[Congressional Record Volume 141, Number 5 (Tuesday, January 10, 1995)]
[Senate]
[Pages S693-S706]
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 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:
(1) Ford-Feingold amendment No. 4, to prohibit the personal
use of accrued frequent flier miles by Members and employees
of the Congress.
(2) McConnell amendment No. 8 (to amendment No. 4) to
prohibit the personal use of accrued frequent flier miles by
Members and employees of the Senate and clarify Senate
regulations on the use of frequent flier miles.
Mr. WELLSTONE addressed the Chair.
The PRESIDING OFFICER. The Senator from Minnesota.
Amendment No. 9
(Purpose: To express the sense of the Senate with respect to a
timetable for the Senate's prompt consideration of comprehensive gift
ban legislation)
Mr. WELLSTONE. Thank you, Mr. President.
Mr. President, before I send my amendment to the desk, let me one
more time thank my colleague, the Senator from Iowa, for his leadership
on this Congressional Accountability Act. I think it is a very
important piece of legislation. I am certainly confident that by the
end of the day we will indeed vote on this important piece of
legislation and it will be a very strong affirmative vote.
Mr. President, before I send my amendment to the desk, I ask
unanimous consent that the pending amendment be laid aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WELLSTONE. Thank you, Mr. President.
Mr. President, let me just briefly give some background and talk
about the amendment.
This amendment essentially says is that it is the sense of the Senate
that the Senate should consider comprehensive gift ban legislation no
later than May 31, 1995.
At the end of last week, the Senate defeated a tough comprehensive
gift ban amendment that was offered by Senator Levin, myself, and
Senators Feingold and Lautenberg. I regret that my Republican
colleagues were unwilling to move forward on this piece of legislation
which I think had everything in the world to do with congressional
accountability. My Republican colleagues who opposed that amendment,
even though many had cosponsored the same language just a few months
ago, contended that it was more an issue of timing.
But it did seem to me then and it seems to me now that if we could be
ready to move forward this week on an extremely important piece of
legislation dealing with unfunded mandates, that goes to the heart of
the interrelationship between Federal and State and local governments,
and goes to the very heart of what Federalism is about, we should be
able to address this straightforward issue without a lot of further
consideration. And if, in fact, my colleagues are willing to amend the
U.S. Constitution with a balanced budget amendment with just a couple
of weeks preparation, then it seems to me astounding that we are not
willing to move forward on a very simple amendment that has everything
in the world to do with reform, which just simply puts an end to this
practice of accepting the gifts, perks, lobbyist-sponsored vacation
travel, and the like offered by special interests.
This amendment, Mr. President, simply attempts to put the Senate on
record formally in favor of returning to this issue promptly and acting
on tough gift ban legislation no later than the end of May 1995, which
the majority leader has indicated it was his intention to do.
Mr. President, the nice thing about this amendment is that it is
consistent with the debate and the discussion that we had on the floor
of the Senate last week. At that time, Senator Cohen, who has again
provided a tremendous amount of leadership on these reform issues, said
on the floor: ``I intend to give Senator Dole an opportunity to bring
it up in a relatively short time,'' the gift ban. ``He has not given me
a specific timetable, but I would say within the next couple of months,
I expect we will consider this legislation and any amendments that
might be offered to it--and I suspect there will be amendments. There
are people on this side that still do not agree with the provisions
that we supported.''
But, again, there will be action on this; it will be considered
within the next several months.
Senator Dole, the majority leader, came to the floor and said:
I certainly commend the Senator from Michigan, Senator
Levin, for his leadership. But we believe there are some
changes that could be made even in the gift ban. This
amendment would not be effective in any event until the end
of May 1995.
It would be my hope that by that time we will have even a
better package.
So I really am essentially following the lead of the majority leader
with this amendment. As he pointed out, our amendment would not have
become effective until the end of May. I simply think that it is time
now for the Senate to go formally on record that, in fact, we will take
action no later than the end of May.
Mr. President, let me give this amendment a little bit of context, a
brief history.
Almost 2 years ago, we started dealing with this problem of gifts
being lavished on Members of Congress from outside sources. And I had
an amendment which simply said lobbyists had to disclose specifically
what these gifts were. I said at the time it was a first step, and I
meant that.
Mr. President, that lobbying registration bill, with the amendment
that I had to that bill, passed the Senate by a vote of 95 to 2. Months
of waiting took place for the House to act on strong gift ban
provisions as a part of the lobbying bill. Then, Senator Lautenberg,
Senator Feingold, and myself introduced a tough, comprehensive gift ban
bill. We introduced a tough, comprehensive gift ban bill. Senator
Levin's committee then held hearings and reported out a solid,
comprehensive, more refined version of our earlier gift bans bill.
Under Secretary Levin's leadership, we were able to beat back Senate
amendments which would have weakened the bill. That bill passed last
May by a 95-4 vote.
Prodded in part by this action, the House then acted on a reasonably
tough version. A strong version came out of a House-Senate conference
committee. Then the lobbying registration gift ban bill to which the
gift ban was attached was killed in the last days of the session--I
think based upon unfounded complaints by lobbying groups that were
concerned about the registration part.
Legislation that we brought forward to the Senate floor last week was
very similar to a Senate-passed version last year, and to the
conference report; that is to say, the amendment that dealt with gift
bans.
Now, Mr. President, on the merits of the gift ban, 37 Republicans,
including the majority leader, cosponsored the same legislation. In
other words, the wording of the amendment that we brought to the floor
dealing with gift ban was essentially identical to the wording that the
majority leader and 36 other Republican Senators had voted for last
session.
Now, as I wrap up my remarks, and I am about ready to send the
amendment to the desk, I make an appeal to my colleagues. I believe my
colleagues when they say we are going to act on this. I believe them.
But I want to ensure that we do not let this gift ban amendment, this
gift ban legislation, slip by in the legislative rush of this session.
Again, this is a simple amendment. It puts the Senate on record in
favor of acting on a tough, comprehensive gift ban legislation no later
than the end of May 1995, precisely what the majority leader has called
for.
Mr. President, I do not think I need to again rehearse the
substantive arguments in favor of enacting a tough, comprehensive gift
ban. We have debated this legislation and we have debated this
amendment more than once on the floor of the Senate. I will simply say
this: The evidence is irrefutable that the giving of these special
favors
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to Senators and Representatives has only added to the deepening
distrust that citizens have of this political process, of this
congressional process. Despite assertions by my colleagues that we are
completely unswayed by trips or fancy dinners, such gifts give the
appearance of impropriety, and they erode public confidence in the
Congress as an institution. Mr. President, they erode public confidence
in each of us, personally, as representatives of our constituents.
I am sure many of my colleagues will agree that in any town meeting
Senators hold, Senators hear about this and other reform issues from
people in the country. They want to put an end to this practice, and
clean up the system. Public trust in the Congress is at a historic low
and demand for political reform is very high. Banning outside gifts
would be an extremely positive signal that we could send to people in
this country that we are serious about making this political process
more honest, more open, and more accountable.
Mr. President, the amendment that I now send to the desk reads:
It is the sense of the Senate that the Senate should
consider comprehensive gift ban legislation no later than May
31, 1995.
This is what the majority leader called for. This is what I believe
we talked about last week. I am disappointed we did not act to approve
the actual gift ban at the very beginning of the session. But I intend
to come back at this issue until we are done.
I think it is extremely important that the Senate now go on record
that we shall consider comprehensive gift ban legislation no later than
May 31.
One final time, Mr. President, for my colleagues: There is no hidden
agenda to this amendment. It is very simple. It is very
straightforward. As a matter of fact, it simply is a confirmation of a
commitment that I believe we made last week. Now, I call on all of my
colleagues, I call on the U.S. Senate, to go on record that the Senate
should consider comprehensive gift ban legislation no later than May
31, 1995.
Mr. President, I send the amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Minnesota [Mr. Wellstone] proposes an
amendment numbered 9.
The amendment is as follows:
At the appropriate place, insert the following:
Sec. . It is the sense of the Senate that the Senate
should consider comprehensive gift ban legislation no later
than May 31, 1995.
Mr. WELLSTONE. Mr. President, for the moment I yield the floor, and I
reserve the balance of my time.
Mr. GLENN. Mr. President, I certainly support what Senator Wellstone
is trying to do.
The gift ban is something we have tried to put through. There has
been controversy on it back and forth. He has kept on this, to his
everlasting credit. I think it is good he brings it up.
I hope the majority, after checking with the leadership, might be
able to accept this so that we do not have to go to a vote. I hope that
will be acceptable to my distinguished colleague from Minnesota. I
think, as I understand it, that is the process we are in now.
Mr. GRASSLEY. Mr. President, will the Senator yield?
Mr. GLENN. I yield to the Senator from Iowa.
Mr. GRASSLEY. Mr, President, I state that we are checking with the
appropriate committees to make sure if any of those Members want to
come and speak on this subject, as well as checking to see the
leadership's position.
Then, as well, if it does not work out, I would like to have a
unanimous-consent later on that. I would propose to have a vote on it
immediately after the McConnell amendment, which takes place at 2:15.
Mr. GLENN. Mr. President, I yield the floor.
Mr. WELLSTONE. Mr. President, I thank my colleagues.
I will ask for the yeas and nays, and would like to have a vote on
this amendment, and that vote take place at a convenient time.
Mr. President, let me right now ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
Mr. GLENN. Mr. President, will my distinguished colleague yield?
Would the Senator want the yeas and nays if the majority was going to
accept it?
Mr. WELLSTONE. Mr. President, I would ask for the yeas and nays. I do
want to have a recorded vote on it.
Mr. GLENN. That would sort of obviate the need for Members to try to
accept it then, at this point.
Mr. WELLSTONE. Mr. President, I understood the Senator from Iowa to
say there would be a vote.
The PRESIDING OFFICER. There is not a sufficient second.
Mr. GRASSLEY. Mr. President, right now we are in the process of
letting the appropriate committees know about the amendment, and
reserving time for them to come over and debate if they want to debate.
I do not know that there is any request for debate on it.
I am also checking with the leadership to see if there would be any
obstacles to accepting the amendment. If we accept the amendment, we
hope, then, that there will not be a vote on it. If the leadership does
not want to accept the amendment, then I suggest that we vote on it
immediately after the McConnell amendment, and we would have the yeas
and nays.
Mr. WELLSTONE. Mr. President, will the Senator yield?
Mr. GRASSLEY. Mr. President, I yield.
Mr. WELLSTONE. Mr. President, I renew my request for the yeas and
nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. WELLSTONE. I thank the Chair, and I thank my colleagues.
Mr. GLENN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KERRY. 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. KERRY. Mr. President, I understand the state of parliamentary
procedure is that there is an amendment currently pending.
The PRESIDING OFFICER. Offered by the Senator from Minnesota.
Mr. KERRY. I ask unanimous consent that that amendment be temporarily
set aside for the purpose of consideration of another amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 10
(Purpose: To restrict the use of campaign funds for personal purposes)
Mr. KERRY. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Massachusetts [Mr. Kerry] proposes an
amendment numbered 10.
Mr. KERRY. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place in the bill, insert the following
new section:
SEC. . RESTRICTIONS ON PERSONAL USE OF CAMPAIGN FUNDS.
Section 313 of the Federal Election Campaign Act of 1971 (2
U.S.C. 439a) is amended)--
(1) by striking ``Amounts received'' and inserting ``(a)
Amounts received''; and
(2) by adding at the end the following:
``(b)(1) Any candidate who receives contributions may not
use such contributions for personal use.
