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Autor     James J. Brudney
Titel    Congressional Accountability and Denial: Speech or Debate Clause and Conflict of Interest Challenges to Unionization of Congressional Employees
Zeitschrift    Harv. J. on Legis.
Sammlung    FLASH: The Fordham Law Archive of Scholarship and History
Jahr    1999
Nummer    36
Seiten    1-76
URL    http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1143&context=faculty_scholarship

Literaturverz.   

ja
Fußnoten    ja
Fragmente    3


Fragmente der Quelle:
[1.] Wy/Fragment 171 01 - Diskussion
Zuletzt bearbeitet: 2013-09-15 22:21:40 WiseWoman
Brudney 1999, Fragment, Gesichtet, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy

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Quelle: Brudney 1999
Seite(n): 5-6, 7, Zeilen: 5:10-18.123-128 - 6:1-8; 7:1-5
13.3.2.1 Congressional Self –regulation Prior to the CAA

For more than 100 years, Congress exempted itself from coverage when enacting laws that created rights enforceable against private and public employers. The Civil Service Act of 1883 restricted patronage in the Executive Branch, but not in Congress. Major workplace protection statutes enacted during the 1930s and 1960s similarly excluded congressional employees while covering private employers, local governments, and executive agencies.519 In more recent times, outside observers as well as individual legislators have criticized Congress’s unwillingness to submit to the laws it imposed on others.520

Congressional reluctance to extend existing laws as written reflected in part a concern that Executive Branch enforcement and judicial review raised serious separation of power problems. Article I of the Constitution bestows upon each chamber the power to regulate and discipline its members, and upon each member privileges from outside arresting or questioning.

Burdened and perhaps fortified with such reservations, Congress in its initial efforts at self-regulation produced unenforceable or inadequate internal requirements, promulgated either through one-house rules or resolutions or through statutory provisions applicable to one chamber’s employees.


519 For example, the Fair Labor Standards Act covered private employers when enacted in 1938; it was amended to apply to state and local governments and federal executive agencies in 1966, but not to employees of Congress. See 29 U.S.C. § 203(d), (e) (1994). Title VII of the 1964 Civil Rights Act initially covered private employers; it was amended to include state and local government employers and federal executive agencies in 1972. See, 42 U.S.C. §§ 2000e(b), (f); 2000e-16 (1994). The Age Discrimination in Employment Act of 1967 originally applied to private employers; it was extended to state and local governments and the Executive Branch in 1974. See, 29 U.S.C. §§ 630(b), 633a (1994).

520 Report of the Joint Committee on Congressional Operations, The Constitutional Immunity of Menmbers [sic] of Congress, S. Rep. No. 93-896, p.38-39, 53, (2d Sess. 1974).

[Seite 5]

A. Employee Protections Prior to the CAA

For more than 100 years, Congress exempted itself from coverage when enacting laws that created rights enforceable against private and public employers. The Civil Service Act of 1883 restricted patronage in the Executive Branch, but not in Congress.19 Major workplace protection statutes enacted during the 1930s and 1960s similarly excluded congressional employees while covering private employers, local governments, and executive agencies.20 In more recent times, outside observers as well as individ-

[Seite 6]

ual legislators have criticized Congress's unwillingness to submit to the laws it imposed on others.21

Congressional reluctance to extend existing laws as written reflected in part a concern that Executive Branch enforcement and judicial review raised serious separation of powers problems. Article I of the Constitution bestows upon each chamber the power to regulate and discipline its members,22 and upon each member privileges from outside arrest or questioning.

