     rights conferred by this section are the same remedies that 
     would be available to a private employee under section 
     107(a)(1) of the Family and Medical Leave Act of 1993 (29 
     U.S.C. Sec. 2617(a)(1), which includes damages, liquidated 
     damages and interest, attorney's fees, and costs. The 
     remedies and protections under this act provide rights over a 
     one year period. Accordingly, the Board is to ensure that the 
     six month statute of limitations that applies under this act 
     is applied in such a way as to ensure the possibility that 
     employees will have six months to seek to redress violations 
     of any rights conferred by the Family and Medical Leave Act.
       Under this section, and various other sections of the bill, 
     the Board is given authority to issue regulations to enforce 
     the Family and Medical Leave Act. Such regulations shall be 
     the same as the substantive regulations issued by the 
     Secretary of Labor to implement the statutory provisions 
     referred to in subsection (a), except insofar as the Board 
     may determine, for good cause shown and stated together with 
     the regulation, that a modification of such regulations would 
     be more effective for the implementation of the rights and 
     protections under this section.
       ``Good cause'' is a term of art in the Administrative 
     Procedures Act. This is a narrow phrase. It does not provide 
     an escape hatch for the Board to deviate from executive 
     branch regulations except for substantial justification. I 
     expect courts to interpret the term ``good cause'' narrowly 
     here, just as they have done with respect to the equivalent 
     term in the Administrative Procedures Act.
       Effective date. This section is effective one year after 
     the enactment of this act.

 Section 203--Rights and Protections Under the Fair Labor Standards Act

       Minimum wage, maximum hours, and equal pay. This section 
     provides employees with rights to minimum wage, equal pay, 
     maximum hours, afforded private and other public employees 
     under sections 6(a)(1), 6(d), 7 and 12(c) of the Fair Labor 
     Standards Act (29 U.S.C. Sec. Sec. 206(a)(1), 206(d), 207, 
     212(c). As in the private sector, employees may not be 
     provided compensatory leave in lieu of overtime compensation. 
     For the purposes of this section, the term ``covered 
     employee'' does not include an intern as defined by 
     regulation. [[Page S624]] 
       The exemptions for certain employees, set forth in section 
     13(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
     Sec. 213(a)(1)), also apply under this act. Employees who are 
     employed in a ``bona fide executive, administrative, or 
     professional capacity'' are not covered by the minimum wage 
     and maximum hours provisions. Volunteers are also excluded 
     from coverage if they receive no compensation or are paid 
     expenses, reasonable benefits, or a nominal fee for their 
     services, and such services are not the same type of services 
     for which the individual is employed.
       Applicable remedies. The remedies for a violation of the 
     rights conferred by this section shall be the remedies that 
     would be available to other employees under section 16(b) of 
     the Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 216(b)), 
     which includes unpaid minimum or overtime wages, liquidated 
     damages, attorney's fees, and costs.
       Regulations issued by the Board. This section also directs 
     the Board to promulgate rules, pursuant to section 304 of 
     this act, that are necessary to implement the rights and 
     protections under this section. This would include rules on 
     what employees are exempt from the minimum wage and maximum 
     hours requirements, the definition of an intern, and which 
     employees' work depends directly on the schedule of the House 
     of Representatives and Senate. ``Directly'' is to be strictly 
     limited to those employees who are essentially floor staff. 
     Regulations issued by the Board are to be the same as 
     substantive regulations issued under the Fair labor Standards 
     Act by the Secretary of Labor, unless the Board determines 
     that a different rule would be more effective for 
     implementation of the rights and protections of this act.
  Effective date. Subsections (a) and (b) of this section are effective 
one year after enactment of this act.

   Section 204--Rights and Protections Under the Employee Polygraph 
                         Protection Act of 1988

       Under this section, no employing Office, irrespective of 
     whether a covered employee works in that Office may require a 
     covered employee to take a lie detector test where such a 
     test would be prohibited if required under paragraphs (1), 
     (2), or (3) of section 3 of the Employee Protection Act of 
     1988 (29 U.S.C. 2002 (1), (2), (3). For purposes of this 
     section, the term ``covered employee'' includes the employees 
     of the General Accounting Office and Library of Congress. The 
     term ``employing Office'' includes the General Accounting 
     Office and Library of Congress. However, nothing in this 
     section precludes the Capitol Police from using lie detectors 
     in accordance with regulations issued under subsection (c).
       The remedies available for a violation of this section are 
     the appropriate remedies under section 6(c)(1) of the 
     Employee Polygraph Protection Act of 1988 (29 U.S.C. 
     20005(c)(1). In addition, the waiver provisions of section 
     6(d) of the act (29 U.S.C. 2005(d)) shall apply.
       The Board is empowered to issue regulations to implement 
     this section under section 304 of this act. These regulations 
     shall be the same as substantive regulations issued by the 
     Secretary of Labor to implement the underlying statute, 
     except insofar as the Board may determine, for good cause, 
     that a modification of such regulations would be more 
     effective for the implementation of the rights and 
     protections under this section.
       The effective date for this section is one year after the 
     date of enactment of this act, except with respect to the 
     General Accounting Office and Library of Congress, for which 
     the effective date shall be one year after the transmission 
     to Congress of the study authorized in section 230.

  Section 205--Rights and Protections Under the Worker Adjustment and 
                      Retraining Notification Act

       This section provides that no employing office shall be 
     closed or a mass layoff ordered within the meaning of section 
     3 of the Worker Adjustment and Retraining Notification Act 
     (29 U.S.C. 1202) until the end of a 60-day period after the 
     employing office serves written notice of such prospective 
     closing or layoff to representatives of covered employees or, 
     if there are no representatives, to covered employees. For 
     purposes of this section, the term ``covered employee'' 
     includes employees of the General Accounting Office and 
     Library of Congress and the term ``employing office'' 
     includes the General Accounting Office and Library of 
     Congress.
       The remedies available for a violation of the rights 
     conferred by this section shall be such remedy as would be 
     appropriate under paragraphs (1), (2), and (4) of section 5 
     of the Worker Adjustment and Retraining Notification Act (29 
     U.S.C. 2104(a) (1), (2), (4)). Under this statute, a specific 
     rule affecting coverage is contained in section 225(f)(2).
       The Board shall issue regulations pursuant to section 304 
     to issue regulations to implement this section. These 
     regulations shall be the same as substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsection (a) except 
     insofar as the Board may determine, for good cause shown, 
     that a modification of such regulations would be more 
     effective for the implementation of the rights and 
     protections under this section.
       This section is effective one year after the date of 
     enactment of this act, except in the case of the General 
     Accounting Office and Library of Congress, where the 
     effective date will be one year after transmission to the 
     Congress of the study provided for in section 230.

 Section 206--Rights and Protections Relating to Veterans' Employment 
                            and Reemployment

       This section prohibits an employing office from (1) 
     discriminating, within the meaning of subsections (a) and (b) 
     of section 4311 of title 38, United States Code, against an 
     eligible employee; (2) denying an eligible employee 
     reemployment rights within the meaning of sections 4312 and 
     4313 of title 38, United States Code; or (3) denying an 
     eligible employee benefits within the meaning of sections 
     4316, 4317, and 4318 of title 38, United States Code. For 
     purposes of this section, the term ``eligible employee'' 
     means a covered employee performing service in the uniformed 
     services, within the meaning of section 4303(13) of title 38, 
     United States Code, whose service has not been terminated 
     upon occurrence of any of the events enumerated in section 
     4304 of title 38, United States Code. For purposes of this 
     section, the term ``covered employee'' includes employees of 
     the General Accounting Office and Library of Congress, and 
     the term ``employing office'' includes the General Accounting 
     Office and the Library of Congress.
       The remedy available for violation of this section shall be 
     the remedies available under paragraphs (1), (2)(A), and (3) 
     of section 4323(c) of chapter 43 of title 38, United States 
     Code. These remedies shall be in addition to, and not 
     substitutes for, any existing remedies available to covered 
     employees under chapter 43 of title 38, United States Code.
       The Board, pursuant to section 304, shall issue regulations 
     to implement this section. These regulations shall be the 
     same as substantive regulations issued by the Secretary of 
     Labor to implement the underlying statutory provisions except 
     to the extent that the Board may determine, for good cause 
     shown, that a modification of such regulations would be more 
     effective for the implementation of the rights and provisions 
     under this section.
       The effective date of this section is one year after 
     enactment of this act, except as to the General Accounting 
     Office and Library of Congress, where the effective date 
     shall be one year after transmittal to Congress of the study 
     authorized under section 230.

          Section 207--Prohibition of Intimidation of Reprisal

       This section provides one uniform remedy for intimidation 
     or reprisal taken against covered employees for exercising 
     rights and pursuing remedies of violations for the violation 
     of rights conferred by this act. Under this section, it is 
     unlawful for an employing office to take reprisal against, or 
     otherwise discriminate against, any covered employee because 
     the covered employee has opposed any practice made unlawful 
     by this act, or because the covered employee has initiated 
     proceedings, made a charge, or testified, assisted, or 
     participated in any manner in a hearing or other proceeding 
     under this act. The remedy available for a violation of this 
     subsection shall be such legal or equitable remedy as would 
     be appropriate.

     Section 210--Rights and Protections Under the Americans With 
                            Disabilities Act

       This section applies the protections of title II and III of 
     the Americans With Disabilities Act, which concern rights 
     other than employment discrimination, to each office of the 
     Senate, each office of the House of Representatives, each 
     Joint Committee, the Office of the Architect, the Capitol 
     Guide Board, Capitol Police Board, Congressional Budget 
     Office, Office of Technology Assessment, Office of 
     Compliance, and Office of the Attending Physician. It 
     prohibits discrimination in the provision of public services 
     on the basis of disability, within the meaning of sections 
     201 through 230, 302, 303, and 309 of the Americans With 
     Disabilities Act of 1990 (42 U.S.C. Sec. 12131-12150, 12182-
     83 and 12189). For purposes of the application of the 
     Americans With Disabilities Act under this section, the 
     covered congressional entities are deemed to be public 
     entities.
       The protection afforded by this section applies to any 
     individual with a disability as defined in section 201(s) of 
     the Americans With Disabilities Act of 1990 (42 U.S.C. 
     Sec. 12131(2)). However, with respect to any claim of 
     employment discrimination on the basis of disability made by 
     any employee covered under this act, the exclusive remedy 
     shall be under section 201 of this act.
       Applicable remedies. The remedies for discrimination in 
     public services prohibited by this section shall be the 
     remedies that would be available under section 203 or 308(a) 
     of the Americans With Disabilities Act of 1990 (42 U.S.C. 
     Sec. Sec. 12133, 12188(a)). Section 203 and 308(a) of the ADA 
     incorporates the remedies under section 505 of the 
     Rehabilitation Act of 1973 (29 U.S.C. 794A). This includes 
     equitable relief, attorneys fees, and costs. It does not 
     include the remedial procedures described in section 717 that 
     involves the Equal Employment Opportunity Commission, which 
     is not provided any enforcement authority under this act. Nor 
     does it include the provisions in title III of the Americans 
     With Disabilities Act that enable the Attorney General to 
     seek monetary damages in particular cases.
       Procedures for enforcement. Under this section, a qualified 
     individual with a disability who alleges a violation under 
     this section may file a charge with the general counsel of 
     the office of compliance. The general counsel shall 
     investigate any such charge and, if the general counsel 
     believes that a violation [[Page S625]] may have occurred and 
     that mediation may aid in resolving the dispute, the general 
     counsel may request mediation with the Office under section 
     403 of this act between the complaining individual and the 
     entity alleged to have committed the violation. The general 
     counsel does not participate in the mediation.
       If the dispute is not resolved through mediation, and the 
     general counsel believes that a violation has occurred, the 
     general counsel may, in his or her discretion, file a 
     complaint against the entity with the Office. Ordinarily, 
     once the general counsel concludes that a violation has 
     occurred, a complaint should be filed; however, in a 
     particular case, circumstances, such as the de minimis nature 
     of the violation, may warrant a decision not to file a 
     complaint.
       The Office shall submit the complaint to a hearing officer 
     for decision under section 405. Any person who has filed a 
     charge under this section may intervene as of right, with the 
     full rights of a party. This procedure is established so that 
     this individual may participate in developing the record for 
     appeal in the event that the general counsel does not 
     participate in the judicial appeal.
       Any party (including the complaining party who has 
     intervened) aggrieved by a final decision of a hearing 
     officer under this section may seek review of the decision by 
     the Board. Any party aggrieved by a final decision of the 
     Board may file a petition for review with the United 
     States Court of Appeals for the Federal Circuit, pursuant 
     to section 407 of this act. This section authorizes 
     judicial review only of a final decision of the Board. 
     Decisions of the general counsel not to file a request for 
     mediation or a complaint, or not to appeal a hearing 
     officer's decision to the Board, are not subject to 
     judicial review under this section or under any other 
     provision of this Act.
       Regulations to be issued by the Board. This section directs 
     the Board to issue rules pursuant to Section 304 of this Act, 
     to implement the rights and protections under this section. 
     Any such rules are to be consistent with the regulations 
     issued by the Attorney General and the Secretary of 
     Transportation to implement the provisions of the Americans 
     with Disabilities Act of 1990 referenced in section 210(b) of 
     this Act. The Board may promulgate rules that differ from 
     those of the Attorney General and the Secretary of 
     Transportation only if the Board determines for good cause 
     shown that a modification would be more effective for the 
     implementation of the rights and protections under this 
     section.
       Inspections, reporting, and detailees. This section also 
     provides for regular inspections by the General Counsel of 
     the covered entities to ensure that they are in compliance 
     with the requirements of this section. The general counsel is 
     directed to report at least once each Congress to the Speaker 
     of the House of Representatives and the President pro tempore 
     of the Senate on the results of the inspections and to 
     describe any steps necessary to ensure full compliance with 
     this section.
       Under this section, the Attorney General, the Secretary of 
     Transportation, and the Architectural and Transportation 
     Barriers Compliance Board may, upon the request of the 
     general counsel, detail such personnel as may be necessary to 
     advise and assist the Office in carrying out its duties under 
     this Section.
       A private right of action is provided to any qualified 
     person under the Americans with Disabilities Act against the 
     General Accounting Office, the Government Printing Office, 
     and Library of Congress. However, the enforcement authority 
     of the Equal Employment Opportunity Commission shall be 
     exercised by the Chief Official of the Instrumentality.
       Effective date. This section is effective on January 1, 
     1997, except as to the private right of action against the 
     instrumentalities, which is effective one year after 
     transmittal to Congress of the study provided for in section 
     230.

 Section 215--Rights and Protections Under the Occupational Safety and 
            Health Act; Procedures for Remedy of Violations

       Protections from workplace hazards. This section 
     requires employees and employing offices to comply with 
     the provisions of section 5 of the Occupational Safety and 
     Health Act of 1970 (29 U.S.C. Sec. 654). Section 5 
     requires each employer to furnish employees a workplace 
     free from recognized hazards that are causing or likely to 
     cause death or serious physical harm and requires both 
     employers and employees to comply with the Occupational 
     Safety and Health Standards promulgated by the Secretary 
     of Labor under section 6 of that act (29 U.S.C. Sec. 655). 
     The requirement that employers and employees comply with 
     the Secretary of Labor's standards is subject to variance 
     granted under subsections (c)(4) and any regulations 
     promulgated by the Board under subsection (d).
       For purposes of this section, the term ``employer'' as used 
     in the Occupational Safety and Health Act means an employing 
     office and the term ``employee'' means a covered employee. 
     For purposes of this section, the term ``employing office'' 
     includes the General Accounting Office and Library of 
     Congress, and the term ``employee'' includes employees of the 
     General Accounting Office and Library of Congress.
       Applicable remedies. The remedy available for violations 
     under this section are an order to correct the violation, 
     including such an order as would be appropriate under section 
     11 of the Occupational Safety and Health Act of 1970 (29 
     U.S.C. Sec. 662), which include citations issued by the 
     general counsel.
       Procedures for enforcement. The responsibilities for 
     enforcement of this section are vested in the general counsel 
     rather than the Secretary of Labor. The Board is given the 
     responsibility to conduct hearings and review orders that is 
     vested in the Occupational Safety and Health Review 
     Commission under section 10(c) of OSHA (29 U.S.C. 
     Sec. 659(c)) and to the Secretary of Labor with respect to 
     affirming or modifying abatement requirements, to hear 
     objections and requests with respect to citations and 
     notifications. The remedy available under this act for a 
     violation of OSHA is an order to correct the violation, 
     including such order as would be appropriate if ordered under 
     section 13(2) of the Occupational Safety and Health Act of 
     1970.
       Inspections. With respect to inspections, the authorities 
     granted to the Secretary of Labor in sections 8(a) and 8(f) 
     of OSHA (29 U.S.C. Sec. Sec. 657(a), (f)) to inspect and 
     investigate places of employment are to be exercised by the 
     general counsel. Under this section, there are two possible 
     scenarios under which inspections will occur: through 
     employee-initiated requests that the general counsel inspect 
     particular offices and periodic inspections of all 
     congressional facilities. The general counsel exercises OSHA 
     authority with respect to both employee requested and 
     periodic inspections. Periodic inspections are random. Each 
     facility is to be inspected each Congress. However, the act 
     does not provide that employing offices are to receive notice 
     of the inspections.
       Citations. With respect to citations, the authorities 
     granted to the Secretary of Labor in sections 9 and 10 of 
     OSHA (29 U.S.C. Sec. 658, 659) to issue citations for 
     violations or notices of failure to correct violations for 
     which citations have been issued are vested in the general 
     counsel. The citation would normally state a date by which 
     corrective action is to be completed. The citation is to be 
     issued only against the employing office that is responsible 
     for the particular violation as determined by regulations 
     issued by the Board. The general counsel may also issue a 
     notification to any employing office that the general counsel 
     believes has failed to correct a violation for which a 
     citation has been issued within the period permitted for its 
     correction.
       If after issuing a citation or notification, the general 
     counsel determines that a violation has not been corrected, 
     the general counsel may file with the Office of Compliance a 
     complaint against the employing office named in the citation 
     or notification. Under OSHA, the general counsel can issue a 
     citation and proceed to file a complaint if the violation 
     remains unabated. Or the general counsel may file a 
     notification after the citation is not complied with, and 
     then file a complaint. The general counsel may not file a 
     notification without having first filed a citation that has 
     not been honored. The choice whether to follow a citation 
     with a complaint once it is evident that there has not been 
     compliance, or to file a notification before the filing of 
     the complaint, will normally turn on whether the general 
     counsel believes that good faith efforts are being undertaken 
     to comply with the citation, but the time period for complete 
     remediation of the citation period has expired. The Office 
     shall submit the complaint to a hearing officer subject to 
     Board review under the general provisions of the Act 
     outlining those procedures.
       Variances. The Board shall exercise the authorities granted 
     the Secretary of Labor in sections 6(b)(6) and 6(d) of OSHA 
     (29 U.S.C. Sec. 655(b)(6) and (d)) to act on any request by 
     an employer for a temporary order granting a variance from a 
     standard made applicable by subsection (a). The Board may 
     refer such a request to a hearing officer for a hearing 
     conducted in accordance with section 405 of this act and 
     subject to review under section 406 of this act. The general 
     counsel or employing office aggrieved by a final decision of 
     the Board regarding a citation, notification, or variance, 
     may file a petition for review with the United States Court 
     of Appeals for the Federal Circuit pursuant to section 407.
       Compliance date. If a citation of a violation under OSHA is 
     received, and appropriated funds are necessary to abate the 
     violation, abatement shall take place as soon as possible, 
     but no later than the fiscal year following the fiscal year 
     in which the citations are issued. This permits the Congress 
     to appropriate funds to remedy OSHA violations during the 
     standard appropriations timetable where the abatement amount 
     is large, and avoids disruptions to other functions of the 
     employing office caused by the unanticipated need for 
     additional expenditures.
       Regulations issued by the Board. The Board shall promulgate 
     regulations to implement this section. Such regulations shall 
     be the same as the standards and regulations promulgated by 
     the Secretary of Labor to implement OSHA with the same 
     standard for deviation contained elsewhere in the act.
       Periodic inspections. At least once each Congress, the 
     general counsel shall conduct periodic inspections of all 
     facilities of the Congress for compliance with the 
     Occupational Safety and Health Act. Based on the result of 
     each periodic inspection, the general counsel will prepare 
     and submit a report to the House Speaker, Senate President 
     pro tempore, and the employing office responsible for 
     correcting the violation. The report will also contain the 
     results of the periodic [[Page S626]] inspection, identify 
     the responsible employing office, describe the actions 
     necessary to correct any violation, and assess the risks to 
     employee health and safety associated with any violation. If 
     a report identifies any violation, the general counsel shall 
     issue a citation or notice. The general counsel may be 
     assisted by personnel detailed from the Secretary of Labor, 
     upon request of the executive director for such assistance.
       The bill uses the terms ``employing office'' as a 
     designative term referring to an office. There is no 
     requirement that the employing office responsible for the 
     violation actually be the employing office of the employee 
     that makes the complaint, for instance.
       Effective date. The period from the date of enactment until 
     December 31, 1996 shall be available to the Office of the 
     Architect of the Capitol to identify any OSHA violations, 
     determine costs of compliance, and to take any necessary 
     abatement actions. The general counsel shall conduct a 
     thorough inspection prior to July 1, 1996, and report the 
     results to the Congress. Except as to GAO and Library of 
     Congress, this section will become effective on January 1, 
     1997. As to these instrumentalities, this section will take 
     effect 1 year after transmission to Congress of the study 
     provided for in section 230.

