(7) S. 1824 provides far the Director of the Office to promulgate regulations with no consideration by the Senate or the House. The regulations promulgated by the Office in S. 1824 should go into effect unless disapproved by Congress, as provided for in Lieberman/Grassley.

We have taken this process an additional step in our proposal by providing for the regulations to be codified into law. Strong arguments have been made that federal courts could refuse to hear case arising from the Office if the violation of law was based on the internal rules of the House and Senate, and not based in statute.

It is also worth noting that we believe the House needs to have an opportunity to vote on the issue of punitive damages and personal liability for Members of Congress. While personal liability for members has not been a part of our package, we have argued to our leadership that members be given an opportunity to vote directly on this issue when congressional reform legislation comes to the House floor.

We are happy to report to you that Speaker Foley has committed to bringing congressional reform legislation to the floor of the House before the August recess.

We urge you to pass comprehensive Congressional reform legislation and, at a minimum, legislation regarding congressional compliance. Given it is likely two different versions of congressional reform will come out of the House and the Senate, which will necessitate a conference committee, we urge you to move quickly an congressional compliance legislation so that a final bill can be presented to the President for signature prior to sine die adjournment this fall.

We appreciate your committee's good work and would be happy to take any questions you may have. Thank you for inviting us to testify.

PREPARED STATEMENT OF SENATOR BOB SMITH

Thank you, Mr. Chairman, for inviting me to testify before the Committee this morning regarding my bill, S. 579, the "Equity for Congress Act." I commend you and the Committee for holding this hearing to explore the important question of how best to assure that Congress obeys the same laws by which it requires the rest of the Nation to abide.

Public opinion polls consistently report that the American people hold the Congress as an institution in very low regard. The people's lack of esteem for the Congress is based, in large part, on the perception of Congress as an arrogant and imperial body that has placed itself above the law. Unfortunately, this perception is wellgrounded in reality. For decades, Congress has routinely exempted itself from a wide range of laws governing such matters as civil rights, employment discrimination, sexual harassment, workplace safety, and public access to information.

In a very real sense, then, Congress indeed has placed itself above the law. But that, decidedly, was not what the Founding Fathers intended. In the Federalist No. 57, James Madison assured the American people that, under the Constitution, Congress would not abuse its lawmaking power because it "can make no law which will not have its full operation on themselves and their friends." Later, as a member of the First Congress, Mr. Madison spoke on the floor of the House of Representatives about the "important principle" that "all laws should be made to operate as much on the law makers as upon the people.

Madison was not alone in articulating the principle that Congress should not be above the law, but, rather, under it. Thomas Jefferson's Manual of Parliamentary Practice remains a part of the official rules of the Senate and the House. In his Manual, Jefferson notes that "the framers of our constitution. [took] care to provide that the laws should bind equally on all, and especially that those who make them shall not exempt themselves from their operation. ." Sadly, however, all too often the Congress has seen fit to ignore the solemn principle that Madison and Jefferson enunciated.

In the face of these very clear words of guidance from two of our Nation's most eminent Founders, those who defend the failure of the Congress to live under the laws that it applies to everyone else rely on an argument that is based on the constitutional "separation of powers." They argue that it somehow would violate the constitutional order if the Congress and its Members were to be made subject to the full applicability and enforcement of the laws by the Judicial and Executive Branches. Obviously, however, neither Madison nor Jefferson saw any such constitutional problem with Congress applying the laws that it passes to itself. In fact, they believed that the Constitution affirmatively required that Congress must live under the laws that it passes.

Moreover, a concern about the separation of powers has not prevent the Congress from making its members subject to the full force and effect of the enforcement of

the criminal laws by the Department of Justice and of the tax laws by the Internal Revenue Service. With all due respect to those who still profess to adhere to the view that bringing Congress under the laws would violate the constitutional separation of powers, I believe that this argument simply does not withstand serious analysis. If the fact that the tax and criminal laws are fully enforceable by the Judicial and Executive Branches against members of Congress does not pose a constitutional separation of powers problem, then that principle poses no such difficulties with respect to the enforceability of any other laws against the Congress.

To be sure, the "Speech or Debate" clause of Article I, Section 6, of the Constitution would come into play in some situations to protect Senators and Representatives from laws to which they otherwise would be subject if Congress were to bring itself fully under the laws from which it now is exempt. For example, if a Senator were to make a speech on the floor of the Senate that constituted "sexual harassment" of an employee under the employment laws, then that member would be protected by the "Speech or Debate" clause from judicial scrutiny and enforcement. If such a claim were to be brought before the courts, then it necessarily would be dismissed under the existing judicial "political question" doctrine. Courts are wellequipped to make such constitutional determinations, and are much more likely to ake objective judgments than is the Congress.