[Seite 7]

Burdened and perhaps fortified with such reservations, Congress in its initial efforts at self-regulation produced unenforceable or inadequate internal requirements, promulgated either through one-house rules or resolutions25 or through statutory provisions applicable to one chamber's employees.26


19 See Civil Service Act, ch. 27, §§ 2, 13, 14, 22 Stat. 403, 404, 407 (1883).

20 For example, the Fair Labor Standards Act covered private employers when enacted in 1938; it was amended to apply to state and local governments and federal executive agencies in 1966, but not to employees of Congress. See 29 U.S.C. § 203(d), (e) (1994). Title VII of the 1964 Civil Rights Act initially covered private employers; it was amended to include state and local government employers and federal executive agencies in 1972. See 42 U.S.C. §§ 2000e(b), (f); 2000e-16 (1994). The Age Discrimination in Employment Act of 1967 originally applied to private employers; it was extended to state and local governments and the Executive Branch in 1974. See 29 U.S.C. §§ 630(b), 633a (1994).

21 See, e.g., THOMAS W. REED & BRADLEY T. CAMERON, ABOVE THE LAW: GOVERNING CONGRESS UNDER FEDERAL EMPLOYMENT LAWS 2-4, 8-9, 11-12, 17, 19-20 (1994) (quoting numerous members of the Senate and House expressing opposition to the double standard created by Congress); Editorial, Make Congress Obey Itself, N.Y. TIMEs, Apr. 12, 1993, at A16; Daniel Rapoport, The Imperial Congress: Living Above the Law, NAT'L. J., June 2, 1979, at 911-15. In the early 1970s, members of Congress began questioning in relatively measured terms their failure to hold themselves accountable. See, e.g., REPORT OF THE JOINT COMMITTEE ON CONGRESSIONAL OPERATIONS, THE CONSTITUTIONAL IMMUNITY OF MEMBERS OF CONGRESS, S. Rep. No. 93- 896, at 38-39, 53 (2d Sess. 1974) [hereinafter CONSTITUTIONAL IMMUNITY OF MEMBERS OF CONGRESS.] This self-criticism had become more pointed and persistent by the early 1990s. See, e.g., 137 CONG. REC. S15,384 (daily ed. Oct. 29, 1991) (statement of Sen. John Seymour (R-Cal.)) (describing congressional immunity from civil rights laws as "a cancer of unaccountability"); 136 CONG. REC. S9369 (daily ed. July 10, 1990) (statement of Sen. Orrin Hatch (R-Utah)) (claiming as a "moral question" that the Senate should not be above the law); Representatives Bill Goodling & Harris Fawell (RInd.), Congressional Coverage-The Time Has Come, 44 LAB. L.J. 259, 259 (1993) (decrying "the hypocrisy of Congress exempting itself from the laws it applies to others"). See also 125 CONG. REc. 10,589, 10,591 (1979) (statement of Sen. John Glenn (D-Ohio)) (referring to Congress as "the last plantation").

22 U.S. Const. art. I, § 5, cl.1, 2.

25 See, e.g., H.R. Res. 5, 94th Cong., 121 CONG. REC. 20, 22 (1975) (enacted) (House Rule prohibiting members from discriminating in employment because of race, color, religion, sex, or national origin; no provision for enforcement); H.R. Res. 558, 100th Cong., 134 CONG. REC. 27,840 (1988) (enacted) (prohibiting discrimination in House of Representatives employment; establishing Office of Fair Employment Practices to offer counseling and mediation and to adjudicate formal complaints; and providing for exclusive review of Office decisions by panel of House members and House employees); S. Res. 534, 94th Cong., 122 CONG. REC. 29,282 (1976) (enacted) (providing for equal employment opportunities in the Senate with no reference to enforcement).

26 See, e.g., Fair Labor Standards Amendments of 1989, Pub. L. No. 101-157, § 8, 103 Stat. 938, 944 (codified at 2 U.S.C. § 60k (1994)) (applying minimum wage but not overtime provisions of Fair Labor Standards Act to House employees, provision to be administered by Office of Fair Employment Practices based on H.R. Res. 558, supra note 25); Government Employee Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1088 (codified as amended at 2 U.S.C. §§ 1201 - 24 (1994)) (protecting Senate employees against discrimination on basis of race, color, religion, sex, national origin, age, disability; establishing Office of Senate Fair Employment Practices to enforce protections; providing for review of Office decisions by Senate Select Committee on Ethics and for further review upon petition before U.S. Court of Appeals for Federal Circuit).