Section 220--Application of Federal Service Labor-Management Relations 
         Statute; Procedures for Implementation and Enforcement

       Labor-management relations. This section applies to 
     employees and employing offices the rights, protections, and 
     responsibilities relating to collective bargaining 
     established for other Federal employees and employers under 5 
     U.S.C. Sec. Sec. 7102, 7106, 7111 through 7117, 7119 through 
     7122, and 7131. For purposes of applying those provisions 
     under this section, the term ``agency'' shall be deemed to 
     mean an employing office.
       The remedy for a violation of subsection (a) shall be a 
     remedy under section 7118(a)(7) of title 5 of the United 
     States Code as would be appropriate if awarded by the Federal 
     Labor Relations Authority to remedy a violation of any 
     provision made applicable by subsection (a).
       In applying the Federal service labor-management relations 
     provisions to employees and employing offices, the Board 
     shall exercise the authorities of the Federal Labor Relations 
     Authority under 5 U.S.C. Sec. Sec. 7105, 7111 to 7113, 7115, 
     7117, 7118, and 7122 and of the President under 5 U.S.C. 
     Sec. 7103(b). Any petition or other submission that would be 
     submitted to the Federal Labor Relations Authority shall, 
     under this section be submitted to the Board.
       The Board may refer any matter submitted to it under 
     subparagraph (c)(1) of this section to a hearing officer for 
     decision pursuant to section 405 of this act. The Board may 
     direct that the general counsel carry out the Board's 
     investigative authorities.
       Procedures. Under this section, the general counsel shall 
     exercise the authorities of the general counsel of the 
     Federal Labor Relations Authority under 5 U.S.C. 
     Sec. Sec. 7104 and 7118. Any charge or other submission that, 
     if submitted under chapter 71 of title 5 would be submitted 
     to the general counsel of the Federal Labor Relations 
     Authority shall, if brought under this section, be submitted 
     to the general counsel. If any person charges an employing 
     office or a labor organization representing employees with 
     having engaged in an unfair labor practice in violation of 
     this section within 180 days of the occurrence of the alleged 
     unfair labor practice, the general counsel shall investigate 
     the charge, and may issue a complaint. A complaint issued by 
     the general counsel under this section shall be submitted to 
     a hearing officer for decision under section 405 of this act.
       For purposes of applying the Federal service labor-
     management relations provisions under this section, the Board 
     shall exercise the authority of the Federal service impasses 
     panel under 5 U.S.C. Sec. 7119. Any request that under those 
     provisions would be presented to the Federal service impasses 
     panel shall, if made under this section, be presented to the 
     Board. At the request of the Board, the director shall 
     appoint a mediator or mediators to perform the functions of 
     the Federal service impasses panel under 5 U.S.C. Sec. 7119. 
     Ordinarily, the Board should request the appointment of a 
     mediator and should avoid participating in the mediation of 
     disputes for which it may have adjudicatory responsibilities.
       Regulations to be issued by the Board. The Board shall 
     promulgate regulations to implement this section. The rules 
     promulgated under this section shall be the same as the 
     rules promulgated by the Federal labor relations authority 
     to implement 5 U.S.C. Sec. Sec. 7102, 7106, 7111 through 
     7117, 7119 through 7122, and 7131. The Board may 
     promulgate rules that are not the same as the rules of the 
     Federal labor relations authority only under the standard 
     provided as elsewhere in the act, except as provided in 
     subsection (e).
       The Board shall issue rules pursuant to the rulemaking 
     provisions of section 304 of this act on the manner and 
     extent to which the rights conferred by this section should 
     apply to employees who are employed in positions in offices 
     with a direct connection to the legislative process, 
     including the personal office of any Member of the House or 
     the Senate, a standing, select, special, permanent, 
     temporary, or other committee of the Senate or the House, a 
     joint committee of Congress, and the offices of various party 
     officers, including the Office of the Majority and Minority 
     Leaders of the Senate and the House of Representatives. These 
     rules should be the same as the regulations of the Federal 
     labor relations authority except to the extent that the Board 
     may determine, for good cause shown and stated together with 
     the regulation, that a modification of such regulations would 
     be more effective for the implementation of the rights and 
     protections under this section; and that the Board shall 
     exclude from coverage any covered employees who are employed 
     in the offices listed in paragraph 2 of subsection (e) if the 
     Board determines that such exclusion is required because of a 
     conflict or appearance of a conflict of interest, or 
     Congress' constitutional responsibilities. Paragraph (h) of 
     subsection (e) should be construed narrowly. However, one 
     portion of one office that might fall within this paragraph 
     would be the employees of the Office of the Sergeant at Arms 
     who engage in doorkeeping and maintaining order in the 
     legislative Chamber and who compel the presence of absent 
     Senators.
       A conflict of interest would include, for example, whether 
     certain classes of employees should be precluded from being 
     represented by unions affiliated with noncongressional or 
     non-Federal unions. This separate standard from deviation 
     from regulations is not a standardless license to roam far 
     afield from such executive branch regulations. The Board 
     cannot determine unilaterally that an insupportably broad 
     view of Congress' constitutional responsibilities means that 
     no unions of any kind can work in Congress. Without 
     abdicating its review responsibilities, however, courts 
     should give more deference to congressional determinations 
     under this particular regulatory area than to all other 
     deviations from executive branch regulations made by the 
     Board.
       Effective date. Subsections (a) and (b) of this section 
     shall be effective on October 1, 1996, except with respect to 
     the offices listed in subsection (e)(2), to the covered 
     employees of such offices, and to representatives of such 
     employees, for which subsections (a) and (b) shall be 
     effective on the effective date of regulations issued under 
     subsection (e).


                            part e--general

       Section 225--Generally Applicable Remedies and Limitations

       Under subsection 225(a), if a complainant is a prevailing 
     party under section 405, 406, 407, or 408, the hearing 
     officer, Board, or court, as the case may be, may award 
     attorney's fees, expert witness fees, and other costs as 
     would be appropriate if awarded under section 706(k) of the 
     Civil Rights Act of 1964. Although the Board has no authority 
     to issue regulations under section 201, it does have the 
     ability under section 303 to issue procedural rules. Such 
     rules could govern the availability of fees and costs under 
     section 706(k), so long as the rules were consistent with 
     court cases interpreting the Civil Rights Act. For example, 
     some courts have held that the amount of compensatory damages 
     a prevailing party recovers is relevant to determine a 
     reasonable fee award, and that recovery of only a portion of 
     the compensatory damages request can form the basis for 
     reducing the fee award. Other courts have held that 
     proportionality cannot be considered in awarding attorney's 
     fees. Given the conflict among the cases, the Board could 
     decide which set of cases to follow when it issues its 
     regulations.
       Subsection (b) provides that in any proceeding under 
     section 405, 406, 407, or 408, the same interest to 
     compensate for delay in payment shall be made available as 
     would be appropriate in actions involving the executive 
     branch under section 717(d) of the Civil Rights Act of 1964. 
     This is an explicit waiver of sovereign immunity as to these 
     interest payments. Subsection (c) provides, in keeping with 
     longstanding rules applicable to the Federal Government, that 
     no civil penalty or punitive damages may be awarded with 
     respect to any claim under this act.
       Subsection (d) provides that except in cases under the 
     Veterans Reemployment Act, no person may commence an 
     administrative or judicial proceeding to seek a remedy for 
     the rights and protections afforded by this act except as 
     provided in this act.
       Subsection (e) provides that only a covered employee who 
     has undergone and completed the procedures described in 
     section 402 and 403 may pursue a civil action in court. 
     Counseling and mediation with the office are preconditions to 
     bringing any civil action under this act.
       Subsection (f) states that except where contrary exemptions 
     and exemptions appear in this act, the definitions and 
     exemptions in the laws made applicable by this act shall 
     apply under this act. This means that although the various 11 
     laws are made applicable to Congress, the exemptions and 
     definitions that limit its application in the private sector 
     limit its applicability to Congress as well and that 
     regulations of the executive branch interpreting those 
     definitions and exemptions should ordinarily apply.
       Subsection (g) states that the act shall not be construed 
     to authorize enforcement by the executive branch of this act, 
     but this does not override the provision that executive 
     branch employees may be detailed to the Office of Compliance 
     at the request of the executive director.

  Section 230--Study and Recommendations Regarding General Accounting 
    Office, Government Printing Office, and the Library of Congress

       This section directs the Administrative Conference of the 
     United States to study the [[Page S627]] extent to which the 
     legislative branch employees not covered under this act are 
     or are not covered by the employment laws made applicable by 
     this act. This primarily includes employees in the General 
     Accounting Office, the Government Printing Office, and the 
     Library of Congress The Administrative Conference should 
     study the manner and extent to which these employees are 
     covered under existing laws, and should also study the 
     regulations and procedures implemented by these congressional 
     instrumentalities to provide for the enforcement of these 
     rights and protections.
       This study should evaluate not only the extent to which 
     employees are provided the rights and protections of the laws 
     made applicable to Congress in this act. But also whether 
     they are as comprehensive and effective as those provided 
     under this act. The study should include recommendations for 
     legislation to extend or improve coverage as well as 
     recommended improvements in regulations or procedures. 
     Recommendations for legislation may include recommendations 
     on clarifying existing legislation where coverage of 
     legislative branch employees is ambiguous, or can be 
     determined only by unduly complex parsing of a number of 
     laws.
       The Administrative Office shall submit the study and 
     recommendations required under this section to the Board 
     within 2 years after enactment of this act. The Board shall 
     transmit the study and recommendations head of each 
     instrumentality or other entity considered in this study and 
     to the Speaker of the House of Representatives and President 
     pro tempore for referral to the appropriate committees of the 
     House of Representatives and of the Senate.

                    Title III--Office of Compliance

           Section 301--Establishment of Office of Compliance

       This section creates the Office of Congressional Fair 
     Employment Practices as an independent office in the 
     legislative branch of the Government to administer the 
     dispute resolution process created by this act.
       The Office shall be overseen by a board of directors, 
     which shall be composed of 5 members. A five member board 
     is the best size to discourage deadlock and to facilitate 
     effective decisionmaking.\1\
     \1\Some management researchers have concluded that 
     policymaking bodies of five members are preferable to both 
     larger and small groups. See, U.S. Senate Committee on 
     Governmental Affairs, Study on Federal Regulation, Vol. IV, 
     Doc. No. 95-72, July 1977, p. 115.

       It is extremely important that the Board function in a 
     nonpartisan manner. For this reason, the act requires that 
     all members of the Board be appointed without regard to 
     political affiliation and solely on the basis of fitness to 
     perform the duties of office. Board members shall be 
     appointed solely on the basis of fitness to perform their 
     duties under the act, and shall have background and 
     experience in application of the rights, protections, and 
     remedies under the laws made applicable to section 102. There 
     is no assumption that any particular kind of training or 
     experience is necessary, but a variety of experiences would 
     qualify an individual for a position on the Board. The act 
     does not require that any individual member have training or 
     experience under all of the statutes made applicable by this 
     act, but members should be selected with a view to providing 
     the Board as a whole with some expertise in each field of law 
     within the Board's jurisdiction.
       On the other hand, the committee also recognizes that, in 
     order for the Board to function in Congress's political 
     environment, and to insulate the Board against claims of 
     partisanship that will inevitably be raised by persons 
     dissatisfied with a particular decision, the process for the 
     selection of the Board members must be fully bipartisan. To 
     accomplish this, the appointment of members is jointly made 
     between the Houses and between the parties. Accordingly, the 
     members shall be appointed jointly by the Speaker of the 
     House, majority leader of the Senate, and the minority leader 
     of both Houses. The chair of the Board shall also be 
     appointed jointly. Appointment of the first 5 members of the 
     Board shall be completed not later than 90 days after the 
     date of enactment.
       There are certain disqualifications from service as a Board 
     member. No lobbyist may serve. No Board member may be a 
     Member of Congress or a former Member. Nor may a Board member 
     be an officer or employee of the House, Senate, an 
     instrumentality of Congress, except an officer or employee of 
     the GAO Personnel Appeals Board, House Office of Fair 
     Employment Practices, or the Senate Office of Fair Employment 
     Practices, or a former holder of one of these positions 
     within 4 years of the date of appointment. These requirements 
     are critical because the office must, in both appearance and 
     reality, be independent in order to gain and keep the 
     confidence of the employees and employers who will utilize 
     the dispute resolution process created by this act.
       Vacancies on the Board are to be filed in the same manner 
     as the original appointment for the vacant position. Because 
     the Board is small in number, it will be important to fill 
     vacancies as quickly as possible, consistent with selecting 
     the best qualified individuals for these positions.
       Terms. The terms of office of the members are staggered so 
     that, after the first appointments, there will not be 
     complete turnover of the Board. The appointment is for 5 
     years and cannot be renewed, except for someone who serves 
     three years or less. Of the first five members, one shall 
     serve three years, two for four years, and two for five 
     years, one of whom shall be chair.
       Removal. Members may be removed from office by a majority 
     vote of the appointing authority. To further ensure the 
     independence of the Board, members may only be removed for 
     specific causes including a disability that substantially 
     prevents the member from carrying out the member's duties, 
     incompetence, neglect of duty, malfeasance in office, a 
     felony or conduct involving moral turpitude, or holding an 
     office or employment or engaging in an activity that 
     disqualifies the individual from service as a member of the 
     Board. The reason for removal of any member must be stated, 
     in writing, to the member being removed by the Speaker of the 
     House of Representatives and the President pro tempore of the 
     Senate.
       Compensation and travel expenses. Members may be 
     compensated at a rate equal to the daily equivalent of the 
     annual rate of basic pay prescribed for level V of the 
     Executive Schedule under 5 U.S.C. sec. 5316 for each day 
     during which the member is engaged in the performance of 
     board duties. Travel time should be included in the 
     computation of the time a member has spent engaged in the 
     performance of board duties.
       Members of the Board are entitled to reimbursement for 
     travel expenses for each day that the member is engaged in 
     the performance of Board duties away from home or the regular 
     place of business of the member. The rates for travel 
     expenses, including per diem in lieu of subsistence, shall be 
     at rates authorized for employees of agencies under 5 U.S.C. 
     sec. 5751.
       Subsection (h) describes the duties of the office, which 
     include educating members and other employing authorities of 
     their duties and employees of their rights under this act. It 
     is also to provide educational materials on the statutes made 
     applicable to Congress by this act to employing offices for 
     new employees. The office shall also compile and publish 
     statistics on the use of the office by covered employees, 
     including the number and types of contacts made with the 
     office, on the number of covered employees who initiated 
     proceedings under the act, as well as the number of employees 
     who filed a complaint, the basis for the complaint, and its 
     disposition. In light of the confidentiality of the 
     proceedings in the administrative process, this information 
     should be compiled in a manner that does not reveal the 
     identity of particular employees or employing offices.
       The Board and office shall be subject to oversight by the 
     Committee of rules and Administration and the Committee on 
     Governmental Affairs of the Senate and the Committee on House 
     Oversight of the House of Representatives. Oversight 
     authority of these committees does not extend to the 
     processing, consideration, or disposition of individual cases 
     or the unwillingness of the general counsel to file a 
     complaint regarding particular charges within his or her 
     responsibility.
       The office is to open within 1 year after enactment of this 
     act. This will provide sufficient time for the Board members 
     to be selected, the regulations to be issued, and the office 
     to be staffed.
       Financial disclosure reports. Members of the Board will be 
     required to file financial disclosure reports under the 
     Ethics in Government Act of 1978, Pub. L. No. 95-521, title I 
     (5 U.S.C. appendix sections 103(H)(A)(II)II)).

           Section 302--Officers, Staff, and Other Personnel

       This section provides for the appointment of staff of the 
     new office.
       Executive director. The position of executive director is 
     modeled after the Director of the Office of Senate Fair 
     Employment Practices (OSFEP), who administers the Senate's 
     internal resolution process. Like the Senate's Director of 
     OSFEP, the Director of the Congressional Office will have the 
     responsibility of the daily administration of the disputes 
     resolution system created by this act. This includes 
     assisting in the development and implementation of rules of 
     procedures for the dispute resolution process, selecting 
     hearing officers, counselors, and mediators, and maintaining 
     the dockets of cases filed with the office.
       The Chair, subject to the approval of the Board, shall 
     appoint, and has the power to remove, the director. As is the 
     case of members of the Board, selection of a director should 
     be made solely on the basis of ability to perform the 
     functions of the job and without regard to political 
     affiliation. To ensure the appearance of independence and 
     impartiality of the Director, certain individuals are 
     precluded from service as Director. These are the same 
     persons who are ineligible to serve as Directors.
       The Chair may set the compensation of the Executive 
     Director, but the rate of pay may not exceed the annual rate 
     of basic pay prescribed for level V of the executive schedule 
     under 5 U.S.C. sec 5316. The Executive Director will serve 
     a nonrenewable 5-year term, except that the first 
     Executive Director may serve a nonrenewable 7-year term.
       Additionally the office will have two Deputy Directors, one 
     for each House of Congress. The Deputy Executive Directors 
     are appointed and removed by the Chair, subject to the 
     approval of the Board. The appointment shall be made without 
     regard to political affiliation and with the same 
     disqualifications that apply to service as Executive 
     Director. The Deputy Executive Director [[Page S628]] shall 
     serve a 5-year term, except that the first Deputy Executive 
     Director shall serve for 6 years. This will mean that the 
     Deputy Executive Director will serve terms that do not expire 
     concurrently with the Executive Director.
       The Deputy Executive Director shall recommend the 
     regulations to the Board under section 304(a)(2)(B)(i), 
     maintain the regulations and all records pertaining to the 
     regulations, and shall assume such other responsibilities as 
     may be delegated to the Executive Director.
       The Executive Director may appoint, terminate, and fix the 
     compensation of such staff, including hearing officers, 
     necessary to enable the office to carry out its functions. 
     The Executive Director does not have authority to appoint 
     attorneys to assist the general counsel, which authority is 
     provided directly to the general counsel. The Executive 
     Director may request other Government departments or agencies 
     to detail on a reimbursable or nonreimbursable basis the 
     services of the personnel of the department or agency. In 
     addition, the Executive Director is authorized to procure the 
     temporary or intermittent services of consultants.
       General Counsel. The Chair, subject to the approval of the 
     board, may appoint and remove a general counsel. This 
     position does not have an analogy in the Senate fair 
     employment process. This position and its duties, however, 
     are modeled on the role of the general counsel in bodies such 
     as the General Accounting Office Personnel Appeals Board or 
     the Federal Labor Relations Authority. Under this act, the 
     general counsel may receive complaints of violations of the 
     provisions of titles II and III of the Americans With 
     Disabilities Act made applicable by this act and file and 
     prosecute complaints in the name of parties making charges of 
     violations. The general counsel will also conduct workplace 
     inspections and issue citations of violations of the 
     requirements of OSHA made applicable by this act. The general 
     counsel exercises authority comparable to that of the Federal 
     Labor Relations Authority's General Counsel. The general 
     counsel also provides representation to the office when it is 
     named as a respondent in proceedings brought in the Federal 
     Circuit under this act.
       To ensure that the general counsel is, and appears to be, 
     independent and impartial, certain individuals are precluded 
     from service as general counsel. These are the same as apply 
     to the Board of Directors.
       The Chair may fix the compensation of the general counsel, 
     which shall not exceed the annual rate of basic pay 
     prescribed for level V of the executive schedule under 5 
     U.S.C. sec. 5316. The general counsel may appoint, terminate, 
     and fix the compensation of such additional counsel as may be 
     necessary to carry out the duties of the general counsel. The 
     term of office of the general counsel is for a single term of 
     5 years. The general counsel may only be removed for cause. 
     The act carefully prescribes which officials may be removed 
     only for cause and which may not.