In recent years, mounting public pressure for change has prompted a movement towards reform with respect to Congressional coverage. But old habits die hard. Many of the leading reform proposals purport to place Congress under the laws from which it has exempted itself, but reserve to Congress the right to police itself. Members who would never vote to allow private corporations to enforce their own compliance with employment discrimination laws, for example, nevertheless insist that Congress must be permitted to do so. But the American people will not be fooled by any such half-way measures. Reforms that allow the Congress to play rulemaker, investigator, judge, and jury in its own cases are simply not the kinds of changes that are going to restore the faith of the American people in their Congress. If Congress truly is to live under the same laws with which it expects the rest of society to abide, then Congress must be subject to same enforcement of the laws by the Executive and Judicial Branches of the Government that everyone else faces. That is the principle behind my bill, S. 579, the "Equity for Congress Act."

S. 579 would apply six major employment laws to the Congress. Those laws are Title VII of the Civil Rights Act of 1964, the Age Discrimination Act of 1967, the National Labor Relations Act, the Fair Labor Standards Act of 1938, the Occupational Safety and Health Act of 1970, and the Family and Medical Leave Act of 1993. But rather than reserving to Congress the right to enforce its own compliance with these laws, S. 579 gives Congressional coverage real meaning by allowing aggrieved parties to seek vindication of their rights by going to court or to the appropriate administrative agency—just the way the rest of society can.

Under my bill, if the underlying statute allows similarly situated parties in the Executive Branch, or in the private sector, to file a complaint with an administrative agency such as the Equal Employment Opportunity Commission, for instance, then Congressional employees would be given the same right. In addition, under S. 579, aggrieved Congressional employees may bring civil actions against their Congressional employers in any court of competent jurisdiction. Under my bill, the Federal courts would have the same authority to grant both equitable and monetary relief to a Congressional employee that would be available to a similarly situated aggrieved employee in the Executive Branch or the private sector.

In addition to the six major employment laws that I have cited, my bill would apply the Americans With Disabilities Act of 1990, the Freedom of Information Act, and the Independent Counsel Act to the Congress. With respect to the Independent Counsel Act, the recent reauthorization of that law made important steps in the right direction with respect to Congressional coverage. More needs to be done, however, in my view, to make the Independent Counsel Act apply to the Congress in the same manner in which it applies to the Executive Branch.

One of the real problems that is associated with proposals to bring Congress under the laws that apply to everyone else is the constitutional power of each house of the Congress to establish its own rules. Even if the Congress were to enact legislation putting in place strong procedures for addressing allegations of unlawful behavior by Senators and Representatives, those procedures could be superseded by either House by a simple majority vote. The Constitution, of course, cannot be changed by means of a simple statute. The constitutional power of each house of Congress to make its own rules necessarily must prevail over an inconsistent prior statute establishing such rules. Although this problem cannot be solved completely without amending the Constitution, I believe that my bill takes a very creative approach by amending Senate Rule XIV and House Rule XXIV to provide that "No bill,

resolution, or amendment which creates a requirement of general applicability but which exempts the Congress of the United States from its provisions may be considered except by a vote of three-fifths of the Members duly chosen and sworn." This requirement for a three-fifths "supermajority" is not just for three-fifths of the members "present and voting," or three-fifths of a quorum, but a requirement for approval by three-fifths of all Senators and Representatives in each house who are legally entitled to vote.

In closing, Mr. Chairman, I believe that it is imperative that we should move forthwith to restore the confidence and trust of the American people in their Congress. Acting promptly to place the Congress under the same laws by which it makes the rest of society abide would send a powerful message to the American people that the reign of an arrogant and imperial Congress is over. But trying to have it both ways-by seeming to place the Congress under the law while reserving to the Congress the power to police itself-will not fool the American people. Only by making Congress subject to the same enforcement of the laws by the Judicial and Executive Branches to which the rest of society is subject can we send the clear and unmistakable message to the American people that we have made a true and honest reform.

But my approach to Congressional coverage has another, equally important purpose. Beyond moving to restore the confidence of the American people in their Congress, I believe that the enactment of my bill would help the Congress to make better laws. Only when Congress knows what it is like to obey the laws under the threat of Executive and Judicial Branch enforcement will it truly know what it is like truly to live under those laws. Learning first-hand what effects the laws that it passes truly have on those to whom those laws apply will give Congress an invaluable way in which to learn by experience what is wrong with those laws and how they ought to be changed.