Anmerkungen

Weitgehend vom Fußnotenapparat befreite wörtliche Übernahme ohne jede Kenntlichmachung.

Sichter
(Graf Isolan), WiseWoman

[2.] Wy/Fragment 172 01 - Diskussion
Zuletzt bearbeitet: 2013-09-17 18:01:19 WiseWoman
BauernOpfer, Brudney 1999, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, Wy

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There are ample grounds to believe that entrusting congressional selfregulation directly to legislators, or to a process that includes significant participation by legislators, is unworkable. Given the realities of partisan politics, members inevitably will be tempted to depart from a neutral disciplinary approach. Further, regular member recourse to such disciplinary procedures would likely threaten even the modest comity among members that is needed to conduct the legislative process.521 Yet, to the extent that such factors incline members to curtail or impair the use of disciplinary authority, congressional employees understandably will feel chilled in the exercise of their putative rights. Indeed, employees’ diffident assertion of those rights prior to the CAA may well reflect fear of being ignored or retaliated against due to a lack of confidence in the effectiveness or independence of member-controlled enforcement practices.522

13.3.2.2 Key Aspects of the Enacted CAA


521 Robert S.Getz, Congressional Ethics: The Conflict of Interest Issue, Princeton, N.J.Van Nostrand, 1966,pp.84-113.

522 See, James J. Brudney, Congressional Accountability and Denial: Speech or Debate Clause and Conflict of Interest Challenges to Uuionzation of Congressional Employees, Harvard Journal on Legislation, Winter, 1999.

[Seite 7]

There are ample grounds to believe that entrusting congressional self-regulation directly to legislators, or to a process that includes significant participation by legislators, is unworkable. Given the realities of partisan politics, members inevitably will be tempted to depart from a neutral disciplinary approach. Further, regular member recourse to such disciplinary procedures would likely threaten even the modest comity among members that is needed to conduct the legislative process.27 Yet, to the extent that such factors incline members to curtail or impair the use of disciplinary authority, congressional employees understandably will feel chilled in the exercise of their putative rights."28 Indeed, employees' diffident assertion of those rights

[Seite 8]

prior to the CAA29 may well reflect fear of being ignored or retaliated against due to a lack of confidence in the effectiveness or independence of member-controlled enforcement practices.30

B. Key Aspects of the CAA as Enacted


27 Cf. ROBERT S. GETZ, CONGRESSIONAL ETHICS: THE CONFLICT OF INTEREST ISSUE 84-113 (1966) (discussing similar concerns regarding congressional self-regulation in ethical matters).

28 See, e.g., 1993 Joint Committee Hearings, supra note 24, at 125 (statement of Nancy Kingsbury, U.S. General Accounting Office) (reporting that House employees filed a relatively small number of complaints between 1989 and 1993, and that the Office of Fair Employment Practices Director attributed the small number to high employee turnover and employees' concerns about their employing office becoming aware of the complaint); REED & CAMERON, supra note 21, at 37-38 (reporting results of a survey commissioned in the early 1990s by the Joint Committee on Organization of Congress: up to 70% of Senate staff surveyed had reservations about contacting Senate Fair Employment Practices Office to make inquiry or file complaint).