                     Section 303--procedural rules

       This section sets forth the procedure for the adoption and 
     amendment of rules governing the procedures of the Office of 
     Compliance, including rules concerning hearing officers. The 
     rules and amendments thereto shall be submitted for 
     publication in the Congressional Record.
       Under subsection (b), the Executive Director shall adopt 
     the rules referred to in subsection (a) in accordance with 
     the principles and procedures of the Administrative 
     Procedures Act. The Executive Director shall publish a notice 
     of proposed rulemaking in accordance with the APA, but with 
     publication occurring in the Congressional Record rather than 
     the Federal Register. Before issuing rules, the Executive 
     Director shall provide a comment period of at least 30 days 
     after publication of the notice of rulemaking. Upon adopting 
     rules, the Executive Director shall transmit notice of such 
     action along with the rules to the Speaker of the House and 
     the President pro tempore of the Senate for publication in 
     the Congressional Record. Rules are considered to be issued 
     on the date on which they are so published.

                  Section 304--substantive regulations

       This section sets forth the procedures of issuing 
     regulations to implement this Act, including regulations the 
     board is required to issue under title II, including 
     appropriate application of exemptions under the laws made 
     applicable in title II. There shall be three sets of 
     substantive rules, one for each House, and one for other 
     employing offices.
       The authority conferred by this section is authority only 
     to issue rules that will aid in understanding how the laws 
     apply to the Congress and does not include the authority to 
     limit the substantive rights conferred under this act. Thus, 
     for example, such rules might set forth guidance to Senate 
     offices as to how the board would interpret the family and 
     medical leave act's entitlement to unpaid family or medical 
     leave, in light of the fact that the Senate payroll system 
     does not have a leave without pay status.
       Under subsection (b), the Board shall adopt the regulations 
     in accordance with the principles and procedures of the 
     Administrative Procedures Act. Instead of publishing a 
     general notice of proposed rulemaking in the Federal 
     Register, the Board shall transmit such notice to the Speaker 
     of the House and President pro tempore of the Senate for 
     publication in the Congressional Record. Such notice shall 
     set forth the recommendations of the Deputy Director in 
     regard to regulations of the House and Senate and of the 
     executive director for the other employing offices. In this 
     way, the members of the approving body will know how the 
     board's proposed regulations differ from the recommendations 
     of the Deputy Director for their respective house.
       Before adopting regulations, the Board shall provide a 
     comment period of at least 30 days after publication of a 
     general notice of proposed rulemaking. After considering 
     comments, the Board shall adopt regulations and transmit 
     notice of such action together with the regulations to the 
     Speaker of the House of Representatives and the President pro 
     tempore of the Senate for publication in the Congressional 
     Record. The Board shall include a recommendation in the 
     general notice of proposed rulemaking as to whether the 
     regulations should be approved by resolution of the Senate, 
     by resolution of the House of Representatives, by concurrent 
     resolution, or by joint resolution.
       Regulations referred to in paragraph (2)(B)(i) of 
     subsection (a) may be approved by the Senate by resolution or 
     by the Congress by joint or concurrent resolution. 
     Regulations referred to in paragraph (2)(B)(ii) of subsection 
     (a) may be approved by the House of Representatives by 
     resolution or by the Congress by concurrent or joint 
     resolution. Regulations referred to in paragraph (2)(B)(iii) 
     may be approved by Congress by concurrent resolution or by 
     joint resolution. Upon receipt of a notice of adoption of 
     regulations, the presiding officers shall refer such notice 
     and the proposed regulation to the committee or committees of 
     jurisdiction in that House. The referral is designed to let 
     the committee determine whether the regulations should be 
     approved and by which method.
       Following approval of regulations by the Congress or one of 
     its Houses, the Board shall submit the regulations for 
     publication in the Congressional Record. The date of issuance 
     of the regulations is the date on which they were published 
     in the Congressional Record as a result of this procedure. 
     Regulations shall become effective not less than 60 days 
     after the regulations are issued, except that an earlier 
     effective date may be specified for good cause found within 
     the meaning of section 553(d) of title 5 of the United States 
     Code.
       Amendment to the rules. The Board's rules may be amended in 
     the same manner as they are initially adopted under this 
     section. The Board may, in its discretion, dispense with the 
     publication of a general notice of proposed rulemaking of 
     minor, technical, or urgent amendments when the Board finds 
     that notices are ``impractical, unnecessary, or contrary to 
     the public interest'' within the meaning of 5 U.S.C. sec. 
     553(B).
       Right to petition for rulemaking.--Any person may petition 
     the Board for the issuance, amendment, or repeal of a rule. 
     However, nothing in this section confers upon any individual 
     a right to seek judicial review of any action or inaction of 
     the Board under this section.
       In formulating regulations, the Executive Director, Deputy 
     Directors, and Board shall consult with the chair of the 
     administrative conference, the Secretary of Labor, the 
     Federal Labor Relations Authority, and may consult with any 
     other persons of their choosing.

                         Section 305--Expenses

       Authorization of Appropriations. In fiscal year 1995, and 
     each fiscal year thereafter, the Congress authorizes to be 
     appropriated necessary funds for the expenses of the office 
     in carrying out its duties. Until money is first appropriated 
     under this section, but not for a period exceeding 12 months 
     after the date of enactment of this act, the expenses of the 
     office shall be paid one-half from the contingent fund of the 
     Senate and one-half from the contingent fund of the House, 
     upon vouchers approved by the director.
       Witness fees and allowances. Except for employees, 
     witnesses before a hearing officer or the Board in any 
     proceeding other than rulemaking are entitled to be paid the 
     same fee and mileage allowances as are paid to subpoenaed 
     witnesses in the courts of the United States. It is intended 
     that, as in the courts, these costs will be borne by the 
     parties. Employees who are summoned, or assigned by the 
     employers to testify in their official capacity or to produce 
     official records before a mediator, hearing officer, or the 
     Board, shall be entitled to travel expenses under 5 U.S.C. 
     Sec. 5751. The committee intends for the office to bear these 
     costs.

  Title IV--Administrative and Judicial Dispute--Resolution Procedures

       Much of title IV builds on the dispute resolution process 
     created for the Senate in title III of the Civil Rights Act 
     of 1991. The most significant changes in this title from the 
     existing Senate procedures are the addition of the option of 
     initiating an action in Federal district court following the 
     initial two stages of dispute resolution and the deletion of 
     review of each decision by the Senate Ethics Committee. An 
     opportunity to appeal to the Board is available in the place 
     of Ethics Committee review.

     Section 401--Procedure for consideration of alleged violations

       Section 401 lists the procedure for consideration of 
     alleged violations of the statutes made applicable to 
     congressional employing offices under part A of title II. 
     They are [[Page S629]] counseling as provided in section 402, 
     mediation as provided in section 403, and an election as 
     provided in section 404 of either (1) a formal complaint and 
     hearing as provided in section 405, subject to board review 
     in section 406, and judicial review in the United States 
     Court of Appeals for the Federal Circuit as provided in 
     section 407, or (2) a civil action in a district court of the 
     United States as provided in section 408. However, in the 
     case of an employee of the Architect of the Capitol or of the 
     Capitol Police, the Executive Director, after receiving a 
     request for counseling under section 402, may recommend that 
     an employee use the grievance procedures of the Architect of 
     the Capitol or the Capitol Police. The decision to make the 
     recommendation to the employee is entirely discretionary on 
     the part of the Executive Director. The decision to follow 
     the recommendation is entirely discretionary on the employee. 
     The purpose is to permit employees to use another 
     administrative remedy that may function well in the eyes of 
     the employee, without prejudice for further opportunity to 
     utilize the procedures available through the Office of 
     Compliance, as the time limitations available for counseling 
     or mediation shall not apply when during the specific period 
     that the Executive Director recommends that the employee use 
     for using the grievance procedures.

                        Section 402--Counseling

       Initiation. A covered employee shall request counseling 
     with the Office as a condition for commencing a proceeding 
     alleging a violation of a law made applicable under part A of 
     title II of this act. For claims under any of these statutes, 
     the request for counseling must be made within 180 days after 
     the date of the alleged violation. A failure to request 
     counseling within the time required bars an employee from 
     proceeding under this act to redress violations under these 
     sections.
       Purpose. The purpose of counseling is to provide an 
     employee with the opportunity to discuss and evaluate the 
     employee's claims. Under the current Senate system, employees 
     meet with a counselor who assists them in preparing a 
     statement of their claims, reviews what other information 
     might aid in making a determination about whether to proceed 
     with a claim, and may assist the employee in contacting the 
     employing office to determine if a dispute can be resolved. 
     The type of counseling may vary, depending upon the nature of 
     the problem, the sophistication of the employee, and the 
     willingness of parties to resolve issues. The purpose of 
     counseling is neither to discourage nor to encourage further 
     adversarial proceedings, but rather to assist in identifying 
     issues at an early stage, so that they can be addressed 
     appropriately.
       Period for counseling. Counseling commences on the date the 
     request for counseling is received in the Office and 
     continues for 30 days, unless the employee and the Office 
     agree to reduce the period. The 30 days begins on the date 
     the request for counseling is received.
       Notification of the end of the counseling period. The 
     Office is required to notify the employee in writing of the 
     end of the counseling period.

                         Section 403--Mediation

       Initiation. A covered employee must request mediation with 
     the Office no later than 15 days after the date on which the 
     employee receives notification of the end of the counseling 
     period. Mediation under section 403 is a precondition for 
     making the election of procedures provided in section 404.
       Mediation process. The Director shall specify one or more 
     individuals to mediate a dispute, depending upon the 
     Director's view of what would be most beneficial in a 
     particular case. In selecting mediators, the Director is 
     required to consider individuals recommended by organizations 
     with expertise in mediating or arbitrating personnel matters. 
     The Director may also consider other individuals with 
     expertise in this field.
       The purpose of the mediation is to resolve disputes at an 
     early stage in a manner that serves the interests of all 
     parties. To this end, it is important that both sides 
     participate in the process. Although parties cannot be forced 
     to mediate, it is expected that employees and employing 
     offices will take seriously this opportunity by carefully 
     assessing the claims of the other party and responding to 
     reasonable requests for information. The parties to mediation 
     under section 403(b) may include the Office, the covered 
     employee, and the employing office. Mediation may occur 
     through meetings with the parties separately or jointly for 
     the purpose of resolving the dispute.
       Mediation period. Mediation shall occur for 30 days 
     beginning on the date the request for mediation is received. 
     The 30-day period may be extended at the joint request of the 
     covered employee and the employing office. The Office shall 
     in writing notify the parties to the mediation of the end of 
     the mediation period.
       Independence of the mediation process. In order to protect 
     the integrity of the mediation process and ensure that 
     parties have confidence in it, no individual who conducts 
     mediation may conduct or aid in the hearing conducted under 
     section 405 with respect to the same matter. In addition, no 
     individual who participates as a mediator may testify about, 
     or produce records relating to, that mediation, either 
     voluntarily or by compulsion, in any proceeding under this 
     act or before any other investigative or adjudicative entity.

                  Section 404--Election of Proceeding

       Not later than 90 days after a covered employee receives 
     notice of the end of the period of mediation, but no sooner 
     than 30 days after receipt of such notification, such covered 
     employee may either (1) file a complaint with the Office in 
     accordance with section 405, or (2) file a civil action in 
     accordance with section 408 in the United States District 
     Court for the district in which the employee is employed or 
     for the District of Columbia.

                   Section 405--Complaint and hearing

       Complaint. An individual who has made a timely request for 
     counseling and mediation, has completed those processes, and 
     has not elected to file a complaint in Federal District Court 
     under section 408, may file a complaint with the Office. The 
     complaint must be filed no later than 90 days after receiving 
     the notice of the end of mediation, but no sooner than 30 
     days after receiving such notice. The respondent to the 
     complaint shall be the employing office involved in the 
     violation or in which the violation is alleged to have 
     occurred, and about which mediation was conducted.
       Appointment of a hearing officer. Upon the filing of a 
     complaint, the Director shall appoint a hearing officer to 
     the case. The hearing officer may dismiss any claim that the 
     hearing officer finds to be frivolous or that fails to state 
     a claim upon which relief can be granted. When the Executive 
     Director issues rules under section 303, he or she may 
     consider whether the procedures of title VII can be applied 
     to these proceedings. For instance, whether employing offices 
     can be awarded fees when the hearing officer determines that 
     the complaint is frivolous, groundless, and brought in bad 
     faith.
       No member of the House of Representatives, Senator, officer 
     of either House, head of an employing office, member of the 
     board, or covered employee, may be appointed to be a hearing 
     officer.
       The Executive Director is required to develop lists of 
     individuals experienced in arbitrating or adjudicating the 
     kinds of personnel and other matters for which hearings may 
     be conducted under this act. The lists can be composed of 
     categories of individuals with expertise in particular 
     fields, or possessing particular skills. In developing the 
     lists, the Executive Director shall consider candidates 
     recommended to the Director of the Federal Mediation and 
     Conciliation Service, the Administrative Conference of the 
     United States, or other organizations composed of individuals 
     with expertise in adjudicating or arbitrating the kinds of 
     matters for which hearings may be conducted under this act, 
     such as technical matters relating to occupational safety and 
     health.
       In requiring the Executive Director to select individuals 
     randomly or by rotation from these lists, the act does 
     not prevent the Executive Director from hiring hearing 
     officers as full-time employees of the Office or from 
     selecting hearing officers on the basis of specialized 
     expertise required for a particular case.
       Hearing. Unless a hearing officer dismisses a complaint on 
     a threshold legal issue, the hearing officer shall conduct a 
     hearing on the record. The hearing should be conducted as 
     expeditiously as practical, but in any event must be 
     commenced no later than 60 days after the filing of the 
     complaint. The hearing officer should, to the greatest extent 
     practical, conduct the hearing in accordance with the 
     principles of 5 U.S.C. Sec. Sec. 554-57.
       Discovery. The hearing officer may, in his or her 
     discretion, permit reasonable prehearing discovery. In 
     exercising this discretion, hearing officers should be 
     mindful of the requirement that the hearing is to be 
     conducted expeditiously and should seek to prevent 
     repetitious, overly burdensome, and unnecessary discovery.
       Subpoenas. In general. At the request of a party, a hearing 
     officer may issue a subpoena for the attendance of witnesses 
     and the production of records. Hearing officers should not 
     issue subpoenas in blank, but rather only issue subpoenas for 
     specific witnesses or document requests. Ordinarily, 
     subpoenas should not be required for the production of 
     testimony or records in this process. Employees and employing 
     offices have a responsibility to respond to reasonable 
     discovery requests, without the requirement of compulsory 
     process.
       Where appropriate, the attendance of witnesses and the 
     production or records may be required from any place within 
     the United States. Subpoenas shall be served in the manner 
     provided under rule 45(b) of the Federal Rules of Civil 
     Procedure.
       Objections. If a person refuses, on the basis of relevance, 
     privilege, or other objection, to testify or produce records 
     in response to a question or to produce records in connection 
     with a proceeding before a hearing officer, the hearing 
     officer shall rule on the objection and, if the objection is 
     overruled, order compliance. The hearing officer shall, at 
     the request of the witness or any party, and may on the 
     hearing officer's own initiative, refer the ruling to the 
     board for review.
       Enforcement. If a person fails to comply with a subpoena, 
     the Board may authorize the General Counsel to apply to an 
     appropriate United States District Court for an order 
     requiring that the person appear before the hearing officer 
     to testify and-or to produce records. The application shall 
     be made in the judicial district where the hearing is 
     conducted or where the person refusing to comply is found, 
     resides, or transacts business. Any failure to obey a lawful 
     order [[Page S630]] of the district court issued pursuant to 
     this section may be held by such court to be a civil 
     contempt thereof.
       Service of process. In an action brought in district court 
     to enforce a subpoena under this section, or in a civil 
     contempt action under this section, process may be served in 
     any judicial district in which the individual or entity 
     refusing or failing to comply resides, transacts business, or 
     may be found, and subpoenas for witnesses who are required to 
     attend such proceedings may run into any other district.
       Decision. Following any hearing under this section, the 
     hearing officer shall issue a written decision as 
     expeditiously as possible, but in no event more than 90 days 
     after the conclusion of the hearing. Each decision shall 
     state the issues raised in the complaint, describe the 
     evidence in the record, contain findings of fact and 
     conclusions of law, and contain a determination of whether a 
     violation has occurred, and, where appropriate, order 
     remedies authorized under title II of this act. The decision 
     shall be entered in the records of the Office as the final 
     decision of the hearing officer, and of the Office if such 
     decision is not appealed under section 406 to the Board. The 
     Office shall transmit a copy of the decision to each of the 
     parties.
       Precedents. In conducting hearings and deciding cases, 
     hearing officers are to be guided by judicial decisions under 
     the statutes made applicable by section 102 and by Board 
     decisions under this act.

                    Section 406--Appeal to the Board

       In general. Any party aggrieved by the decision of a 
     hearing officer under section 405(g) may seek review by 
     filing a petition for review in the Office not later than 30 
     days after notice by the Office of the entry in the Office 
     records of the final decision of the hearing officer.
       Opportunity for argument. The Board shall provide the 
     parties with a reasonable opportunity to be heard on their 
     appeal through written submissions. In the discretion of the 
     Board, the parties may be heard through oral argument.
       Standard of review. The standard of review to be applied by 
     the Board is the same standard that will be applied by the 
     Federal Circuit sitting in review of the Board's decisions. 
     The Board shall set aside a decision of a hearing officer 
     only if the Board determines that the decision is arbitrary, 
     capricious, an abuse of discretion, or otherwise not 
     consistent with the law, not made consistent with required 
     procedures, or unsupported by substantial evidence.
       Record. In making determinations under this section, the 
     Board shall review the whole record, or those parts cited by 
     a party. The record on review shall include the record before 
     the hearing officer and the decision of the hearing 
     officer. Due account shall be taken of the rule of 
     prejudicial error.
       Decision. The Board shall issue a written decision setting 
     forth the reasons for its decision. The decision may affirm, 
     reverse, or remand to the hearing officer for further 
     proceedings. A decision of the Board that does not require 
     further proceedings before a hearing officer shall be entered 
     in the records of the offices as a final decision.

