The bill could also make it harder for the public to learn about cases of misconduct, and victims have complained the new process could make it even harder to sue members of Congress.
The bipartisan bill introduced by
Mississippi Republican Rep. Gregg Harper and California Democratic Rep. Bob Brady last week was in direct response to a series of allegations, resignations and retirements that have rocked Capitol Hill in recent months regarding lawmakers from both parties making inappropriate comments or sexually harassing female staffers.
Rep. Jackie Speier, a California Democrat and a leading voice in the debate, said in a statement, “I am proud to have worked with my colleagues on both sides of the aisle to craft what I believe is a strong, comprehensive reform to the congressional process that will empower victims and hold Members accountable.”
But the bill freezes out the Office of Congressional Ethics, specifically saying it cannot investigate any claim filed with the Office of Compliance, and leaves it to the House Ethics Committee, which has a lackluster track record of sanctioning lawmakers and very little in the way of public disclosure requirements, to decide whether a lawmaker violated House rules. The bill’s authors maintain that the reason they added language limiting those who could investigate cases is because they thought it would be duplicative to have OCE involved.
This is the second time that the House has worked to take away authority of OCE. Last January, House Republicans voted to force the panel, which was created in 2008 to serve as an outside check and screener of allegations of wrongdoing, under the Ethics Committee, a move that gutted its charter.
After President Donald Trump tweeted his opposition to
the idea, the GOP quickly retracted the effort. But lawmakers from both parties have argued that OCE overreaches. Although they supported creating it after a different series of ethics scandals demonstrated the ethics process was broken, many have criticized its work ever since.
The new bill amends the Congressional Accountability Act of 1995, and requires that once an aide files a complaint of sexual or workplace harassment to the Office of Compliance it no longer can be viewed by the outside watchdog, and the House Ethics Committee is the body that decides any broader investigation.
Last week, Pennsylvania GOP Rep. Patrick Meehan, a senior member of the House Ethics Committee, was kicked off the committee by House Speaker Paul Ryan
after The New York Times revealed he settled a sexual harassment case with a former aide and used taxpayer money after settling the claim through the Office of Compliance. On Monday the Ethics Committee announced he was now under investigation, but there was no indication as to whether the committee was even aware of the previous settlement of one of its own members.
The purpose of the new bill was to increase transparency, but the Office of Compliance in the legislation is required to release information about its cases only twice a year, as opposed to the quarterly reports that OCE releases about its workload.
Republican and Democratic sources tell CNN that there was bipartisan agreement to add the so-called Section 407 provision to the legislation, and emphasize that the OOC will report any cases to the Ethics Committee when they are first filed and again once any judicial process or settlement is completed. But the legislation doesn’t require the Ethics Committee to disclose how it’s handling those matters.
A spokeswoman for Harper defended the move in a written statement to CNN, saying, “The CAA Reform Act seeks to provide a stronger reporting and resolution process for employees, which includes an immediate investigation once a claim has been filed. The section 407 provision ensures that only one entity is conducting the investigation at a time to make certain there is an accurate gathering of facts and a swift reporting of those findings.”
“This was a sincere effort to act on victims’ feedback to make the overall process less traumatic and more focused on actual results,” a senior Democratic aide familiar with the process told CNN, saying that the push to limit OCE’s role came from closed door discussions with victims. The aide acknowledged it was not part of the public discussion at the committee’s hearings on the legislation but stressed, “Some victims referred to them as bullies,” referring to OCE investigators.
CNN reached out to the Office of Congressional Ethics but they declined to comment on the change in their role in the new legislation.
One of the authors of the original Congressional Accountability Act, Meredith McGehee, executive director of Issue One, an outside group pushing for greater transparency, said the move would “purposefully defang” OCE. Other groups have weighed in with the House Administration Committee with concerns.
“This offending language should be removed from the legislation immediately because there is no demonstrated need for it to be there,” McGehee said in a written statement. “The proposed streamlined process would require the new Office of Congressional Workplace Rights to refer cases to the House Ethics Committee without the transparency applicable to investigations conducted by OCE. This is alarming given the committee’s poor track record when it comes to committing to a timely, publicly accountable process.”
A senior Democratic aide told CNN that the new system means OCE could still investigate other matters, ones that were reported directly to the OCE, or brought to its attention from news reports. But once a matter was in the hands of the reformed version of the Office of Compliance, it would be notified that it was barred from launching its own review.
While those crafting the new legislation argue it was designed with victim input, one attorney for an aide involved in a sexual harassment case believes it fails that test.
The attorney for Lauren Greene, who settled a sexual harassment lawsuit with Texas Republican Rep. Blake Farenthold in 2014
, believes the bill designed to help congressional staffers will actually hurt them — significantly curtailing the ability to sue.
“From the day they file their claim, they only have a 30-day window to file a lawsuit, and a lot of people are not going to have lawyers in that 30-day time period, and so will not have time to file a lawsuit,” attorney Les Alderman told CNN, explaining that his read of the bill is that bad cases will have the most leverage to sue.
“In fact, the only people who are allowed to go to court are the people with no reasonable cause,” Alderman said. “So, if you have a bad case, you can go to court, and if you are smart enough to go to court in 30 days, you can go to court, but good cases who didn’t go to court in 30 days are stuck with the hearing officer and with no jury trial. Maybe the general counsel takes three years — there’s no recourse.”
Alderman points out that there is no consequence if a decision is delayed, and “victims are not given any alternate avenue, such as being granted the right to file a civil action if the general counsel fails to act within the allotted time frame.”
He is also concerned that requiring victims to make claims under oath will deter people, since often these cases are based on circumstantial evidence or anecdotal information and not “direct evidence.”
But the senior Democratic aide disputed that timeline, saying that the process effectively allows for 210 days for a case to be filed, far more than the 45 days provided by the rest of the federal government for similar cases.
“So this notion that there is a restriction on when people can go to court or not is not based in reality,” the aide said.
Updated 6:25 PM ET, Tue January 23, 2018