Despite the momentum from the MeToo movement — which helped elect historic numbers of women to Congress last week — lawmakers are still stuck over how to deal with sexual harassment in the House and Senate.
Both chambers passed different bills earlier in the year to revamp how Congress would handle staff and member harassment. But talks to write a final bill haven’t made concrete headway in months.
And even though Congress returned to work this week, only days after this year’s elections, senators and representatives still haven’t formally met to talk about harassment reform. Only staff-level meetings have been held.
Major differences remain between the House and Senate versions. The Senate left Thursday and the House is scheduled to leave Friday for an extended Thanksgiving recess. When it returns Nov. 26, it plans to remain in session only until mid-December.
Leaders in the effort realize they need to act.
“Congress would be well served by everybody knowing what these new rules are, in law, before our new members of the Congress raise their hands to be sworn in,” said Sen. Roy Blunt, R-Missouri, the Senate’s lead negotiator on the issue.
Senate Majority Leader Mitch McConnell has publicly said this week he wants to bring legislation to the floor, probably connected to another bill, such as the spending plan Congress has to pass next month.
But the Kentucky Republican’s support won’t matter if the two chambers fail to agree on a bill.
The Congress elected last week will convene in early January, and will have to start the legislative process all over. Reform advocates worry that McConnell, who will retain his job next year, has more pressing priorities in December, such as keeping the government funded and passing a farm bill.
A series of scandals involving misconduct by lawmakers, as well as the national outcry about sexual harassment in the entertainment and media industries, prodded action in both chambers earlier this year. But the bills have significant differences and negotiations on a compromise bill have made little progress since the summer.
An overwhelming amount of voters consider sexual harassment a “serious problem,” according to network exit polls.
At least 102 women will be serving in the House of Representatives next year, including at least 36 freshmen. The next Senate could have at least 24 women. It has 23 this year. Sen. Cindy Hyde-Smith, R-Mississippi, faces a runoff election later this month.
But the election results don’t appear to be making a big difference.
The House bill covers both harassment and discrimination, while the Senate only covers harassment.
The House version provides an independent investigator with subpoena power and requires the member of Congress to reimburse the taxpayer-funded Treasury Department with any settlement if that investigation finds the member is at fault.
The Senate bill routes everything through its Ethics Committee without first having an independent investigation and has stricter standards on when members have to reimburse the Treasury. The bills also differ on how to provide legal counsel to potential victims.
There were some potential compromises in staff negotiations. Senators are considering eliminating the word unwelcome from the term “unwelcome harassment,” as part of their definition for instances when members had to pay out of pocket.
Emily Martin, vice president for education and workplace justice at the National Women’s Law Center, called “unwelcome harassment” a “strange new turn of phrase” that could be used to justify some harassment as acceptable.
Negotiations were also leaning towards giving lawyers who acted as confidential advisers to victims the leeway to provide free legal advice before a complaint is filed. In the current Senate version, the adviser has to be a lawyer but can only offer procedural and not legal advice, such as what documentation needs to filed and deadlines.
“Members of the House have been very clear that they stand firmly behind the House bill,” said Maya Raghu, director of workplace equality and senior counsel at the National Women’s Law Center.
Vania Leveille, senior legislative counsel at the American Civil Liberties Union, said she’s heard from congressional staff they’re “close to a final bill,” but cautioned “just because they tell you progress is happening doesn’t mean it’s going to get through.”
Sen. Amy Klobuchar, D-Minnesota, the top Senate Democrat involved in the negotiations, told McClatchy Thursday that she’s been encouraged by discussions she’s had with McConnell on bringing legislation to the floor, but still couldn’t report it would happen. She, Blunt and McConnell have also had informal discussions on the issue.
The legislation remained stalled during a time when the Senate pushed through with a confirmation vote on Supreme Court Justice Brett Kavanaugh amid allegations of sexual misconduct, a controversy victim advocates said sends a “clear message.”
“The safety and well-being of congressional staffers is not a priority,” said Anna Kain, a former congressional staffer who was harassed by another staffer in the same office of retiring Connecticut Rep. Elizabeth Esty. “And that our experiences are perhaps legitimate, but not quite legitimate enough.”
Victims’ advocates have generally favored the House bill because it sets up a new investigation process and includes provisions meant to hold members personally liable if they commit harassment.