    Section 407--Judicial Review of Board Decisions and Enforcement

    
    
       In general. The United States Court of Appeals for the 
     Federal Circuit shall have exclusive jurisdiction over any 
     proceeding commenced by a petition of a party aggrieved by a 
     final decision of the Board under section 406(e) in cases 
     arising under part A of title II, a charging individual or 
     respondent before the Board who files a petition under 
     section 210(d)4, the general counsel or a respondent before 
     the Board who files a petition under section 215(c)(5), or 
     the general counsel or a respondent who files a petition 
     under section 220(c)(3). The same court shall also have 
     exclusive jurisdiction over any petition of the general 
     counsel filed in the name of the Office and at the direction 
     of the Board, to enforce a final decision under section 
     405(g) or 406(e) with respect to a violation of part A, B, C, 
     or D of title II.
       Procedures. The rules governing the naming of respondents 
     reflects the different procedural postures under which 
     appeals may arise. The goal is to make sure that the Office 
     is not a respondent in a petition filed by its employee, the 
     general counsel. Any party before the Board may be named 
     respondent if not so named if the party so elects within 30 
     days after service of the petition. The section also provides 
     for a right of intervention for participants before the Board 
     who were not made respondents.
       Law applicable. Proceedings under this section shall be 
     governed by chapter 158 of title 28, of the United States 
     Code, which applies to appellate court review of agency 
     orders. In order to tailor chapter 158 to review of 
     congressional adjudicatory processes, some changes are made 
     in that chapter's requirements. Under 28 U.S.C. Sec. 2344, 
     the clerk is to serve a copy of the petition on the general 
     counsel; the authority of the Attorney General under 28 
     U.S.C. Sec. 2348 shall not apply, and a petition for review 
     shall be filed in the Office not later than 90 days after the 
     entry in the Office of the final decision under section 
     406(e) for which review is sought. The Office shall be an 
     agency as that term is used in chapter 158 of title 28, and 
     any reference to the Attorney General shall be deemed to 
     refer to the general counsel. The Office shall be named as 
     the respondent in any such action in order to defend the 
     decision of the congressional process.
       Standard of review. The Standard of review in proceedings 
     under this section is the standard that applies under the 
     administrative procedures act, namely, that the court shall 
     set aside a final decision of the Board only if it determines 
     that the decision was arbitrary, capricious, and abuse of 
     discretion, or otherwise not consistent with law; not made 
     consistent with required procedures; or unsupported by 
     substantial evidence.
       Record. In making determinations under this section, the 
     court shall review the whole record, or those parts cited by 
     a party. The record on review shall include the record before 
     the hearing officer, the decision of the hearing officer, the 
     record before the Board, and the decision of the Board. Due 
     account shall be taken of the rule of procedural error.

                       Section 408--Civil Action

       Jurisdiction. An individual who has made a timely request 
     for counseling and mediation, has completed those procedures, 
     and has elected not to file a complaint with the Office, may 
     file a complaint in the United States district court for the 
     district in which the employee is employed or for the 
     District of Columbia. The time period for filing such a 
     complaint is set forth in section 404. The defendant shall be 
     the employing office alleged to have committed the violation, 
     or in which the violation is alleged to have occurred.
       Jury trial. In a proceeding under this section, any party 
     may demand a jury trial in circumstances where a jury trial 
     would be available in an action against a private defendant 
     under the relevant law made applicable by this act. In any 
     case in which a violation of section 201 is alleged, the 
     court shall not inform the jury of the maximum amount of 
     compensatory damages available under section 201(b)(1) or 
     201(b)(3).

              Section 409--Judicial Review of Regulations

       This section provides that in any proceeding brought under 
     Section 407 or 408 in which the application of a regulation 
     issued under this act is at issue, the court may review the 
     validity of the regulation in accordance with the provisions 
     of subparagraphs (A) through (D) of section 706(2) of title 
     5, United States Code, except that with respect to 
     regulations approved by a joint resolution under section 
     304(c), only the provisions of section 706(2)(B) of title 5, 
     United States Code shall apply. This simply means that if the 
     regulation has the force of law, the regulation cannot be 
     challenged as being inconsistent with the underlying statute 
     applied to Congress under this bill, but may only be 
     challenged on constitutional grounds. All other regulations 
     could be challenged as not complying with the statutory 
     provisions forming the substantive and procedural basis for 
     issuing the regulation.
       The only means for challenging the validity of 
     the regulation is through a proceeding brought under 
     section 407 or 408 of this act. Thus, there is no ability 
     to challenge a regulation when issued, as would be 
     available under the Administrative Procedures Act, but 
     only through collateral challenge. If the court determines 
     that the regulation is invalid, the court shall apply, to 
     the extent necessary and appropriate, the most relevant 
     substantive executive agency regulation promulgated to 
     implement the statutory provisions with respect to which 
     the invalid regulation was issued.
       In determining whether to hold the regulations invalid, the 
     court should give equivalent deference to the Board as to an 
     executive branch agency with statutory authority and 
     expertise in issuing the regulation only if the regulation in 
     question is identical to a regulation of an executive branch 
     agency. To the extent the Board modifies the executive branch 
     agency in issuing the regulation whose validity is challenged 
     under this section, the court of appeals is to provide no 
     deference to the Board's reading of the underlying statute 
     when it issued the regulation unless the regulation was 
     adopted by joint resolution, or in connection with the 
     regulations issued under section 220(e).

          Section 411--Effect of Failure To Issue Regulations

       In any proceeding under section 405, 406, 407, or 408, 
     except a proceeding to enforce section 220 with respect to 
     offices listed under section 220(e)(2), if the Board has not 
     issued a regulation on a matter for which this act requires a 
     regulation to be issued, the hearing officer, board, or 
     court, as the case may be, shall apply, to the extent 
     necessary and appropriate, the most relevant substantive 
     executive agency regulation promulgated to implement the 
     statutory provision at issue in the proceeding.

            Section 412--Expedited Review of Certain Appeals

       This section authorizes a direct appeal to the Supreme 
     Court from any interlocutory or final judgment, decree, or 
     order of a court upon the constitutionality of any provision 
     of this act. In such a case, only the constitutional issue 
     would be before the court.

                 Section 413--Privileges and Immunities

       Under section 413, the authorization to bring judicial 
     proceedings under sections 407 and 408 shall not constitute a 
     waiver of sovereign immunity for any other purpose, or of the 
     privileges of any Member of Congress under the speech and 
     debate clause, or a waiver of wither the Senate or the House 
     of Representatives, including under article I, 
     [[Page S631]] section 5, clause 3, or under the rules of 
     either House relating to records and information within its 
     jurisdiction.

                 Section 414--Settlement of Complaints

       Under section 414, any settlement entered into by the 
     parties to a proceeding described in sections 210, 215, 220, 
     or 401 shall be in writing and not effective until approved 
     by the Executive Director. Nothing in this act shall affect 
     the power of the Senate and the House of Representatives, 
     respectively, to establish rules governing the process by 
     which a settlement may be entered into by such House or by 
     any employing office of such House.

                         Section 415--Payments

       Except as provided in subsection (c) of section 415, only 
     funds which are appropriated to an account of the Office of 
     the Treasury for the payment of awards and settlements may be 
     used for the payment of awards and settlements under this 
     act. A prevailing party may recover exclusive compensation 
     for his or her claims from such appropriated funds. Funds in 
     the account are not available for awards and settlements 
     involving the General Accounting Office, the Government 
     Printing Office, or the Library of Congress.
       Awards and settlements may not be paid from the Claims and 
     Judgment Fund of the Treasury. Nothing in this act authorizes 
     the Board, the Office, the Director, or a hearing officer, 
     without further authorization, to direct that amounts paid 
     for settlements or awards be paid from official accounts of 
     the employing office. This act does not affect the power of 
     each House to determine how settlements or awards shall be 
     paid.
       Subsection (b) provides that except as provided in 
     subsection (c), there are authorized appropriations of such 
     sums as may be necessary for administrative, personnel, and 
     similar expenses of employing offices which are needed to 
     comply with this act. These expenses could be such items as 
     funding management side labor negotiations under section 220. 
     These expenses are costs of adhering to the act, but not 
     costs of complying with adjudicative decisions remediating 
     violations, which are addressed in section 415.
       Under subsection (c), funds to correct violations of the 
     Americans With Disabilities Act and the Occupational Safety 
     and Health Act may be paid only from funds appropriated to 
     the employing office or entity responsible for correcting 
     such violations.

                      Section 416--Confidentiality

       A principal distinction between the administrative dispute 
     resolution proceedings conducted under this act and the 
     proceedings in district court authorized under section 408 is 
     the confidentiality of the administrative proceedings. Under 
     this section, all counseling, mediation, and hearings are 
     confidential. The record developed in the hearing and the 
     decisions of hearing officers and the board may be made 
     public only for purposes of judicial review under section 
     407. This Requirement of confidentiality does not preclude 
     the Executive Director from disclosing to committees of 
     Congress information sought; however, such information 
     shall remain subject to the confidentiality requirements 
     of this section.
       Final decisions entered under section 405(g) or 406(e) 
     shall be made public if it is in favor of the complaining 
     covered employee, or in favor of the charging party under 
     section 210, or if the decision reverses a decision of a 
     hearing officer which had been in favor of a covered employee 
     or a charging party. The Board may make public any other 
     decision at its discretion. Nothing in the act prohibits the 
     employing office from making public a final decision in its 
     favor.

                   Title V--Miscellaneous Provisions

               Section 501--Exercise of Rulemaking Power

       This section provides that sections 204 and 401 and the 
     rules issued pursuant to them are an exercise of the 
     rulemaking power of the House of Representatives and the 
     Senate and shall be considered part of the rules of each 
     House. These rules shall supersede other rules of each House 
     only to the extent that they are inconsistent with them. The 
     House and the Senate each retain their constitutional rights 
     to change these rules (insofar as they relate to such House) 
     at any time, in the same manner, and to the same extent as 
     each House may change its other rules.

       Section 502--Political Affiliation and Place of Residence

       This section permits employing offices to consider the 
     party affiliation, domicile, or political compatibility with 
     the employing office of an employee as referred to in 
     subsection (b) of this section with respect to employment 
     decisions. The term employee here means an employee on the 
     staff of leadership offices, committees and subcommittees, 
     employees of the staff of a member, an officer of either 
     House or a congressional employee elected or appointed by the 
     House or Senate and applicant for these positions.

 Section 503--Nondiscrimiantion Rules of the House of Representatives 
                               and Senate

       This section provides that the Select Committee on Ethics 
     of the Senate and the Committee on Standards of Official 
     Conduct of the House of Representatives retain full power, in 
     accordance with the authority provided to them by the Senate 
     and the House of Representatives, with respect to the 
     discipline of members, officers, and employees for violating 
     rules of the Senate and the House of Representatives on 
     nondiscrimination in employment.

            Section 504--Technical and Conforming Amendments

       This section amends the Government Employee Rights Act so 
     that it remains in effect for certain Presidential appointees 
     and for certain State employees, and repeals the remaining 
     sections of the act as of the date this act takes effect.

              Section 505--Judicial Branch Coverage Study

       This section requires the judicial conference of the United 
     States to prepare a report by the Chief Justice to Congress 
     on the application to the judicial branch of the 11 laws made 
     applicable to Congress by this act. The report is to be 
     submitted by December 31, 1996, and shall include any 
     recommendations the Judicial Conference may have for 
     legislation to provide to employees of the judicial branch, 
     protections, and procedures under these laws, including 
     administrative and judicial relief, that are comparable to 
     that provided to congressional employees under this act.

                    Section 506--Savings Provisions

       This section provides a method for the transition from the 
     previous dispute resolution processes under which 
     congressional employees were covered to the process 
     established by this act. The purpose of this section is to 
     ensure that claims that are in the process of being resolved 
     are not extinguished, and that they will be adjudicated under 
     current law.

                       Section 507--Severability

       This section provides that if any provision of this act is 
     held to be invalid, the remainder of this act shall not be 
     affected.
  Mr. GRASSLEY. I yield the floor.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER (Mr. Craig). The Senator from Ohio.
  Mr. GLENN. Mr. President, I stated a few moments ago I hope that our 
colleagues who are watching in their offices or staffs working in the 
offices will get interested Senators who have amendments to propose--
and I would add that they are all on the Democratic side--let us get 
them over here because we are going to be time limited on consideration 
of this bill as far as time for amendments. The majority leadership has 
indicated, as I understand it, a desire to close out this bill at 7 
o'clock tomorrow evening if at all possible.
  Now, granted, considering that we also have our respective parity 
caucuses tomorrow which takes us out of the Senate Chamber here from 
about 12:30 to 2:15, we lose that time. It means that we are going to 
be very hard pressed to consider all the amendments we have on the list 
by that time. So I would urge my colleagues to get their amendments 
over here and let us get debating on them and so we can get them all 
considered. I would hate to see anyone get closed out tomorrow night 
with not enough time on the Senate floor to consider their amendments.
  Mr. President, in the opening days of the 104th Congress I think we 
can accomplish a reform that is long, long overdue. We can finally 
eliminate the congressional double standard under which we have enacted 
laws that apply to everyone but ourselves.
  Now, by enacting laws for others and then exempting ourselves, we 
have done great damage to the public perception of Congress.
  When I go back home and make speeches in Ohio and open it up for 
questions or you remark about the fact that you would like to see 
Congress covered by the same laws that cover everyone else in this 
country, laws that address individual concerns, organizational 
concerns, Government concerns, and so on, but that we want to make 
those same laws apply to them apply here on Capitol Hill where we have 
exempted ourselves for many years, I can tell you from personal 
experience there is nothing guaranteed to get you a rousing ovation any 
faster than bringing that up as something you want to correct. This has 
been true for a number of years.
  We in Congress I sometimes think do not really understand the real 
impact of these laws because we do not have to follow them here. And 
that is an irritant to other people around the country.
  Our efforts to apply the law on Capitol Hill go back many years. I 
stated in my opening statement the other day that back in 1978, just a 
few years after I came to the Senate, I proposed a resolution to assure 
that all Senate employees would be protected against employment 
discrimination. I referred then to Capitol Hill being the last 
plantation and incurred the ire of some of my colleagues for that 
remark at that time. The resolution did not pass. It is 
[[Page S632]] only in just the last few years that we have finally 
enacted some substantial legal protection for Senate employees. So we 
are not quite as bad off as we were back then in 1978. Our employees 
are now covered under the civil rights laws and certain other 
employment laws, and they can take their cases to the U.S. Court of 
Appeals. But despite this progress, what we still have is a 
unacceptable. It is a patchwork quilt of coverage and exemptions here 
on Capitol Hill. And it has not been easy to solve this problem.