``(2) For purposes of this subsection, the term `personal
use' shall include, but not be limited to--
``(A) a home purchase, mortgage, or rental;
``(B) articles of clothing for the use of the candidate or
members of the candidate's immediate family (other than
standard campaign souvenirs, articles, or materials
traditionally offered or provided in connection with bona
fide campaign events);
``(C) travel and related expenses that are substantially
recreational in nature;
``(D) entertainment, such as sporting events, theater
events, or other similar activities, except when offered or
provided by the campaign in connection with a bona fide
campaign fundraising event;
``(E) fees or dues for membership in any club or
recreational facility;
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``(F) automobile expenses within the Washington, D.C.
metropolitan area (except that a candidate whose district
falls within the Washington, D.C. metropolitan area, may
lease automobiles used for campaign purposes consistent with
subparagraph (G));
``(G) any other automobile expense, except that a campaign
may lease automobiles for campaign purposes if it requires
that, if the automobile is used for any other incidental use,
the campaign receives reimbursement not later than 30 days
after such incidental use;
``(H) any meal or refreshment on any occasion not directly
related to a specific campaign activity;
``(I) salaries or per diem payments to the candidate; and
``(J) other expenditures determined by the Federal Election
Commission to be personal in nature.
``(3) Any personal expenditure described in paragraph (2)
shall not be considered to be an ordinary and necessary
expense incurred in connection with a Member's or Member-
elect's duties as a holder of Federal office.''.
Mr. KERRY. Mr. President, I rise today to offer an amendment that, at
first blush, some might try to argue does not belong on this bill
because it addresses one facet of campaign finance reform. But I want
to make it very clear at the outset that this amendment is not broad-
based campaign finance reform. It is a small reform which we adopted by
voice vote previously last year. I think it was offered in similar form
by the Senator from Arizona, Senator McCain. I believe that, indeed, it
is appropriate to join it with the issue of congressional coverage, and
that it therefore is fully appropriate to offer it as an amendment to
this bill.
This amendment asks us to behave like other Americans. In the spirit
of reform that has been so embraced in the House of Representatives, in
the spirit of reform that is at the center of the efforts of this
Congress to try to respond to the mandate of the election, and in the
spirit of reform that I believe is at the center of all of the dynamics
of our politics today, this amendment is relevant and germane and
important.
What this amendment seeks to do, simply, is to make it illegal to
convert campaign funds to personal use. This is not campaign finance
reform as much as it is an effort by the Congress to say we are going
to behave like everybody else in this country, and everybody else in
this country does not have the ability to go out and ask people to
donate money for one purpose and then turn around and decide, with
enormous discretion, to spend that money for entirely different
purposes--and, in fact, for personal gain and benefit.
The amendment is based on the proposed rules addressing the same
subject published by the Federal Election Commission late in 1994. It
would close the loopholes by prohibiting personal use of campaign funds
and by setting forth a clear definition of what constitutes personal
use. And most important, Mr. President, it prohibits a candidate from
drawing a salary from his or her own campaign funds.
I believe that this amendment is synchronized with the effort to lift
this institution out of the morass of partisanship and out of the
morass of disdain with which most Americans have viewed in recent
years.
While I have been deeply involved in campaign finance reform and it
has been one of my principal areas of legislative focus since I was
elected to this body--indeed, it was the subject of one of the very
first pieces of legislation that I introduced, and I will continue the
fight for comprehensive campaign finance reform this year--I emphasize
this amendment is not bringing a broad-based campaign finance reform
proposal. I understand from Majority Leader Dole that there will be a
time for that later in the year, though it cannot come soon enough as
far as this Senator is concerned.
But I do believe this is an opportunity for us to make an important
change in the way campaign funds are used while simultaneously making a
statement fully in keeping with the spirit of congressional coverage
legislation. The bottom line of that legislation is an effort to say to
Americans: Congress ought to live by the same standards as all other
Americans. And this seeks to say that our management of campaign funds
given to us for the specific purpose of campaigning should entail an
explicit responsibility to spend that money for campaign purposes--that
it should not be taken to buy Super Bowl tickets, or to pay for trips
to places that many hard-working Americans would like to go but cannot
afford to go, under the guise of some kind of campaign effort. It
certainly should not be used by a candidate to pay himself or herself a
salary, particularly a salary that might be in excess of what that
candidate was able to earn in the marketplace or was previously
earning. Each of those activities is outside the norm of life for the
great majority of Americans. They are activities that are available to
people in Congress only because they are in Congress and are raising
large amounts of money necessary for campaigns under our current system
of campaign finance.
When the Federal Election Commission was considering the new rules on
this subject which it proposed late in 1994, the Sacramento Bee
newspaper said:
The FEC should approve them. Most important, for the vast
majority of those in Congress who are honest public servants
who are at times genuinely confused about the proper use of
campaign funds, the rules provide some guidance.
That is what we seek to do here, provide some guidance in order to
help Members to live up to reasonable standards.
The Chicago Tribune said:
Despite a 15-year-old Federal law that bars candidates from
converting campaign funds to personal use, the Federal
Election Commission has never offered rules on what personal
use is.
And the New York Times said:
The law should be revised.
This amendment does exactly that. It ends the confusion, it defines
personal use, and it revises the law. I hope my colleagues will support
it. I want to make it clear that there is an awful lot more to do than
just this on campaign finance reform. We passed major legislation last
year. Regretfully it got caught up in House politics and later in
Senate politics and the American people were cheated of the most far-
reaching and important campaign finance reform in the history of this
country. This is vital legislation because I think every American
understands that underneath the term limits movement, underneath the
disdain for Congress, underneath the sense of a lack of access to the
U.S. Congress, underneath the feeling of powerlessness and the great
gulf between elected officials and the people, there is one source that
is to blame more than any other. It is money--the money used for
campaigning for elective office. Money is moving and dictating and
governing the process of American politics, and most Americans
understand that. The reason so many people find it hard to run for
office and keep our democracy vibrant is because of the extraordinary
cost.
So we have a great task ahead of us in order to pass a comprehensive
campaign finance reform law and in order to avoid the increasing
perception of the American people that no matter what they do, Congress
seems wedded to interests that have money and somehow divorces itself
from the real concerns and aspirations of the American people. So I
hope this small measure--which is aimed at helping us to live under the
same rules as do the rest of Americans--will be accepted by the
majority and it will not need a rollcall vote. But in the event that it
does, I, at this time, ask for the yeas and nays, which I certainly
will be happy to vitiate should it be accepted.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. KERRY. I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. GLENN. Mr. President, let me rise to strongly support the
proposal by the distinguished Senator from Massachusetts. We have had
this before us several times, as to what kind of limitation we should
put on funds that are gathered for specific purposes and wind up being
used for other purposes; where money that was given for a particular
election use winds up feathering the nests or lining the pockets--
however you want to say it--anyway, being used by the former candidate
for his or her own personal use. That was not the intent of the giving
in most cases, that the funds could be converted for that purpose.
That is what the Senator addresses, basically. This is a small step
forward. It does not try to encompass all of the
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difficulties involved with the problems of campaigns and campaign
finance reform. It is a small step forward, and I hope we will have
support on both sides of the aisle for this, so I rise to support the
proposal.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, once again I express to my colleagues
the desire that we not put amendments on this bill that will possibly
be able to be discussed later on in this session on the floor of the
Senate when offered to bills more germane to the subject, in this
particular case campaign finance reform. In the case of the Wellstone
amendment it would be the gift ban.
This is a bill that is very basic and easily understood. The
underlying bill I introduced, and Senator Lieberman has been my
Democratic counterpart, is a bill that is going to end the situation
where we have a dual set of laws in this country, one for Capitol Hill
and one for the rest of the country. We think there is a consensus on
this. There is very little discussion on the underlying legislation.
Before this day is out we hope to have this legislation become the law
of the land by being able to pass it here, the House having agreed to
it, and immediately getting it to the President of the United States.
There is nothing wrong with the proposals the Senator from
Massachusetts presents to us in the way of campaign finance reform,
only that it is being offered as an amendment to a bill that otherwise
is basically noncontroversial. It will not pass unanimously, I know,
but there is a fair consensus because it tries to correct a situation
that we all agree for too long has been unjust, a situation where the
laws that apply to the private sector do not apply to Congress and
Capitol Hill.
So I hope we can get these amendments behind us and move on. I do not
say to the Senator from Massachusetts that his subject should not be
discussed or that there is anything wrong with what he is proposing to
do. I just think now is not the time to do it. The bill we are dealing
with, the subject matter of the bill, in S. 2, passed the House of
Representatives unanimously, with only about 20 minutes of debate, in
the first day of their session. Senator Dole set this bill for
discussion on Thursday, the first day we were having legislative
action. That is how important the leadership, the new leadership of the
Senate, feels that this legislation is.
We discussed it on Thursday, on Friday, on Monday, and now Tuesday
will be the fourth day. We have spent most of our discussion on this
legislation on issues unrelated to congressional coverage--
congressional coverage by these laws of our employees. I hope that we
can get on with this legislation, that we will not accept this
amendment, and that we will before the day is out get this bill passed.
That will mean that we have spent 4 days on a bill that the House of
Representatives spent 20 minutes on.
I yield the floor.
Mr. KERRY addressed the Chair.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KERRY. Mr. President, I ask my colleague and others on the other
side what it is of which they are afraid. I ask my colleague if my
Republican friends are really in favor of reform. There is no strict
formula by which we determine what legislation will be brought before
the U.S. Senate, in what order it will be brought, or when it will be
brought. Everyone serving in this body knows that. Where is it ordained
that there is a better moment 5 months from now than right now to say
to the American people we are not going to spend campaign money for
personal use? Of what are those Members who oppose this amendment
afraid? If they support it, why not attach it to this vehicle and make
the statement of reform to the American people now? Why wait 5 months?
My colleague just stood up and said that the purpose of this
legislation is to show Americans that we are prepared to live like they
do. Why would you not want to attach to that bill a statement that we
are not going to allow people to raise campaign funds to spend money in
a way that no other Americans can spend money? I thought the
Republicans who are the new majority party were the folks who are
saying to the people back home, we are not going to do business as
usual anymore in Washington; no more business as usual. But business as
usual is coming to the floor and saying, ``Oh, we are going to do this
in 5 months; we are going to do this in 6 months.'' I note that this is
coming from the very people who filibustered the last round of campaign
finance reform and who saw their President, President Bush, veto the
bill that was passed 2 years ago.
So here is a chance to demonstrate to the American people whether we
really are just rhetorically talking about reform and are just going to
do the kind of pushbutton, feel-good things that happen to appeal to
one party but do not constitute basic reform. What could be simpler
than a fundamental principle that people who run for political office
are not going to spend their campaign funds for personal use, are not
going to go out and buy clothing with campaign funds, and are not going
to pay for a trip to the Super Bowl with campaign funds?
I have a lot of workers in Lynn, MA, or in Fall River or New Bedford
who dream about buying new clothes or going to the Super Bowl but who
do not have campaign funds with which to do so.
So here we are with an opportunity to say to the average American we
are going to live just like you do, we are going to spend our campaign
money strictly on campaigning. Is that frightening? But we are being
told by those on the other side of the aisle that somehow such a
proposal does not belong on a bill that is specifically geared to
requiring Congress to live like the rest of America.
So what we are seeing, Mr. President, is that there is a difference
between the reality and the rhetoric once again. Some people are
prepared only to talk a good game about reform. Is there anybody here
who truly disagrees that campaign funds should not be spent on personal
use? My friend from Iowa talked about a consensus. Is there really not
a consensus in the Congress that campaign funds should not be spent on
personal use? I would think there would be 100 votes to support that.
Let us put that to the test. I think we ought to find out whether
there are 100 votes for that proposition.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Order of Procedure
Mr. LEAHY. Mr. President, I ask unanimous consent that it be in order
to set aside the pending amendment so that I might offer an amendment.
Mr. GRASSLEY. Mr. President, has the unanimous-consent request been
agreed to?
The PRESIDING OFFICER. No, it has not.
Mr. GRASSLEY. Senator McCain was on his way over to speak on the
Kerry amendment. Could we wait for that?
