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| Untersuchte Arbeit: Seite: 171, Zeilen: 1ff (komplett) |
Quelle: Brudney 1999 Seite(n): 5-6, 7, Zeilen: 5:10-18.123-128 - 6:1-8; 7:1-5 |
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| 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). |
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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). |
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