Thoughts on Harassment in Congress and Reform of the Congressional Accountability Act

Today the House of Representatives held its second hearing on the issue of sexual harassment in Congress, focusing on the 1995 Congressional Accountability Act, the law that created the framework through which harassment and other congressional workplace issues are addressed.

The House and Senate recently passed resolutions requiring sexual harassment training, and the House is exploring whether it should do more. Rep. Speier has introduced legislation to reform the CAA, H.R. 4396, although she has said it does not go far enough.

I have some thoughts on how Congress can deal with the sexual harassment issue and other forms of discrimination as well.

As a starting point, we must remember that a significant component of harassment is about disparities in power. It is about control. It is about elevating one person at the expense of another. Any effort to address harassment must take power into account.

That’s why sexual harassment training will never be enough. Knowing something is wrong, doing it anyway, and getting away with it for some is a major purpose of harassment in the first place.

We must address structural issues. For example, when we conceptualize staff in a congressional office as working only for that member of Congress or Committee, we create a paradigm that makes resolution of these issues virtually impossible. In reality, congressional staff work for Congress. They are hired and fired by individual member offices, but they are all subject to the rules of their chamber in the processes that are created thereby.

Here are my recommendations:

(1) Much of congress’s HR work should be centralized in a central office capable of handling those matters. Individual offices must always retain control over work product, but there must be someplace else — someplace independent of the Member of Congress or Committee Chair — to go to address matters of harassment and discrimination (and other aspects of employment). This also would allow for a 360 degree approach to these matters, starting at the moment the junior-most staffer is hired.

(2) One of the factors in the disparity of power is economic power. Staff are dependent upon their bosses for their pay. We should move Congress to a system similar to the rest of the federal government, where there are pay bands for particular classes of work.

On that same point, congressional staff should be paid more. Many staff live paycheck to paycheck, and some have to take second jobs. Washington DC is very expensive. These circumstances create excessive dependency. (There are other reasons to do this having to do with the capacity of Congress to do its job). And, on that point, interns and fellows should all be paid and protected by law.

(3) Third, staff need to have an incentive to report problems that is at least equal to the countervailing damage that will be done to their careers when they speak up. When harassment occurs, they should be able to receive sufficient compensation that makes it worthwhile to address the problem. They also must be assisted in finding new jobs of equal status, responsibility, and pay.

Harassment is a systemic problem that degrades the ability of Congress to do its work. Providing incentives to staff to report problems will result in an overall increased functioning of Congress. It is in everyone’s interest to root out bad actors.

(4) Members of Congress and staff need a strong disincentive to engage in harassment. There must be personal liability in addition to institutional liability. This ensures that victims of harassment can be fully compensated while simultaneously ensuring that bad actors are held to account. There must be a consequence for bad behavior to be deterred. (In addition, perpetrators of harassment should not be able to receive any tax or other benefit for their misconduct.)

(5) Congress must address the collective action problem that prevents staff from pushing back against harassment and other forms of discrimination. In workplaces, where we have collective action problems between employers and employees, the answer historically has been unionization.

Some legislative branch support offices and agencies have unions. When the CAA was enacted, there was contemplation of allowing staff to create unions. The idea was that Congress should be subject to the same laws as everyone else. It’s time to allow non-managerial staff to unionize.

While unions are not perfect, they do provide an alternate forum for staff to collaborate to push back against problems in the workplace. Unions can advocate for staff in a way that helps address some of the underlying congressional dysfunction at both an individual and systematic level.

(6) Staff who are victims of harassment need advocates inside the institution and a clear process to protect themselves. The current process appears to leave staff at the mercy of forces much stronger than they are. They need to have advocates inside the institution whose job it is to help them through the process. In addition, the resolution process should be swift — not slow and byzantine — and staff who file complaints shouldn’t be effectively punished, either by being forced to work with their alleged harassers or leave that office.

(7) The congressional ethics administrative structure is broken. The House and Senate Ethics Committees are viewed as mechanisms by which members of Congress protect themselves from allegations, not as a place where one goes to resolve significant ethical matters. This is unfortunate. It also is what helped prompted the creation of the Office of Congressional Ethics.

The shared responsibilities around ethics/harassment issues between the Ethics Committees and the Administration Committees (the Committee on House Administration and Senate Rules Committee) often has the effect of having each committee defer to the other to take the lead on ethics matters. (The existence of the Office of Compliance has only exacerbated that problem). Shared responsibility does not work.

It is a particularly thorny problem because matters of harassment and discrimination — and ethics issues generally — are looked at from a micro perspective. While complaints and filings are reviewed on an individual basis, there is no apparent effort to look at these matters systematically.

For example, it is possible to identify congressional offices that are in distress by looking at the turnover rates in the offices and identifying the ones that are outliers. This is possible with data currently made available to the public, and there’s likely more information available internally. But, as far as is publicly known, no such effort is being made inside Congress. And there is no congressional office that I am aware of that would make an intervention should such high-risk offices be identified.

The same is true for other ethical matters. Many ethics disclosures are not made available online (even though they are available to the public). The Statements of Disbursements can hide when Member offices make pay-outs to settle complaints, either by mislabeling the payments or not providing sufficient detail. Payments for harassment was cleverly hidden inside Appropriations bills instead of disclosed in a forthright manner. Better, more comprehensive disclosure can help civil society help Congress check bad behavior.

(8) Congress should institute mechanisms to help it take the temperature of how well it is surfacing matters concerning providing a safe and welcoming work environment. For example, Congress should conduct congress-wide staff surveys, regular review of congressional data (such as the statements of disbursements) for at-risk offices, the creation of an ombudsman who advocates for staff, comparison of rates of reported harassment in Congress to rates of harassment in federal offices and agencies, among other mechanisms.

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Just like in 1995 and 2007, ethics and harassment matters are at the forefront of congressional attention. This will not last unless Congress now puts into place mechanisms that continue to address these matters at both an individual and systematic level.

— Written by Daniel Schuman