Mr. LEAHY. Of course, I would be happy to. I should say to my friend
from Iowa that I will probably take only 3 or 4 minutes. I wonder if I
might go forward and I would be happy to immediately yield to Senator
McCain when he arrives.
Mr. GRASSLEY. Would Senator McCain be able to get the floor?
Mr. LEAHY. Oh, yes. I would yield. Give me about 20 seconds after he
motions that he wants it and I will yield to him.
Mr. GRASSLEY. I have no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Thank you.
Amendment No. 11
Mr. LEAHY. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Vermont [Mr. Leahy] proposes an amendment
numbered 11.
At the end of the bill, add the following,
``No congressional organization or organization affiliated
with the Congress, may request that any current or
prospective employee fill out a questionnaire or similar
document in which the person's views on organizations or
policy matters are requested.''
[[Page S697]]
Mr. LEAHY. Mr. President, let me explain why I have done this. I
remember when I first came to the Senate, I think within the first year
or so I was here, I introduced legislation saying that I wished all
laws would be applied to Members of Congress that apply to everybody
else. The Senator from Ohio [Mr. Glenn] has been doing the same for
years, and Senator Grassley from Iowa has been doing the same for
years. I think we have joined as cosponsors of each other's
legislation. But I remember giving an eloquent speech--as I thought
anyway--as a young Member of the Senate, on a Friday as I recall, about
why we should apply all the same laws to Members of Congress. As I was
leaving, one of the older Members of the Senate, a very senior Member
of the Senate, said, ``Where are you going?'' I said I was heading to
the airport to catch a plane back to Vermont. His response was, ``Good.
Stay there.'' The legislation was not greeted with enormous enthusiasm.
I know the Senator from Ohio and the Senator from Iowa have experienced
similar things--we have commiserated with each other about it--the
latest being even on Sunday when the Senator from Ohio and I had a
chance to join each other for lunch. But what I want to do is give
employees of the Congress the same protections available to other
workers in the Federal Government and private sector.
As we changed from the majority to the minority, the new majority
came in and, as is perfectly appropriate, they did a great deal of new
hiring. I have no problem with that. I have been here in the majority
and then the minority, and I have gone back and forth four times. I
know a lot of staff changes with that. But I was surprised by news
reports that the Republican Study Committee required prospective
congressional employees to take an ideological litmus test, not so they
could be hired but they had to take it before they could even be listed
with a placement service.
Mr. President, I think Senators know me well enough to know this is
not partisan. I would object to this whether Republicans or Democrats
did it. I do not know whether these questionnaires are legal under
Federal laws or the rules of the Senate, but they smack of McCarthyism
while I was a teenager during the fifties. I know enough about
McCarthyism to know how destructive to human beings and the sense of
the public comity loyalty oaths can be.
I have a copy of the questionnaire, and I ask unanimous consent that
it be printed in the Record at this point.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Republican Study Committee--Issues Questionnaire
The following questions are designed to assist us in
placing you with an office in which you are most compatible.
If you tend to agree with the statements put a ``Y'' in the
blank. If you tend to disagree with the statement, put a
``N'' in the blank.
Defense/International
__ The United States devotes too great a portion of its
budget to defense spending in the post Cold-War era.
__ The U.S. should not move to deploy current SDI
technologies. SDI is better off as just a research program.
__ Homosexuality is compatible with service in the U.S.
military.
__ A strong Israel is vital to American interests in the
Middle East.
___ The U.S. should get approval from the United Nations
before engaging in any military action abroad.
Social/Domestic
__ The death penalty should never be available as a
sentencing option for federal crimes.
__ Additional restrictions on handguns are needed to reduce
the murder rate in the U.S.
__ Abortion should only be allowed in cases of rape,
incest, or to protect the life of the mother.
__ Membership in a union should be at the option of the
employee and not a requirement for employment.
__ Members of disadvantaged groups should be given
preference in hiring and admissions in order to correct for
past inequities.
__ Voluntary prayer should be allowed in schools.
__ Public health concerns should take precedence over civil
rights concerns in dealing with the current AIDS crisis.
__ Abortion should be viewed as a woman's right to control
her own body.
budget/economy
__ Restrictions on imports are an effective tool to protect
U.S. jobs and improve the economy.
__ The threat of global warming requires strict limits on
carbon dioxide emissions.
__ Health care is a fundamental right which the U.S.
government should guarantee to every citizen.
__ Congress should enact a Constitutional Amendment to
require a balanced federal budget.
__ Congress should enact higher taxes as long as the
revenue is earmarked for deficit reduction.
Following are a number of organizations and people involved
in public policy. Indicate your general agreement with a (+)
and general disagreement with a (-), or leave the space blank
if you have no opinion.
__ American Civil Liberties Union.
__ Common Cause.
__ National Right to Work.
__ National Education Association.
__ National Organization of Women.
__ National Right to Life Committee.
__ Planned Parenthood.
__ National Rifle Association.
__ Sierra Club.
__ United Nations.
__ Al Gore.
__ Jesse Helms.
__ Ted Kennedy.
__ Dan Quayle.
__ Bob Dole.
__ George Bush.
__ Newt Gingrich.
__ Richard Gephardt.
____
Republican Study Committee
[memorandum]
To: Job Seekers.
From: Grace L. Crews, Job Bank Coordinator.
This is just a brief note to explain the RSC Job Bank to
you. The RSC is a Republican research organization which
exists solely for the aid of its members.
The RSC provides numerous services for its members
including the Job Bank. When a member calls with a job
vacancy, he/she gives us the description which includes
title, duties, salary, contact, etc. We then refer resumes of
qualified applicants to them for their consideration. If they
are interested, they will contact you. You will not receive a
call from us. Because most of our members prefer it, we never
disclose the location of a vacancy.
Rest assured that the RSC wants you to find a job. We will
do everything possible to aid you in your search. However, we
cannot guarantee you a job, and we do not know of all the
jobs on the Hill. Therefore, we ask that you do everything
you can to aid in your search.
Because we receive so many resumes, it is impossible for us
to keep in contact with you. Therefore, we ask that you keep
in contact with us by letting us know when you have found a
job or if you are still looking. If we do not hear from you
within three (3) months, we will discard your resume. If you
are still looking after that, you will have to give us a new
one.
And now, for some important advice. Be flexible. We would
all like to start at the top--very few of us get the chance.
Be willing to do whatever it takes to get that Hill
experience, even if you have to open mail for someone for a
while. Don't price yourself out of the market. Be willing to
negotiate salary. If you turn down a job because you think
you are worth more than the Congressman is willing to pay,
you may find yourself looking longer than you anticipated.
The RSC wishes you the best in your search for employment
on the Hill.
____
Job Placement Information
Date: ______
Name: ______
Street: ______
City: ______
State: ______
Zip: ______
Home Phone: ______
Work Phone: ______
Home State: ______
Position(s) Desired: (You may circle more than one.)
Chief of Staff/AA.
Legislative Counsel.
Committee Staff.
Legislative Director.
Legislative Assistant.
Legislative Correspondent.
Press Secretary.
Caseworker.
Office Manager.
Scheduler.
Receptionist.
Systems Manager.
If applying for a clerical position, please indicate your
appropriate skills:
Typing (wpm).
Shorthand (wpm).
Computer system(s) & applications.
Salary Range: __ to__.
Ideology: Do you consider yourself (please circle one):
conservative moderate liberal.
Campaign Experience: Yes {time} No {time} .
Fundraising Experience: Yes {time} No {time} .
Hill Experience: Yes {time} No {time} .
Press Experience: Yes {time} No {time} .
Senior Management Experience: Yes {time} No {time} .
Speech Writing Experience: Yes {time} No {time} .
Issue(s) Expertise: ______
Security Clearance: Yes {time} No {time} Level __.
Would you like this inquiry kept confidential? Yes {time}
No {time} .
Please send this information sheet, a copy of your updated
resume, the questionnaire,
[[Page S698]]
and a list of references to: Republican Study Committee, 433
Cannon HOB, Washington, D.C. 20515 or fax it to (202) 225-
8705. Should you have any questions, please call (202) 225-
0587.
____
Republican Study Committee
instructions for rsc job bank
(1) Please read top sheet and fill out both the application
and issues questionnaire.
(2) Attach resume between application sheet and
questionnaire with paper clip.
(3) Place in designated box.
Mr. LEAHY. This legislation is designed to give the employees of the
Congress the same protections that are available to other workers in
the Federal Government and the private sector.
I was surprised by recent news reports that the Republican Study
Committee required prospective congressional employees to take an
ideological litmus test before they could be listed with their
placement service.
I do not know whether such questionnaires are legal under Federal law
or under the rules of the Senate. I do know, as one who lived through
the McCarthyism of the 1950's, how destructive, to both human beings,
and to the sense of public comity, loyalty oaths can be.
That is why I requested a copy of the questionnaire and related
materials. Let me take a few minutes of the Senate's time to describe
what I found.
The Republican Study Committee, an organization of the House of
Representatives, which among other activities, provides an employment
service for persons who are applying for jobs with Republican Members
of the House. It provides prospective employees with a set of materials
which includes a questionnaire. This questionnaire asks a large number
of very definitive policy questions about a prospective employee's
views.
For example, it asks questions about the applicants views on
abortion, school prayer, and AID among others.
It also asks whether the applicant is in general agreement with ACLU,
National Right to Work, Newt Gingrich, Ted Kennedy, or Richard
Gephardt. Apparently new litmus tests to judge an employee's political
correctness are now in order.
Of course, these questions are ``designed to assist in placing you
with an office in which you are most compatible.''
The reality is that these kinds of questions are getting close to
loyalty oath type questions of the 1950's.
Soon will employees be asked, ``Are you now or have you ever been a
member of Common Cause?
``Are you now or have you ever been a member of Planned Parenthood?
``Are you now or have you ever been a member of the Sierra Club.''
Are we on the way to a new type of politically correct rightwing
thinking?
This questionnaire is not new. One of my current employees
encountered this questionnaire when she was looking for an entry-level
job on the Hill over 3 years ago. More concerned about being a part of
the democratic process than in ideology she applied at both Democratic
and Republican service offices. What kind of signal does the RSC
questionnaire send to prospective employees like her? Clearly, it
strikes a blow at the idealism of our young people and discourages them
from participating in the democratic process.
This is not a difficult issue to decide.
The public wants an end to partisan politics, and this litmus test is
nothing but partisan.
We want to encourage our youth to participate in the democratic
process, this litmus test destroys the idealism of our youth.
The Republican leadership has pledged to make Congress be held to the
same laws as it imposes on others, this litmus test flies in the face
of that pledge.
Above all there is too often a sense of intolerance in the tone of
debate in this country. We see this in tone in the abortion clinic
shootings and bombings and when talk show hosts insult the President's
wife.
I will not stand quietly and let a new ``McCarthyism'' take hold of
this institution.
Mr. President, I will close with this: I have no problem with any
Member, Democrat or Republican, wanting to hire staff that bears their
views. I must say that in my own staff, I do not know whether most of
the people in my office are Republicans or Democrats, unless they have
been involved in something where they have made it clear to me. I know
that I have hired people who were identified as Republicans back home,
as well as identified as Democrats. I do not know what they belong to.
I just do not want us to do things that would never be allowed at IBM,
or Monsanto, or any other company.
I do not want to get into a litmus test for people even to be able to
make a job application, because there are so many extremely good men
and women in this country who should have an opportunity to seek jobs
in the Congress if they want. But they should not have the door closed
in their faces initially because they do not pass a particular litmus
test.
I will ask the floor managers something and then I will yield to
Senator McCain. What happens with this amendment? Should we ask for the
yeas and nays? What has been the process? I have been off the floor.
Mr. GRASSLEY. The yeas and nays have been requested on most
amendments.