29 See 1993 Joint Committee Hearings, supra note 24, at 124 (noting that seven House employees filed formal complaints regarding employment discrimination between 1989 and 1993); CUMULATIVE REPORT OF THE OFFICE OF SENATE FAIR EMPLOYMENT PRACTICES, JUNE 1, 1992 THROUGH SEPT. 30, 1994, at 14 (reporting that 28 employees filed formal complaints during the 28-month period). During the early 1990s, there were some 18,000 employees working for the House or Senate as personal staff, committee staff, leadership staff, or staff to Officers of the House or Senate. In addition, nearly 10,000 individuals were employed by Congress's support agencies, including the General Accounting Office, the Congressjonal Research Service, the Architect of the Capitol, and the Capitol Police. See NORMAN J. ORNSTEIN ET AL., VITAL STATISTICS ON CONGRESS, 1993-94, 126-27 (1994).

30 See 1994 House Committee Hearings, supra note 24, at 429 (statement of Harold H. Bruf); REED & CAMERON, supra note 21, at 37-38. See also Richard Morrin, Female Aides on Hill: Still Outsiders in Man's World, WASH. POST, Feb. 21, 1993, at Al (reporting that 80% of female congressional employees would be reluctant to file sexual harassment complaints against members of Congress due to perceived ineffectiveness of current procedures or fear of retaliation).

Anmerkungen

Art und Umfang der wörtlichen Übernahme bleiben ungekennzeichnet. Auf den detaillierten Fußnotenapparat der Vorlage "verzichtet" Wy allerdings.

Sichter
(Graf Isolan), SleepyHollow02

[3.] Wy/Fragment 173 15 - Diskussion
Zuletzt bearbeitet: 2013-09-16 10:32:47 Graf Isolan
BauernOpfer, Brudney 1999, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, Wy

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An important factor is the extent to which The Act shields members themselves from litigation even while making Congress accountable as an institution.525 Employee complaints may be brought only against the employing office, not the member individually.526 Accordingly, in a court or other formal proceeding the respondent employing office is likely to receive representation [from counsel employed by the Senate or House rather than from a private attorney hired and compensated by the member.]



524 James J. Brudney, Congressional Accountability and Denial: Speech or Debate Clause and Conflict of Interest Challenges to Uuionzation of Congressional Employees, Harvard Journal on Legislation, Winter, 1999.

525 Id.

526 See, Public Law, No. 104-1, §§ 405(a), 408(b), 109 Stat. 33, 37 (1995) (codified at 2 U.S.C. §§ 1405(a), 1408(b) (Supp. II 1996)).

A second important factor is the extent to which the CAA shields members themselves from litigation even while making Congress accountable as an institution. Employee complaints

may be brought only against the employing office, not the member individually.45 Accordingly, in a court or other formal proceeding the respondent employing office is likely to receive representation from counsel employed by the Senate or House rather than from a private attorney hired and compensated by the member.46


45 See Pub. L. No. 104-1, §§ 405(a), 408(b), 109 Stat. 33, 37 (1995) (codified at 2 U.S.C. §§ 1405(a), 1408(b) (Supp. HI 1996)).

46 Acting pursuant to the House Employees Position Classification Act, 2 U.S.C. §§ 294(d)(7), 300 (1994), the Committee on House Oversight established a new Office of House Employment Counsel in late 1995. The Office was authorized inter alia to represent House employing offices in actions brought under the CAA. See Letter from Rep. Bill Thomas, Chairman of Committee on House Oversight, to Robin H. Carlo, Clerk of the House (Dec. 22, 1995) (on file with author); Dear Colleague Letter from Chairman Thomas and Ranking Minority Member Rep. Vic Fazio (D-Cal.) (Apr. 30, 1996) (on file with author). The Senate Chief Counsel for Employment performs a similar representational function for Senate employing offices. See 142 CoNo. REc. H10,026 (daily ed. Sept. 4, 1996). It was established in 1993 at the direction of Senate leaders from both parties, and was formerly called the Office of Senate Legal Counsel, Employee/Management Relations. See 140 CONG. REc. S1391 (daily ed. Feb. 10, 1994)

Anmerkungen

Quelle ist in Fn. 524 genannt; Art und Umfang der Übernahme bleiben ungekennzeichnet.

Sichter
(Graf Isolan), SleepyHollow02

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