[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.
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