Mr. LEAHY. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. LEAHY. As I understand it, these votes will be stacked.
Mr. McCAIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Arizona [Mr. McCain] is
recognized.
Amendment No. 4
Mr. McCAIN. I take the floor this morning, Mr. President, to comment
on both the amendment of the Senator from Kentucky, Senator Ford,
concerning the frequent flier, frequent travelers benefits and its
application to Members of Congress, as well as the Kerry amendment
concerning personal use of campaign funds. The reason I do so is
because I have been involved in both issues to a significant degree.
First of all, on the issue of the amendment by Senator Ford, Mr.
President, I point out that in the legislation passed in the last
Congress, the Federal Acquisition Streamlining Act conference report,
my amendment, which appears on page 130 of the conference report said,
``Requirement: Any awards granted under such a frequent traveler
program accrued through official travel shall be used only for official
travel.''
I see my friend from Ohio on the floor. If I can get the attention of
the Senator from Ohio, I would appreciate it, since I am asking, and I
know there were many aspects of this legislation he was responsible
for, which I think was a landmark piece of legislation, the Federal
Acquisition Streamlining Act. An amendment of mine was included in
that, which said:
Requirement: Any awards granted under such a frequent
traveler program accrued through official travel shall be
used only for official travel.
I do not know if the Senator recollects that or not. From the nodding
of his head, I see that he recalls that. Does the Senator recollect,
also, that at that time it was mine, his, and Senator Roth's
understanding that it would apply to Congress as well as Federal
employees?
Mr. GLENN. I would respond to my good friend by saying I think it
should. We discussed that at the time, as I recall, and our exact
reasoning why we did not make it apply that way, I do not quite recall
at the moment. Looking at what is in the procurement bill this
morning--and I think you have a copy--I would like to see that same
provision go all across Government and apply to everybody. We gave some
time to work this thing out.
In that procurement bill, section 6008, entitled ``Cost Savings for
Official Travel,'' it says:
(a) Guidelines: The Administrator or General Services
Administration shall issue guidelines to ensure that agencies
promote, encourage, and facilitate the use of frequent
traveler programs offered by airlines, hotels, and car rental
vendors by Federal employees who engage in official air
travel, for the purpose of realizing to the maximum extent
practicable cost savings for official travel.
It goes on to say:
Any awards granted under such a frequent traveler program
accrued to official travel shall be used only for official
travel.
I think it should apply across the board. We gave them 1 year to
report on how they would enact this. I would like to see that same
thing applied all
[[Page S699]]
across Government. We were discussing this morning whether to try to
put this in as an amendment to this bill or subsequent legislation. The
same thing should apply, and the Senator is absolutely correct.
Mr. McCAIN. Also, I remind my friend, Senator Glenn, that there was a
colloquy between him and Senator Roth, with the understanding that this
particular provision would apply to Congress. Since then, it has been
interpreted as not applying to Congress. And that is wrong, in my view.
I agree with the Senator from Ohio that it should apply to Congress.
I believe that Senator Ford in bringing it up is entirely correct in
doing so, because if we are going to take advantage of frequent
traveler programs, those advantages should not then accrue to the
personal use of Members of Congress.
So I would say I regret that the interpretation of what was already
in law did not apply across the board to Congress. I think that it
should in the future, and I believe the Ford amendment should make it
applicable.
I also want to talk about the Kerry amendment here, which applies to
the use of campaign funds for personal use. Last year, Mr. President,
in the consideration of the campaign finance reform bill, I proposed an
amendment prohibiting the use of campaign funds for personal purposes.
Then Senator Boren, the manager of the bill, accepted that provision.
And, obviously, as we know, the campaign finance reform bill never went
anywhere. I applaud Senator Kerry for bringing up this issue. The fact
is that there have been outrageous and incredible abuses of the system.
On several occasions I talked about some of these abuses on the floor
of the Senate, and it is part of the Congressional Record of May 25,
1993. I talked at length about it, as I did several other times.
Mr. President when people are using campaign money to commission
artists to paint portraits of their father, thousands of dollars to
decorate Senate offices, $6,000 on furniture and picture framing,
$4,494 for an illuminated globe, resort vacations, and on and on and
on, it is not only an abuse, but it is an outrage.
I intend to vote on the majority side to table both of these
amendments. But I say to my Republican colleagues on this side of the
aisle, the reason the American people voted as they did on November 8
is that they are fed up with the abuses, such as the personal use of
campaign funds, such as frequent flier mileage and frequent traveler
mileage, going for personal use. These must be addressed.
Now, I understand the desire of the majority, and I will accede to
the desire of the majority, to table these so that we can get a bill
through Congress.
If I had been writing the legislation, I say to my friend from Iowa,
I would have included these, because they are needed reforms. They are
the things which the American people, when they hear about them, are
simply outraged, and they are not going to put up with it any longer.
So I say to my friends on this side of the aisle, speaking for only
one individual Senator, if these reforms are not brought up in a
reasonable time, meaning this year, and implemented, I will join with
my colleagues on the other side of the aisle, whose newfound scheme for
reform I applaud vigorously. But we cannot, by virtue of being in the
majority, lull ourselves into a sense of complacency, into believing
that issues such as personal use of campaign funds, such as the
personal use of frequent flier mileage which is accrued through
official business and used for personal use, are going to be acceptable
to the American populace. It is not like that anymore.
So I strongly urge my colleague from Iowa, who is the manager of this
bill--and I appreciate his enormous efforts on behalf of this
legislation--to give serious consideration to bringing forward
additional legislation at the appropriate time, in a timely manner,
that addresses these and other issues that are being raised by my
colleagues on the other side of the aisle.
So, Mr. President, I will not go on and on and specify the abuses,
especially of the personal use of campaign funds. I did that last year
on several occasions. Those abuses are well known, and they have to
stop. I think we have to address it very soon.
Again, I congratulate my colleague from Iowa for his very hard work
on this very important legislation. I look forward to supporting him.
But again, we have to address all of these abuses and we have to do it
soon.
Mr. President, I yield the floor.
Mr. FEINGOLD. Mr. President, I would like to commend the
distinguished ranking member of the Rules Committee, Senator Ford, for
his efforts in raising this issue and shedding some light on an
inappropriate practice in which some elected officials have apparently
been engaged.
Quite honestly, in my 2 years as a Member of the U.S. Senate, I do
not believe we have had a vote that should be so straightforward for
Senators to case as the vote on this amendment. In fact, this issue and
this amendment can be summed up with one question: Should federally
elected officials, who are well-compensated and receive ample health,
retirement, and other such benefits, be allowed to take free frequent
flyer trips at taxpayer expense? Some might suggest that I have just
oversimplified what this issue is about. But I'm not oversimplifying
the issue--it is that simple.
Mr. President, I am not aware of any public polling on this frequent
flyer issue. But I am going to make a bold prediction here. Let's say
you posed the following choice to 1,000 randomly selected individuals:
If federally elected officials earn frequent flyer awards from travel
that is paid for with taxpayer dollars, they should use the free travel
award to: One, take a vacation; or two, save taxpayer dollars by using
the award for future official travel expenses. I am willing to predict
the vast majority would pick number two.
Last night, during debate on this amendment, the distinguished
Senator from Iowa [Mr. Grassley] argued that we should not dictate to
the House of Representatives what their rules should be. The Senator
from Iowa went on to say that we shouldn't worry about the House
because they were on the verge of making this rule change last August
and will deal with the issue again.
I would like to share the Senator's confidence in the House leaders
on this particular issue, but I am afraid I cannot. The Senator from
Iowa is quite correct when he states that the House came close to
changing this rule last August. But it is my understanding that effort,
led by a freshman Representative, was derailed with the help of the
then-minority whip, Mr. Gingrich. If it was possible to prevent this
measure from passing last year while in the minority party, how are we
to expect Mr. Gingrich to raise this issue in his new position as
Speaker of The House?
In fact, I recall speaker Gingrich's comments on a Sunday morning
television program just a few short weeks ago. When pressed on the
issue of the frequent flyer perk, Mr. Gingrich responded by asserting
something to the effect that if Congress was able to balance the
budget, fight crime and reform the welfare system, then people did not
care about issues such as the frequent flyer perk.
Though I certainly share the Speaker's concern that we must address
issues such as reducing the Federal budget deficit, I strongly disagree
with his view that the American people do not care about reforming the
Congress and changing the way Washington, DC, does business. People do
care about the many perks Members of Congress receive, whether it is
the free meals, travel and other gifts that are showered upon Members
by the lobbying community, or the practice of converting these frequent
flyer miles earned while traveling on official matters to free vacation
trips.
The underlying bill, which I support, is an attempt to make Congress
live under the same rules as our constituents do. But our constituents
do not receive free meals and gifts from lobbyists, and when they go on
vacation or travel on a personal matter, they pay for it. These are the
rules by which elected officials should abide. And if these rules are
right for those in the private sector, and are right for the executive
branch, and are right for the U.S. Senate, then they should be right
for the House of Representatives.
Mr. President, let me just conclude by saying that I am sensing
another partisan vote on this amendment, similar to the vote last week
on the gift
[[Page S700]]
ban amendment, and that is truly unfortunate. This is certainly not a
partisan issue. The underlying bill will pass this Chamber with strong
bipartisan support, and I am disappointed that further efforts to enact
swift passage of critical reforms of our political system, such as
banning gifts and changing the frequent flyer rule for elected
officials, has fallen victim to the same partisan wrangling that has
prevented such reforms from passing in previous years.
Mr. LIEBERMAN addressed the Chair.
The PRESIDING OFFICER (Mr. DeWine). The Senator from Connecticut.
Mr. LIEBERMAN. I thank the Chair.
Mr. President, I rise to say that I support the substance of both of
the amendments that have been offered. But for reasons that are
similar, really, and with the same sense of urgency expressed by my
friend and colleague from Arizona and consistent with the position that
my friend and partner on this underlying bill, S. 2, the Senator from
Iowa, has stated all along, I will oppose these amendments, as I have
all other amendments to this bill.
Mr. President, we have talked at length about the number of years
that people have been working here in Congress to establish the basic
principle of accountability. What I have said here earlier in this
debate is kind of a reverse version of the Golden Rule, which is that
we should do unto ourselves as we have done unto others for lo these
many years, and that is to live by the laws that we imposed on the rest
of America.
Senator Glenn, among those who are here, in my opinion, holds the
record for having started this campaign--perhaps ``crusade'' is a
better term--earlier on in the late 1970's. Senator Grassley has been a
leading and foremost advocate in recent years. It has been my
privilege, over the last several years, to join with them, as a
cosponsor of this bill with the Senator from Iowa in the last session
of Congress, and a cosponsor again this year although, as I have
indicated for the record, in the preceding session of Congress, this
measure was known as the Lieberman-Grassley Act, and in this session it
is known as the Grassley-Lieberman Act.
Whatever the name, the content and the purpose is the same. And it is
the long overdue recognition that there is a double standard here that
is no longer acceptable, that is unfair to our employees, and that
shields us from the real world experience of understanding the impact
of our deliberations and our actions on those millions of people out
there, particularly small business people, who must live by the laws
that we pass.
So when this debate began, Mr. President, I made a personal decision
that when one considers the length of time that Congress has been
aspiring to pass this measure, when one considers that last year it
swept, in a bipartisan basis, through the House, I think with perhaps
four votes opposed to it, when one considers there seemed to be a
strong bipartisan support for this here in this Chamber last year, but
in the final day or two of the session it was stopped from being taken
up by the use of a rarely used parliamentary point, I made a judgment
as this session started that I was going to oppose all amendments to S.
2, the Congressional Accountability Act, that did not go to the heart
and substance of this proposal but that were adding on additional
thoughts, even if one could stretch and construe some connection to the
basic purpose of eliminating the double standard in these employment
and safety laws.
