terests and sympathy of sentiments, of which few governments have furnished examples, but without which every government degenerates into tyranny. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty." No one here is original in calling for congressional accountability. Many of the Members here have been doing it for far longer than Chris or I have. But we can all play a part in improving the current situation. My colleague will now detail some of the improvements that we advocate. Thank you. Chairman GLENN. Thank you very much. Mr. Shays, do you have any comment? Representative SHAYS. Thank you, Mr. Chairman. Let me just say that we provided a book that will hopefully be useful to your staff that gives a summation of the kind of law that we would like to see and the actual legislative language.1 What I would like to do is just work off the Senate Rules Committee's S. 1824, the potential mark, title III of the Act. Their bill includes more than congressional accountability, but title III focuses on congressional accountability. The first issue that I think we really need to emphasize to this Committee is that we have to, in our judgment, have one Office of Compliance that binds both the House and the Senate jurisdiction, that to have two will mean that employees in the Senate may have different rights and privileges than employees in the House, or vice versa. In our judgment, it is just imperative that there be one Office of Compliance. The second is that it is absolutely essentially and a major flaw, in our judgment, with the Senate mark, that the legislation cover all the instrumentalities of Congress, not just our immediate offices. But as you all have pointed out in your statements, the GAO, the Library of Congress, the Office of Technology Assessment, the Government Printing Office, the Botanical Gardens. They, too, should be included in the Senate mark. The Director who is appointed to the Office of Employees Rights and Protections, as you call it-we call it the Office of Compliance-in our judgment should be given an appointment and not need to fear that at any moment, because of political pressure, this Director can be removed. We have the Director appointed by the Office of Compliance and not by the leadership. The people in the Office of Compliance are appointed by the leadership. We think it is absolutely inherent that the independent Hearing Board that hears complaints of employees, that the decision of this Board should be final and not subject to review by, in the case of your mark, the Senate Select Committee on Ethics. The fifth point we would like to make is regarding the right to judicial appeal. You know right now that the Senate is ahead of the House. You already allow for some court review of grievances in 1 A summary of the substitute text appears on page 453, and the substitute text appears on the Senate, and we do not in the House. We believe that besides the simple appellate review, that as we allow Federal employees' right of de novo trial, we believe that should happen in any mark that the House or Senate has. But let me say that there has been a suggestion by Senators Grassley and Lieberman that we agree with, and I might just say parenthetically that one of my most famous constituents is Senator Lieberman's mom, and she has ingrained in me the fact that I should always listen to her son. In that spirit, they suggest that if an employee in the Senate or House seeks to go the administrative route much like you do in the executive branch or the EEOC, that if you go the administrative route, then you go appellate or court review. But if you choose to bypass the administrative route in the House or Senate, then you could have a de novo trial, basically a bifurcated type of approach, and we think that has some merit and should be considered. Point six, while the Senate mark includes most of the laws of Congress, it still ignores the Freedom of Information Act and the Privacy Act. We believe the Freedom of Information Act should apply. Our model is what is right for the executive branch is right for Congress. Just as White House staff is exempt, a Member's office staff would be exempt. But should the Library of Congress be exempt from the Freedom of Information Act? We do not think so, nor any other office within Congress. The Worker Training, Adjustment and Notification Act, which is really the plant closing bill, all the laws should be under it, and we can adapt it in a constructive way, and basically include all the laws. Point seven-and really I just have two more points-we believe that your Office of Compliance that you establish would establish regulations and that they should take effect, unless the House and Senate disapprove them. In other words, after a period of time, they simply become regulation, unless disapproved. Then we think this is important to mention, that ultimately they need to be codified into law, because it is the judgment of some who have spoken to us-we are not quite sure of this, but we think we have heard it from too many people of tremendous scholarly background who know this issue who said the courts may refuse to step in and look at a complaint of an employee, if in fact it is only a House rule or a Senate rule, and not codified into law, that they are reluctant to step in when it is just a rule. The last point we would make to you is that the issue of punitive damages, both Dick and I have left out punitive damages. We have done it this way: We have modeled it after the private sector, where the employer steps in and defends the employee. That is what the Speaker of the House has asked us to do, and we think it has merit. But we think that both Chambers should have a full debate on whether, under egregious circumstances, the individual Member of Congress should not have to defend themselves at their own cost when they have been so outrageous. That basically would be the suggested changes that we make to the proposal passed by the Rules Committee. I just would end by this comment, that when Ross Perot did his public questionnaire, that need to be followed when you try to have a fair type of questionnaire, when he asked this question, do you believe that Congress should not exclude itself from legislation it passes for us and should correct this discrepancy immediately, 94.4 percent said immediately, and 99.4 percent said it should be done immediately. Then when Black Corporation did this in a professional manner, they said Congress must comply with its own laws, 87 percent of the public said that should be the case. The bottom line, we think it is essential that you act on your own intuitions on this. Your statements I think express it just the way it should be expressed. We are hopeful, however, that we will not just see one action in the House and one action in the Senate, that we all go back and tell our voters, well, we took action. If it does not come to fruition, then we truly have all failed. We can do it on a bipartisan basis. You see Senators Grassley and Lieberman, you see Dick Swett and myself and all the other Members who have joined us on both sides of the aisle. The Madison statement makes it very clear what we should be doing. We do not measure up to Madison's statement. Chairman GLENN. Thank you. We have just a couple of questions here before we move on. You say you have 250 cosponsors so far in the House? Representative SWETT. Yes, we have. We are considerably ahead of where we are