  As I have often said, we should apply the same laws to ourselves as 
we apply to the private sector. But there is a difference here on 
Capitol Hill compared to businesses in the rest of the country. That 
is, we have the concerns of our Members--and they are legitimate 
concerns--who believe that the Constitution requires us to preserve 
substantial independence of the Senate and the House of 
Representatives. That is not just because it is a personal preference 
or an ego matter with those particular Members. In the private sector 
these laws are normally implemented by the executive branch and the 
judicial branch. But there are many Senators--and this is not the 
prerogative of one side or the other--there are many Senators, both 
Democrats and Republicans, who have expressed genuine concern through 
the years about politically motivated prosecutions that might result if 
we ignore the principle of separation of powers as we apply these laws 
to the Congress.
  I think everyone should understand that concern about separation of 
powers has probably been at the heart of the delay, of why legislation 
in this regard has not been considered more seriously through the 
years. I think we have taken care of it in this bill. The separation of 
powers is very, very real. It is in the Constitution. When one branch 
of government gains ascendancy over another, or authority over another 
branch of government, it is a very serious matter. Many of our Members 
through the years have been very concerned about this.
  Last year, in a meeting with our then majority leader, Senator 
Mitchell, he asked me to work on a bipartisan solution for this. In the 
Governmental Affairs Committee we had as a starting place the very 
excellent bill introduced by Senators Grassley and Lieberman. Then, 
together with those two Senators and other Senators from both sides of 
the aisle, we worked hard to reach a solution. I think we succeeded 
with this bill. We included even stronger applications of the laws to 
Congress and we also included the text of that constitutional 
independence, that separation of powers that I just mentioned. Our 
legislation won broad bipartisan support, but unfortunately it was 
blocked on the Senate floor in the closing days of the 103d Congress.
  So I am particularly gratified that the Congressional Accountability 
Act of 1995 is modeled closely on that proposed legislation from last 
year. Also, our new minority leader, Senator Daschle, introduced our 
congressional accountability legislation from last year. He did that 
the other day. But that is not the vehicle that we are on here today. 
That proposed legislation by Senator Daschle included the gift ban and 
lobbying reform, which we dealt with to some extent on the floor the 
other day, as additional amendments to this bill that just covers 
congressional coverage.
  So, I am pleased our solution to congressional coverage was 
introduced as a separate bill as part of Senator Daschle's 
comprehensive congressional reform proposal. But regardless of that, we 
have strong bipartisan support, I believe, for this bill.
  Let me urge once again--I will break in the middle of my comments 
here to urge any of my colleagues who have amendments to this bill to 
come to the floor. Tomorrow we are going to be very short of time to 
consider all of the amendments. I urge any of the staff or any of the 
Senators who are watching these proceedings in their offices to, if at 
all possible, get their amendments over here to the floor so we do not 
find ourselves in a time shortage tomorrow afternoon, because it is my 
understanding the majority leader has indicated it is his intent to end 
consideration of this bill by about 7 o'clock tomorrow evening.
  Let me give a little more background on this legislation. Though 
Congress has taken strides in recent years to apply antidiscrimination 
and employee protection laws to its employees, there is a patchwork of 
coverage that remains that allows certain exemptions to these laws and 
permits different applications to different employees. This has helped 
create the impression among many citizens that Congress exempts itself 
from the same employment and antidiscrimination laws that it applies to 
the general public and to other entities of government.
  There have been a number of statements. People have commented on the 
fact that on November 8 the people of this country sent a message they 
did not want business as usual anymore. I think that was a generally 
accepted message that was received here on Capitol Hill. But there is 
another aspect of this, too. We apply laws to the rest of the country 
and the citizens of this country in their places of employment or their 
businesses or their organizations and we say, in all fairness, here is 
what you have to do. Here is what the Federal Government says. Whether 
it is civil rights or whatever, we say this is the way it is going to 
be because it is right for our people. Repeat, ``right for our 
people.'' We base our legislation on that, what is right for our 
people. Are our people out there being dealt with fairly by their 
employers? By their Government? By their local governments? By whatever 
we are passing legislation on here? But at the same time we say what is 
right for workers out there, what is right for employees out there, 
what is right for people working in communities, is not necessarily 
right for those working on Capitol Hill. So we do not cover them. We 
exempt them.
  What kind of possible justification can there be for exempting what 
is right for everybody else in this country? Regardless of whether we 
are treating ourselves differently, is it right for our employees that 
they have the same protections of employment rights? Of organizational 
rights? Of whatever other rights we insist on giving to everybody else 
in this country and yet we say we do not want to give our own people 
that same coverage? We do not want to deal that fairly with our own 
employees here on Capitol Hill? That is just flat not right.
  So I bring this down not just to the perception of what other people 
say around the country, or the perception that Congress exempts itself 
and so we are somehow above the law, but let us bring it down to this. 
Is it right for our people or is it not right for our people who work 
for us right here on Capitol Hill to have the same protections that 
everybody else here in this country has? Is it right? To me that is the 
most powerful argument for passing congressional coverage.
  We can say the perceptions are out there that we are dealing 
differently and so the people do not like that--but is it right that 
our people here on Capitol Hill, the people who man the elevators and 
the Government Printing Office and everything else around here that 
goes to support congressional action--is it right that they get the 
same protections as other people around this country? The answer to 
that has to be that it is right. And that is the reason why I think we 
have a lot of bipartisan support for this legislation.
  Congress has responded in the last few years to the call for a 
uniform application of employment and antidiscrimination protections to 
our employees. We made some moves. A Bipartisan Task Force on Senate 
Coverage, which was established in 1992 in the 102d Congress, and the 
Joint Committee on the Organization of Congress, which was also created 
in 1992, both proposed recommendations for congressional compliance 
with employment laws. Numerous witnesses before the joint committee and 
in hearings of the Senate Governmental Affairs Committee expressed the 
sentiment that exemptions for congressional coverage had to end. The 
time had finally come.
  There were several significant pieces of legislation introduced in 
the 103d Congress that drew from the work of the joint committee and 
the Task Force on Senate Coverage. I had a bill in. It was a Glenn 
substitute to H.R. 4822, which followed action taken by the Senate 
Rules Committee on a substitute version of S. 1824, which contained 
sections on congressional coverage. There was other action by the 
Governmental Affairs Committee on S. [[Page S633]] 2071, which is 
substantially similar to the substitute to H.R. 4822 plus overwhelming 
passage by the House of its version of H.R. 4822.
  Senator Mitchell sought unanimous consent that the Senate proceed to 
the consideration of my substitute to H.R. 4822, as modified by a 
managers' amendment, on October 6, 1994. But there was objection to 
proceeding. Senator Lott objected to the motion to move to 
consideration of the bill and this Republican objection prevented any 
further consideration of the measure in the 103d Congress.
  S. 2, the Congressional Accountability Act, is substantially--almost 
identical. It is very similar to the managers' amendment to the 
substitute to H.R. 4822 that was brought before the Senate at the end 
of the 103d Congress, as well as the congressional coverage language 
that is part of the current leadership congressional reform package, 
which was S. 10, that we have already dealt with a couple of days ago.
  Just a little short summary statement of what is provided in the 
legislation today. S. 2, the Congressional Accountability Act, would 
apply a number of Federal workplace safety and labor laws to the 
operations of Congress. The bill also provides a new administrative 
process for handling complaints and violations of these laws. I had not 
mentioned that in any detail before, but that is a very key part of 
this legislation and addresses the difficulties that Members have had 
dealing with this separation of powers through all of these years, 
which has been the basic reason why legislation has been held up.
  I do not quarrel with those concerns. They are very real concerns. In 
other words, if you had an administration so inclined and they wished 
to go into a super enforcement of OSHA or clean air or whatever the 
bill was, and you wish to apply some sanctions to Congress in return 
for getting something else that a President wanted sometime, would they 
do that? I think those of us who have been around here for a while have 
seen some pretty politically motivated executive branch officials who 
just might take such action against the legislative branch. I do not 
think that would be commonplace, but should we even set up in law the 
possibility that that might happen?
  So the second part of what I just read, as a summary: The bill also 
provides a new administrative process for handling complaints and 
violations of these laws, which is a key toward dealing with this 
problem of separation of powers. We set up a separate process by which 
people can bring complaints about how they are being dealt with. That 
is a very key part of this legislation, and something that is different 
from most of the proposals that occurred back through all of these 
years. I may run through some of the major provisions.
  First, in the application of workplace protection and 
antidiscrimination laws, S. 2 would apply to several Federal laws 
regarding employment and the operation of legislative branch offices 
and provide an administrative process for handling complaints and 
violations--provide an administrative process for handling complaints 
and violations--a key part of this legislation.
  The following laws would be applied to legislative branch employees. 
First, under antidiscrimination laws, title VII of the Civil Rights Act 
of 1964 would apply; the Age Discrimination in Employment Act of 1967, 
title I; Americans With Disabilities Act of 1990; Rehabilitation Act of 
1973; and under public services and accommodations under Americans with 
Disabilities Act, title II of the Americans with Disabilities Act of 
1990, which prohibits discrimination in Government services provided to 
the public; and title III of the Americans with Disabilities Act of 
1990.
  Workplace protection laws are very important. Why should we exempt 
our people in those areas of workplace protection laws? Are we a 
factory? No, we are not. But should we protect those people here on 
Capitol Hill who work and have some concerns about their safety? 
Workplace protection laws and fair labor standards: Should they be 
protected? How can we say that they should not be protected? So under 
workplace protection laws, we have the Fair Labor Standards Act of 
1938, concerning the minimum wage, equal pay, maximum hours, and 
protection against retaliation, regulations which will be promulgated 
to track the executive branch regulations.
  These regulations will take into account those employees who work 
irregular schedules or whose schedules depend directly on the Senate 
which, as we all know, is an irregularly scheduled body at best. Also, 
under workplace protection laws; OSHA, the Occupational Safety and 
Health Act of 1970; the Family and Medical Leave Act of 1993; the 
Employee Polygraph Protection Act; and Worker Adjustment and Retraining 
Act, which requires a 60-day notice of office closings or mass 
layoffs--you might say we are not a factory, that we do not have to 
give 60-day notice. But we do have people working for us here on 
Capitol Hill, such as the Government Printing Office and some others, 
that should have the same protections that people out there in industry 
have because they are performing at least a semi-industrialized 
function for us here on Capitol Hill.
  The Occupational Safety and Health Act of 1970, Family and Medical 
Leave Act--I read these before--Employee Polygraph Protection Act, 
Worker Adjustment and Retraining Act, the 60-day notice that I just 
mentioned; and another one, the Veterans Re-Employment Act, which 
grants veterans the right to return to their previous employment with 
certain qualifications if reactivated or if they are drafted.
  Under labor-management relations, the Federal Service Labor-
Management Relations Statute of 1978, which applies to personal staff, 
committees, or other political offices, would be deferred unless rules 
are issued by the new Office of Compliance. We expect that Office of 
Compliance to get into operation just as quickly as possible after this 
legislation is passed.
  Who are covered employees? The compliance provisions for the 
preceding laws would apply to staff and employees of the House, of the 
Senate, the Architect of the Capitol, the Congressional Budget Office, 
the Office of Technology Assessment, and the newly created Office of 
Compliance itself. Congressional instrumentalities, as they are called 
under that title--instrumentalities are such organizations as the 
General Accounting Office, the Library of Congress, and the 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.
  This was necessary, at least in part, because some of these 
instrumentalities had already taken action some years ago to make some 
of these laws apply to their own operations. So the General Accounting 
Office has taken certain actions that the Library of Congress or the 
Government Printing Office has not taken. And so, rather than just 
saying we set down in concrete mandates for all of these different 
organizations, we felt it was better to make a transition period where 
we would have a study to discern current application of these laws to 
the instrumentalities and to recommend ways to improve procedures.
  What are the protections and the procedures for which people might 
seek remedy? The bill provides the following five- step process, which 
is similar to some current Senate procedures for employees with claims 
of violations of the Civil Rights and Americans with Disabilities Act 
and employment discrimination laws, for violation of family and medical 
leave protections, for violations of fair labor standards, violations 
of laws regarding polygraph protection, plant closing, and veterans 
reemployment violations. If there are concerns in those areas and an 
individual or individuals wish to file a complaint, they would go 
through a several-step procedure.
  The first step will be they would be required to go through 
counseling, which could last up to 30 days and must be requested within 
a 6-month statute of limitations.
  If that does not take care of things, if you cannot counsel people 
out of this into an acceptable solution, then you go into step two, 
which is a mediation service. That, too, can last for 30 days, and must 
be pursued within 15 days.
  Let us say that the aggrieved party, or the person who feels they 
have been aggrieved, feels at that point they have not been dealt with 
fairly. They have [[Page S634]] been through counseling and mediation. 
Step No. 3 they could take, if the claim cannot be resolved, is then a 
formal complaint and trial before an administrative hearing officer. 
That would be the next step.
  At that point, if the person still says, ``I don't feel I've gotten 
justice here, so I want to go ahead with this thing,'' there would be 
another step. After the hearing, any aggrieved party may still appeal 
to the Office of Compliance's board of directors.
  So at that point we are up to a four-step process--counseling, 
mediation, and the administrative hearing officer can still request 
that this go before the board, the Office of Compliance's board of 
directors. Even at that point, after all these four steps, if a person 
feels, no, I feel I still have not received my due or have not received 
a fair shake, then they can take it outside to the U.S. Court of 
Appeals for judicial review.
  I think that gives the employees here on Capitol Hill tremendously 
increased protection. The bill would allow employees to bring suit in 
Federal district court. Let me explain this a little bit. I mentioned 
that five-step process. Another option is that if the employee did not 
wish to go through that whole process of counseling, mediation, the 
hearing officer, the board, and so on, the person could say, OK, after 
that mediation step--just the mediation step now, counseling and 
mediation--at that point the aggrieved employee could start up a 
separate track and go directly outside to the U.S. Federal district 
court, rather than proceeding to an administrative hearing. The 
district court remedy would 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. That is 
required, whichever track you want to go through--the counseling and 
mediation process.
  Then you can decide whether you want to go up the first track I went 
through, the five-step process. Or you might say: I want to go outside, 
I am going directly to district court. That is in there because that is 
what any businessman or organization across this country can do. If 
they have a problem and they do not get satisfaction from the agency or 
the Government entity involved, they could go directly to district 
court and file suit. So we give our own employees here the right to do 
the same thing if they feel they are not being dealt with fairly or 
they prefer not to go up that more lengthy in-house procedure before 
they could, as a last step, go to the U.S. Court of Appeals. So there 
is a dual track they can go through, and it is up to whoever would be 
filing the charge.
  With respect to discrimination based on race, color, religion, sex, 
or national origin, remedies include reinstatement, back pay, 
attorneys' fees, and even other compensatory damages. That matches what 
happens out in the world, the business world or organization world, out 
there across the country.
  For claims under the ADA, title II and title III relating to 
discrimination in Government services, we provide the following steps: 
A member of the public may submit a charge to the general counsel of 
this Office of Compliance. The general counsel could call for 
mediation. The general counsel may file a complaint, which would go 
before a hearing officer for a decision. There could be an appeal to 
the board and, once again, there could be an appeal to the U.S. Court 
of Appeals.
  For violations of OSHA, the bill provides the following procedures: 
Employees would make a written request to the general counsel, again, 
to conduct an inspection. The general counsel will not only conduct the 
inspection but will also inspect all facilities at least once each 
Congress as a normal course of events. We may not have the expertise to 
do that, so they would most likely use detailees from the Labor 
Department, who are familiar with OSHA regulations and in administering 
OSHA law out in the civil sector. They could give advice in this area 
and even conduct inspections at the request of the general counsel.
  Pursuant to that, citations may be issued by the general counsel and 
disputes regarding citations could be referred to a hearing officer 
once again.
  Appeal of hearing officer decisions could go to the board. The board 
may also approve requests for temporary variances. And, finally, an 
appellate court review of decisions of the board would be in order.
  There would be a 2-year phase-in period for the OSHA procedures, to 
allow inspection and corrective action. A survey also would be 
conducted to identify problems and to prepare for unforeseen budget 
impact. Some of these corrective actions might be expensive. So you 
cannot just say that we will put something in without considering the 
budget impact here on Capitol Hill. Penalties would not apply under the 
OSHA provisions, because this would result only in shifting among 
accounts in the Treasury. In other words, you are going to find 
somebody on Capitol Hill on OSHA violations and the money would go from 
there to Treasury, transferring it from one pocket to the other in the 
Treasury accounts.
  The following process applies to violations of collective bargaining 
law. First, petitions will be considered by the board and could be 
referred by the board to a hearing officer. Charges of violations would 
be submitted to the general counsel. Once again, they 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. Negotiation 
impasses would be submitted then to mediators, and next a 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. ``Employees who are employed in a bona 
fide executive, administrative, or professional capacity'' are not 
covered by the minimum wage and maximum hours provision. Interns are 
also exempted. In addition, compensatory time may not be offered in 
lieu of overtime. That does not apply to those I just mentioned--
executive, administrative, or professional capacity people. Otherwise, 
we have to abide by the same laws that apply to everybody else across 
this country.
  Otherwise, remedies for violations of rights of all other employees 
under the FLSA will include unpaid minimum or overtime wages, 
liquidated damages, attorneys' fees and costs.
  Let me briefly address the Office of Compliance, because they have a 
great deal of authority and would be a very important part of this 
whole operation. S. 2 will establish an independent, nonpartisan Office 
of Compliance to implement and oversee the application of 
antidiscrimination worker protection laws. Under rulemaking, the office 
will promulgate rules to implement these statutes. In other words, 
normally we pass legislation here on the Hill, and it goes over into a 
branch or agency of Government, and that branch or agency then writes 
the rules and regulations that apply all across the country. That has 
been one of the hangups, because of this separation of powers through 
all these years. So we basically gave that authority for rulemaking to 
this Office of Compliance. The office will promulgate rules to 
implement the statutes. Congress may approve and change, by joint 
resolution, rules issued by the office. But if Congress fails to 
approve rules by the effective date within the legislation, then 
applicable executive branch rules would be applied.
  Rules would be issued in three separate sets of regulations: One, 
those that apply to the House of Representatives; two, those that apply 
to the Senate; and, three, those that apply to joint offices and the 
instrumentalities of the Congress that I mentioned a moment ago. Rules 
for each Chamber would be subject to approval by that body. Rules for 
the Senate would be approved by the Senate. Rules for the House would 
be approved by the House. I would presume that most of those will be 
the same. I do not think there would be much difference from one body 
to the other, or to grant the force and effective law by joint 
resolution of the Congress, if that was required.
  Rules for joint offices and instrumentalities would be subject to 
approval by concurrent resolution. This Office of Compliance will be a 
very important office for Capitol Hill. It will be something new and 
different.
  Membership of this Office of Compliance: The office will be headed by 
a five-member board that will be appointed to fixed, staggered terms of 
office. The board will be appointed jointly by the Senate majority 
leader, the [[Page S635]] 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. 
Its chair will be chosen by the four appointing authorities from within 
the membership of the board.
  Under settlement and award reserves: Payment for awards of House and 
Senate employees will be made in a new single contingent appropriation 
account. All settlements and judgments must be paid from funds 
appropriated to the legislative branch, not from a Government-wide 
judgment account. In other words, it will be solely administered here 
on Capitol Hill. Once again, concern about the separation of powers 
dictates that. There will be no personal liability on the part of 
Members.
  Mr. President, that is a thumbnail sketch in some detail here, a 
rundown of what this bill provides and how it will be administered and 
how it would take care of some of these problems of separation of 
powers that have plagued consideration of this bill for all these 
years.
  So, Mr. President, I would only close by saying we do not plan to 
make more lengthy speeches this afternoon. We have gone through some of 
these things before. I thought it was worthwhile going through them 
again, since we have gone through the weekend.
  But I urge my colleagues in their offices, or their staffs, if you 
have an amendment, let us get it over to the floor because the majority 
leader has indicated a desire to have action wound up on this, 
terminated by Tuesday evening, by tomorrow evening, at around 7 
o'clock.
  And I say to my Democratic colleagues, we are the ones that have the 
proposed amendments to this bill. There are none pending on the 
Republican side. They were able to convince all their Members to put 
off their concerns to a later time. That does not mean that I am 
joining them in that. I think we have every right on the floor here to 
address whatever concerns Members have and whatever amendments they 
wish to put on this bill.
  I can understand the majority's desire that there be no amendments to 
the bill, but it has been a rare occasion in the history of the Senate 
when that has occurred.
  But I urge my colleagues on the Democratic side who still have 
amendments on this to get over here and get them presented, because we 
are going to fast run out of time tomorrow. If we do not consider some 
of these this afternoon, then we have a limited time tomorrow morning. 
We go out for our respective party conferences tomorrow between 12:30 
and 2:15, as is our custom. So that means we have a considerable block 
of time taken out right in the middle of the day and we will be coming 
back on the floor tomorrow with just a little bit of time left until we 
reach 7 o'clock tomorrow night. If everyone waits until that time to 
bring their amendments over, I am afraid some of them will get left out 
before we wrap this thing up tomorrow night. So I urge my colleagues to 
get their amendments over here to the floor so that they can have them 
considered today.
  Mr. President, I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The absence of a quorum has been noted. The 
clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BYRD. 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. BYRD. Mr. President, I thank the Chair.
  Mr. President, after careful consideration of the issues involved, I 
have determined that I must vote against the Congressional 
Accountability Act of 1995. I do not expect to persuade others, and 
there may be no others who will vote against this act. I may be alone.
  There should be no mistake about my intentions. I support the goal of 
this legislation. It is the means for implementing the provisions in 
the bill to which I largely object. I support holding all Senators 
accountable for the treatment of their employees. We should and we must 
evaluate our employees' job performance on the basis of merit, not with 
respect to race or gender or age or national origin or religion or 
disability. We should and we must pay our employees fair wages for the 
work they do. We should and we must provide our employees with a safe 
environment in which to work. I have been in Congress now going on my 
43d year. I have always held to these principles. We should and we must 
accommodate the disabled and allow employees to take leave when they 
are blessed with the birth of a child or a family member becomes 
seriously ill.
  Over the past several years the Senate has made considerable progress 
in this area. Most of the employment laws addressed in the bill before 
us already apply to the Senate: discrimination laws apply, the 
Rehabilitation Act applies, the Family and Medical Leave Act applies, 
the Americans With Disabilities Act applies. I believe I am correct in 
all of this. This is probably one of the best kept secrets around here 
and across the country. It will no doubt come as a surprise to the 
media so many of whom seem much more interested in our institutional 
failings than in our many achievements.
  Furthermore, contrary to popular misimpression, Members are subject 
to the laws they make in their capacities as private citizens. Members 
who own businesses or act in any private capacity, must comply with all 
Federal, State, and local laws applicable to any business owner or 
citizen. In addition, Members are subject to many laws not applicable 
to other citizens or private businesses, such as public financial 
disclosure, including reporting assets and liabilities of themselves, 
their spouses, and their dependent children. In fact, the requirements 
and constraints under which Members of Congress live would be 
considered a outrageous intrusion on individual liberty and privacy in 
most other contexts. I have no quarrel with any of those requirements.
  This bill raises serious constitutional issues with respect to the 
status and functions of the Senate and of individual Senators.
  The bill leaves unresolved a whole array of practical and 
administrative issues that inevitably will impinge on the Senate's 
capacity to perform its legislative and other functions. It delegates 
these issues to a board having a broad and, in fact, unique combination 
of executive, legislative, and judicial authority encompassing a large 
number of legal issues in a way that is unprecedented in the Federal 
Government. As a result, we have in this bill an unknown and unknowable 
potential for serious dislocation and disruption of the Senate's 
constitutionally ordained role.
  Now, Mr. President, I want to take a few moments to explain these 
problems in greater detail.


                         Constitutional Issues

                         The Bicameral Problem

  This legislation establishes a bicameral office and a bicameral board 
with plenary powers over all of the employment laws made applicable to 
the Congress and to other legislative branch entities. This structure, 
I believe, is fundamentally inconsistent with the bicameral nature of 
the Congress ordained in the Constitution. Proponents will be quick to 
point out that the legislation provides for separate sets of rules for 
the House, Senate, and the remainder of the legislative branch. But 
this is no real solution to the basic problem. If this legislation is 
enacted, we will have a single bureaucracy making policy for the entire 
legislative branch, however that policy may be packaged.
  The Constitution indisputably establishes a bicameral legislature. 
The Framers intended to create two separate and independent Houses of 
the Congress as integral components of their overall plan of shared and 
divided power. The Senate and House, by design and precedent, have 
unique and distinct roles within the constitutional structure. The 
discharge of the Senate's unique responsibilities requires 
independence. The intent of the Framers in this regard is obvious in 
the plain words of the Constitution.
  Article I, Section 5 of our Constitution provides that each House may 
determine the rules of its proceedings. Two principles are expressed in 
this provision. First, each House is accorded the constitutional right 
of self-governance with respect to its internal operations. Second, 
neither House has the authority to govern the other [[Page S636]] House 
or to determine the rules of the other House. The bill before the 
Senate today is an affront to those constitutional principles. If this 
bill is enacted, the Senate's constitutional power of self-governance 
will be seriously impaired. And the Senate's protection from 
interference by the House of Representatives will begin to erode. 
Conversely, the same is true with respect to the House. This is a 
slippery path we must not travel.


                          Separation of Powers

  Articles I, II, and III of the Constitution establish a government 
consisting of three independent branches. The Framers of the 
Constitution separated the judicial, executive, and legislative 
functions for the purpose of limiting the power of any one branch, 
while providing distinct duties to each branch. This arrangement of 
distinct branches, with different but interdependent powers, is the 
keystone of the constitutional system for checking arbitrary power. As 
The Federalist, No. 48, states, no branch of government may ``possess, 
directly or indirectly, an overruling influence over the others, in the 
administration of their powers.'' This constitutional principle is 
trampled in the bill before the Senate today. It permits the judicial 
branch to intrude on and thereby directly interfere with the Senate's 
administration of its powers. We should not so lightly allow the 
erosion of the very concepts that are at the core of our Constitution.
  The last judicial statement to address this issue directly, firmly 
holds against diluting the principle of Separation of Powers. In 1986, 
the U.S. Court of Appeals for the District of Columbia Circuit held 
that Members of Congress had absolute immunity under the speech and 
debate clause for personnel decisions concerning positions of 
employment relating to the legislative process. In Browning v. Clerk, 
U.S. House of Representatives, the court stated:

       The speech and debate clause is intended to protect the 
     integrity of the legislative process by restraining the 
     judiciary and the executive from questioning legislative 
     actions. Without this protection, legislators would be both 
     inhibited in and distracted from the performance of their 
     constitutional duties. Where the duties of the employees 
     implicate speech or debate, so will personnel actions 
     respecting that employee.

