Dayton’s Defense Makes CAA a ‘Fraud’

Posted October 10, 2003 at 5:00pm

A court fight over the application of employment laws to Congress grew heated with attorneys for an aide fired by Sen. Mark Dayton charging that the Minnesota Democrat’s legal strategy in defending a lawsuit amounted to a “monumental fraud on the citizenry.”

Brad Hanson, who developed a constituent hotline on health care for Dayton until he was allegedly dismissed after seeking leave for cardiac surgery, wants a judge and jury to decide whether his firing violated employment laws. Dayton, represented by Senate lawyers, wants to have the court dismiss the lawsuit, arguing that lawmakers enjoy protection from such litigation even though Congress passed a widely trumpeted law in 1995 that purportedly put Capitol Hill under the same laws governing every other employer.

In a bluntly written response to Dayton’s motion to dismiss the case, Hanson’s attorneys charged that Dayton’s defense strategy amounts to arguing that Congress really didn’t mean what it said when it enacted the Congressional Accountability Act.

“Senator Mark Dayton has made a serious charge against the Congress of the United States. He says that the Congressional Accountability Act — which Congress passed in 1995 with only a single dissenting vote, and which it then proclaimed as finally subjecting itself to the same laws it imposes on the American people — was a hollow shell. If Senator Dayton is right, this was a monumental fraud on the citizenry,” Hanson’s attorneys wrote.

The dispute has almost nothing to do with the merits of Hanson’s case. Rather, the fight is over whether the Constitution shields lawmakers from having to answer such claims in court.

Historically, Congress considered itself exempt from the array of employment, civil rights and workplace safety laws it passed. Enactment of the CAA was supposed to change that by extending for the first time coverage of 11 workplace laws to Capitol Hill and granting Congressional staff the ability to enforce their rights in court.

But the Senate’s chief counsel for employment matters, Jean Manning, has aggressively fought to curtail, if not nullify altogether, the reach of the CAA with a determined stance, holding that the Constitution’s Speech or Debate Clause immunizes lawmakers and bars most Congressional employees from seeking redress in court.

Manning has pressed the fight to the courts at least three times and has yet to be turned back. Now, Hanson is asking U.S. District Judge Richard Leon — who has extensive knowledge about the internal workings of Congress from his stints as a Congressional special counsel before moving to the bench — to set aside Manning’s arguments and allow the case to move forward.

In seeking dismissal, Manning pointed to Hanson’s work on legislative matters for Dayton, contending that he helped draft legislation, organized hearings and advised Dayton on strategy. And since the Speech or Debate Clause specifically protects lawmakers from being questioned in court about legislative matters, Hanson can’t ask the court to make judgments about his job duties or Dayton’s personnel decisions.

But Hanson retorted that only 5 percent of his worktime was spent on legislative matters. The vast bulk of his work, Hanson said, involved constituent service, including a special hotline he set up for Dayton that allowed Minnesotans to get help with health care-related problems.

“But the type of work performed by Hanson is not relevant,” attorneys Douglas Huron, Richard Salzman and Tammany Kramer wrote in their brief. “The Congressional Accountability Act applies to all employees in the Legislative Branch, including all staffers in a Member’s personal office.”

In a May 29 complaint, Hanson alleged that Dayton violated the Family and Medical Leave Act and the Americans With Disabilities Act and failed to pay him overtime compensation in violation of the Fair Labor Standards Act. A spokeswoman for Dayton has denied the allegations.

According to the complaint, Hanson, who had worked for Dayton’s campaign before joining the Senate payroll, developed cardiac arrhythmia in early 2002 and was told by a doctor that he would need surgery that would require a recovery period of two to three weeks.

Hanson, who was based in Minnesota, scheduled a meeting to personally inform Dayton. The July 3 meeting “had not gone on for more than five minutes when the Senator abruptly told Hanson, ‘You’re done.’” He did not explain why.

On July 17, an aide in Dayton’s Washington office called Hanson at home and informed him that he would be terminated as of Sept. 30, according to the complaint.

By seeking dismissal, Dayton is essentially arguing “that Congress was legislating with its fingers crossed — that it cleverly eviscerated the CAA by adopting a savings provision that included the Speech and Debate Clause,” Hanson’s attorneys wrote. “This is a profoundly cynical argument, and it is wrongheaded to boot, as the Act’s history demonstrates.”

His brief then recounts the drafting history and the throng of floor statements from lawmakers of both parties that hailed the application of employment laws on Congress and minimized the effect of the Speech or Debate Clause.

That history clearly demonstrates Congress intended the CAA to cover staff in the personal offices of lawmakers, they contended. Adopting Dayton and Manning’s view would mean that “Congress cleverly gutted the Act with a provision preserving Speech or Debate immunity — taking back with one hand what it had given with the other. Such cynical sleight of hand should not be lightly imputed to Congress, and there is no basis for doing so here.”

Manning’s office is expected to file a response later this month and Leon may schedule oral arguments at a later date.