Shays Initiates CAA Expansion

Posted March 10, 2004 at 6:37pm

Proposing the first changes to the landmark Congressional Accountability Act since it was enacted a decade ago, four House Members will introduce legislation today that would bring the institution further under the labor and civil rights laws that apply to the rest of the country.

Drafted by Rep. Christopher Shays (R-Conn.), who co-wrote the original legislation, the new measure seeks to apply to Congress Title II of the Civil Rights Act, which prohibits discrimination in public places based on race, color, religion or national origin.

“In passing CAA, we brought ourselves under 11 labor and employment laws from which we had previously been exempt, but it has become clear our work is not complete,” Shays plans to say on the floor Thursday, according to an advance copy of his speech.

The measure would also give legislative branch employees whistle-blower protections, require equal access for the disabled to all electronic information, and prohibit discrimination or termination for those who serve on a jury, declare bankruptcy or whose wages are garnished for debt.

“We don’t tolerate those kinds of discrimination in the private sector, and we certainly should not make excuses for them here in Congress,” Shays will say. “We have a responsibility as the nation’s lawmakers not only to lead by example, but also share the burden we ask others to bear.”

Co-sponsoring the measure with Shays are Reps. Jim Cooper (D-Tenn.), Mike Castle (R-Del.) and Barney Frank (D-Mass.). They will announce the bill’s introduction at a press conference today — the same day a federal appellate court hears a challenge to the constitutionality of the original law.

In an interview, Frank said now that the law has been around for nearly 10 years, it needs to be updated, both to correct its original technical shortcomings and to reflect recent changes in federal workplace laws.

“After you have it for a while you learn how to perfect it. We are trying to stay true to the basic principles,” he said, explaining that those principles are based in part on John Locke’s “Second Treatise on Civil Government.” “Namely, that a hallmark of a good society is that the people who make the laws must abide by them. This was a very important document to Thomas Jefferson and had a lot to do with the philosophy of [those] who wrote the Constitution.”

For years the board of directors of the Office of Compliance — the independent legislative branch entity that was set up by the CAA to educate Capitol Hill about the act and enforce its provisions — has recommended technical and substantive changes to the statute in its required biannual reports on the status of the law. Until now, Congress has ignored the board’s suggestions.

Almost without exception, the changes proposed by the four lawmakers were included in the various 102 (b) reports, which the board sends to the presiding officers and committees with jurisdiction in each chamber every two years.

Beyond just revising the statute, Frank said much of the motivation behind the new bill was to make clear that the House still supports the CAA, the first bill passed in the 104th Congress after Republicans took control of both chambers.

“In the Senate in particular there’s been an attempt to back away from it,” he said.

Although the measure achieved the same bipartisan support in the Senate as it did in the House (passing 98-1 in that chamber), the law has recently come under attack from one of the Senate’s own lawyers.

With scant objection from their colleagues, two Senators are using Senate Chief Counsel for Employment Jean Manning to argue in federal court that the Constitution prevents key aspects of the CAA 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 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 in federal court — a key component of the 1995 statute — for allegedly unfair employment practices.

The 10th U.S. Circuit Court of Appeals will hear an appeal today by Rita Bastien, whose case against Campbell was dismissed by a lower court on grounds that the Senator was protected by the Constitution’s Speech or Debate Clause.

In 2002, Shays and Rep. Jim Moran (D-Va.) asked 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 case. No brief was filed, but the House let a case similar to Bastien’s proceed in U.S. District Court for the District of Columbia without challenging the constitutionality of the law, thereby setting up a different standard in each chamber for cases brought by legislative employees.