Manning: Arguing Away Her Job?
The liabilities imposed by the landmark 1995 statute that subjected Congress to federal labor laws have given one lawyer enormous influence over the day-to-day operations of the Senate.
With a staff of 10 lawyers, paralegals and administrative assistants, Senate Chief Counsel for Employment Jean Manning conducts legal seminars, helps write individual Senator’s employment manuals and assist offices on issues ranging from the Family and Medical Leave Act and the Americans with Disabilities Act.
But Manning’s most profound impact could come in helping to determine the fate of the Congressional Accountability Act itself.
With scant objection from their colleagues, two Senators are using Manning’s taxpayer-funded counsel to argue in federal court that the Constitution prevents key aspects of the CAA — which put 11 labor, anti-discrimination and employment laws into force for Congressional offices for the first time — from applying to them.
Technically, the arguments being made on behalf of Sens. Ben Nighthorse Campbell (R-Colo.) and Mark Dayton (D-Minn.) are limited to separate suits brought by their former employees alleging age and disability discrimination, respectively.
But the Senators and Manning have chosen as their defense an argument that, if adopted by the courts, would almost completely undermine the right of legislative employees in the House and the Senate to seek redress for allegedly unfair employment practices under the Congressional Accountability Act.
Senate Finance Chairman Chuck Grassley (R-Iowa), the act’s co-author, has been alone in publicly condemning the use of an official Senate office to undermine a law the chamber passed on a vote of 98-1.
“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 in a statement.
Manning has steadfastly refused to discuss her office’s role in defending Senators against complaints brought under the CAA, and declined repeated requests for interviews for this article.
‘Both Ways on the Senate’s Dime’
In interviews, more than a half-dozen individuals familiar with the office and Manning’s approach to serving as the Senate’s employment lawyer said she feels that because she represents individual lawmakers and other offices (including committees, the Sergeant-at-Arms and other entities) she has an ethical obligation to make the best argument available to her clients. In CAA cases involving legislative employees, that means trying to get the suit dismissed on procedural grounds before the case ever goes to discovery or the merits of the compliant are ever discussed.
As their lawyer, Manning presumably presents the options available to her clients, but the decision on which course of argument to pursue is ultimately the lawmaker’s.
She has argued before district courts in Denver and D.C., and the 10th Circuit Court of Appeals (to which the former Campbell staffer appealed after the Denver court dismissed her case), that these suits “cannot proceed without asserting questions about acts that are part of the legitimate, legislative function of Congress and the motivation for those acts, thus threatening and interfering with the independence of a legislator. If this action were to proceed, the court would be forced to inquire impermissibly into matters essential to the legislative process.”
Although Manning reports to the Secretary of the Senate on administrative matters such as her budget, her office is otherwise completely independent, and according to those familiar with its creation, that was a decision made deliberately to deter political meddling.
According to the description of the office of the chief counsel for employment on the Senate’s internal Web site, “each of the 180 offices of the Senate is an individual client of the SCCE, and each office maintains an attorney-client relationship with the SCCE.”
Neither the leadership nor the Secretary of the Senate signs off on Manning’s briefs — or even knows what she intends to argue — before the briefs are filed, as would befit an attorney-client relationship, according to well-placed Senate sources.
Yet very few things in the Senate operate in a vacuum. Manning has been arguing that Speech or Debate protects Members from answering for their employment decisions in federal court for almost five years. Presumably, if the Senate leaders wanted to stop her, they would have little trouble doing so.
“Unless and until she gets a direct order from whoever she answers to, which appears to be no one,” she will continue to argue Members are immune, said one source close to the process.
“Jean is bound and determined to take this thing to the Supreme Court,” the source said, and in allowing it, Members are “having it both ways on the Senate’s dime.”
The Lone Congressional Voice
Manning was hired in 1993 — almost two years before the CAA became the first plank of the so-called “GOP revolution” — to represent lawmakers in job discrimination cases before the Senate Office of Fair Employment Practices. That statute subjected the chamber to existing civil rights laws and served as a precursor to the CAA.
Previously, she served as corporate counsel for The Dexter Corp. in Windsor Locks, Conn., and at the law firm Seyfarth, Shaw, Fairweather & Geraldson in Chicago.
She was hired after a nationwide search that yielded 89 applicants for the position, and has many supporters in the Senate.
“I think that the office of the chief counsel for employment is one of the best things that ever happened for the Senate,” said Judy Rainey, office manager for Sen. Tom Carper (D-Del.). “I could not do my job without that office. I could not function as a well-educated legally compliant [office manager] without that office. She’s our lawyer.”
Indeed, the Senate as an institution couldn’t function under the CAA without the employment counsel, as every employing office is individually liable for violations. (Any damages, back pay and attorney’s fees awarded are paid out of a Treasury account.)
