Since when are members of Congress and their staffs accused of sexual harassment allowed to hush up and pay off their accusers from a secret “shush” fund full of taxpayer dollars? Since 1995, it turns out.
Congress, we all know, chooses to exempt itself from many of the same laws it foists on the rest of us. It’s a grievance I hear regularly during my travels around the country, as grassroots activists complain about this law or that regulation. “If only Congress had to live under the same laws we do, they’d get it, and they’d change it” is a common refrain.
For years, for instance, I’ve been speaking out about the illegal special exemption of Congress from ObamaCare, which allows members and staff to avoid the financial burdens they imposed on us when they passed that terrible law. If only they had to live under the law the same way the rest of us do, without benefit of taxpayer dollars to subsidize their premiums purchased fraudulently on the D.C. small business exchange, they might be more incentivized to repeal that law.
But until recently, I did not know about the “shush fund” of Congress, a fund managed by the “Office of Compliance,” which itself was created following the 1995 enactment of the Congressional Accountability Act (CAA), the first law enacted by the first Republican House in four decades.
Ironically, the CAA was a serious attempt to bring Congress under many labor laws from which it had previously exempted itself. In fact, under the CAA, Congress applied 12 different labor laws to itself for the first time, including the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Federal Service Labor Management Relations Statute, Title VII of the Civil Rights Act of 1964, and the Fair Labor Standards Act of 1938, among others.
The CAA sought to make changes in how Congress dealt with charges of sexual harassment against its members and staff, too. Prior to enactment of the law, a victim of sexual harassment by a member of Congress had virtually no legal recourse at all. With whom would such a victim lodge a complaint or seek redress?
So the CAA created the “Office of Compliance” to deal with such issues. Complainants begin the dispute resolution process with a mandatory (yes, really) course of counseling that can last up to 30 days. Only after completing the compulsory counseling may a complainant pursue mediation. That, too, can last up to 30 days. If mediation fails to resolve the issue to the complainant’s satisfaction, she or he can then go to an administrative hearing, or file a federal lawsuit.
Here’s the kicker: If the dispute is resolved in favor of the complainant (read: victim), funds for the settlement don’t come out of the offender’s personal bank account, or his or her campaign account. Instead, they come out of a secret account maintained by the Office of Compliance. It is so secret, in fact, that taxpayers don’t even know they are funding it.
According to the Washington Post, there were 235 complainants received compensation totaling $15.2 million between 1997 and 2014. That’s more than one settlement per month for 17 years and nearly $1 million per year. We, the taxpayers, have no idea on whose behalf we’ve been paying to settle these sexual harassment claims. That’s wrong.
Now, in defense of Congress, the reasoning behind this rather convoluted dispute resolution process was that there could be scurrilous political operatives trying to game the system to target political opponents with potentially career-ending sexual harassment claims. That is a reasonable concern. But in the process of establishing protections for its members, Congress inadvertently institutionalized a cover-up culture, in which the supreme end goal is to get the alleged victims to go away quietly.
The “resolution” system is unfairly rigged to protect the careers of politicians, not to protect vulnerable staffers. That the counseling sessions are mandatory reveals that the objective has little to do with helping the alleged victim, but is instead simply aimed at dissuading the alleged victim from proceeding with a complaint. Leave it to Congress to find a way to insert layers of bureaucracy and paperwork into this “resolution” process.
Various proposals are floating around the Congress now that would require mandatory sexual harassment training for members of Congress and their staffs. That’s a fine idea, and I’m all for it. But those legislative proposals should make another change to the sexual harassment dispute resolution mechanism, too.
We, the taxpayers who have been paying for more than two decades to quietly settle literally hundreds of sexual harassment claims against members of Congress and their staffs, have a right to know which members and staffers have made use of the hush money over the years. Going forward, taxpayers should have knowledge about how that fund is used.
If Congress wants to get serious about its apparent culture of abuse, it will need to address its cover-up culture. Shush funds may serve the immediate purpose of getting alleged victims to go away, but they do little to stem the tide of sexual harassment. What Congress needs — and American taxpayers deserve — is more transparency.