It has not been pleasant or easy to sustain this position. Some of
these amendments are good amendments. But it seemed to me that--not
only because of my personal involvement in this issue and my desire not
to gum up the works as we move toward adopting it, but also as an
expression here at the outset of the session that the support for this
measure is genuinely bipartisan and has always been so and is
bicameral, and in fact extends to the executive branch of Government,
where President Clinton has consistently over the last couple of years,
and as recently as the last few days, restated his position strongly
supporting the adoption of the Congressional Accountability Act--it
seemed to me, mindful of the election returns last November and fresh
from my own reelection campaign, in which I heard the people of
Connecticut certainly clearly saying to me that they do not really care
that much anymore about what party label you wear, they care about what
you have done or what Congress has done, that they want the nonsense
and the gridlock to end; they want us to deal with some real problems,
and they want us to shake up this institution and put some value into
what we are doing here and not get into partisanship.
So in that sense, I made the judgment that the best that we could do
was to adopt this, to not let anything stand in the way, and hopefully
get it to the President--get it back to the House, let the House
receive it in a form which they could adopt without the need for a
conference committee--send it to the President, and let us show the
American people that both parties, both Houses, and the executive and
the legislative branch, agree on this basic principle. Let us get it
done. If I may paraphrase an earlier great Democratic President,
President Kennedy, who said, ``A rising tide raises all boats,'' part
of what I am saying here is that a rising tide of accomplishment by
Congress will, in fact, raise all boats.
This will not and should not be a partisan achievement, but very much
a victory for principle, a victory for Congress, and a victory for the
American Government, showing it can quickly and expeditiously do
something right. I wanted to state that on the record to explain why I
voted against all previous amendments, why I will vote against these
two amendments, and why I will continue to vote against amendments on
this bill, hoping that we can pass this bill tonight or tomorrow and
get it on its way to becoming the law it ought to be.
Mr. President, having stated that, I would like to respond to some of
the points that have been made against the bill. I say to the two
managers of the bill, the Senator from Iowa and the Senator from Ohio,
if at any point either Senator would wish to regain the floor, or
others come and wish to proceed on their amendments, I will be glad to
yield upon notification to that affect.
Mr. President, some of the arguments made in opposition to S. 2 in
the last couple of days are serious ones. I want to respond to them.
One argument made goes to the heart of the construct of the bill that
Senator Grassley, I, and Senator Glenn, in his capacity as chair last
year of the Government Affairs Committee, have brought out. The
argument is that this bill--and forgive the pejorative use of the term,
an excuse for inaction on this measure for years--this bill represents
a violation or a potential violation of the separation of powers
doctrine and the speech or debate clause.
I must say to the presiding officer and my colleagues that when I
first arrived here, the first time this measure came up, I inquired why
people were opposing it because it seemed pretty sensible that we
should live by the same laws we apply to everybody else. The answer I
heard was the separation of powers doctrine. I remember going back home
to a town hall meeting and having somebody ask me about the measure,
and I started to give the separation of powers doctrine response. It
was a moment where the more I declared it, the less I believed it,
remembering that old wisdom that, if you are making a statement that
you yourself have trouble believing, you better not make the statement
and you better reconsider your position.
I do not think this is a violation of the separation of powers
doctrine. First of all, there is no express separation of powers clause
in the Constitution. It is important to point that out. This is a
doctrine that is said to underlie the structure of the Constitution. In
fact, there is some obvious strength to that argument. The principle is
most visibly seen in the separation of the powers of the three branches
into three separate articles respectively. The doctrine is also
discussed in the Federalist Papers, as well as other writings that
informed the drafting of the Constitution.
The separation of powers doctrine has been the most frequently cited
constitutional objection to private rights
[[Page S701]]
of action in district court for our employees under this bill, as well
as executive branch enforcement of the laws. Using this broad-based
argument, I think, distorts the historical intent of the separation of
powers doctrine. It is also not an adequate explanation for why we do
not apply the laws we adopt to ourselves.
The basic idea, it seems to me, is to limit each branch to a certain
set of powers subject to checks by the other two branches, so that no
one branch can accumulate a level of power that becomes--to use the
term that was very much in the mind of the Framers--tyrannical or like
a monarch in its effect on the public or on individual American
citizens.
The separation of powers principle was envisioned and incorporated
into the Constitution by the Framers not explicitly but implicitly with
the idea of precluding any one branch of the Federal Government from
seizing a degree of power that could be used against the people of
America in a tyrannical fashion without check by the other two branches
of Government. However, it is clear from Madison's writing in
Federalist 47 that the separation of powers principle was not designed
to insulate one branch of the Government or its servants, that is to
say, those who serve within that branch of Government, from the rule of
law. That would have been a strange result for those who framed our
Constitution and were so mindful of not insulating those in power from
the rule of law.
Indeed, Madison wrote in Federalist 57 that:
The Congress can make no law which will not have its full
operation on themselves and their friends, as well as on the
great mass of society. This has always been deemed one of the
strongest bonds by which human policy can connect the rulers
and the people together. It creates between them that
communion of interests and sympathy of sentiments of which
few governments have furnished examples; but without which
every government denigrates into tyranny.
What a magnificent statement by Madison, resonating with real insight
and strength through the centuries to this debate on this floor of this
great Chamber today in 1995.
Mr. President, in concluding my remarks on this question, I would
like to note that it is the speech and debate clause, and that clause
only, which provides Members of Congress any immunity whatever from
prosecution or action by the executive or the judiciary. In the case of
Davis versus Passman, a 1979 case, the Supreme Court held that while
the speech or debate clause does protect Members of Congress from suit
for actions which were strictly legislative in function--and I will
discuss in a moment what the Court has defined as ``legislative''--
speech or debate immunity is the only source of immunity, not other
principles of separation of powers as well. In short, the broad
principle of separation of powers is meant to protect the people from
the Government, not to protect one branch of Government from the other
two, nor to protect Members of Congress from prosecution or suit for
their own misdeeds.
Mr. President, at the Governmental Affairs Committee hearing in June
of last year on this measure, constitutional law professor Nelson Lund
and our own Senate legal counsel, Michael Davidson, both said, while it
may be constitutionally permissible to allow the executive branch to
enforce employment laws on the legislative branch, this legislation
recognizes, as a policy decision, not a constitutional decision, that
allowing executive enforcement might upset the current balance of power
between the executive and legislative branches.
So our goal in creating the independent Office of Compliance within
this bill, S. 2, was to avoid, frankly, politically motivated
enforcement actions by executive branch agencies. One cannot imagine--
without regard, obviously, to the current occupant of the position--a
Secretary of Labor ordering an OSHA inspection of a Senator's personal
office because that Senator had aggravated that Secretary for some
reason, perhaps by holding oversight hearings on the Department of
Labor, or perhaps by casting a vote that displeased the Member of the
Cabinet. I think you can see why, on a practical basis, this decision
was made to set up the independent Office of Compliance. It is, really,
more in deference to the checks and balances principle than to the
separation of powers principle.
Now, Mr. President, let me speak for a moment about the speech or
debate clause immunity which is in article I, section 6, of the
Constitution.
I, frankly, think this provides the most interesting argument against
executive branch enforcement or judicial review. But historically, it
is important to state the speech and debate clause has been read
narrowly by the courts, and our conclusion was that it should not and
cannot provide Members of Congress with immunity for illegal employment
actions, for illegal actions in our capacity as employers of those who
work for and with us here on Capitol Hill. The speech and debate clause
says:
They--
The Members of Congress--
shall in all Cases, except Treason, Felony and Breach of the
Peace, be privileged from Arrest during their Attendance at
the Session of their respective Houses, and in going to and
returning from the same; and for any Speech or Debate in
either House, they shall not be questioned in any other
Place.
The origins of speech or debate immunity can be traced to the
formation of the English Parliament when members of Parliament sought
to protect themselves from retribution by the monarch for speeches or
acts in the House of Commons that were viewed as hostile to the crown.
Mr. President, in July of last year, the Court of Appeals for the
D.C. circuit rejected a House Member's speech-or-debate-clause defense
in a prosecution by the Justice Department. These cases are very
recent. The U.S. District Court for the District of Columbia also
issued a similar ruling, in the same week last year against a Senator
saying the Department of Justice has the power to prosecute violations
of Senate Rules Committee regulations, even when the Rules Committee
itself has not concluded that a violation occurred.
In the first ruling, the appeals court cited several cases in which
the Supreme Court had held that the speech-or-debate clause immunity
extends only to acts that are ``legislative in nature'' or related to
``the legislative process.'' The defendant's alleged impropriety, the
Court said, ``was not related to a pending bill or to any other
legislative matter; it was, instead, the Congressman's defense of his
handling of various financial transactions.''
So I would say, drawing analogy from these cases and others I could
cite, it is reasonable to assume that an illegal employment action
would not be regarded by the courts as an act that is ``legislative in
nature.'' In fact, this issue is thoroughly examined in a memo by John
Killian, senior specialist, American constitutional law, American Law
Division at CRS, dated June 4, 1993, in which Mr. Killian writes:
A persuasive argument can be made that the speech or debate
clause does not encompass employment decisions.
While Mr. Killian prefaces his interpretation by noting that the
constitutional text, history, purposes and the judicial precedents are
not fully dispositive, ``the text,'' he says, ``as informed by the
interpretive judicial decisions does rather strongly suggest that the
courts would sustain the validity of the enactment should Congress
choose to take the step.''
He adds:
Certainly, an expressed decision made legislatively by
Congress that employment decisions of Members can be placed
outside coverage of the clause would be a determination by
the body most familiar with the issue that should be entitled
to special deference by the courts when they are called upon
to pass on the question of the validity of congressional
coverage under the appropriate statute.
Of course, this is just common sense that the speech-and-debate
clause on its face would not seem to be a clause that would make us
immune from the impact of the laws we adopt and impose on all other
employers when we are acting as employers instead of as Members of the
Congress involved in legislation.
Mr. President, I will go on to another argument that has been made a
couple of times here on the floor; and that is that this bill, S. 2,
will cost too much money. At times, opponents of congressional
compliance have claimed that it would cost billions of dollars to
implement and even require the construction of new office buildings.
The testimony
[[Page S702]]
that the Governmental Affairs Committee received last June, as well as
CBO's analysis of the committee-reported bill, showed that such fears,
while understandable, are unfounded. There is no OSHA space requirement
for offices. Indeed, the Architect of the Capitol and the Congressional
Budget Office both anticipated in their reviews of this legislation
little, if any, additional expense for OSHA compliance.
Because this new bill, S. 2, was introduced just last week, we have
not had time to receive a formal cost estimate from the CBO. But I
suggest to my colleagues that it is fair and reasonable to assume from
the CBO estimate of the bill reported by the Governmental Affairs
Committee in September, since this bill is so close to that bill, that
the original cost estimate would prevail for this as well.
We also received a cost estimate from CBO on last year's House-passed
bill as well as the bill reported by the Senate Governmental Affairs
Committee and the estimates CBO arrived at in both cases were far, far
lower than anyone expected or thought possible.
Mr. President, at this point, I would like to submit for the Record
those two cost estimates which I believe the Members may wish to
peruse, and I ask unanimous consent that they be printed in the Record.
There being no objection, the estimates were ordered to be printed in
the Record, as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 3, 1994.
Hon. John Glenn,
Chairman, Committee on Governmental Affairs, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4822, the
Congressional Accountability Act.
Enactment of H.R. 4822 would not affect direct spending or
receipts. Therefore, pay-as-you-go procedures would not apply
to the bill.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
James L. Blum
(For Robert D. Reischauer, Director).
Enclosure.
Congressional Budget Office Cost Estimate, October 3, 1994
1. Bill number: H.R. 4822.
2. Bill title: Congressional Accountability Act.
3. Bill Status: As ordered reported by the Senate Committee
on Governmental Affairs on September 20, 1994.