in the Senate, I think, at this point. Representative SHAYS. We have a few more people to work from. Chairman GLENN. Yes, you do. Two hundred and fifty is definitely a majority over there at this point. Representative SHAYS. Yes. Chairman GLENN. You provide for court recourse, right? Chairman GLENN. You left individual Members' offices out of the Freedom of Information Act. I know that is a very contentious issue. Why did you leave that out? Representative SHAYS. When you said left it out of Freedom of Information, we model it after what happens in Chairman GLENN. Would you provide the same laws for individual Senators or individual congressional offices, all the coverage? Representative SHAYS. Yes. Go ahead. Representative SWETT. I was just going to say that, under the Freedom of Information Act, what we have learned is that in the executive branch, the White House and the people closest to the President are not covered under the Freedom of Information Act and are exempt, and we would pattern the Congress in the same manner, although we would have to differentiate by calling it the office of the Congressmen that would be exempt. Chairman GLENN. Things like collective bargaining and things like that, which apply to private industry and business, would they apply to employees of the House and the Senate, the Capitol Police, and so on? Representative SHAYS. Minus the Member's office. A Member can obviously choose an employee based on their political party, based on whether they come from the State. There would be that type of exemption in the law. Representative SWETT. My recollection is that they do not have the right to strike, as well. Chairman GLENN. No, but would you have a right of employees to organize a Senate or House office? Representative SWETT. My understanding is that they would not within the Member's office, but within all the other attending operations they would. Chairman GLENN. The supporting structure of the Congress. Representative SHAYS. I would like to say that all the laws would apply to a Member's office except Freedom of Information, and we have an exemption to say that you can hire someone who is of your own political party, and so on, but all the laws that apply to a Member's office. Chairman GLENN. The Fair Labor Standards Act, the whole works, would apply to Members' offices, and there would be court recourse against an individual Congressman or an individual Senator per se? Representative SHAYS. Correct. Chairman GLENN. We are going to have to move along. OPENING STATEMENT OF SENATOR STEVENS Senator STEVENS. Gentlemen, my only regret was that I got caught in traffic and could not make my statement before you started. I think the real problem is, as I sit on the Appropriations Committee and also on the Rules Committee, is that I find that the people who are proposing these changes are unwilling to support the funding of Congress as it exists today. The great problem about it is that everything you suggest is going to increase the taxpayers' cost of running this Congress. Now, in the Rules Committee we have adopted a proposal that will apply to the Civil Rights Act, the Age Discrimination Act, the Americans With Disabilities Act, the Fair Labor Standards Act, the Equal Pay Act, OSHA, the Rehabilitation Act and the Family Medical Leave Act to the Congress. But we have also adopted an amendment that says we want to know what the cost of these actions will be before we present to the Senate the proposal for the Senate's vote. I personally believe that many of you really are unwilling to approach the cost to the taxpayer of what you suggest, and I do not believe the taxpayers would respond to the polls that you have mentioned, if you mentioned the cost of what would be incurred to apply these bills to the Congress itself. I know that there are comments from the private sector about laws that we pass that do not apply to the Congress, and many people seem to believe that if we automatically apply these laws to the Congress, that the laws will change. Let me ask, have any of you gentlemen introduced bills to change the Civil Rights Act, the Age Discrimination Act, the Americans With Disabilities Act, the Fair Labor Standards Act, the Equal Pay Act, OSHA, the Rehabilitation Act or the Family Medical Act as You seem to think that if we apply those to the Congress, that Congress will automatically change these laws that apply to the private sector. Is that your goal? Representative SWETT. No, that is not our goal. Our goal is for the Office of Compliance to determine by study the impact of these costs, to implement a plan over time which they will either bring the Congress into compliance or consider in some instances where there may be adjustments to the law that might relax some of the requirements on the private sector, and thus come into consistency with the Congress and the private sector. But I think the real goal here is, No. 1, to make the Members of Congress and all of their instrumentalities aware of their responsibilities as the laws have been drafted for the rest of the country; No. 2, determine the impact; No. 3, give them a length of time over which those impacts can be mitigated; and, No. 4, hope that the Members of Congress, by that education, come with the political will to make the changes that will in fact bring about a better set of standards for the Hill and a closer tie with the general public, so that they can better understand the burdens that the private sector has. Senator STEVENS. Let me tell you, Congressman, I think that the study that we have got under way now will require, if we apply OSHA as it is today to Congress, that we build three more Senate office buildings. Representative SWETT. Senator, can I say— Senator STEVENS. Just a minute, Congressman. This is my time right now. All right? I am getting a little tired of this in terms of people who make the suggestion that we can force the Congress to change these laws by applying the laws to Congress. If I find something around here that does not satisfy my constituents, I raise Hades around here and try to get them changed. Representative SHAYS. If the gentleman will yield Senator STEVENS. You people want to apply them to the Congress, instead. Now, I hope that you will find some way to address the fact of this personal liability. We are having another study made, and that is what will it cost the taxpayers for insurance for the individual offices-now, I notice that you do not apply them to ourselves, but to the Architect, to the Library of Congress, et cetera for the kind of liability for their officers that are contained in the laws that you want to apply to the GAO, the Library of Congress, et cetera. Again, it all falls back on the taxpayer. There is no personal bottom-line burden upon an individual that works for the government, when you apply one of these laws to the government itself. I really think that, unless you are willing to face up to that, that we are going to be in real trouble. I know that I am not asking you a question, but the last sex discrimination case we had against the Senate cost the taxpayers over a million dollars. I am not saying that they did not have the right to bring the case, but by the time we hired lawyers for the Senate, lawyers for the officer accused, lawyers to handle the appeals and paid the attorney fees for the two persons that brought the case— in fact, the attorney fees are still in dispute-they are three times |