After sexual harassment allegations arose against more than a half-dozen lawmakers in 2017, Congress promised swift reform of an internal review process that many agreed was outdated and biased against accusers.
But a year later, efforts have stalled, largely over whether lawmakers should have to pay out of their own pockets to settle harassment claims against them, rather than taxpayers covering the cost as currently occurs. Some outside groups blame a handful of GOP senators for quietly resisting the liability provision and blocking the legislation.
Now there are only days left for the House and Senate to reach a compromise. Otherwise the bills each has already passed will expire and the new Congress will have to start over in January.
House and Senate negotiators remain confident that an agreement can be reached before members head home for the holidays.
“We’re very close to getting it done. We’re actively working on it every day,” said Sen. Amy Klobuchar (D-Minn.), a key backer of the reform.
The House passed its version unanimously in February, the Senate version passed its in May. But in the six months since, negotiations to reconcile the two versions into a single bill have dragged on with little public sign of progress.
“We’re working hard on it. I believe we’re going to get there. But we’re not there yet,” Sen. Roy Blunt (R-Mo.) said.
As the deadline approaches, pressure is growing on proponents of the stronger House bill to accept some of the Senate’s compromises. But critics say the Senate version alone does not go far enough, and the House won’t accept the Senate version without some concessions.
“We’re as close as we can get,” said Rep. Jackie Speier (D-Hillsborough), a co-sponsor of the House bill. “We’re willing to negotiate a little bit. But we’re not going to negotiate away the victim protections we’ve put in the bill.”
House Minority Leader Nancy Pelosi (D-San Francisco), who is expected to be speaker next year, opened the door Thursday to accepting some of the Senate’s less stringent provisions in order to pass the bill. Then she said the Democratic-controlled House next year could push for stronger protections that would only apply in the House.
"I think that would put some pressure on the Senate to do the same,” Pelosi said.
Both House and Senate bills require lawmakers to personally repay the Treasury when they settle sexual harassment allegations made against them personally. Taxpayers would still pay to settle allegations made against staff or other employees.
But the House version also holds lawmakers financially responsible for discrimination settlements, too, and has no cap for how much they can be ordered to pay.
The Senate version limits individual liability to just sexual harassment, and caps the amount they might have to pay at $300,000. It also holds members liable only for compensatory damages, which are awarded for loss of income or medical bills, and not for punitive damages, which are awarded in excess of a material loss.
Speier said the complete liability provision in the House version “absolutely without a doubt” has to be in the final bill.
"It’s incumbent on us to pass a measure that makes us accountable for the conduct that we engage in as members of Congress, and makes sure that we have a safe environment for people to work in,” she said.
The #MeToo movement brought a flood of accusations against powerful men in entertainment, media and politics last fall. It prompted 1,500 Capitol Hill staff members to ask representatives and senators in a letter to overhaul Congress’ system for addressing sexual harassment, abuse and discrimination, which critics call burdensome, secretive, time-consuming and stacked against accusers for the benefit of the person being accused.
The sexual harassment bill is now among several priorities competing for attention before Congress adjourns. Among them is what to include in a spending bill they have to pass before Dec. 21 in order to avoid a partial government shutdown.
Advocacy groups supporting the legislation are split on what’s caused the hold up. Some said privately that it hasn’t been a priority on the Senate side. Others blame a few Republican senators who are unhappy with the liability provision but are reluctant to object publicly, and they point the finger at Senate Majority Leader Mitch McConnell (R-Ky.) for letting that stop the bill from moving forward.
“It’s two words: Mitch McConnell,” said Remington Gregg, counsel for the government advocacy group Public Citizen. “There’s really no one who is willing to say on the Republican side: ‘Look, Mitch, we’ve got to pass this.’ They are more than willing to let him play the villain.”
“For some segments of Congress to be refusing to let themselves be held accountable under strong standards is troubling,” said Maya Raghu, director of workplace equality and senior counsel at the National Women’s Law Center. “It would be a real shame if Congress, especially because of this member liability issue, blew up any progress or any chance at a deal.”
McConnell told reporters last month that he’d still like to get a sexual harassment bill done this year.
Blunt denied that Republicans were holding up the bill. “Lots of things that people get blamed for they shouldn’t be blamed for,” he said.
The House and Senate bills also differ on who gets a final say on the settlement amount and who determines whether a lawmaker is liable.
The Senate version leaves it to the House and Senate ethics committees, which are made up of lawmakers, to review settlement agreements and decide when lawmakers are liable. The House version gives that oversight to the newly created and independent Office of Employee Advocacy.
Supporters of the House bill call the provision in the Senate version a “loophole” to get out of having to pay the settlements.
“The whole point is personal responsibility,” Gregg said. “The Senate version allows your peers, your colleagues to say, ‘We’ve got your back. You didn’t do anything wrong.’”