4. Bill Purpose: H.R. 4822 would apply a host of employee
protection laws to legislative branch employees and would
create an Office of Congressional Fair Employment Practices
(OCFEP) to enforce those protections. The board of directors
of OCFEP would issue rules to apply the laws to the
legislative branch, enforce those rules through inspections,
and establish procedures for remedying violations of the
rules. Most rules would take effect when the board issues
them in final form, unless the House and Senate pass a
concurrent resolution that disapproves them. Certain rules
that, in effect, create new law would have to be enacted by
the Congress and signed into law by the President.
In addition, H.R. 4822 lays out a four-step process by
which employees can seek, redress if their rights under most
of the employee protection laws are violated--counseling,
mediation, formal complaint and hearing, and judicial review
of the process. As an alternative to a formal complaint and
hearing before the OCFEP, the bill would allow employees to
take their case to a U.S. district court after the mediation
step. The four-step process basically duplicates the process
that the Senate already has in place for its employees, and
would expand the options available to House employees who
currently cannot present their case before an independent
hearing board (because House hearing boards have consisted
only of House employees) and who have no access to judicial
review. Currently, few Congressional employees, and none in
the House or Senate, have the option of taking their case to
a district court (instead of formal complaint and hearing) as
the bill would permit.
For certain laws, the bill would provide alternative
procedures. For example, for violations of title II of the
Americans With Disabilities Act (ADA) and the Occupational
Safety and Health Act (OSHA), private citizens and
Congressional employees, respectively, could ask the general
counsel of OCFEP to investigate. The general counsel, in the
case of ADA, could initiate the four-step process, or in the
case of OSHA, could issue citations. In neither case could
the employees take their complaints to a district court.
(Under OSHA, private citizens also may not bring a complaint
to court.)
If the appropriate entity, whether the OCFEP or district
court, finds that an employee's rights were violated, it
could enter an order for a remedy for the employee, subject
to the availability of funds that may be appropriated by the
Congress after enactment of H.R. 4822. The bill would
establish separate settlement and award reserve funds in the
House and the Senate to pay compensation that may be ordered
as part of the remedy, and would authorize the appropriation
of amounts necessary to pay compensation as ordered. Such
appropriations would be the only source for paying
compensation because the bill dictates that no compensation
may be paid from the Claims and Judgments Fund in the
Treasury.
5. Estimated cost to the Federal Government: CBO estimates
that enactment of H.R. 4822 would cost about $1 million in
each of fiscal years 1995 and 1996, and $4 million to $5
million annually thereafter for the new OCFEP, for agency
costs of negotiating with employees' bargaining units, and
for paying compensation under remedy orders. Applying certain
laws, such as the OSHA and the Fair Labor Standards Act
(FLSA), to the entire legislative branch could result in some
additional costs, but we do not expect such costs to be
substantial. To some extent, the amount of such costs would
depend on decisions to be made by the OCFEP as to precisely
how the laws would apply to legislative branch employees.
basis of estimate
Office of Congressional Fair Employment Practices
The primary budgetary impact of H.R. 4822 would stem from
creating the new office to implement the employee protection
laws throughout the Congress. Based on the costs of the
Senate Office of Fair Employment Practices and of the
Personnel Appeals Board at the General Accounting Office
(GAO), CBO estimates that the OCFEP would cost an additional
$1 million in each of fiscal years 1995 and 1996. (The rules
implementing all of the laws would be phased in and would be
in effect by the end of 1996.) The cost would be relatively
small in these years because the office would be evaluating
how to apply certain laws to the Congress. In subsequent
years, the cost would increase to $2 million to $3 million
annually because the office would have to implement
enforcement procedures and arrange for OSHA inspections.
Settlement and Award Payment
The bill would authorize the appropriation of such sums as
necessary to pay compensation to employees whose rights under
H.R. 4822 are violated. Under existing law, if the rights
that Congressional employees currently have are violated and
the House or Senate Office of Fair Employment Practices
orders payment of compensation, the Congress must appropriate
funds to make the payment. Otherwise, an employee has no
recourse to another mechanism to receive compensation. Based
on the limited, recent experience of the House and Senate in
paying compensation under existing employee protection laws,
CBO expects that total compensation paid to legislative
branch employees in some years could be between $0.5 million
and $1 million. CBO assumes that the Congress would
appropriate the necessary amounts. If the Congress does not
appropriate sufficient funds, then there would be no
mechanism to provide compensation ordered under the processes
provided in the bill.
Federal Labor-Management Relations
H.R. 4822 would extend to all legislative branch employees
the same right that the Government Printing Office (GPO), the
Library of Congress (LoC), and executive branch employees
currently have to organize, form bargaining units, select a
union representative, negotiate with employers, and bring
grievances to the Federal Labor Relations Authority (FLRA).
(GAO already negotiates with its employees, but its cases do
not go to the FLRA.) If employees in the House, Senate, the
Architect, CBO, and the Office of Technology Assessment (OTA)
were to decide to organize and force their employers to
negotiate with various bargaining units, the employers would
incur additional staff costs in order to meet their
responsibilities under the law. Based on the experience at
GPO and LoC, it appears that an agency with several thousand
employees could spend $200,000 to $300,000 per year for a
lawyer and part of the time of personnel officers who must
work with the bargaining units. CBO cannot predict to what
extent employees at the affected agencies would decide to
take advantage of their opportunity to organize under this
law, but even if a few did at each agency, total agency costs
could be in the neighborhood of $1 million annually.
OSHA Protections
H.R. 4822 would extend to all legislative branch employees
the protections of OSHA, which requires a workplace free from
recognized hazards. It is possible that application of OSHA
standards could result in additional costs to remedy any
violations, but it is likely that many of the major remedial
actions would be done in any event.
Industrial Settings. Because most existing OSHA standards
apply primarily to industrial workplaces, the employees and
workplaces most likely affected by the bill would be those of
the Architect of the Capitol. The Architect's office has
stated in Congressional hearings that it already strives to
comport with all relevant standards. The Architect employs
several inspectors who visit all workplaces under the
Architect's control to identify problems requiring remedy.
Over the past several years, the Architect, sometimes with
line-item funding direction from
[[Page S703]]
the Congress, has undertaken many building improvement
efforts, such as structural repair and electrical rewiring,
in buildings of the House, Senate, and Library of Congress.
However, while the Architect might already be identifying
big problems, small problems might still arise. In October
1992, GAO, at the request of the Congress, reported on
violations of numerous OSHA standards by four employers in
the legislative branch, including the Architect and the GPO.
The employers not only agreed that the violations needed
correction, but were able to do so at minimal expense. None
needed to request additional funding to remedy the
violations. Thus, it appears that the formal application of
OSHA standards to the activities of the Architect is unlikely
to add significantly to costs that would otherwise be
incurred.
Office Settings. There are few OSHA standards that apply
specifically to an office-type workplace, which is the type
of environment most commonly founds in the Congress. For
example, there is no OSHA standard guaranteeing employees a
minimum amount of space and quiet in which to work (although
there is General Services Administration guideline governing
the maximum amount of space for executive branch employees so
agencies do not consume too much space). Therefore, applying
OSHA standards to the House, Senate, and other Congressional
entities would not, by itself, necessitate construction of
additional Congressional office buildings.
The few relevant OSHA standards relate to the proper
location and use of wires, extension cords, electrical
outlets, file cabinets, and clear walkways to protect
employees against tripping, shocks, fires, falling objects,
and blocked exits in case of evacuation. Because the
Architect does not control the space where these hazards
could occur, the rules issued by the board would likely make
the employers--Senators, Representatives, committee chairmen,
and agency directors--responsible. Complying with these
standards probably would require a change in practices rather
than significant additional space or cost.
Future OSHA standards for office-type workplaces could
result in additional costs for the Senate. For example, OSHA
is currently preparing regulations for ergonomic office
equipment and furniture to protect employees against physical
ailments resulting from inadequate lighting and positioning.
In the absence of specific standards, CBO has no basis for
estimating the cost of providing Congressional employees with
furniture that would meet future OSHA requirements.
FLSA Protections
The FLSA requires employers to provide the minimum wage,
equal pay, and time-and-one-half for overtime in excess of 40
hours in one week for certain types of employees. H.R. 4822
would require legislative branch employers to pay affected
employees according to these standards. But Congressional
employers would be allowed to grant compensatory time off
(equal to one and a half hours of overtime worked) instead of
overtime pay if the employee so chooses in advance of
performing the overtime work. This provision would result in
some combination of increased spending by Congressional
employers because of overtime pay, and increased time off for
certain employees who might opt for compensatory time instead
of overtime pay. The impact of FLSA ultimately would depend
on how the OCFEP defines which employees are to be covered by
FLSA and on whether employees would choose overtime pay or
compensatory time off. The bill would require the board to
issue rules that outline how the protections of the FLSA will
apply.
If, for example, the board were to issue rules similar to
the guidelines issued in 1991 by the Committee on House
Administration (FLSA has applied to House employees since
1989), then FLSA would probably have little impact on the
amount of additional leave employees would be able to take.
It appears from the House guidelines and the amount of
overtime paid to House employees in recent years (less than
$200,000 annually) that most House employees are exempt from
FLSA and those who are not exempt do not work much overtime.
One group of employees that could potentially receive
significant amounts of overtime pay would be the Capitol
Police. Under current law, officers receive compensatory time
for the first four hours worked in excess of 40 hours and
then receive overtime for any additional hours. If all
Capitol Police employees opted for overtime pay under FLSA
for their first four hours of overtime, spending would
increase by about $0.8 million per year. Because some Capitol
Police employees are likely to select compensatory time, the
amount of additional overtime pay would be less than $0.8
million.
Other Applicable Laws
Some of the laws that H.R. 4822 would apply to the entire
legislative branch are laws that already apply to some or all
Congressional employers through existing statute or because
the employer voluntarily complies. Therefore, they are not
likely to result in additional costs. For example, the
Americans with Disabilities Act (ADA) and Title VII of the
Civil Rights Act, which prohibit employer discrimination
based on disability or race, already apply to the Senate,
House, CBO, GAO, GPO, LoC, the Architect, and OTA--entities
that employ almost all of the 38,000 legislative branch
employees. The Family and Medical Leave Act, which guarantees
employees a certain amount of unpaid leave without fear of
losing their job in order to care for a new baby or a sick
relative, also applies now to all these employers.
Other laws apply to some employers now, but would apply to
all upon enactment of H.R. 4822. For example, the
Rehabilitation Act (which requires the government to contract
with vendors that provide employment opportunities for the
disabled) only applies to the Senate and the Architect. But
because the Rehabilitation Act has been largely superseded by
the ADA, which all the employers must already comply with,
application of the Rehabilitation Act is not expected to
affect employers' practices. The Age Discrimination in
Employment Act (ADEA) does not apply currently to the House,
CBO, and certain employees of the Architect, but the House
has adopted a rule that ``personnel actions affecting
employment positions in the House . . . shall be made free
from discrimination based on . . . age.'' H.R. 4822 would
codify this policy. The bill, however, would provide such
employees with improved procedures for seeking redress if
they experience discrimination because of age (as well as
race, color, national origin, religion, sex, or disability).
CBO expects that applying the ADEA would not result in
significant additional costs.
6. Pay-as-you-go considerations: None.
7. Estimated cost to State and local governments: None.
8. Estimate comparison: None.
9. Previous CBO estimate: On August 2, 1994, CBO prepared a
cost estimate for H.R. 4822, as ordered reported by the House
Committee on Rules on July 29, 1994. That bill is similar to
the Senate version of H.R. 4822, except that in the House
version, the Claims and Judgments Fund in the Treasury would
be available to pay compensation to remedy violations of
employees' rights in the event the Congress does not
appropriate sufficient funds. Because, under the House
version of H.R. 4822, employees would have a permanent right
to be paid compensation, CBO estimated an increase in direct
spending of $1 million in 1997 and 1998, which would count
for pay-as-you-go purposes. In the Senate version of H.R.