STATEMENT OF SENATOR BARBARA A. MIKULSKI

Mr. Chairman, I am pleased to provide testimony to the Governmental Affairs Committee today on the importance of Congressional coverage of private sector laws and on my own legislation that serves as an example of why these laws are nec

essary.

Mr. Chairman, I support Congressional coverage of private sector laws. We need this legislation because Congress has exempted itself for too long from the very laws that apply to the other two branches of government and the private sector.

Americans are wondering about the integrity of an institution that exempts itself from the rules it places on the rest of the country. In Maryland we call this a double standard.

We will take a big step forward toward restoring confidence in this institution if we make ourselves subject to the same legal framework that we impose upon every other American. Americans want to know that we are not above the law.

It's more than just a question of right and wrong. It's a question of basic fairness and decency. The U.S. Senate should practice what we preach and go by the same rules that we establish for everyone else.

That's why I am proud to be a cosponsor of the Congressional Accountability Act introduced by my colleagues, Senator Lieberman and Senator Grassley.

This legislation is long overdue. It will put Congress squarely under the law. It will also put Congressional support offices and legislative branch offices under the law.

To that end, my own bill to address the deplorable working conditions at the Architect of the Capitol is one very important example of what can happen when laws are not applied to Congress.

As the Senator from Maryland, many of the workers at the Capitol are my constituents, or if they reside in the District of Columbia they have no Senator, so they turn to me, as they have turned to Representative Norton and Representative Wynn.

I hear complaint after complaint from these employees who tell me horrible stories of being sexually and racially harassed, stuck in the same position for 20 years with no chance for promotion and no pay raise, and working in a distrustful environment and a climate of fear.

My legislation would help change this situation by requiring the Architect of the Capitol to institute the most basic personnel management practices that most of the

I am pleased that it has been adopted as an amendment to the Legislative Branch Appropriations bill. The conference report on that legislation will come back before the House and Senate for final approval shortly.

Mr. Chairman, I ask for your support of my legislation to change the deplorable working conditions for Architect of the Capitol employees and I urge the Committee to support overall Congressional coverage under fair labor, civil rights and other laws to protect employees.

Thank you for the opportunity to provide testimony today and for the Committee': serious consideration of this issue.

PREPARED STATEMENT OF NELSON LUND

Imagine that the following proposal has been offered by the CEO of a Fortune 500 corporation. Anxious to guarantee those who work at his firm the substantive rights embodied in the nation's employment discrimination laws, but troubled by the end less mischiefmaking of the litigation system, the CEO decides to establish an inter nal grievance process that will provide a substitute for the enforcement mechanisms now operated by the government. All those who feel that they have suffered from discrimination will have the opportunity to present their cases to an in-house tribu nal, chosen by the corporation's management and composed of corporate officers and employees. If this tribunal concludes that the claim is meritorious, it can provide such remedies as reinstatement, promotion, and monetary compensation from the firm's funds. Those who are dissatisfied with the outcome of this process, however, can receive no help from government enforcement agencies and no redress through the courts.

After the bedlam dies down and smelling salts have been administered to the company's general counsel, the board of directors naturally votes to commit our CEO to an asylum for the politically insane. The head of another large corporation thereafter decides to take a different approach. Having observed the political appeal of disinterested tribunals, she proposes that discrimination complaints by the company's employees be resolved by panels of independent arbitrators, and that their decisions be reviewable in a federal court. Knowing how insensitive outsiders can be to a firm's distinctive corporate culture, however, the CEO takes care to ensure that the arbitrators will be chosen by someone who answers directly to the company's management. And, for an extra measure of safety, she provides that the arbitrators' decisions can be overruled by a special committee of corporate officers. Judicial review, moreover, will not take the form of a trial on the merits. Instead, a federal appellate court will simply apply the kind of highly deferential standard of review normally used when the administrative decisions of federal bureaucracies are challenged in the courts. In order to create a rule-of-law aura around this system, the CEO proposes that the legislature incorporate the new rules affecting her firm into a federal civil rights statute, but with a proviso permitting the CEO's firm to alter or repeal the system at its own discretion.

This second CEO is not likely to get much further than the first in promoting her alternative to the normal processes of litigation. Although her system would give employees more rights than that of the first CEO, her proposal looks like an elaborate effort to create the appearance of impartiality without the reality of legal guarantees.

