Capitol Hill needs real workplace regulations, not just a culture change.
The pressure on Congress to do something about sexual harassment is mounting. Senator Al Franken’s public apology for grabbing women inappropriately, Congressman John Conyers stepping down from his position on the House Judiciary Committee after reports of confidential sexual harassment settlements, and the very real possibility that Roy Moore—who faces multiple allegations of sexual molestation and sexual assault—will soon represent Alabama in the Senate have put the issue front and center. And all of these stories are happening under the shadow of a president who has faced multiple accusations of sexual assault and who has displayed very little sympathy for those who are trying to improve this situation.
Some experts predict that as a result of all these stories, as well as the multiple scandals coming out of the private sector, this will be the “Year of the Woman” just as it was in 1992. They anticipate that the fallout from the scandals will be the possibility that large numbers of female candidates will be elected in the 2018 elections, greatly increasing the number of women in Congress, who currently only make up a little less than 20 percent of lawmakers. If that happens, the new blood could transform Congress and create a new culture on Capitol Hill. We might be on the cusp of finally having a Congress where all male politicians treat their peers and their staffers with the full respect accorded by the law. The era of the skirt chasers and touchy hands will end.
Or so they hope.
Is Combatting Sexual Abuse Becoming a Partisan Issue?
The last time Congress faced a moment of reckoning like this, it failed to pass strict rules governing sexual harassment that would ensure accountability. That is why we are where we are today. The pattern was one that has played out many times before. In moments when there is great pressure for reform, legislators are often reluctant to go as far in fixing themselves as they are in dealing with other branches of government or with the private sector.
The missed opportunity of the 1990s began in October of 1991, when the Senate confirmation hearings for Clarence Thomas, President George H. W. Bush’s nominee for the Supreme Court, revealed how little sensitivity there was in Congress toward the challenges that women face in the workplace. During the hearings, the news media broke the story that there were allegations that Thomas sexually harassed Anita Hill, an African American law professor at the University of Oklahoma who had worked with Thomas when he headed the Equal Employment Opportunity Office under Ronald Reagan.
Her testimony was shocking. “After a brief discussion of work,” she told the committee, “he would turn the conversation to a discussion of sexual matters. His conversations were very vivid. He spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes.” What struck many observers was how hard it was for the senators to take her seriously. Wyoming Republican Alan Simpson’s response was to ask: “If what you say this man said to you occurred, why in God’s name when he left his position of power or status or authority over you, and you left it in 1983, why in God’s name would you ever speak to a man like that the rest of your life?” When she tried to explain her concern for her professional future and reminded the senator that this kind of response was not uncommon in cases of harassment, he simply said it was “incredible” to him that they still spoke. Democrats such as Senator Joseph Biden, the chairman of the committee, did not try to bring the hearings under control when Hill came under attack.
The handful of female legislators in the Senate decried the behavior male colleagues, who constituted 98 percent of the upper chamber. They vowed to change the culture of Congress and worked to recruit a large number of female candidates to run in the 1992 elections. When there were four victorious female candidates (Patty Murray, Carol Mosely Braun, Dianne Feinstein, and Barbara Boxer) in the Senate elections—while Maryland’s Barbara Mikulski won reelection—and a significant surge in the House and in state legislators, the media reported on “The Year of the Woman.”
It was a moment when things should have changed and much did. These female legislators brought a huge number of new issues to the table, and their presence as elected officials had an impact on what kinds of behavior was deemed permissible, certainly in the public settings of committee hearings and the congressional dining hall. The ultimate victory would come in 2007, when Nancy Pelosi became the female first speaker of the House in American history.
Yet when it came to Congress as a workplace, the accomplishments were more limited. The nub of the problem was that, unlike the executive branch, there had not been civil-service protections for jobs on Capitol Hill. Congress has resisted any kind of institutional infringement on its prerogatives based on claims about the constitutional separation of power. Ohio Democratic Senator John Glenn and others called Capitol Hill “The Last Plantation” as a result of these exemptions. His original reference was to the congressional insulation from civil-rights laws, but by the 1990s, he and others were using the term to talk about gender relations as well. The independent management of members’ offices, which has also been a sacrosanct principle, prevented almost any kind of serious centralized oversight of members and their staff. Beneath these constitutional and managerial issues has been the ongoing fear that any type of stringent rules would merely become weapons for politically motivated attacks using employees to smear the reputation of members.
Unexpected momentum to change the status quo came again in 1995 after Republicans took over both chambers of Congress. Although many Republicans had been resistant when there were efforts to pass legislation creating more stringent rules about sexual relations on the Hill, under Speaker Newt Gingrich the GOP decided to take on the issue. Extending civil-rights and workplace-protection laws on the congressional labor force had been one of the promises that Republican candidates had made when telling their supporters that they wanted to transform Capitol Hill.
Republicans were eager to demonstrate that they could take this issue seriously as the party was reeling from a scandal of their own. Oregon Republican Robert Packwood, a champion of women’s rights issues, was found to be been guilty of sexual misconduct. News stories and an investigation by the Senate Ethics Committee had provided the public with shocking detail about the senator grabbing women by their hair and reaching down beneath their cloths. With Republicans like Mitch McConnell speaking out about what the committee was finding, there were predictions that the Senate might vote to expel him by a two-thirds vote when the investigation was done.
To demonstrate that they were serious, the Republicans took the issue up as soon as the session started. Within a few weeks, the House and Senate passed the Congressional Accountability Act of 1995 by huge bipartisan margins. The new law applied 13 federal labor and anti-discrimination laws to Congress. The legislation established an Office of Compliance, under the control of Congress, to handle employment cases when they arose. The measure enabled the over 30,000 workers on the Hill to make claims in federal court—following mediation and counseling that would be handled through the Office.
Republican Christopher Shays of Connecticut, who co-sponsored the bill, explained, “If a law is right for the private sector, it is right for Congress.” Democratic Senator Joseph Lieberman called it the “Golden Rule” since Congress would do to “ourselves as we have done unto others…” The only dissenting vote came from West Virginia Democrat Robert Byrd, who said that even this went too far in subjecting the legislative branch to external oversight. The proponents reminded Byrd that the Office of Compliance, which would control the process, would prevent that. When President Clinton signed the bill into law, he proclaimed that: “It is about time that Congress lived by the same laws it places on the private sector.”
There were many employees on the Hill who were skeptical that the law would really change anything. The old timers had heard about reform in previous eras, only to see legislators exempt themselves from serious punishment.