“On a day-to-day basis, the chief counsel’s office provides legal advice to Senate offices about their obligations under employment laws,” Secretary of the Senate Emily Reynolds said. “To assist offices in complying with the laws, the SCCE conducts legal seminars for Senate managers on topics ranging from the FMLA to ADA. Over 50 seminars are given each year.”
In theory, Manning’s briefs to a federal court only speak for the Senator she represents in a particular case.
But no one else is talking. The judges on the 10th Circuit bench and in D.C. District Court have only one set of briefs on their desks bearing a Congressional official’s signature — Manning’s.
There are currently no comparable court cases involving the House.
Last year, Reps. Christopher Shays (R-Conn.), who co-authored the law, and Jim Moran (D-Va.) failed to persuade Speaker Dennis Hastert (R-Ill.) to direct the House counsel’s office to file an amicus curiae, or friend of the court, brief for the first of the Senate cases.
No amicus by either chamber has been filed for either case, and sources familiar with the process indicate that such a brief will not be forthcoming.
‘Legislating With Its Fingers Crossed’
Manning’s argument — that the judicial branch lacks jurisdiction to adjudicate Congressional employment disputes because of the Constitution’s separation of powers — has already persuaded a district court in Colorado to dismiss a case against Campbell brought by Rita Bastien, a former state director for the Senator who alleges she was fired because of her age. Bastien has appealed her case to the 10th Circuit, and oral arguments will likely be held early next year.
Manning has argued in both cases that the Constitution’s Speech or Debate Clause, which prohibits Members of Congress from being “questioned in any other place” about “speech or debate in either House,” applies to employment decisions made by lawmakers.
If the 10th Circuit upholds the Denver district court’s decision — that a former state director can’t bring a discrimination suit against a Member of Congress because she’s sufficiently tied to the legislative process to trigger Speech or Debate protection — then many legal scholars believe the CAA’s clause allowing aggrieved employees to go to court will apply only to police officers, cafeteria workers and a handful of other non-legislative employees.
Although Manning told the D.C. District Court that the “argument that adherence to the Constitution would eviscerate the CAA is pure hyperbole” by pointing out that “over the past six years this court has heard numerous CAA cases brought by Congressional employees whose job duties are not directly related to the due functioning of the legislative process,” she effectively admits that those whose job functions are tied to the legislative process would be excluded from going to court under her argument.
And the legislative process, by her definition, includes a state director (Bastien) and a employee who ran a constituent health help line (former Dayton staffer Brad Hanson) — neither of whom were part of their Senator’s core legislative staff.
Allowing only non-legislative employees the option of taking their grievances to court was not the profound change to the “Imperial Congress” lawmakers promised in 1995.
Sen. Joe Lieberman (D-Conn.), who co-sponsored the legislation in the Senate with Grassley, believes the briefs Manning’s office have filed are a misinterpretation of the law.
“As an author of the CAA, Lieberman concluded that the Speech or Debate Clause should not and could not provide Senators from immunity from suit under the CAA,” spokeswoman Leslie Phillips said.
“If Congress had intended for the Speech and Debate Clause to apply there would have been no reason for the law, since the law would have been totally undermined before it was even signed,” Grassley said.
That’s essentially what Hanson has told the U.S. District Court for the D.C. Circuit.
In a scathing critique of Manning’s motion to dismiss Hanson’s case, his lawyer maintained that if Manning speaks for the Senate, her argument would mean that Congress’ insistence that it had finally subjected itself to the same employment standards applied to all other employers “defrauded the American people.”
“Adopting [her argument] would mean that the Congressional Accountability Act — passed amid fanfare in January 1995 and billed as finally subjecting Congress to the nation’s civil rights laws — in fact does not apply to the offices of Members or to committee staffs,” Hanson’s attorney wrote in a brief.
In short, he wrote, Manning’s argument is the equivalent of saying that “Congress was legislating with its fingers crossed.”
(U.S. District Judge Richard Leon has yet to decide whether Hanson’s case against Dayton can go forward.)
Both Hansen and Bastien chose to bring their cases to federal court after first exhausting their options through the Office of Compliance, set up as an independent office within the legislative branch to enforce the 11 civil rights, anti-discrimination and fair-labor practice statues made applicable to Congress by the CAA. The law mandates employees first go through counseling and mediation at the OOC, when many cases are resolved, before filing a complaint — either at the OOC (to be heard and resolved in a formal hearing) or in federal court.
Presumably, even if the courts struck down the portion of the CAA that gives employees the right to seek redress in court, the hearing process at the OOC could survive, because the OOC is a legislative branch entity.
But the option of going to federal court was fundamental to Shays, Grassley, Lieberman and others who sought Congressional accountability in labor matters. They believed the institution could only be held accountable if it had to follow the same workplace laws as private employers and were held to the same consequences, namely lawsuits, for alleged violations.
“I know what [the Senators and Manning] are arguing, but they are undermining the law. We seem to be turning our back,” said Shays.