4822, employees' right to compensation under a remedy would
be limited to amounts that may be appropriated to the House
and Senate settlement funds (or to other legislative branch
entities). The Claims and Judgments Fund in the Treasury
would be unavailable to pay compensation in the event of
insufficient appropriations. Therefore, the funding mechanism
to pay compensation would be discretionary, not direct
spending, and pay-as-you-go procedures would not apply.
Another difference between the House and Senate versions of
H.R. 4822 is that the House version would require that
certain employees receive overtime pay under FLSA, resulting
in higher outlays for legislative branch agencies, especially
the Capitol Police. The Senate version of H.R. 4822 would
allow employees to choose between receiving overtime pay,
which would increase outlays, or receiving compensatory time,
which would give them more time off, but would not increase
spending.
On August 2, 1994, CBO prepared a cost estimate for H.R.
4822, as ordered reported by the Committee on House
Administration on July 28, 1994. That version of the bill is
nearly identical to H.R. 4822 as ordered reported by the
House Committee on Rules.
On June 30, 1994, CBO prepared a cost estimate for S. 1824,
as ordered reported by the Senate Committee on Rules and
Administration on June 9, 1994. That bill is different from
the Senate version of H.R. 4822 because it would cover only
Senate employees and because it would only apply OSHA and
FLSA to the Senate. H.R. 4822 would apply these two laws, as
well as six others, to the entire legislative branch and
would create a consistent procedure to enforce the laws
equally for all legislative branch employees. CBO has
estimated a higher cost for H.R. 4822 than for S. 1824.
10. Estimate prepared by: James Hearn.
11. Estimate approved by: C.G. Nuckols, Assistant Director
for Budget Analysis.
____
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 2, 1994.
Hon. Charlie Rose,
Chairman, Committee on House Administration, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4822, the
Congressional Accountability Act.
Because enactment of H.R. 4822 could affect direct
spending, pay-as-you-go procedures would apply to the bill.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
Robert D. Reischauer.
Enclosure.
Congressional Budget Office Cost Estimate, August 2, 1994
1. Bill number: H.R. 4822.
2. Bill title: Congressional Accountability Act.
3. Bill status: As ordered reported by the Committee on
House Administration on July 28, 1994.
4. Bill purpose: H.R. 4822 would apply to a host of
employee protection laws to legislative branch employees and
would create an Office of Compliance to enforce those
protections. The office would issue regulations to
[[Page S704]]
apply to the legislative branch, enforce those regulations
through inspections, and establish procedures for remedying
violations of the regulations. Further, the board of
directors of the office would have to prepare a study on
whether any other laws affecting employees ought to apply to
the legislative branch, and then would issue regulations
specifying the way in which such laws would apply. The
regulations would take effect 60 days after the board issues
them in final form unless the House and Senate pass a
concurrent resolution that disapproves them.
In addition, H.R. 4822 lays out a four-step process by
which employees can seek redress if their rights under the
laws are violated--counseling, mediation, formal complaint
and hearing, and judicial review of the process. As an
alternative to the formal complaint and hearing before the
Office of Compliance, the bill would allow employees to take
their case to U.S. district court after the mediation step.
The four-step process basically duplicates the process that
the Senate already has in place for its employees, and would
expand the options available to House employees who currently
cannot present their case before an independent hearing board
(because House hearing boards have consisted only of House
employees) and who have no access to judicial review.
Currently, few Congressional employees, and none in the House
or Senate, have the option of taking their case to district
court (instead of formal complaint and hearing) as the bill
would permit.
If the hearing board or district court finds that an
employee's rights were violated, it may enter an order for a
remedy for the employee. The bill would establish separate
funds in the House and the Senate to pay compensation that
may be ordered by the remedy.
5. Estimated cost to the Federal Government: CBO estimates
that enactment of H.R. 4822 would cost about $1 million in
each of fiscal years 1995 and 1996, and $4 million to $5
million annually thereafter for the new Office of Compliance,
for additional overtime pay for officers of the Capitol
Police, and for agency costs of negotiating with employees'
bargaining units. Applying certain laws, such as the
Occupational Safety and Health Act (OSHA) and the Fair Labor
Standards Act (FLSA), to the entire legislative branch could
result in some additional costs, but we do not expect such
costs to be substantial. To some extent, the amount of such
costs would depend on decisions to be made by the Office of
Compliance as to precisely how the laws would apply to
legislative branch employees.
basis of estimate
Office of Compliance
The direct budgetary impact of H.R. 4822 would stem from
creating the new office to implement the employee protection
laws throughout the Congress. Based on the costs of the
Senate Office of Fair Employment Practices and of the
Personnel Appeals Board at the General Accounting Office
(GAO), CBO estimates that the Office of Compliance would cost
about $1 million in each of fiscal years 1995 and 1996. The
cost would be relatively small in these years because the
office would be evaluating whether and how to apply certain
laws to the Congress. In subsequent years, the cost would
increase to $2 million to $3 million annually because the
office would have to implement enforcement procedures and
arrange for OSHA inspections.
OSHA Protections
H.R. 4822 would extend to all legislative branch employees
the protections of OSHA, which requires a workplace free from
recognized hazards. It is possible that application of OSHA
standards could result in additional costs to remedy any
violations, but it is likely that many of the major remedial
actions would be done in any event.
Industrial Settings. Because most existing OSHA standards
apply primarily to industrial workplaces, the employees and
workplaces most likely affected by the bill would be those of
the Architect of the Capitol. The Architect's office has
stated in Congressional hearings that it already strives to
comport with all relevant standards. The Architect employs
several inspectors who visit all workplaces under the
Architect's control to identify problems requiring remedy.
Over the past several years, the Architect, sometimes with
line-item funding direction from the Congress, has undertaken
many building improvement efforts, such as structural repair
and electrical rewiring, in buildings of the House, Senate,
and Library of Congress.
However, while the Architect might already be identifying
big problems, small problems might still arise. In October
1992, GAO, at the request of the Congress, reported on
violations of numerous OSHA standards by four employers in
the legislative branch, including the Architect and
Government Printing Office (GPO). The employers not only
agreed that the violations needed correction, but were able
to do so at minimal expense. None needed to request
additional funding to remedy the violations. Thus, it appears
that the formal application of OSHA standards to the
activities of the Architect is unlikely to add significantly
to costs that would otherwise be incurred.
Office Settings. There are few OSHA standards that apply
specifically to an office-type workplace, which is the type
of environment most commonly found in the Congress. For
example, there is no OSHA standard guaranteeing employees a
minimum amount of space and quiet in which to work (although
there is a General Services Administration guideline
governing the maximum amount of space for executive branch
employees so agencies do not consume too much space).
Therefore, applying OSHA standards to the House, Senate, and
other Congressional entities would not, by itself,
necessitate construction of additional Congressional office
buildings.
The few relevant OSHA standards relate to the proper
location and use of wires, extension cords, electrical
outlets, file cabinets, and clear walkways to protect
employees against tripping, shocks, fires, falling objects,
and blocked exits in case of evacuation. Because the
Architect does not control the space where these hazards
could occur, the regulations issued by the Office of
Compliance would likely make the employers--Senators,
Representatives, committee chairmen, and agency directors--
responsible. Complying with these standards probably would
require a change in practices rather than significant
additional space.
Future OSHA standards for office-type workplaces could
result in additional costs for the Senate. For example, OSHA
is currently preparing regulations for ergonomic office
equipment and furniture to protect employees against physical
ailments resulting from inadequate lighting and positioning.
In the absence of specific standards, CBO has no basis for
estimating the cost of providing Congressional employees with
furniture that would meet future OSHA requirements.
FLSA Protections
The FLSA requires employers to provide the minimum wage,
equal pay, and time-and-one-half for overtime in excess of 40
hours in one week. The impact of FLSA on the appropriated
accounts that pay salaries and expenses for Congressional
employees ultimately would depend on how the Office of
Compliance defines which employees are to be covered by FLSA.
The bill would require the office to issue regulations that
outline how the protections of the FLSA will apply.
If, for example, the office were to issue regulations
similar to the regulations issued in 1991 by the Committee on
House Administration (FLSA has applied to House employees
since 1989), then FLSA would probably have little budgetary
impact. It appears from the House regulations and the amount
of overtime paid to House employees in recent years (less
than $200,000 annually) that most House employees are exempt
from FLSA and those who are not exempt do not work much
overtime. (We do not know whether the result would be
different if the Office of Compliance were to adopt the
Department of Labor's regulations that apply FLSA to the
private sector and to state and local governments.)
One group of employees most likely to receive additional
overtime pay under any set of regulations is the Capitol
Police. Under current law, officers receive compensatory time
for the first four hours worked in excess of 40 hours and
then receive overtime for any additional hours. Applying FLSA
to the Capitol Police would result in overtime pay for the
first four hours of overtime as well, amounting to an
estimated $0.8 million per year.
Federal Labor-Management Relations
H.R. 4822 would extend to all legislative branch employees
the same right that GPO, the Library of Congress (LoC), and
executive branch employees currently have to organize, form
bargaining units, select a union representative, negotiate
with employers, and bring grievances to the Federal Labor
Relations Authority (FLRA). (GAO already negotiates with its
employees, but its cases do not go to the FLRA.) If employees
in the House, Senate, the Architect, CBO, and the Office of
Technology Assessment (OTA) were to decide to organize and
force their employers to negotiate with various bargaining
units, the employers would incur additional staff costs in
order to meet their responsibilities under the law. Based on
the experience at GPO and LoC, it appears that an agency with
several thousands of employees could spend $200,000 to
$300,000 per year for a lawyer and part of the time of
personnel officers who must work with the bargaining units.
CBO cannot predict to what extent employees at the affected
agencies would decide to take advantage of their opportunity
to organize under this law, but even if a few did at each
agency, total agency costs could be in the neighborhood of $1
million annually. Other Applicable Laws.
Some of the laws that H.R. 4822 would apply to the entire
legislative branch are laws that already apply to some or all
Congressional employers through existing statute or because
the employer voluntarily complies. Therefore, they are not
likely to result in additional costs. For example, the
Americans with Disabilities Act (ADA) and Title VII of the
Civil Right Act, which prohibit employer discrimination based
on disability or race, already apply to the Senate, House,
CBO, GAO, GPO, LoC, the Architect, and OTA--entities that
employ almost all of the 38,000 legislative branch employees.
The Family and Medical Leave Act, which guarantees employees
a certain amount of unpaid leave without fear of losing their
job in order to care for a new baby or a sick relative, also
applies now to all these employers.
Other laws apply to some employers now, but would apply to
all upon enactment of H.R. 4822. For example, the
Rehabilitation Act (which requires the government to contract
with vendors that provide employment
[[Page S705]]
opportunities for the disabled) only applies to the Senate
and the Architect. But because the Rehabilitation Act has
been largely superseded by the ADA, which all the employers
must already comply with, application of the Rehabilitation
Act is not expected to affect employers' practices. The Age
Discrimination in Employment Act (ADEA) does not apply
currently to the House, CBO, and certain employees of the
Architect, but the House has adopted a rule that ``personnel
actions affecting employment positions in the House . . .
shall be made free from discrimination based on . . . age.''
H.R. 4822 would codify this policy. The bill, however, would
provide such employees with improved procedures for seeking
redress if they experience discrimination because of age (as
well as race, color, national origin, religion, sex, or
disability). CBO expects that applying the ADEA would not
result in significant additional costs.