  This is not the first time the Senate has been down this path. In 
1985, we passed the Gramm-Rudman bill; our intentions were good, but 
our means were faulty. Like the bill before this body, the Gramm-Rudman 
bill failed to respect the constitutional principle of Separation of 
Powers. It delegated executive powers to a lesser legislative entity 
and it retained the Senate's ability to remove an executive officer. 
But our error in passing that law was soon rectified. In 1986, 1 year 
after Gramm-Rudman was enacted, the Supreme Court declared it to be 
unconstitutional. If enacted, this bill, which I think is similarly 
flawed, may be likely declared unconstitutional, but only after the 
Senate has expended considerable sums establishing the bicameral Board 
and eliminating the current Senate Fair Employment Office.
  Let me explain more specifically how this bill permits unprecedented 
judicial intrusion into the Senate's affairs. Under this bill, a Senate 
or other congressional employee need not use the dispute resolution and 
enforcement procedure provided through this new Office of Congressional 
Compliance. Instead, he or she may file a lawsuit directly against a 
Member's office in Federal court in the district in which the employee 
works. In the course of pretrial discovery, a Federal judge could order 
a Senate employing office to produce documents and other information in 
the possession of the employing office. The employee is entitled to a 
jury trial. If the court finds in favor of the employee, it could order 
the Senate office to submit periodic reports to the court to satisfy it 
that the problems have been eliminated. The court also could appoint an 
individual to inspect the Senate offices and to interview Senate 
employees to satisfy the court that no employment problems reoccur. I 
submit that this level of intrusion by the judicial branch into the 
affairs of the legislative branch violates the constitutional doctrine 
of Separation of Powers, and it impermissibly intrudes on the Senate's 
constitutional power of self-governance.
  The potential for political mischief this provision creates should be 
obvious. Political opponents and possible challengers with law degrees 
will be lining up to offer their services as counsel for plaintiffs in 
such cases.
  Moreover, I suggest that this system eventually will lead to a 
constitutional impasse. It will be only a matter of time before a court 
issues an order that intimately intrudes on the Senate's powers. At 
this point, the Senate may very well refuse to comply. Such an impasse 
will be unresolvable. The Supreme Court may order the Senate to comply, 
but it is within the constitutional powers of the Senate to refuse. 
What is the compelling reason for passing a law that invites such a 
constitutional showdown, particularly when we have a workable system in 
place?


                           power of the board

  I have other concerns about this bill. It grants unprecedented 
plenary powers to a bicameral board. The Board will be the equivalent 
of the Equal Employment Opportunity Commission, the Labor Department, 
the Federal Labor Relations Authority, the Occupational Safety and 
Health Administration, and other Federal agencies with enforcement 
powers. It will have the authority to submit legislation, to interpret 
laws, to enforce the laws against the Senate, and against the offices 
of Senators. Never has this body granted so much authority over its 
operations and powers to an outside entity.


                 Administrative and practical problems

                         Collective bargaining

  Mr. President, this bill, as I understand it, delegated to the Office 
and the Board the power to decide a whole range of very complicated and 
potentially highly political questions with respect to the application 
of these statutes in particular circumstances in the Senate. Let me 
just give you a few examples of what we are giving this Board and its 
associated bureaucracy the authority to do.
  The bill extends the rights and protections of the Federal Service 
Labor Management Relations Act to the Congress. This is the law that 
provides for collective bargaining in the executive branch of the 
Federal Government. It should be noted that this statute is 
substantially different from the National Labor Relations Act, under 
which private sector employees collectively bargain and have the right 
to strike. When Congress applied collective bargaining laws to the 
executive branch, Congress recognized the distinctive character of that 
branch of the Federal Government and its functions. Thus, Federal 
employees do not have the right to strike. Nor can unions representing 
Federal employees bargain about wages. I would submit that the same 
concern for the special role and function of the Congress should 
warrant such full and careful consideration as well. Certainly we 
should not assume in a simpleminded way that the Congress is just like 
the executive branch or any other institution. But such a measured 
approach is not taken by this bill, in my judgment.


                     unfair labor practice examples

  Let me give some concrete examples of the kinds of policies that will 
be made by this Board in the area of collective bargaining. The Board 
will determine what an unfair labor practice is. And what is an unfair 
labor practice? Under the Federal Labor Relations Act and annotated 
case law, an unfair labor practice would include the following: Failure 
to bargain with the union over the effects of layoffs, moving offices 
from one location to another, reassigning duties of employees, hours of 
work and break time. Do not be fooled by the argument that most Senate 
employees will be exempt from these requirements. That is not obvious 
on its face. In fact, the way this law has been construed in the 
executive branch, the right to organize and bargain collectively covers 
all nonsupervisory employees with minor exceptions. Senators might ask 
themselves whether their legislative assistants are supervisory 
employees by any credible standard. How may we suppose the Board will 
decide?
  The Board also will define the scope of appropriate bargaining units. 
The questions here are even more significant from a institutional 
perspective:
  First, will the bargaining unit be confined to a single Senate 
office?
  Second, will it encompass all Senate offices? [[Page S637]] 
  Third, will it encompass all Senate and House offices?
  Fourth, will it include all employees with similar jobs in the 
Senate, in both Houses, or throughout the legislative branch?
  On all of these questions, the legislation is silent other than to 
say that the Board will make these decisions. Depending on the outcome, 
it could well be that we will have unions representing all legislative 
assistants and other classes of employees in the Senate--or in the 
Senate and House.
  Remember, to be recognized as a representative of the bargaining 
unit, the labor organization only has to win a majority of the votes. 
That means that if a majority of the legislative assistants in the 
Senate or in the House or in both Houses of Congress vote to have a 
union, then that union is the sole bargaining authority for all 
legislative assistants in the Senate or in the House or in both Houses 
of Congress. Senators will no longer have the ability to structure and 
manage their staffs consistent with the unique needs of the States 
which they represent without first consulting with union 
representatives. And who will bargain on behalf of management? 
Individual Senators? The Senate leadership? The joint congressional 
leadership? The Board will decide.


                   job classification and definition

  The Board and its bureaucracy also will serve, in effect, as the Wage 
and Hour Division of the Department of Labor. In that capacity, it will 
decide the following kinds of issues:
  First, which employees must be paid time-and-a-half for overtime;
  Second, what kinds of record keeping must offices maintain;
  Third, whether or not the Board and its bureaucracy has the right to 
inspect detailed payroll records;
  Fourth, what positions are comparable for purposes of the Equal Pay 
Act? Are the tasks performed by a legislative assistant who works for a 
rural Congressman the same as for a legislative assistant who works for 
a Senator from the most populous State, for example?
  These are important decisions which go to the heart of a Senator's 
ability to represent those who sent him to the Senate and should not be 
left to the unbridled discretion of an unelected and largely 
unaccountable Board and its bureaucracy.


                             funding issues

  And finally, Mr. President, there is the issue of cost. It is argued 
that a bicameral board and bureaucracy will somehow be more efficient 
and cost-effective. I frankly believe that such optimism is based on 
little more than a pious hope. If our experience with Government 
organizations shows us anything, it is that they tend to expand and to 
cost more than what is originally estimated. I have not the slightest 
doubt that the cost of this new bureaucracy, when all is said and done, 
will far exceed the expenses of operating the Senate Office of Fair 
Employment Practices. The annual operating cost of the Office of Senate 
Fair Employment Practices is approximately $800,000. The bureaucracy 
envisioned in this bill will inevitably be several times as large and 
correspondingly more expensive to the taxpayers. For example, section 
302 of the bill empowers the Board to appoint an executive director; 
two deputy executive directors; a general counsel; as many additional 
attorneys as may be necessary to enable the general counsel to perform 
his duties; such other additional staff, including hearing officers as 
may be necessary; and, the executive director may procure the temporary 
or intermittent services of consultants.

  But even if costs were not an issue, even if for the purposes of 
argument one assumes that this office would achieve administrative 
efficiency, there is a larger question. At what point do we bend to the 
political demagoguery of the day and at what price does the Senate 
surrender its constitutional right of self-governance and its 
independence from the executive and judicial branches and from the 
House of Representatives?
  One final point about funding, Mr. President. Under this legislation, 
the director of this new bicameral bureaucracy can hire as many staff, 
consultants, and inspectors as he wants. Elected representatives, both 
Members of the House and Senators, will be without authority to review, 
control, modify, or change any of these financial arrangements entered 
into on the sole authority of the director.
  It is highly irregular to empower the head of a new agency to create 
its organization and establish its budget without specific 
authorization and appropriation. Under section 305, one will find the 
following language:

       Until sums are first appropriated pursuant to the preceding 
     sentence, but for a period not exceeding 12 months following 
     the date of the enactment of this Act--
       (1) one-half of the expenses of the Office shall be paid 
     from funds appropriated for allowances and expenses of the 
     House of Representatives, and
       (2) one-half of the expenses of the Office shall be paid 
     from funds appropriated for allowances and expenses of the 
     Senate, upon vouchers approved by the Executive Director.

  The Appropriations Committee will thus be faced with a staff which is 
already in place, with a salary structure that has already been 
determined, with expenses already obligated and a very difficult 
political situation.
  This blank check on the Treasury of the United States is something, 
Mr. President, that no member of the Appropriations Committee and, 
indeed, no Member of the Senate should condone. The American people 
should understand that they are the ones who will be paying the bills 
for this new bureaucracy; for paying time-and-a-half to congressional 
employees; and for hiring all of these new attorneys, hearing officers, 
and consultants. Here is another example of the rhetoric of the day not 
matching the actions of Senators. The rhetoric is--Let us make Congress 
live by the laws it passes for everyone else. The action being taken 
will result in costing American taxpayers millions of dollars and the 
creation of a brand new bureaucracy.
  The exemption from some laws has facilitated the Member's ability to 
serve his constituents and to do the business of the Nation. The Hill 
is not a 9-to-5 operation. The Nation's business cannot be confined to 
normal business hours. Constituent problems do not always occur 
conveniently within the confines of a normal business day. In order to 
provide maximum service to our Nation and to the people we represent, 
we ask our staffs to work long and arduous hours, and we ask them to 
view their work as public service. Surely this ability to serve will be 
somewhat compromised if we apply certain of these laws to employees of 
the Senate and the House. Certainly the cost of providing present 
services will go up under the requirement that we must pay overtime. 
Every year we hear complaints about the cost of the legislative branch, 
and we have repeated efforts to cut the budget of the legislative 
branch.

