Frustrated that discrimination lawsuits filed under the Congressional Accountability Act have reached different fates depending on which side of the Capitol the staffers worked, the two chief sponsors of the landmark law are lamenting the Senate chief employment counsel’s ability to deny staffers their day in court.
“It’s very clear the difference” between the to chambers, Rep. Christopher Shays (R-Conn.) said. “The professionals in the Senate have convinced the Senators that they should ignore the law” despite the fact that the chamber voted for it 98-1.
For at least the second time, a suit was filed recently in federal court against a House Member or committee without the defendant claiming constitutional protection. Rep. Eddie Bernice Johnson’s former scheduler alleged in district court last year that the Texas Democrat fired her because of her race. Notably, Johnson did not invoke the Speech or Debate privileges to attempt to get the case dismissed on procedural grounds. The Ways and Means Committee, which had a similar case against it dismissed early this year, similarly chose to avoid a constitutional challenge to a bill that passed the House unanimously in 1995.
The statute for the first time applied federal labor laws to the legislative branch and gave Congressional workers the right to take their employers to court after going through a mandatory counseling and mediation process.
The two House defendants and their lawyers allowed the suits to proceed on their merits. In the Ways and Means case, the U.S. District Court for D.C. determined that the staffer’s complaints did not constitute discrimination.
That approach contrasts sharply with the cases against Sens. Ben Nighthorse Campbell (R-Colo.) and Mark Dayton (D-Minn.), both of which have been in court for years without proceeding to trial because Senate Chief Counsel for Employment Jean Manning and her clients have maintained the constitutional clause protecting Members from being questioned about the “Speech or Debate in either House … in any other place” bars such suits.
The question of whether Campbell’s decision to terminate an employee in his state office was a constitutionally immune legislative act or merely an administrative one (and thus not protected) is now before the U.S. Court of Appeals for the 10th Circuit.
Sen. Charles Grassley (R-Iowa) characterized the legal maneuvers as a way to “nibble around the edges” of the law. “Enough of it will bring about its demise.
“There’s been for years now a group of lawmakers who have not liked the Congressional Accountability Act, but they haven’t had the guts to take it straight on,” he said.
Alluding to private plans to buttress the law, Grassley said his “efforts are to keep with the original intent of this law so there won’t be two laws in this country” — those for Congress and those for everyone else.
But such disparities in the application of employment laws have emerged between the House and Senate chambers themselves, a discrepancy Grassley and Shays both attribute to Manning’s ability to persuade Senators to circumvent the spirit of the Congressional Accountability Act.
“The Senate Chief Counsel for Employment is acting like a lawyer, and as most lawyers do, she’s going overboard. It’s interesting that if she is successful she won’t have a job anymore,” Grassley said late last year.
Manning declined requests to be interviewed for this article, but she spoke to reporters in February after making her case before the three-judge panel in Denver.
“The Constitution just puts limits on things. Sometimes the results aren’t what [people] would like them to be,” she said. “I would admit that the result would be unpalatable here. To some people, it would not be palatable that employees who have been wronged cannot go to court.”
As for how close the staffers would have to be to the legislative process in order to trigger a constitutional defense, Manning said she thinks “we will spend the next 20 years [determining] where’s the line.”
Campbell, she said, ultimately decided to assert Speech or Debate. “He’s the client, and always the attorney’s take their direction from the client. He agrees with this tactic. To him it’s a constitutional issue.”
Campbell’s 1995 vote for and sponsorship of the bill doesn’t seem reflect that that belief, however. He was one of 40 cosponsors and 98 “yea” votes for the measure. His office has declined to comment on the lawsuit.
In her conversation with reporters, Manning suggested that the Ways and Means case — at the time, the only known suit involving a legislative staffer in the House — could be an anomaly and other House Members might take the same legal tack as Campbell.
“The House may assert this,” she said.
The “client” in the Ways and Means case, she said, decided not to invoke Speech or Debate.
Indeed, Ways and Means Chairman Bill Thomas (R-Calif.) rejected the whole premise of Manning’s argument.
“I think you diminish any portion of the Constitution when you use it in a far more expansive way that it was intended,” he said several weeks later. “The House is different than the Senate, and this chairman is different than the Senate.”
And the Ways and Means’ case doesn’t appear to be an aberration.
Although it is not entirely clear whether Johnson made a constitutional argument to the judge in her case under seal or even whether she discussed invoking Speech or Debate with her lawyers in the House Employment Counsel’s office, Speech or Debate immunity is not mentioned in the briefs. Gloria Ferguson, the office’s chief counsel, declined a request for an interview.
In late February, Johnson did ask the judge for leave to file a motion under seal. The request is never again mentioned in court documents, however, and nothing seems to have been filed. Johnson declined to comment on any aspect of the case, including whether the constitutional defense had been presented to her as an option.
The House Employment Counsel’s office did not bring the Campbell precedent to the court’s attention in either the Ways and Means case or Johnson’s. By twice refusing to cite relevant case law — a district court dismissed a Campbell’s case on constitutional grounds — House lawyers have given strong indications they their clients aren’t as inclined to invoke the immunity defense as their counterparts in the Senate.
The woman who sued the Ways and Means panel was a committee staffer who worked on legislative issues on Capitol grounds. If the House Employment Counsel’s office planned to argue that an employee tied to the legislative process cannot sue a Member or committee because of constitutional protections, presumably they would have done so in this case.
It could have been an effective argument, especially if the House cited the suit against Campbell. Rita Bastien was Campbell’s state director. Her duties included handling constituent services and managing his offices in Colorado — she gave him little, if any, policy advice and wrote no legislation.
One of her attorneys, Karen Larson, has said the court’s finding that Bastien was sufficiently tied to the legislative process to trigger Speech or Debate Clause immunity means that “anyone who is a personal [or committee] staff member would be part of the legislative process.”
Regardless of whether Johnson flirted with using the immunity defense in her case — and there is no evidence, only the possibility, that she did — the cultural chasm between the two chambers on this issue remains wide. Privately, Members and aides on both sides acknowledge that the difference is due in no small part to the determination of Manning herself. That determination is greeted with a mixture of derision and cheers.
The disparity also reflects subtle differences in attitudes about the law itself. Although the Congressional Accountability Act passed the Senate with only Sen. Bob Byrd (D-W.Va.) opposing, the bill never had the same kind of momentum and revolutionary zeal in the chamber as it did in the House.
Republicans took over both chambers in 1995, looking to fulfill a campaign promise of reigning in what they deemed an “imperial Congress.” The House bill was H.R. 1 and the Senate’s was S. 2. But the “Contract with America,” in which the CAA was the first plank, was most closely associated with then-Speaker Newt Gingrich (R-Ga.) and his colleagues in the House, from where most of the fervor for the bill emanated. The Senate, with the exception of the measure’s chief sponsors, was from the beginning a more reluctant partner.