Members of Congress may have a loophole that would allow them to avoid reimbursing taxpayers for settlements in sexual harassment cases.
For years, settlements have been paid out in secret, using taxpayer money for sexual harassment claims in Congress. After BuzzFeed News brought that process to light and several members of Congress resigned amid sexual harassment allegations in recent months, Congress began moving quickly to overhaul the system and prevent lawmakers from making hush settlements on taxpayers’ dime.
But ethics watchdogs say that the Senate’s version of that legislation doesn’t go far enough to hold lawmakers accountable. Unlike the House’s bill, the Senate requires the often slow congressional ethics committees to review settlements before members have to reimburse taxpayers for the money and, even then, could leave the door open for members to simply resign without having to pay up.
Under the bipartisan Senate bill, a sexual harassment settlement would be automatically referred to the House or Senate Ethics Committee, which would have to decide whether to investigate the claim. Then, the committee would have to separately find that a settlement involved an actual violation in order to compel a member to pay for the settlement themselves.
“What’s concerning about this is, the whole point of requiring members of Congress to pay back the Treasury is to hold them accountable for their actions. And what this does is it puts two big hurdles there to allow a members’ colleagues to play running back,” Remington Gregg, an attorney at Public Citizen, told BuzzFeed News.
Public Citizen, the ACLU, and other outside groups wrote a letter to senators shortly after the legislation was introduced highlighting their concerns.
“This provides really a big loophole for a member who has settled a claim of sexual harassment to avoid personal accountability, personal responsibility, and to get out of reimbursing the taxpayers for the members’ misconduct,” Lenora Lapidus, director of the ACLU’s women’s rights project, told BuzzFeed News.
Both Public Citizen and the ACLU point to lack of clarity in the Senate’s language as a concern.
"I cannot imagine a scenario where [the House Ethics Committee] didn’t take up a claim of harassment that resulted in an award or settlement, but ... this gives discretion,” one Republican staffer familiar with the legislation told BuzzFeed News in an email. “That’s terrible. What an unnecessary political problem to create when there is already so much distrust in Congress."
But a Senate aide argued that it was necessary to set up those steps to determine whether members of Congress themselves are personally liable before forcing them to pay for a settlement out of pocket. The aide noted that settlements typically include a no-fault clause where members do not admit to any wrongdoing.
“We’re not trying to add extra steps. We’re trying to add the steps that require personal responsibility,” the aide said.
The House bill contains much broader language on reimbursements, saying that any member who settles an accusation of harassment that they "committed personally" would have to repay money for a settlement. The House doesn't require any finding that the member is at fault once a settlement is made.
“Their House colleagues didn’t seem to have a problem when they passed their bill in bipartisan fashion to hold members liable for any settlements,” Gregg said, noting that it becomes easier for members to settle when they’re not thinking about their own money.
Critics of the Senate bill also worry that investigations could drag on, leaving taxpayers to foot the bill. Beyond spelling out that ethics committees have to review a settlement within 90 days of receiving it, the Senate’s legislation doesn’t specify when an investigation would need to be completed. That’s notable given that the ethics committees have a reputation for taking their time on cases, tend to be private about investigations, and rarely rule against members.
Additionally, the House Ethics Committee only has jurisdiction over current members of Congress. That means that if a member resigns at any point in the process before the committee has found them personally liable, Congress could lose the ability to hold them accountable.
That’s a very real possibility, as the House Ethics Committee leaders noted in a statement last month. They pointed to former Rep. Blake Farenthold, who resigned in April following news that he spent $84,000 in taxpayer money to settle a claim alleging sexual harassment and other inappropriate behavior, and promised to repay the money. A month later, he said he wouldn’t reimburse the money after all, and there’s nothing Congress can do about it.
“There is a high likelihood that members of Congress who have committed wrongdoing will just resign. We’ve seen this already. This isn’t even in place, and we have seen members of Congress resign rather than being held fully accountable for their actions,” Gregg said.
“It continues to perpetuate a culture of irresponsibility, it perpetuates the culture of not taking responsibility for one’s actions, and it doesn’t send a strong signal that Congress is going to clean up its own house.”
Reps. Susan Brooks and Ted Deutch, the chair and ranking member of the House Ethics Committee said in a statement that while the House bill also requires the ethics committees to take a look at settlements, their legislation “does not condition the imposition of personal liability upon the outcome of any such investigations. Because the Ethics Committees have jurisdiction over current Members of Congress, this approach ensures that personal liability is established.”
“We believe that any proposal to reform [Congress’s current system for handling harassment complaints] should include provisions to ensure that Members remain personally liable for their own conduct with respect to discrimination and retaliation, and that they remain liable even if they leave Congress.”
Senate aides pointed to the case of former Sen. John Ensign as evidence that the Senate Ethics Committee, at least, has historically still presented findings after a member has resigned.
Another Senate aide made a different argument: If a member resigns and the corresponding ethics committee loses jurisdiction, a court or hearing officer could still get the separate finding required under the Senate legislation to require the member to pay taxpayers back. But it would be on the victim to follow those steps, the aide said.
The Senate passed its legislation after months of stalling and quiet negotiations. It was introduced by Sens. Roy Blunt and Amy Klobuchar, the chair and ranking member of the Senate Rules Committee, with Senate leadership’s blessing and then quickly passed through unanimously.
The House voted on their version of this bill months ago, and the outside groups say it’s better in terms of accountability. Both chambers will have to meet in conference to hash out the differences, unless one of the chambers decides to pass the other’s bill.
“We were disappointed that the Senate didn’t do more to ensure accountability and transparency,” Vania Leveille, senior legislative counsel for the ACLU, told BuzzFeed News. “I will certainly acknowledge that the Senate bill is better than the status quo, but that’s not a very high bar."