  I wonder what the folks at the town meetings would say if after the 
cheering stopped, a Senator would explain that bringing the Hill into 
compliance with certain laws would mean lessened services to the 
taxpayer at a substantially greater cost. We will all comply with these 
laws in our offices, but you, the taxpayer, will get less rapid 
attention to your needs, and you will have to foot the bill for this 
poorer service.
  I am not at all sure that the cheering would continue. I am not at 
all sure that the cry for bringing the Hill into compliance with all of 
these laws would be so popular if the public understood what taking 
that step would mean in terms of their needs, the services they have a 
right to expect to receive, and their pocketbooks. But, that is the age 
in which we live. Anything that sounds good on the surface, we rush to 
do. Anything which the talk show jockeys can whip up the public about 
becomes the basis for legislation. Never mind whether or not it is 
really in the public interest. Just enact something to quiet the latest 
fad criticism and move on.
  Well, I cannot and I will not support a measure which will likely 
have the effect of shortchanging my constituents in terms of the 
services my office can provide and which then asks the shortchanged 
taxpayer to foot the bill.
  I congratulate Senator Glenn, who has spent many weeks and months of 
hard work in the effort to bring this bill to the floor and to improve 
upon it. And I also compliment his counterpart, Mr. Grassley, for his 
interest and dedication to the legislation. I have made this statement 
in keeping with my own views, after the experience of working on this 
Hill, now, for almost 43 [[Page S638]] years. My staff and I have 
always felt that in taking on this job and in taking on the jobs as 
employees in my office, that we are here to render a public service and 
we have never felt that this was a 9-to-5 operation. I have always 
attempted to pay my employees in accordance with their merits and to 
pay them well and to be liberal in leave time. And we have never felt, 
anybody on my staff--and I have attempted to set the example for them, 
that we do not work from 9 to 5. We work until the job is done. If it 
takes longer we stay here longer because we are in the service of the 
public. And I do not find fault with others who feel otherwise about 
it. And there is much good, I am sure, to be achieved in passage of the 
legislation in many ways. But I have outlined the reasons why I will 
not vote for it.
  As I stated in the beginning, I anticipate that I may be the only one 
who feels this way about it. I do not come here expecting to persuade 
anyone else. My feelings are based on my own experience and on my own 
knowledge of the problems that we confront here and I do not seek to 
disparage the viewpoints of others who may want to disagree with me.
  Mr. President, if I have any time remaining I yield it back and I 
suggest the absence of a quorum.
  Mr. President, I withhold the suggestion.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER (Mr. Grams). The Senator from Ohio is 
recognized.
  Mr. GLENN. Mr. President, Senator Byrd, in his experience here as 
majority leader, minority leader, repeat majority leader and so on, has 
an experience level in this body that no one can match. And when he 
rises and expresses his concerns about things it is of great importance 
to us because he has studied these things and no one is a greater 
constitutional scholar on what is provided for, for the Senate and the 
House, the separation of powers, and making certain that the balance of 
powers within our form of government remains intact and protected. When 
he rises to oppose this legislation it is of particular concern to me 
and I want to just address a couple of the items very briefly here. I 
do not want to get into a big debate on this.
  I would say we have passed, through the years, much legislation that 
applies all across this country. We did that in the assumption that 
what we were doing was right. It was right to apply certain protections 
of workplace conditions and of how people were dealt with out there on 
safety in the workplace and on wages and conditions of employment and 
so on. And we applied them all across this land. Some of the arguments 
the distinguished Senator from West Virginia makes are the same 
arguments that businessmen across this country have made. They feel 
they are treating their employees fairly. Yet we impose laws upon them.
  We are not without being justifiably criticized, sometimes, here on 
Capitol Hill. I remember some newspaper articles just a couple of years 
ago of some of the working conditions in the Government Printing 
Office. That is an instrumentality of the Congress. They were 
atrocious. They did not even come close to passing safety and OSHA 
regulations that we apply all across the country to every other 
printing plant and every business across this country. So I would just 
say if it is right that we impose these laws on other businesses across 
this country, is it not also right that we apply those for the 
protection of our own employees here on Capitol Hill?
  At the same time, I know everyone relates to the situation in his or 
her own office. What is going to happen in our office on this? Let me 
say we provide in this legislation that employees who are employed in a 
``bona fide executive, administrative or professional capacity are not 
covered by the minimum wage and maximum hours provision.'' That means, 
then, that the people who are covered are basically clerical people, 
people like that in our offices. We can say that even they are required 
sometimes to work irregular hours. And that is true, they are, just as 
out in the private industry sometimes people who are temporary 
employees or something are required to work very irregular hours. Where 
that is a norm for the conditions of employment in private industry, 
they can make an appeal from that and get relief from the requirements 
of the law. That is done on a regular basis by those who have their 
employees working very irregular hours.
  The same way here on Capitol Hill, that would be the province of the 
board, to issue regulations like that right here if we wish to be 
exempted from that. If we did not, if our clerical personnel, for 
instance, and those who normally out in industry would be working a 
regular shift, say--if they are not exempted by the board then I would 
say we are treating ourselves, then, just like everybody else in the 
country. If a person out there running a business has some irregular 
working hours and applies for relief from that so he does not have to 
comply with certain regulations, then I think we would do the same 
thing here. If we find it is not working right we would appeal to the 
board. In other words, the board would be the authority here. Just as 
there is an appeals process out there in private industry, we would 
have our own appeals process here.
  But I want to point out that bona fide executive, administrative or 
professional capacity--they are not covered by these minimum wage or 
maximum hour provisions. That would cover our LA's, our legislative 
assistants, who would be considered as professionals. As far as the 
right to strike, that is prohibited here. I was looking up the 
language--I did not get it--just before I took the floor. But that is 
prohibited as it is in other Government activities also.
  I would say all we tried to do in this, after all these years of 
having this objection about the separation of powers--and that is a 
very real one, and has been a problem for me all those years, too, as 
it has for my distinguished colleague from West Virginia. He was one 
who rose many years ago on the floor here and was very concerned about 
the separation of powers. He brought some of this up a long time ago, 
and rightly so, because we should not be giving away authority, back 
and forth, here. So what we did, instead of having the executive branch 
have the authority to just say, ``OK, we are going up on Capitol Hill 
and we are going to run a check on OSHA considerations and we are going 
to do it on our own and we will enforce it by law''--that gets into a 
very sticky area, as the Senator from West Virginia knows. And it has 
been one of his main complaints about this.
  We set up this Office of Compliance which will set rules that are 
appropriate to the unique operations of the Congress. They will have 
considerable authority. But we will have the appeals process, also.
  Another area of the board's authority that I think may be 
misunderstood, and I want to clarify also, is most of the rules for the 
Congress could probably be approved once the board sees them. The rules 
and regulations will have to come back for approval. I think most of 
those can be a joint resolution that applies to both the House and the 
Senate, probably most of it. If there are requirements, though, for one 
body or the other to treat itself differently because of the different 
operation of the House and Senate, then those rules have to be approved 
by each House regarding their own operations. And if we would deem it 
necessary here in the Senate to say our operation here is unique to the 
House and we think the rule here should be applied in a different way 
and we passed that, and the House passed a different resolution with 
regard to their operations, then the board would administer those rules 
for that body according to what that body approved for itself. The 
Senate rules that applied that the board would administer might not be 
the same rules of the House as it applies to them. But the board would 
be administering the rules as approved by each body for its own 
operations. I was not sure that was clearly understood.
  So it gives us the maximum flexibility, I think, and gives us 
protection for the unique nature of congressional operations, both the 
House and the Senate, and allows for the peculiar nature of and the 
unique nature of the activities of both the House and the Senate.
  So we try to foresee these things. We may not have done a perfect job 
on it. Senator Grassley and Senator Lieberman put the bill in last 
year. We worked together on this. But I think I fairly described how 
this whole thing [[Page S639]] would operate. I do not know if Senator 
Grassley wants to add anything or not. But that should clarify some of 
the concerns of my distinguished colleague.
  I yield the floor.
  Mr. BYRD. Mr. President, I thank the distinguished Senator from Ohio 
for his consideration of some of the concerns I have expressed and for 
his explanation.
  I have absolutely no doubt whatsoever as to his sincerity and his 
conscientiousness and his dedication to doing the right thing for and 
by everyone concerned. As I stated in the beginning, I guess I see this 
through the perspective of having managed an office here on the Hill 
for going on 43 years. And I do not expect any other Members of this 
body to agree with me on this. But I do thank the Senator. I salute him 
for his dedication and for his tenacity in working as long as he has to 
bring this legislation to the Senate. This is something that he feels 
strongly about and I think I heard him speak about many times, even in 
our party conferences.
  So I do not for one moment feel that what I think about the 
legislation is necessarily right. I approach things, generally 
speaking, feeling that I can be wrong. But it is pretty hard after 43 
years to share a viewpoint that is different from the one that has 
worked very well, I think, in my office over the years. But I admire 
the Senator. I like him and am very fond of him.
  I hope he will understand that I come to the floor not to engage in a 
crusade against this bill or to persuade another mind. I simply wanted 
to state my own views, and that is it. On the next question, I hope we 
can be together.
  I yield the floor, Mr. President.
  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. Mr. President, without repeating what my good friend 
from Ohio, Senator Glenn, had to say about our respect in this body for 
the views of Senator Byrd, I would just simply say that I associate 
myself very much with the remarks of Senator Glenn. I would like to 
make some commentary on the issues raised by the distinguished Senator 
from West Virginia and follow along on what the Senator from Ohio has 
said. Our intent as we approach the writing of this legislation is to 
be very cognizant of the separation of powers and constitutional 
arguments that can be made.
  One of the first points that was made is that these laws already 
apply to Congress, or at least some of these laws apply to Congress. As 
to those that do not apply to Congress, Senators have a responsibility 
to make a conscientious effort to make sure that the principles of the 
law are applied out of a matter of fairness to those employees that are 
working for Congress as an institution or working for individual 
Senators.
  The laws that now apply to Congress do so in a way that is, in a 
sense, in name only. I have been involved with the application of some 
of these laws because I had what I considered a major victory at the 
time to get civil rights laws applied to Congress in the fall of 1991. 
But the remedies that we provided were not the same remedies for Hill 
employees that private-sector employees have.
  So I say that the law applies kind of in name only. It is on paper. 
But the absence of the identical remedy for employees of Capitol Hill 
makes current coverage inadequate.
  The agency that we set up here, the Office of Compliance, is a single 
agency that does not make policy for the two houses of Congress. No 
rule can be adopted without the concurrence of the membership of the 
body to whom the rule applies, and there is no infringement upon the 
independence of the Senate on the one hand, the independence of the 
House on the other hand, or the constitutional principle that each 
House can adopt its own rules.
  There is a separation of powers. But constitutional analysis is not 
so general as to say that the Supreme Court will decide a case based 
upon an argument that the separation of powers has been violated. The 
claim must be more specific than that.
  In the case law, the Supreme Court refuses to strike down legislation 
on the broad argument that it somehow violates constitutional 
separation of powers. Specific constitutional provisions must be cited, 
notwithstanding the novelty of the arrangement that we have set up in 
this legislation. The Supreme Court's decision upholding the 
constitutionality of the Sentencing Commission and the independent 
counsel--these have been court cases within the last 5 or 6 years--
demonstrates this point.
  In my opening statement, I mentioned that executive branch employees 
have some of the same rights that we want to now give to Hill employees 
under existing legislation we have already applied to the private 
sector.
  Well, when an executive branch employee's rights are in question, 
these rights are protected by the judicial branch. It is as simple as 
this: no one has ever found judicial enforcement of the rights of 
executive branch employees to be unconstitutional. So my good friend, 
who spoke eloquently on this point, said that the judicial branch 
should not enforce a decision against a Member of Congress or Congress 
as an institution because it violates separation of powers. Nobody 
raises that argument when the judicial branch enforces an executive 
branch employee's right under existing law; so why should that be a 
problem for applying those laws to us? An independent, impartial 
person, or the institution of the judiciary protects the rights of 
executive branch employees. No one questions this.
  And there has never been an impasse between the executive branch and 
the judiciary when any of these cases has been decided. When President 
Nixon was ordered to comply with a court decision during Watergate, 
pure and simple, he did. If the President of the United States can obey 
a judge's decision saying that the most powerful executive in the 
entire world must obey a court order, then why would we as individual 
Members of Congress have any question whatsoever if we have done 
something wrong and the independent judiciary or any one of its judges 
made a decision and issued an order enforced upon a Member of Congress.
  The only way, then, that there could be an impasse between Congress 
and the judiciary is if Congress refused to comply with the Court order 
interpreting the Constitution. It is one thing for opponents of this 
legislation to argue that Congress should be above the law, and, of 
course, I disagree with that; but it is breathtaking to argue that 
Congress should be above the Constitution.
  The board's determinations regarding bargaining units and covered 
employees under collective bargaining and overtime will not take effect 
until Members of Congress themselves approve the regulations. And I 
have faith that for all the reasons that have been expressed by the 
Senator from West Virginia that Congress is different, long hours are 
expected, that when we deal with these regulations, my colleagues will 
act to preserve their constitutional responsibilities. The board is 
unelected, but the board that governs the Office of Compliance that 
will write the regulations is not unaccountable, and it is not 
uncontrollable.
  The bill addresses separation of powers as well, by providing for 
legislative branch, rather than executive branch enforcement. The bill 
was crafted to take into account constitutional issues, and I believe 
the courts would permit Congress to exercise these powers against its 
own activities. Moreover, the bill expressly prevents waiver of any 
congressional prerogative.
  One last point that I want to make is that there was reference to the 
Browning case, decided by the D.C. circuit in 1986. That was a case 
where there was a discharge of an official reporter at the House of 
Representatives, and it was challenged by that reporter. The Court held 
the congressional defendant to be immune under the speech and debate 
clause. The standard was ``whether the employee's duties were directly 
related to the due functioning of the legislative process,'' and ``if 
the employee's duties are such that they are directly assisting Members 
of Congress in the discharge of their functions, personnel decisions 
affecting them are legislative and shielded from judicial scrutiny.''
  If Members heard during the previous speeches that Browning may 
effect what we can do here on congressional coverage to protect our 
employees because they might be an extension of our legislative duties, 
under the speech and debate clause, you should observe that the Supreme 
Court, 2 years later, [[Page S640]] in 1988, issued an opinion that 
requires Browning to be revisited. And here the Court was deciding what 
is referred to as the Forrester case. This case unanimously held that a 
State court judge did not have judicial immunity in a suit for damages 
brought by a probation officer whom that judge had fired. The Court 
explained that in determining whether immunity attaches to a particular 
official action, it applied a--this is their words--``functional 
approach.'' And then, ``Under that approach we examine the nature of 
the functions with which a particular official or class of officials 
has been lawfully entrusted, and we seek to evaluate the effect and 
exposure that particular forms of liability would have on the 
appropriate exercise of those functions. Officials who seek exemption 
from personal liability have the burden of showing that such an 
exemption is justified by overriding considerations of public policy.''
  Thus, it is ``the nature of the function performed, not the identity 
of the actor who performed it, that informs our immunity analysis.''
  So you can see that in Forrester, the Supreme Court is telling us 
that the Browning decision is not as compelling as it was for the 2 
years before the Forrester case came before the Supreme Court.
  I yield the floor.
  Mr. FORD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. FORD. Mr. President, everything sounds so good, it is almost hard 
to believe it. The general public out there believes that we are 
applying the same rules to our own institution as we apply to them. 
That is not true. That is not true. In the Americans With Disabilities 
Act, for instance, we excluded title II. We hear this rhetoric that we 
put that in. We excluded title II. Title II is buildings and 
transportation. You wait until we have to change the other subway. That 
is fine, but the last one cost $16 million. I wonder what the others 
are going to cost. That is not coming out of my pocket or the Senator's 
pocket; it is coming out of the taxpayer's pocket.
  The congressional exemptions in the statutes as provided by this bill 
will do a lot of things. If the same laws are applied to Congress as to 
the private sector, the statutory provisions must be the same. The 
statutory provisions are not the same. The remedies available to 
employees must be the same, the regulations must be the same, and the 
provisions for judicial enforcement and review must be the same as it 
applies to the private sector. But, no, we do not do that.
  We do not do that. No, we do not.
  The Republican bill creates a special agency, creates a special 
agency, to enforce selective provisions of law to the Congress. We set 
up a special agency. We do not just say that the provisions that apply 
to the small employer down there, the small businessman, will apply to 
us. We do not do that.
  Under the bill, Congress will have its own special regulations. We 
set up our own special regulations. Separation of powers, sure. But we 
are out there telling our general public, our constituents, that we are 
going to apply the same thing to us as we apply to them. Now, I may 
vote for the bill, but I am going to tell you one thing, I want the 
general public to know what we are doing and what we are not doing.
  Congress will have its own special regulations that may vary for each 
House. We may not have the same provisions in the Senate as they have 
in the House. It will vary between the House and the Senate, its own 
rules of procedure, not what the general public has--its own agency 
with its own inspectors with its own staff with its own general counsel 
with its own executive director and its own board. Now, you know, the 
general public out there does not have all that as we are setting up 
for ourselves.
  The law will not result in Congress being subjected to the same laws 
that apply to the private sector. It is a continuation of special 
treatment of Congress by Congress. Any rose should smell so sweet.
  The repeal of the exemption for Congress in the various civil rights 
and labor statutes would be the fulfillment of what the Republicans 
really promised by the Democrats. We would be holding them to their 
promise, not to their slogans.
  So when you get right down to it, it is very simple. You just say all 
the statutes that apply to the business people out there apply to us. 
That is very simple. But, no, we are making it complicated. We excluded 
the Members of the Senate and the Members of the House. We are giving 
the Senate and the House the opportunity to set up different rules, and 
the expense is going to be tremendous.
  Impact on confidentiality: The bill provides its office proceedings, 
including hearings before a hearing officer and before the board on 
appeal, will be confidential. It would permit public release only of 
the hearing officer's or board's decision, provided the complainant's 
name had been redacted. However, trial de novo will likely become the 
more popular avenue for the employee to pursue. A trial is usually not 
confidential and the parties would be named in the complaint.
  Just a lot of things that we are doing here.
  The bill requires the office to develop a system for the collection 
of demographic data respecting the composition of congressional 
employees, including race, sex, wages and a system for the collection 
of information on employment practices, including family leave and 
flexible work hours, and report annually to Congress on the information 
collected under such system.
  How many employers out there have that done for them? How many?
  And so we are saying we are applying the same laws to Congress that 
we are applying to our constituents. Not true. Not true. You can say 
what you want to, get up here and make all these grandiose statements 
for 30-second sound bites, but when you get down to it and you read the 
bill, we are taking care of Congress. We are giving immunity to 
Congress. The immunity is there. Self-enforcement has not worked very 
well. And that is what is happening here. Self-enforcement is what is 
happening here and it has not worked very good.
  Two years ago, Congress passed legislation to extend coverage of 
several employment discrimination laws to the Senate. A Fair Employment 
Practices Office was established and employees were promised fair 
treatment. It was certainly an intent of these actions to provide some 
protection against arbitrary employment decisions to employees of the 
Senate. With this change in the majority, we have had employees that 
were within a few weeks of retiring, few months of retiring, and 
nondesignated employees--they were not Democrat or Republican, 
Independent or otherwise, they were professionals--the professionals 
were fired so you could hire some more designated. We will see 
employees terminated for the sake of termination.
  And we are going to have a lot of cases, a lot of cases, when you 
fire a professional that is there because he is a professional, not 
because he is a Republican or Democrat or an Independent, whatever he 
might be. Is this action consistent with the intent of this 
legislation?
  If the same laws are to apply to Congress and to the private sector, 
the statutory provisions must be the same. The enforcement agency must 
be the same, the remedies available to employees must be the same, the 
regulations must be the same, and the provisions for judicial 
enforcement and review must be the same as applied to the private 
sector. But, no, Congress is being good to itself again. Congress is 
being good to itself again. We are given immunity.
  So, Mr. President, I hope that we will look at what is coming down 
the pike. And I think it is appropriate. But let us not fool the 
general public. Let us not say we are applying the same laws to 
Congress that we have applied to them, because we are not.
  We will get in the argument about separation of powers and all this 
sort of thing. But then that is an argument where you can take care of 
yourselves.
  Eight-thousand employees are now serving in the Senate. We will go to 
approximately 24,000 employees that will be covered; counseling up to 
30 days; mediation, 30 or more; inspections for OSHA and ADA, title II. 
You hear we have put ADA, we have applied that to the Senate. We have 
not.
  Investigation and initiation of charges: In addition to Senate OFEP 
[[Page S641]] staff above, the bill requires a five-person hearing 
board and two, House and Senate, deputy directors. We do not need all 
those. Just eliminate the statutes' exemptions for us and let the 
statutes apply to us.
  So I will have more to say on this, I guess, before we get through. 
But I just want to be sure that people understand that we are not 
applying the same laws that we apply to our constituents to the 
Congress. I hope that there will be an admission that we are not doing 
that.
  We are doing more than we have been. I have been for it for a long 
time. I got the Fair Employment Practices Office set up. Who had the 
responsibility of that? That is a $900,000 annual budget. We have had 
several cases we have settled. All those things have been transpiring. 
And wonder who paid for that? The taxpayers paid an additional 
$900,000, plus whatever the costs were. And whatever happens in this 
instance, the taxpayers are going to pay for it. We have immuned 
ourselves. Confidentiality is there. All of that.
  And so, I hope those that who are listening understand that what we 
are doing is in the right direction, but it is not what we are saying 
we are doing. We are doing something far different.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum, Mr. President.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Coverdell). Without objection, it is so 
ordered.
  Mr. McCONNELL. Mr. President, what is the pending business?
  The PRESIDING OFFICER. The pending business is S. 2.
  Mr. McCONNELL. Is there a pending amendment, Mr. President?
  The Ford amendment?
  The PRESIDING OFFICER. It is the Ford amendment No. 4 to S. 2.


                            Amendment No. 8

     (Purpose: To modify amendment No. 4 to S. 2 to clarify Senate 
            regulations on the use of frequent flier miles)

  Mr. McCONNELL. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Kentucky [Mr. McConnell] proposes an 
     amendment numbered 8 to the Ford amendment.

  Mr. McCONNELL. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  Mr. FORD. I object.
  The PRESIDING OFFICER. There is an objection. The clerk will report.
  The legislative clerk read as follows:

       1. On line 7 of the first page, strike from paragraph (a): 
     ``or House of Representatives'';
       2. On line 10 of the first page, strike from paragraph (b): 
     ``Committee on House Oversight of the House of 
     Representatives and the'';
       3. On line 9 of the second page, strike from subparagraph 
     (2) of paragraph (c): ``the House of Representatives and'';
       4. On line 8 of the first page, strike from paragraph (a): 
     ``Government'' and substitute ``office for which the travel 
     was performed''.

  Mr. McCONNELL. Mr. President, my friend and colleague from Kentucky 
has offered an amendment which as it relates to the Senate codifies 
existing policy. It is not possible, it is my understanding, under 
Senate rules, for a Member of the Senate to convert frequent flier 
mileage acquired as a result of Government travel to personal use.
  So, Mr. President, my assumption is that the amendment is designed to 
establish such a policy for the other body, and it is my view, and I 
think the Senator from Kentucky might--he can speak for himself--have 
objected to the House passing a Senate rule when he was chairman of the 
Rules Committee. Maybe he would not have. But it is my view that since 
the Senate has already curbed this problem--I am not sure exactly when 
the rule was adopted--it would be best that we not use this vehicle 
that Senator Grassley and Senator Lieberman have been working so hard 
on to impose a standard on the House that it may well adopt for itself 
at a time of its own choosing.
  But this issue of the use of frequent flier miles acquired as a 
result of the expenditure of taxpayers' dollars to provide travel for 
Senators going back and forth to their States has long since been 
solved. It is not a problem in the Senate.
  One concern I do have about the particular crafting of the amendment 
by my friend and colleague from Kentucky is that I gather the money 
saved by his amendment would accrue to ``the Government.'' Under the 
current system, it is my understanding that the frequent flier mileage 
accrued goes to the office of the Senator; it is assigned to that 
particular office and then, of course, can be used to defray travel for 
the Senator back and forth to his State, thereby saving the taxpayers 
money.
  So it seems to me better if we continue the policy of allowing the 
Senator to accumulate these miles for his own Government travel back 
and forth to his State, thereby saving taxpayers money for that 
particular office.
  That is essentially my point, Mr. President, in offering this second-
degree amendment. It is to simply limit the operation to the Senate, 
because basically that is already our policy, and to refrain from 
seeking to establish this standard for the House because I think they 
are not likely to take kindly to our advice about how they ought to 
handle this matter.
  Let me just briefly go over a short statement here that outlines what 
I have said extemporaneously.
  The Senate abides by travel regulations promulgated by the Senate 
Rules Committee. These travel regulations prohibit using frequent flier 
miles accrued from official business for personal use. They do allow 
the office which accrued the miles to use them for additional travel. 
Thus, the Senate regulations save the taxpayers money by allowing 
Senators to use accrued frequent flier miles to fly back and forth to 
our respective States.
  To the extent that the Ford amendment codifies existing Senate 
policy, I would argue that it is probably not necessary because that is 
already our policy. But a consequence of the amendment of my friend may 
be that the frequent flier miles would be wasted and unusable.
  Under our current regulations, as I just outlined earlier, bonus 
miles accrue to the office that pays for the ticket. That office may 
then use the accrued miles for additional official travel.
  The amendment of my colleague would have the miles accrued to ``the 
Government.'' The airlines, as I understand it, do not allow the 
pooling of bonus miles, not by private citizens and not by Government 
agencies. So if an office with accrued miles must turn them over to 
``the Government,'' those miles would in all likelihood be lost. The 
result would be an increase potentially in the cost of Government to 
the taxpayers.
  Finally, just let me reiterate what I said earlier, that I hope we 
would not try to impose our longstanding rule on the House. It seems to 
me that they are not likely to respond to that kindly and may well deal 
with this issue at a time of their choosing.
  Mr. President, I yield the floor.
  Mr. FORD addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Kentucky.
  Mr. FORD. The other Senator.
  Mr. President, I think my colleague, Senator McConnell, has a very 
weak argument. What he is saying is let the House continue to take 
their frequent flier mileage and use it personally; take your wife and 
family to Europe on a nice trip, or go out to California on miles 
earned by official expense.
  That is number one. Number two, the House says they are going to do 
this. Fine. I listened very closely to our majority leader, Senator 
Dole, when he said this bill, in all probability, will be accepted by 
the House and we will not have to go to conference. So if this 
amendment is not included in S. 2, then the House will continue for a 
period of time being able to use their frequent flier miles for 
personal use. And I do not think the taxpayers want to do that.
  And, if we approve this modification, or amendment, that my colleague 
has submitted, then the purpose of Senator Feingold and I is just moot. 
There is no need of having the amendment, since the Senate already has 
its rule. I would prefer to keep it in. But nevertheless--and I am 
aware of the usual [[Page S642]] practice that each House not legislate 
with regard to the operations of the other House. While this 
understanding is generally, and I underscore generally, honored, there 
have been a number of circumstances where it has not.
  One recent major incident, and I underscore major, was the House 
insistence that the Senate official office accounts--if you remember 
that, we are just getting over that, we are just getting over that--
that the Senate official office accounts be modified by adoption of 
restrictive language in the Legislative Branch Appropriations Act of 
1991. That, in effect, was a major implementation of new rules by the 
House on the Senate. That change affected every Member of the Senate, 
and required the adoption of an extensive interpretive ruling by the 
Senate Ethics Committee, which my colleague should know plenty about 
since he is on the Ethics Committee.
  The net effect of the amendment that deletes the House from this 
amendment is to permit the House Members to continue to convert 
frequent flier awards earned with taxpayers' money to personal use. Is 
this the congressional accountability that we talked about? It would be 
the only unit of Government that is allowed to do that. The executive 
does not allow it. The Senate does not allow it. But the House flies 
anywhere they want to on the perks from taxpayers' dollars. I 
understand you want to let the House go ahead and do it. It seems to me 
that if we want to be accountable here--sure we use, on our side in the 
Senate, those miles that are compiled from official trips back home to 
have more trips or to reduce the cost of our offices. It is pretty 
good, $300 or $400 a round trip, two or three trips, save $1,000; save 
$100,000 in the Senate. It begins to mount up. So the House, with 435 
over there, it would be $435,000 that you would get back. You know, 
just a little bit.
  So I would say to my friend that if this bill is going to become 
law--as I understand the majority leader insists that it will, if we do 
not amend it too much--just to put this in the bill, I do not think the 
House will vote against it just because we say to them they cannot use 
taxpayers' dollars for personal use. If you want to vote for that, let 
the House use it for personal use, you are going to get an opportunity, 
probably tomorrow afternoon around 2:15, or 2:30. But this amendment 
would modify the amendment I proposed with Senator Feingold by deleting 
the reference to the House of Representatives, and the proposal is just 
not acceptable. I urge my colleagues to oppose it.
  I yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Kentucky.
  Mr. McCONNELL. Mr. President, I want to make it clear it is not the 
view of this Senator that this vote on the second-degree amendment I 
have offered is in any way condoning of the use of frequent flier miles 
for private use--private use of frequent flier miles acquired as a 
result of Government travel. That is certainly not my view. It is not 
the view of the Senate. And the vote on the amendment I offered will be 
solely on the issue of whether or not the Senate ought to be making 
rules for the House. That is my view. I guess reasonable people can 
differ about that.
  But in no way could a vote for the second-degree amendment I have 
offered be construed as condoning the policy that the Senate does not 
have. We have not had this for quite some time. So I personally 
certainly do not support the use of frequent flier miles accrued as a 
result of Government travel for private use. I know my friend from 
Kentucky was not implying that. But it is also my view that a vote for 
this second-degree amendment is not a vote to condone the use of 
frequent flier miles acquired as a result of Government travel for 
private use.
  I will yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Ohio.
  Mr. GLENN. Mr. President, what our distinguished colleague from 
Kentucky, Senator Ford, is trying to do here is say if the Government 
pays the bills and there is a rebate of some kind, the Government 
should get the benefit, not the individual. It is that simple.
  For the life of me, I do not see how anyone can argue against that, 
particularly people elected over in the House now who are supposed to 
be cleaning up Government and all that sort of thing. In other words, 
right now over in the House the more you travel, the more trips you can 
generate back and forth, the more you personally gained for you and 
your family in free travel paid for by the taxpayers. How anybody can 
justify that I do not know. I realize the House sets their own rules 
and we apply our own rules but I submit to my distinguished colleague, 
Senator McConnell, we have had rules applied back and forth between the 
branches from time to time in the past. I think there are lots of 
examples of that.
  I see this as almost a maximum personal perk. How can you have a more 
personal perk than all your travel back and forth between here and the 
west coast? You travel many, many, many thousands of miles. Or Hawaii, 
the Senators from out there, you build up a bundle of credit that over 
in the House they can use for personal family travel. They can take a 
trip around the world if they build enough of it up, at taxpayers' 
expense. I just do not see how anybody can justify that, that 
Government-paid-for tickets, with a rebate coming back, that rebate 
should not go to the Government that paid for it. That goes back to the 
taxpayers who paid for it to begin with. I do not think this thing of 
having the House determine its own rules--we have made rules back and 
forth that applied to different Houses in the past.
  I will at the appropriate time, probably tomorrow morning, since we 
have just discussed this a short time ago, but I will probably have an 
amendment after we dispose of this one that would ask the GSA, the 
General Services Administration, that supervises the travel, that they 
negotiate with the airlines to include a frequent flier mile reduction 
in the original cost of the tickets. Why should that not inure to the 
Government going in? We should not argue about who gets the benefits of 
kickbacks later on, on frequent flier miles, but say if there is a 
reduced cost to the Government beyond the normal Government-reduced 
price, Government rate, for frequent flier miles in addition to 
Government-reduced rates, apply those frequent flier reductions in the 
original cost of the ticket. It seems to me that is very simple and 
solves the whole problem. So I will introduce that tomorrow at the 
appropriate time. But I rise in strong support of the proposal of 
Senator Ford.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Iowa.


