Nearly a year after the #MeToo movement surged into the national consciousness, Congress is still far from a final deal on modernizing its own workplace harassment rules despite a slew of career-ending scandals in both parties.
Talks on reshaping Capitol Hill’s misconduct policy haven’t exactly stalled — they’re just plodding slowly amid tension between the Senate and House on how to reconcile competing bills. In a twist that’s particularly rare in an election year, because it doesn’t break along partisan lines, House Republicans and Democrats aren’t at each other’s throats but instead are uniting to tout their harassment bill as superior to the Senate’s more watered-down product.
That leaves the ultimate congressional response to the national outcry over workplace harassment very much in doubt, even as members and aides on both sides of the Capitol say they’re still making progress. And with the clock ticking to get something done — if it’s imperfect — in response to widespread outrage over sexual misconduct, the House’s bipartisan unity in favor of its bill is poised to be tested.
Rep. Bradley Byrne (R-Ala.), who played a key role in shaping the House legislation that passed six months ago this week, lamented “almost a completely different philosophy between the two houses” of Congress on the issue.
Senators “feel very strongly that we went too far in our bill, and they want a much weaker process,” Byrne said in an interview. “I don’t think that’s what the public expects of us.”
House members, and the advocacy groups that have preferred their measure, are barreling toward a big moment as they keep pushing for the strictest possible remodeling of the Hill’s misconduct system. Both chambers will have to agree on a government spending package next month to avoid a shutdown, which could become an irresistible vehicle for a deal that looks more like the Senate’s less severe version of the bill.
Minnesota Sen. Amy Klobuchar, a leading participant in the talks as the Rules Committee’s top Democrat, said in a recent interview that talks on merging the House and Senate bills have come down to "finding a way to pass it," whether attached to a must-pass vehicle or on its own.
"I would hope very much that it would be done before the election, and I don’t see why it wouldn’t be," Klobuchar said late last month.
The House’s bipartisan legislation requires lawmakers to personally pay for harassment and discrimination settlements related to their actions on the job, creates a legal adviser to assist employees pursuing misconduct claims, and sets up an independent inquiry before any formal hearing on victims’ specific claims.
But the Senate’s bipartisan misconduct bill takes a softer approach to those issues: Lawmakers would be personally liable for only compensatory damages from harassment settlements, and employees’ confidential adviser would be barred from offering legal advice. And the House’s investigation would be replaced with what Byrne described as a process that’s “way too cumbersome and is frankly a disincentive for anybody to come forward.”
When it comes to an investigation in advance of hearings on misconduct claims, the House and Senate have a viable path to compromise. Although the Senate is opposed to giving investigative subpoena power to the Hill’s Office of Compliance, often criticized for its opacity in adjudicating misconduct cases, one source briefed on the negotiations said that the chamber would be open to an advance, pre-hearing review.
On hot-button issues such as lawmakers’ personal liability for misconduct settlements, however, the middle ground is much less clear. As sexual harassment scandals felled former Reps. John Conyers (D-Mich.), Pat Meehan (R-Pa.) and Blake Farenthold (R-Texas), all of whom used taxpayer money to pay settlements to former employees, Republicans and Democrats alike pushed for the denial of members’ access to what some dubbed a “slush fund” for harassment payouts.
Now that Hill scandals have fallen from the headlines, however, advocacy groups that favor the House bill are hoping that the Senate doesn’t use the shrinking number of legislative days left in this year to jam their colleagues across the Capitol.
“I understand the Senate bill is an improvement over the status quo, but there are some real fundamental flaws we have outlined,” said Vania Leveille, senior legislative counsel at the ACLU.
The Senate opted to limit the type of settlements for which members would be held personally liable to harassment alone out of concern about entangling lawmakers in undeserved claims, according to sources. Discrimination cases, however, have typically made up the bulk of Hill misconduct complaints.
Remington Gregg, a counsel at Public Citizen, hailed the House for “remaining committed” in the face of “mind-boggling” resistance from the GOP-controlled Senate.
“I hope that, given they’re still trying to iron these things out, it suggests that the House remains united, that Republicans and Democrats remain united in ensuring the strong bill that they passed” becomes law, Gregg said in an interview.
In the past month alone, new harassment scandals have embroiled CBS Chairman Les Moonves, Federal Housing Finance Agency chief Mel Watt, and a former senior official at the Federal Emergency Management Agency.
Meanwhile, the 2018 midterm elections loom in the background.
House aides are already whispering about the possibility that the chamber will be out of session for most, if not all, of October so members can campaign in their home states, putting pressure on negotiators to finalize a deal before then.
And then there’s the question of whether Democrats’ strategy will change if they win back the House in November and the two chambers still have not finalized an agreement on combating the sort of harassment scandals like those that ended the careers of a half-dozen members of Congress in both parties since the nationwide focus on #MeToo began last fall.
With a potential takeover just months away, Democrats could be motivated to shelve the talks altogether until next year or dig in and push even harder for the House bill in a post-election lame-duck session. But sources with knowledge of the harassment talks said negotiators still hope to finish up in the coming weeks, making questions about the election’s impact moot.
Indeed, a few flashpoints in the House-Senate harassment reform discussions already appear on track to a resolution: Sources in both chambers, for example, indicated that the Senate is prepared to drop a reference to "unwelcome harassment" in the section of its legislation that describes when lawmakers are held personally liable for settlement payouts.
Klobuchar and Rules Chairman Roy Blunt (R-Mo.) had sought to clarify after their Hill misconduct bill passed in May that the Senate’s proposed definition was "not intended to be used in other contexts." But the inclusion of that "unwelcome" standard had raised fears among civil rights advocates about unwittingly making space for "welcome harassment."
Aides from both parties and chambers continue to meet regularly on bridging the still-significant gaps between the bills. They huddled for a 90-minute meeting Wednesday, with no major breakthroughs, and plan to meet again next week.
Byrne, however, warned that the appearance of forward movement might belie tensions that run deep enough to force the House and Senate into the formal misconduct negotiations they had attempted to avoid — adding potential further delays.
"I’m afraid, because of the lack of progress in the talks, we may have to go to conference on it," the Alabama Republican said.