Should Congress Handle Sex Harassment Cases Like Business Does?

Should Congress Handle Sex Harassment Cases Like Business Does?

Unlike a private business, Congress is an assemblage of equally free agents who are in the first instance accountable to their voters.
Warren Henry
By

The Weinsteingate wave rolls on, sweeping into its wake Matt Lauer, the now-former host of NBC’s “Today” show. Co-hosts Savannah Guthrie and Hoda Kotb reported on the story:

NBC News Chairman Andrew Lack announced: “While it is the first complaint about his behavior in the over 20 years he’s been at NBC News, we were also presented with reason to believe this may not have been an isolated incident.” (Spoiler: There were more complaints. And they were not pretty.)

For those keeping score, Lauer is the second host of a network morning news show to be dismissed in the past month for alleged sexual misconduct, following CBS’s Charlie Rose. Beyond the spheres of entertainment and journalism, the wave is also battering politicians. It is not sweeping many away—yet.

For example, various reports have the Congressional Black Caucus pressuring or not pressuring Rep. John Conyers (D-MI) to resign amid allegations of sexual harassment. When the media confronted Reps. Cedric Richmond and Jim Clyburn with the list of men accused of sexual misconduct in the private sector who have been dispatched more swiftly than Congress is acting, Clyburn’s retort was, “Who elected them?”

In this populist political moment, that response sounds awfully privileged (if not the worst thing Clyburn has said). It is also tempting for conservatives to point to this disparity as a demonstration of the superior efficiency and morality of the market over the lethargic and lax ethics of The Swamp. But is it, really?

Flexibility Doesn’t Necessarily Mean Justice

One of the lessons of Weinsteingate appears to be how poorly Hollywood and Big Media performed in addressing sexual harassment claims. In these highly publicized stories, we tend to hear that the misconduct was an “open secret” and women did not come forward because they had no confidence their claims would be taken seriously by superiors or human resources departments.

Post-Weinstein, private businesses may have the advantage of efficiency in addressing sexual misconduct cases. Very often, private employees do not have any due process rights or the process due under a contract may be minimal. However, the greater flexibility of the private sector does not necessarily render it more just.

Our country is currently in a moral panic regarding sexual misconduct, and rightly so. In the reported cases, the nature of the evidence presented in the court of public opinion seems such that the public does not appear to be engaged in a witch hunt. But how we respond to this moral panic remains of great import.

For example, the Trump administration recently rescinded Obama-era guidance on school sexual assault. Under new guidance (pending new regulations), campus disciplinary proceedings may now use a higher standard of proof than a mere preponderance of the evidence. The accused must also be notified of the identity of the accuser and the nature of the charges, which are basic elements of due process.

If we believe in a bedrock level of due process for college students accused of sexual misconduct, we may ask whether some protections should be due in other cases where state action or public funds are involved, even if the accused is a public employee or far more powerful than a student.

Voters Are Supposed to Provide Accountability

Congress has its own institutional protection. Article 1, Section 5 of the Constitution provides that each chamber shall be the judge of the qualifications of its members, but the U.S. Supreme Court has held since Powell v. McCormack that Congress is limited to judging the qualifications listed in Article 1, Section 2.

Article 1, Section 5 also provides that each chamber may “punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.” This reflects an intent that a consensus view of the chamber supports any expulsion.

Thus, as entitled as it may sound, the question of “Who elected them?” is one the Founders took seriously. Our supreme law reflects the idea that the voters’ selection should not be overturned lightly. Unlike a private business, Congress is an assemblage of equally free agents who are in the first instance accountable to their voters.

That said, for voters to properly judge those it sends to Congress, or for Congress to properly judge its own members, a certain level of transparency is required. This is particularly true where taxpayers outside a member’s voters may be footing the bills for alleged sexual misconduct.

Where Harassment Complaints Go to Die

On this plane, Congress appears to have failed institutionally. Its Office of Compliance (OOC), created during the mid-1990s (at another populist moment) to help legislative branch employees who allege civil rights and other workplace misconduct, has kept information about awards and settlements secret, even in cases where confidentiality may not be legally required.

The Republican-controlled House is now pushing for answers about the OOC’s operation, with some representatives arguing that settlements should be paid by the accused rather than the taxpayers at large. Rep. Kathleen Rice (D-NY) is questioning who has the authority to release an accuser from a non-disclosure agreement in such cases.

Given the moral panic Weinsteingate unleashed, Congress may be able to produce a rare, bipartisan reform of its system for addressing sexual misconduct. It may even be able to act at a speed more closely resembling the private sector.

But perhaps one lesson from the OOC is that any reform may also contain the seeds of the next scandal. What happens after the moral panic subsides may be more important than what Congress does in the coming weeks or months.

Warren Henry is the nom de plume of an attorney practicing in the State of Illinois.

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