                      Unanimous-Consent Agreement

  Mr. GRASSLEY. Mr. President, first I want to make a unanimous-consent 
request. I am doing it for the Republican leadership and it is my 
understanding it has been approved by the Democratic side of the aisle.
  Mr. President, I ask unanimous consent that at 2:15 on Tuesday, 
January 10, the Senate proceed to vote on the McConnell second-degree 
amendment to the Ford amendment.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. GRASSLEY. Mr. President, I now ask for the yeas and nays on the 
McConnell amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Kentucky.
  Mr. FORD. Mr. President, I want to clear up one item with my 
colleague as it relates to his interpretation of whether it belongs to 
the Government or to the office. Under the rules of the Senate, and 
legislative counsel advised us to draft the amendment that way, it 
says:

       Discount coupons, frequent flier mileage, or other evidence 
     of reduced fares obtained on official travel shall be turned 
     in to the office for which the travel was performed so that 
     they may be utilized for future official travel. This 
     regulation is predicated upon the general Government policy 
     that all promotional materials such as bonus flights, reduced 
     fare coupons, cash, merchandise, gifts, credits toward future 
     free or reduced cost of services or goods earned as a result 
     of trips paid by appropriated funds, are the property of the 
     Government and may not be retained by the traveler for 
     personal use.

  [[Page S643]] So, it is the Government money but it is returned to 
the office. So the language in the amendment is there based on the 
rules of the Senate, and they would apply as a result of this 
amendment.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I rise in support of the amendment 
offered by Senator McConnell, the junior Senator from Kentucky. Just 
last week, this body overwhelmingly rejected an attempt to change the 
filibuster rules. We did that for a very important reason. We believe 
that it is an integral part of the functioning of this body within our 
constitutional system to protect minority interests and minority points 
of view in debate and consideration of legislation. So we decided to 
maintain a historic Senate rule, and we voted for recognition of our 
uniqueness when we did that. The House of Representatives and the 
Senate are two distinctly different bodies. They are entitled to adopt 
different rules, and one House should not dictate the rules of the 
other.
  The underlying bill before us, S. 2, recognizes this principle. The 
underlying bill, as Senator Lieberman and I have introduced it, sets up 
different rules for the House and the Senate so long as those rules do 
not infringe upon the statutory and regulatory rights of employees of 
Congress and the individual offices within Congress.
  So no amendment should be offered, including the amendment by the 
senior Senator from Kentucky, that tells the other body what it must do 
in an area unrelated to the provisions of this bill. Under the second-
degree amendment, Senators would be barred from converting frequent 
flyer miles earned on official business to personal use. That happens 
to be the existing rule in the Senate. I think the point has been very 
clearly made, that none of the 100 Senators may use frequent flyer 
miles for anything but official business.
  It is all right to make our Senate rule into legislation, and, if 
Senator McConnell's amendment is adopted, that is what we will be 
doing. We will be putting in statute language that is already a rule of 
the Senate. But we should let the House make its own rule in this 
regard. The other body is currently studying the treatment of frequent 
flyer miles in the private sector. They will want to conform their 
rules to the existing prevalent practice, and we should allow the other 
body to proceed on that course. I do not think there is any doubt but 
what they will be dealing with this as they know they should deal with 
it, as they dealt with it last August. Then, it did not get through in 
the final process of legislation.
  So I argue that the process going on in the other body, and our 
respect for the rights of the other body, should be satisfactory to 
anyone. In the meantime, we should remember that the amendment of the 
senior Senator from Kentucky has no relationship to this bill.
  If I have spoken more than once, I have spoken a dozen times to make 
the point that the underlying legislation is something that was clearly 
an issue in the last election. Whether you are a Republican or 
Democrat, you were probably elected on a proposition that you would 
vote for this. I did not run into anybody in the campaign who was 
against this legislation, Republican or Democrat. Now what we are doing 
is carrying out the will of the people, the mandate of that election, 
to get this bill passed and get it passed as quickly as we can. And the 
purpose of doing it as quickly as we can is so that we can show the 
people of this country that it is no longer business as usual.
  So I believe that enacting existing Senate rules into law sometimes 
may be appropriate. So I will support the second-degree amendment. I 
want S. 2 to pass and to pass quickly, and adopting the second-degree 
amendment, I think, will further our goal because it is not going to 
complicate the bill. This is a matter of whether or not the other body 
is going to be turned off toward our legislation by the proposition 
that we are trying to tell them what to do to their own rules, because 
they have a constitutional right to adopt their own.
  So I hope everyone will support the second-degree amendment by 
Senator McConnell.
  I yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Kentucky.
  Mr. McCONNELL. Mr. President, just briefly in conclusion, I was 
listening to all the speakers on the other side with great interest. 
Their parties controlled the House of Representatives for 40 long 
years. I am curious as to why we have not felt the need here in the 
Senate to dictate this particular House rule in the past. We could have 
done that at any point. I do not know how long the House has had this 
practice but probably a long time. I just do not see the urgency or the 
propriety just because the management currently changed in the House as 
of last week that the Senate start dictating internal House policy.
  I agree with Chairman Grassley that this is just not an appropriate 
thing to do, and a vote on the second-degree amendment that I have 
offered is in no way a condoning of the practice that we do not allow 
here. We serve in this body. We do not allow this. I do not think we 
ought to start off the year telling the House what ought to be in their 
internal operating mode.
  So, Mr. President, I thank you for the opportunity to address the 
Senate.
  I yield the floor.
  Mr. FORD addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the senior Senator from 
Kentucky.
  Mr. FORD. Mr. President, I thank the Chair.
  You try a lot of things on this side that do not work. We voted 
overwhelmingly for a lobbying bill, gift bans, and everybody on the 
other side voted for it, 93 to 5, overwhelmingly. Some go out of here, 
and the only excuse they had for not voting for it this time is that 
they want to set the agenda. They want to introduce their own lobbying 
bill-gift ban bill.
  Now we are trying to uphold something that is absolutely the right 
thing to do, and they say we should not impose it on the House. If they 
have been doing it for a while, why not correct it now? Do not wait 
months from now.
  The distinguished majority leader said that this is a bill that would 
be acceptable on the House side. If it is going to be accepted on the 
House side, why not have something in there that is right? Let us do 
the right thing instead of letting it go. If something bad has 
happened, if something bad is going on, let us correct it now. Let us 
not wait until we are down the pike. If anyone wants to pass this 
underlying bill, sure, let us pass the underlying bill, but not by 
setting up a new, special and separate bureaucracy by Congress for 
Congress.
  You go out and tell your constituent tomorrow that you are immune 
from prosecution. He is not. Tell him about the special committee set 
up to set your rules, and he does not have any. Tell him about the 
special counsel you are going to hire for yourself, and he does not 
have any. Do you think this is applying the laws that you put on the 
small businessman to Congress? Think again.
  So if the underlying bill is that bad, why not add something on it 
that might do a little good? Just stop the use of perks from taxpayers' 
dollars for personal use. It is not the first time I have tried to do 
this. Why is it in the Senate? In 1991 we did it. As the chairman of 
the Rules Committee I tried. I think I was fair to everybody. I do not 
believe anybody in the Senate can say that I did not attempt to be fair 
with every Member. A lot of things we tried to prevent.
  So if you are going to allow the imagery going out of here applying 
the laws to the Senate and the House that you apply to your 
constituents, which is not really true because you are setting up 
something different that is costly, wait until you get on the 1988 
Disability Act when we begin to get into title II. Everybody said we 
have covered it under ADA. We have not. Now we are finally getting 
around to it. The Russell subway is not handicap accessible, the subway 
on the House side is not. We have a lot of things to do. I want my 
colleagues to know that we are setting up a special bureaucracy for 
Congress by Congress. The more [[Page S644]] things change the more 
they stay the same.

  There is one thing we can change: taking taxpayers' dollars and using 
them for personal perks. I do not care if it has been going on for 40 
years. Why should it go on for 41? And if the majority leader is 
right--and I have to accept his word that this bill will be accepted by 
the House and not go to conference--then we just delay the personal 
perks of the Members on the other side. I do not think they object to 
this. We are the ones that are objecting. I have not had anybody from 
the House run over here and say: Ford, you cannot do that, you cannot 
take my perk away from me. I want to continue to get my frequent flier 
miles so I can take my family to Europe or Hawaii or San Diego or 
Miami. We want to take a vacation on the taxpayers.
  If you want to say that is what we want you to continue to do, then 
vote for Senator McConnell's amendment, and we will just pull ours 
down. It will not make any difference at all.
  So I hope people will look at this. The fabric of the legislation has 
to be accurate. There cannot be a 30-second sound bite in legislation. 
You can have a 30-second sound bite out in the campaign, but when we 
develop the fabric of the legislation here, that fabric has to meet 
where the rubber meets the pavement. It has to be accurate. You said 
something and now we are going to do it. But this legislation does not 
do it. I can give you chapter and verse, chapter and verse. There are 
about 24,000 employees that you are putting under this. You will have 
to have supplemental appropriations to pay for it--more than once a 
year, in my opinion. And I am for it, but I think all you have to do is 
just waive our exemptions and let us do what our constituents have to 
do. Very simple.
  Oh, the separation of powers. If you are going to have separation of 
powers, that is one thing. But separation of powers is so costly under 
this bill, we will never see the end of tens of millions of dollars we 
are going to have to spend, because we are doing for Congress by 
Congress again, and the more things change the more they stay the same. 
I think in this instance we ought to change it just a little bit and 
say you cannot use your constituents' tax dollars for personal perks. 
It is a very simple vote. It will not take long, about 15 minutes 
tomorrow. I yield the floor.
  Mrs. FEINSTEIN addressed the Chair.
  The PRESIDING OFFICER. The chair recognizes the Senator from 
California, [Mrs. Feinstein].
  Mrs. FEINSTEIN. Mr. President, I rise, not to discuss this subject, 
but to discuss another. I had a placeholder at 5:30 to introduce four 
amendments to this bill. But knowing that the proponents of the bill 
would very much like to have it passed without amendment, I simply 
would like to make a statement about these amendments and then hope to 
work on a bipartisan basis to achieve some consensus and propose them 
later.
  Mr. President, the amendments I was going to propose were in an area 
of congressional reform, which is as important as any area in this 
bill. It is campaign spending reform. I think campaign spending reform 
actually is more important, because it has so solidly conditioned the 
atmosphere of the public with respect to campaigns.
  I was going to propose four amendments, the first, on spending 
limits. As I understood it, there was substantial objection to the 
public finance aspect of spending limits. The amendment I would propose 
would contain the spending limits of the prior Senate bill. In other 
words, the limit per State would be based on voting-age population. It 
would range from a high of $8.1 million in a large State such as 
California and a low of $1.5 million in the smallest State. In exchange 
for complying with these voluntary spending limits, a candidate would 
be entitled to a half-price discount broadcast rate, a reduced postage 
rate, and a complying candidate would be able to match an opponent that 
would not abide by the spending limit or exceed the spending limit 
without regard for the individual contribution limit of $1,000. That 
would be the balance.

  The second amendment would limit PAC contributions to 20 percent of 
the total raised.
  The third amendment would require a candidate to state at the end of 
their television ad in the last 4 seconds, clearly and definitively, 
speaking on the tube, that ``I believe the facts in this advertisement 
to be true.''
  The fourth amendment would be in the area of personal funds. They 
would require a candidate to declare if they intend to spend in excess 
of $250,000 or, second, in excess of $1 million in the race, within 15 
days of qualifying as a candidate. If their answer was in the 
affirmative, then gradually the individual contribution limits 
applicable to the opponent would be raised. So, again, you would have 
the opportunity to achieve a more level playing field.
  Let me briefly state the rationale. I think there is probably no 
campaign in the Nation that better demonstrates the need for campaign 
spending reform than does the recent California Senate race. In my own 
election, and in others around the country, voters, I believe, saw some 
of the worst features of campaigns repeating themselves. There were 
spiraling campaign costs. More than $45 million was spent in the 
California Senate race. There was a virtual arms race of negative 
political advertisements day after day, beginning in February in 
California. One area my amendment would address, for example, is where 
there was a negative ad in the sense of one candidate referring to 
their opponent, the station broadcasting the ad would have to make a 
disclaimer. That is, this station has no way of ascertaining the truth 
of the ad that is about to appear. One of the problems we found is that 
people automatically believe a paid commercial spot is true, in the 
same way they believe a paid commercial spot for a product is true, 
and, of course, there is legitimate recourse for a false commercial 
spot. What we found is that there is no recourse for a false political 
spot. The station must run the spot, even if it is blatantly false.
  Therefore, why not have the station come forward and say that this 
station has no way of ascertaining the truth or falsity of the spot 
which is about to appear.
  The total amount of funds spent in the 1994 election cycle nationally 
is staggering. Spending by Senate and House candidates who survived 
primaries was $596 million, up 17 percent from 1992 and up 50 percent 
from 1990. Fifty percent more funds were spent in this race than just 4 
years ago. Democratic candidates spent a record of $292 million, up 8 
percent from 1992. And Republican candidates spent a record of $294 
million, up 29 percent from 1992.
  The source of this is the Federal Election Commission.
  Now, we all know that there is no room in campaigns for people with 
sensitive feelings.
  However, in the 1994 campaign, negative messages, groundless attacks 
on character, and distorted images dragged political advertising to a 
new low.
  I would like to quote from an op-ed appearing in the New York Times 
and authored by Regionald Brack, chairman of Time Inc., and also 
chairman of the Advertising Council, which sponsors public-service ads. 
He reports:

       The cutthroat ads followed a disturbing formula. In 
     clipped, agitated tones, attack your opponent's character. 
     Distort his or her record. Associate him or her with 
     extremists or unpopular political figures. To awaken fear, 
     work in a between-the-lines racist message; foster suspicion, 
     insinuate corrupt behavior. And by all means, steer clear of 
     substantive issues.

  Examples abound.

       This year one ad implied that a candidate might have lied 
     about drug abuse.
       At least two candidates suggested that their opponents' 
     political philosophies were somehow to blame for the 
     kidnapping and murder of a 12-year-old and for the lethal 
     rampage of a foe of abortion.
       Each political party charged that the other would 
     significantly erode Social Security, Medicare, and other such 
     programs dear to the electorate.

  It is these 30-second negative ads that are driving politics in 
America today and turning away the American voter.
  These ads, which are short on substance and long on attack, are 
shaping the political debate.
  A post-election poll indicated that 75 percent of the respondents who 
said they voted in November said they were [[Page S645]] turned off by 
negative ads. In an election in which only 39 percent of the eligible 
voters went to the polls, 58 percent of those who did not vote said 
negative ads had influenced their decision to stay home.
  Now, what is the problem? What I found the problem to be, is that 
even if a candidate wants to take the high road and deal with issues, 
the simple fact is you cannot. And I want to tell you why.
  Focus group after focus group suggests this: The negatives drive 
through; the positives do not.
  When you ask in a focus group what do you remember most about this or 
that candidate, what they remember are the negative ads, and what they 
do not believe are the positive ads of record and accomplishment that a 
candidate may run. Therefore, what you find, as you watch poll numbers 
in big races, is that a candidate has to respond in kind to negative 
ads and if you try to respond to an attack with positives, the poll 
numbers drop. You also have to respond in quantity and equally to the 
opponent to have an effect.
  Consumers can file a complaint about false advertising of consumer 
products. But the aggrieved candidate has no legitimate recourse in a 
race. In my campaign, one television station began to run its own 
disclaimer before an attack ad saying that although the ad, they 
believed, was not correct, they still had to run it.
  Another disturbing problem is the specter of super-wealthy candidates 
being able to buy a seat. In the 1994 election, several candidates 
received as much as 16 to 17 percent of their total funds from loans 
out of their own pockets--the highest proportion since at least 1986.
  At least one way, I believe, the campaign system can offset the 
advantage of personal wealth without running afoul of the First 
Amendment and the Buckley versus Valeo decision is simply to loosen the 
constraints on the opponent. If a candidate declares up front that, 
``I'm going to contribute either $250,000, up to $1 million, or over $1 
million in personal funds,'' then the individual contribution limits on 
the opponent are adjusted gradually so that the opponent then can 
compete.
  Last, I strongly believe that campaign reform must look at the 
prevalence of contributions by PAC's. There is a real distortion in the 
public's mind that policymakers are beholden to special interests, and 
the special interests are the so-called PAC's, which overshadow average 
citizens, and impair, the public believes, an official's ability to 
make policy decisions based on national interests.
  Current law is thought to favor PAC's in two key respects. Most PAC's 
qualify as multicandidate committees and, as such, they may contribute 
up to $5,000. Now, in prior legislation, the Senate has banned PAC's 
altogether, and the House has opposed such a move.
  It seems to me that a fair compromise between the two is simply to 
limit the amount of PAC dollars a candidate can receive so that it does 
not exceed 20 percent of whatever the candidate raises.
  So I hope, Mr. President, in the future, to present these amendments, 
either separately or as a whole. There is no public finance in any of 
them. We would establish a campaign spending limit. We would be able to 
better bring about truth in advertising. We would be able to level the 
playing field when personal wealth is considered. And we would be able 
to reduce considerably the so-called involvement of special interests 
in campaigns.
  They are simple, they are direct, they make sense.
  So I will, in the days to come, be approaching, on both sides of the 
aisle, Members in hopes that I can put together a bipartisan commitment 
to just these four simple amendments and move them forward, either 
separately or as a whole.
  I thank you for your indulgence, Mr. President.
  I yield the floor.
  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I wish to thank the Senator from 
California for her willingness not to offer those amendments. I thank 
her very much, because it will help us hurry the legislation through 
this body and to the President of the United States.
  I also want to assure her for our leader--because he has said so many 
times himself that there will be an ample opportunity to discuss the 
issues that she wants to bring up, as well as the campaign finance 
reform issue will be discussed--that there will be plenty of 
opportunity to do that.
  I say that not only to assure the Senator from California of that 
opportunity, but also to suggest to other people on her side of the 
aisle, on the Democratic side of the aisle, who have amendments that 
deal with campaign finance reform--and there still are a few of the 20 
yet to deal with tomorrow--that maybe they will follow the example of 
the Senator from California and not offer their amendments so that we 
can get done with this bill earlier tomorrow.
  Mrs. FEINSTEIN. I thank the Senator.
  Mr. GRASSLEY. I thank the Senator.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Thompson). The clerk will call the roll.
  The bill 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.

                          ____________________