All of this is pretty obvious. So obvious, in fact, that it takes a major effort to imagine an American business executive who would make such proposals. But, of course, I didn't just make up the two hypotheticals I presented. They are based on the civil rights enforcement mechanisms that the House of Representatives and the Senate, respectively, actually adopted for themselves in the Civil Rights Act of 1991. This self-exemption from the law, moreover, is nothing new. Although Congress has adopted some of the same rules that apply to others, it has never brought itself under the employment statutes by which it regulates other employers.

The Constitution does not forbid Congress from granting itself exemptions from the laws that it imposes on other Americans. But it was as clear to the Framers as I think it must be to any disinterested observer that such exemptions reflect a kind of breakdown in the norms and expectations that make democratic self-government possible. James Madison, for example, went so far as to claim that if the people of America ever became "debased" enough to tolerate such laws, they would soon be unprepared to tolerate political liberty itself.1

The more immediate effects of exemptions from the law are pretty obvious. First, Members of Congress face greatly reduced incentives to understand the measures

1 Federalist No. 57.

they adopt for others in our society. Second, these incentives help cause the enactment of laws that are self-contradictory or virtually incomprehensible to those who are governed by them. And third, legislators can too easily be tempted to accede to the demands of well-organized interest groups whose agendas may well be adverse to the permanent and aggregate interests of the community. I doubt that there are many candid students of the modern legislative process who would have any difficulty identifying examples of each of these three phenomena.

In light of Madison's vehement opposition to legislative exemptions from statutory law, it is ironic that most of the arguments in favor of the current exemptions purport to be based on the Constitution itself. In my view, these constitutional claims are unfounded. If Congress is willing to give its employees the same essential statutory rights enjoyed by their counterparts in the executive agencies and in the private sector, it can do so without violating any principle of constitutional law recognized in the Supreme Court's decisions on the separation of powers.

Before defending that conclusion, I should explain what I mean when I say that congressional employees can be given essentially the same rights as those enjoyed by other Americans. The most important of these rights, at least with respect to the principal antidiscrimination laws, are the opportunity for a jury trial in an Article III court and the availability of the same remedies offered to other litigants. There are some differences in the way that current law treats private sector employees compared with the employees of executive agencies. But those differences are quite small compared with the way that congressional employees are treated. Unlike any other employer in America, each chamber of the Congress effectively acts as the judge in its own case when one of its employees complains of discrimination on the basis of race, sex, national origin, religion, or disability. Until this privilege of selfregulation is surrendered, I do not believe that one will be able to say in any meaningful sense that Congress is subject to the law.

The longstanding policy of congressional self-regulation is not required by the Constitution. There is no case law directly on point, and there hardly could be, since Congress has been scrupulous in exempting itself from laws that could generate a test case. There is, however, one important exception to this generalization. Beginning with Title VII of the Civil Rights Act in 1972, several anti-discrimination statutes have been extended to cover congressional employees who are in the competitive service. A variety of mechanisms have been used for administrative enforcement, but de novo review in the federal courts has been available on the same terms as to other federal workers. So far as I know, the constitutionality of this application of the law has never been challenge.2 The extension of Title VII and other employment laws to the remaining employees would not be quite so manifestly unchallengeable, but it is virtually certain that such a statute would be upheld by the Supreme Court.

Only one constitutional provision is directly relevant to the issue the Speech or Debate Clause, which provides that "for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place."3 The

2 Indeed, the former General Counsel to the House of Representatives has testified that his office never raised the issue of the constitutionality of the judicial review provisions that have applied to congressional employees in agencies like the General Accounting Office since 1972. See Application of Laws and Administration of the Hill: Hearings before the Joint Comm. on the Organization of Congress, 103rd Cong., 1st Sess. 59 (June 8, 1993) (statement of Steven R. Ross). This fact looks extraordinarily odd in light of Mr. Ross's claims that all employment decisions affecting people who "are employed in assisting Members in their capacity as legislators" are insulated by the Speech or Debate Clause, and that congressional employees can be given the protection of the law only if their jobs are to "attend to the human needs of Members" (as, for example, by cooking food in the restaurant). Id. at 55. Those who work at GAO are obviously in the first category, not the second.

3U.S. Const. art. 1, §6, cl. 1. The provision reads in full as follows:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest (during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The speech or debate language, which was not controversial at the Constitutional Convention, can be traced to section 9 of the English Bill of Rights of 1689, which provided: "That the freedom of speech, and debates or proceeding in parliament, ought not to be impeached or questioned in any court or place out of parliament." Article V of our own Articles of Confederation provided: "Freedom of speech and debate in Congress shall not be impeached or questioned in any Court, or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attend