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Frank Slams House on ‘Speech’ Shield

Rep. Barney Frank (D-Mass.) on Friday criticized a brief recently filed by attorneys for the House leadership, saying that, if adopted, the brief would allow Members to use the Constitution’s Speech or Debate Clause as a shield from lawsuits brought under the Congressional Accountability Act.

Frank said he disagreed with most of the substance of the brief filed in the U.S. Court of Appeals for the District of Columbia and thinks Congressional employees should have the right to bring suit against a Member if necessary.

“It is wrong for Congress to pass laws covering the private sector that don’t cover Congress as well,” Frank said at a press conference Friday.

The House general counsel’s office filed a “friend of the court” brief Jan. 6 in a discrimination lawsuit brought against Rep. Eddie Bernice Johnson (D-Texas) by her former chief of staff, Beverly Fields. While Frank is protesting the brief, he made it clear that he is not siding with Fields.

“It seems unlikely to me that [Johnson] would be guilty of racial discrimination,” Frank said of the black Texan Representative. “The point is that any of us charged with this, like any other employer in America, should have to defend ourselves.”

Congress passed the CAA in 1995, which brought itself under 11 federal workplace and anti-discrimination laws for the first time. Frank said he is fearful that House Republicans are working to again make Congress exempt from workplace anti-discrimination laws.

Both Minority Leader Nancy Pelosi (D-Calif.) and Minority Whip Steny Hoyer (D-Md.) refused to sign the brief even though they are members of the Bipartisan Legal Advisory Group that also includes Speaker Dennis Hastert (R-Ill.), Majority Leader Tom DeLay (R-Texas) and Majority Whip Roy Blunt (R-Mo.). Frank said he applauds the move by Pelosi and Hoyer and doesn’t think Congress should have “special privileges.”

The privilege in question is the application of the Speech or Debate Clause. In the brief filed, the House states that its interest in the case is not the outcome, but rather ensuring that the Speech or Debate Clause “preserves the broad protections afforded to Members” in their official duties while at the same time not constraining “the ability of House employees to vindicate their rights under the CAA.”

Johnson sought a dismissal of the case, claiming immunity based on the Speech or Debate Clause. However, the District Court did not grant the dismissal, and the case is now before the U.S. Court of Appeals for District of Columbia.

Frank said he was particularly disturbed by the section of the brief dealing with the Speech or Debate Clause. It states, “a Member of Congress is entitled to Speech or Debate immunity with respect to a CAA claim if (1) the employee’s duties were directly related to the due functioning of the legislative process, and (2) the personnel action in question arose out of the employee’s performance or non-performance of those legislative duties.”

If this part of the brief were to be approved, Frank said any Member charged with discrimination by a personal office or committee staff employee would only have to file a statement claiming that the individual in question had legislative duties, and nothing would ever come of the case. While the acceptance of this part of the brief would free Johnson from Field’s accusations, Frank wrote in a statement that “those of us who make hiring decisions must be prepared to defend ourselves against even inaccurate and unfair accusations, so the rights of employees can be preserved.”

Another problem Frank has with the brief is that Republicans are “violating the promise that was the first order of business in 1994.” He also said they are “in danger of a breach of their ‘Contract with America.’”

The Republican Contract with America states that on the first day of the 104th Congress, “the new Republican majority will immediately pass the following major reforms, aimed at restoring the faith and trust of the American people in their government,” and the first item on the list is that House Republicans will “require all laws that apply to the rest of the country also apply equally to the Congress.”

Frank wrote in a statement that he thinks this is a matter that needs to come before the House as a whole so all Members “have an opportunity to repudiate the position the Republican leadership has taken in all of our names.”

“Recently, my Republican friends have talked a lot about flip-flops, and they’re now about to engage in the biggest flip-flop,” said Frank. “Having to live under the laws you make is important.”

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