Finally, some laws that would apply under H.R. 4822 are not
currently followed by any Congressional employer. The Worker
Adjustment and Retraining Notification Act, which requires
employers to give employees certain notice and job placement
assistance before closing down a workplace, is not expected
to have a significant effect, budgetary or otherwise, on
Congressional employers because no mass layoffs are
anticipated. The Employee Polygraph Protection Act, which
forbids employers from using polygraphs on their employees
(except when required by the federal government to protect
national security), does not now apply to any legislative
branch entity. Because Congressional employers do not now use
polygraphs for employees, prohibiting this practice is not
likely to have any effect.
6. Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act of 1985 sets up pay-as-you-go
procedures for legislation affecting direct spending or
receipts through 1998. CBO estimates that enactment of H.R.
4822 could affect direct spending. Thus, pay-as-you-go
procedures would apply to the bill.
The bill would allow a hearing board or a district court,
depending on which forum the employee has taken the case, to
order a remedy that could include compensation. The bill
would establish separate funds in the House and the Senate to
pay such compensation (the Senate already has such a fund;
the House does not), but it does not authorize an
appropriation to the funds nor does it explicitly provide
spending authority for the funds. Further, the bill appears
to say that all compensation orders, regardless of which
legislative entity the employee works for, may be paid from
one of the House and Senate funds. The bill does not say what
would happen if the affected employer or the two compensation
funds do not have sufficient appropriations to pay the
compensation. Because the existing Claims and Judgments Fund
in the Treasury is available under current law to make
payments as ordered by the courts in cases where agencies do
not have a source of funding for the payment, it is possible
that successful claimants under H.R. 4822 could begin to
receive payments from the Claims and Judgments Fund. However,
it is unclear what would be the ultimate source of
compensation because the bill does not explicitly identify a
funding mechanism. CBO expects that the total of such
compensation paid to legislative branch employees in some
years could be between $0.5 million and $1 million. If paid
from the Claims and Judgments Fund, these payments would
constitute direct spending. The following table summarizes
the estimated pay-as-you-go impact of this bill.
[By fiscal year, in millions of dollars]
------------------------------------------------------------------------
1994 1995 1996 1997 1998
------------------------------------------------------------------------
Change in outlays.................... 0 0 0 1 1
Change in receipts................... (\1\) (\1\) (\1\) (\1\) (\1\)
------------------------------------------------------------------------
\1\ Not applicable.
7. Estimated cost to State and local governments: None.
8. Estimate comparison: None.
9. Previous CBO estimate: On June 30, 1994, CBO prepared a
cost estimate for S. 1824, as ordered reported by the Senate
Committee on Rules and Administration on June 9, 1994. That
bill is different from H.R. 4822 because it would cover only
Senate employees and because it would only apply OSHA and
FLSA to the Senate. H.R. 4822 would apply these two laws, as
well as seven others, to the entire legislative branch and
would create a consistent procedure to enforce the laws
equally on all legislative branch employees. CBO has
estimated a larger cost for H.R. 4822 than for S. 1824.
On August 2, 1994, CBO prepared a cost estimate for H.R.
4822, as ordered reported by the House Committee on Rules on
July 29, 1994. Because that version of the bill is nearly
identical to H.R. 4822 as ordered reported by the Committee
on House Administration, CBO's estimate of the cost of the
two bills is the same.
10. Estimate prepared by: James Hearn.
11. Estimate approved by: C.G. Nuckols, Assistant Director
for Budget Analysis.
Mr. LIEBERMAN. Mr. President, CBO estimated that both versions, the
House-passed last year and the Senate Governmental Affairs Committee,
quite similar to S. 2 before us now, would cost about $1 million for
the first 2 years in effect as the office gears up and $4 to $5 million
in the third, fourth, and fifth years. Much of the cost expected in
fiscal years 1997 and 1998 is the cost of working out collective
bargaining agreements. So once the cost of that is taken care of, the
overall pricetag should dip back down by the beginning of the second 5-
year budgetary cycle.
When you look at the total cost figures, I think you also have to
realize that the Senate and House offices of the existing Fair
Employment Practices Office, which would be supplanted, would be
replaced by the independent Office of Compliance created by this bill,
will cost almost $1.2 million in this fiscal year, so that the marginal
cost of the bills considered here is even less.
Mr. President, there was some indication on the floor yesterday that
the Senate Rules Committee has found the administrative hearing system
created for the Senate by the Government Employees Rights Act to be
extremely expensive and that this bill would further increase that
expense.
I hope that my colleagues on the Rules Committee will agree that the
bulk of the costs involved in the administrative hearing process lies
in the fact that the GERA, the Government Employees Rights Act,
requires three hearing officers to hear any one case. When we drafted
this bill, S. 2, and gave employees the right to bring original civil
actions in Federal district court, we recognized that the
administrative hearing process could be streamlined because it would no
longer be the only legal recourse for an employee to use in addressing
grievances that that employee felt he or she had.
Therefore, we create in this bill, S. 2, an administrative hearing
system that only requires one hearing officer to hear any case. That
surely will reduce the cost of holding any hearing by 67 percent, one
hearing officer as opposed to three. I think that my colleagues who
raise concerns about the costs of the current administrative hearing
system under the Government Employees Rights Act will recognize this
change--I hope they will --as a significant cost-saving measure.
Finally, Mr. President, I would like to urge my colleagues to
consider the estimated cost of last year's bill in its most expensive
year, fiscal year 1998, as a percentage of the legislative branch's
annual budget. For fiscal year 1998, which would have been the fourth
year in effect if the bill had been enacted last year, Congress' budget
will probably be in the neighborhood of $2.5 billion. Even if this bill
did cost $5 billion in fiscal year 1998 as a percentage of Congress'
total operating budget for that year, it would only amount to one-fifth
of 1 percent--one-fifth of 1 percent--which is surely not too much to
pay to, first, guarantee our employees that they have the same rights
as every other employee in America working for private business and,
second, for us to adopt the principle of living in the real world, of
getting rid of the double standard and of understanding in our own
capacity as employers the impact of the laws that we adopt on every
other employer in America.
Because this bill makes very few substantive changes from last year's
Senate bill, I think it is entirely reasonable to expect that CBO will
provide a similarly low score for S. 2, and we can then also assume
that the cost of the bill, in its most expensive year, will be an
equally small percentage of the legislative branch budget. That really
is not too much to ask.
Finally, there is in this another principle which is that we should
impose the same laws on ourselves as we do on everybody else because
presumably, if we adopt them, we believe they are good laws, that they
make sense, that they embrace values that we hold to be real and
important for our country.
We should pass this bill with strong enforcement, including the right
for claims to be heard in court, because we believe the laws we have
passed are right. By passing this bill, therefore, we not only get rid
of the double standard and create equity in reality, but we also
demonstrate a commitment to the underlying values that we have adopted
in these bills.
I thank the Chair and I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I suggest the absence of a quorum.
[[Page S706]]
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GLENN. 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. GLENN. Mr. President, let me just put out a general call here for
those who may have amendments to this bill. We do have time. We have
handled several this morning. The votes on those will be stacked until
this afternoon after our 2:15 end of the respective party conferences.
We will vote on those after that.
I think the distinguished floor manager on the Republican side was
going to propound a UC on that at the appropriate time, on how we will
go through the votes, so people will know what to expect. Let me just
say, on the Democratic side we are the only ones who have amendments
left on this bill. For those watching in the offices, or for Senators
or staffs who may be listening, I encourage them to get over right now
when we have some time here. We have about another hour before we break
for our conference lunches. Get over here and get the amendments taken
care of.
I heard the majority leader in the opening this morning state we are
going to go on this bill until it is done tonight with all the
amendments. That puts the heat on our side of the aisle to get the
amendments over here and get them taken care of.
So I ask staffs and Senators, if they have amendments, let us not
wait until 10 or 11 o'clock tonight to bring them up. Let us get them
over here while we have time right now.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, am I correct that the Leahy amendment is
pending before this body?
The PRESIDING OFFICER. The Senator is correct.
Mr. GRASSLEY. The amendment by the Senator from Vermont is a very
short amendment.
I will read one sentence that is in the amendment:
``No congressional organization or organization affiliated
with the Congress may request that any current or prospective
employee fill out a questionnaire or similar document in
which the person's views on organizations or policy matters
are requested.''
Of course, this amendment is not germane to this legislation. That is
obvious, as most of the amendments we have been dealing with.
The congressional accountability act is designed to make sure that
Congress lives under the same laws that we impose upon the private
sector. The private sector does not live under the law that the Senator
from Vermont seeks to impose on Congress, because a private sector
employer may ask prospective employees about their political views.
To be sure, the private sector does not ask these questions very
often. Political views are normally irrelevant to the performance of
job duties as a brick layer, or a secretary, or an airline pilot. Of
course, it may even be poor judgment and poor public relations for any
private sector business to ask such a question. But they are looking
for people to perform their jobs. They do not care whether they hire
Republicans, Democrats, Independents, or anything else. But the point
is that it is legal for a private sector employer to ask those
questions on political views if they want to. The Leahy amendment would
prohibit organizations affiliated with Congress from asking the same
question of prospective employees.
I spoke about the private sector, but in the political and Government
arena there are varying rules about whether or not this is a legitimate
question. Civil service employees and certain other governmental
employees cannot be hired or fired for their political views. These
tend to be nonpolitical employees who perform nonpolitical Government
jobs. These employees have the first amendment right to hold any
political views. In one famous case, a protected employee could not be
fired for saying, ``I hope he dies.'' That statement was made when she
learned of President Reagan being shot in March of 1981. However, the
rules are different for political employees in both the legislative and
executive branches. Rules that might apply to political views in the
executive branch may not hold in regard to inquiry into that point for
employees of the legislative branch. Under their constitutional duties,
it is quite obvious that the President and Members of Congress must be
able to hire people philosophically sympathetic to their agendas.
Personnel is policy.
When President Clinton fills a position that is a political
appointment, the applicant is asked his or her political views.
Whenever any Members of this body hires a legislative staff member, we
ask about their views. That is totally appropriate. That does not mean
that we practice any form of McCarthyism. If we properly do that as
individuals, then, of course, it seems reasonable to me that
organizations--the very same organizations that would be prohibited by
the Leahy amendment--which we join to help us in doing our jobs act
properly if they choose to ask prospective employees about their
political views. Members of these organizations are entitled to know
the views of potential employees. Members who rely upon the
organizations of Congress to submit potential employees are entitled to
know if that employee would be compatible with the legislative agenda
of the Member.
The amendment, however, offered by the Senator from Vermont overlooks
the essential political requirements of service on Capitol Hill. And it
is peculiar, because it would ban employees from completing
questionnaires on their views, but it would not affect oral
questioning. I do not know whether that is an oversight or not. It
would not allow questioning to be asked on a form, but you could have
the same questions asked orally. Thus, the amendment would not address,
in any real way, the problems--if there is a problem. I do not see it
as a problem, but the Senator from Vermont does. It does not, in any
practical way, address what he wants to accomplish. He wants to make
sure there is not some sort of litmus test for the hiring of employees
on Capitol Hill. So he says you cannot ask questions on the
questionnaire, but you can ask these questions orally. Moreover, I feel
that inquiring about a congressional employee's political view is not
in any way a horror. In fact, it is very vital to the functioning of
the institution.
In short, the amendment offered by the Senator from Vermont should be
rejected. It has nothing to do with congressional coverage. It would
harm the ability of Members to do what they were elected to do, and it
would not accomplish its stated objective. So I urge that it be
rejected.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant 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, has the Pastore rule run its course for the
day.
The PRESIDING OFFICER (Mr. Craig). The Pastore rule has not expired.
Mr. BYRD. It has not?
The PRESIDING OFFICER. It has not.
Mr. BYRD. Mr. President, I ask unanimous consent that I may speak out
of order for not to exceed 10 minutes.
The PRESIDING OFFICER. Hearing no objection, the Senator is
recognized.
____________________