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Amid Kavanaugh uproar, changes to Congress' sexual harassment rules stall

The Washington Post

Long before Congress was consumed by the wrenching fight over sexual assault allegations against Brett M. Kavanaugh, lawmakers had promised to make the process fairer for those who accuse lawmakers or staffers of sexual misconduct.

But nearly a year after the #MeToo era began, lawmakers have failed to deliver on that pledge - and it is not clear when they will.

Aides on Capitol Hill still have no choice but to report abusive behavior through a system that was widely decried last year as favoring lawmakers over employees who allege mistreatment. After lawmakers could not agree on a package of changes, they punted the issue until after the midterm elections - which are now shaping up as a battle between the #MeToo movement and Republicans who say many accusations have gone too far.

Some victim advocates and lawmakers who support changes view the delay as a sign that Congress has lost its urgency toward improving itself as a workplace and addressing one of the central concerns of #MeToo activists - holding powerful men accountable for sexual assault and harassment.

Senate Majority Leader Mitch McConnell, R-Ky., played down the disagreements this weekend, saying it is "simply inaccurate" to assert that "the Senate is somehow broken" because of the delays.

"We've had difficulty negotiating our differences between the House and Senate, but that's something I know we'll get done before the end of the year," McConnell said Sunday on CBS's "Face the Nation."

The debate has come as a growing number of lawmakers have seen their careers upended by accusations of sexual harassment or misconduct.

They have included Sen. Al Franken, D-Minn., who resigned on Jan. 2 after eight women accused him of groping and other inappropriate advances, and Rep. Blake Farenthold, R-Texas, who resigned on April 6 amid pressure over his settlement with a former staffer who accused him of sexual harassment. Rep. Patrick Meehan, R-Pa., quit on April 27 amid an ethics probe into his alleged professing of romantic feelings for a younger female aide with whom he had settled a complaint.

The system for reporting workplace misconduct on Capitol Hill was created more than two decades ago by the Congressional Accountability Act, which applied federal labor laws to Congress. The 1995 law has several elements that victim advocates see as flawed, including mandated counseling, mediation and "cooling off" periods for accusers and lawmakers' ability to use public funds for confidential settlements.

The House and Senate each passed bills to address such objections earlier this year, but key differences between them held up the process, according to people familiar with the discussions who requested anonymity to discuss internal deliberations.

Sticking points have included when lawmakers would be required to repay the Treasury Department for settlements; how claims would be investigated; and what kind of free advice and counsel would be provided to accusers, these people said.

"I think it's more of a structural disagreement, in terms of the way our side of the building works [and] the way theirs does," Senate Rules Committee Chairman Roy Blunt, R-Mo., said last week in an interview. "There's no reason why we couldn't take two slightly divergent paths here and get to where the Senate and House would like to be."

While some observers had speculated that a deal could be wrapped into the latest bill to fund the government, the House's departure last month and the controversy over Kavanaugh diminished the chances of reaching a compromise before the election, the people said.

The continuing resolution did include a short-term extension of the Violence Against Women Act, a disappointment for women's rights advocates who had pushed for a full reauthorization.

Recent negotiations took place during a fragile moment on Capitol Hill, as senators reckoned with accusations of sexual assault from California professor Christine Blasey Ford and others against Kavanaugh. Hundreds of protesters spent days voicing opposition to his nomination.

Kavanaugh has denied all allegations of misconduct and was confirmed 50 to 48 by the Senate on Saturday.

The controversy, which for weeks overshadowed other work on Capitol Hill, raised the same kind of questions that the House and Senate have debated as they work toward a final bill, including how allegations of misconduct should be investigated.

The two debates also have shared some players.

Sen. Charles E. Grassley, R-Iowa, who oversaw Kavanaugh's confirmation process as head of the Judiciary Committee, wrote the 1995 law that created the current system for reporting misconduct. He has endorsed changes to the law.

Debra Katz, one of Ford's attorneys, has represented congressional aides in harassment cases and publicly criticized the reporting process.

And Sen. Amy Klobuchar, D-Minn., the top Democrat on the Rules Committee, drew attention when Kavanaugh pressed her during a hearing to say whether she had ever blacked out from drinking. He later apologized.

Blunt and Klobuchar expressed hope that a final deal to amend the Congressional Accountability Act might still be struck before the end of the year.

"I don't think it's over at all," Klobuchar said last week in an interview. "I think there's a very good chance we'll have it done by the end of the year," she said. "It can't go on - we have to change the rules."

The negotiations over a final bill came as lawmakers were forced to reflect on other ways in which their institution falls short as a workplace.

A report released last month by the Joint Center for Political and Economic Studies highlighted the lack of racial diversity among top staffers in the House, despite record diversity among lawmakers. Only 13.7 percent of top House staffers are people of color, compared with 38 percent of the population, the report found.

Rep. Ileana Ros-Lehtinen, R-Fla., who in 1989 was the first Latina elected to Congress, said every office on Capitol Hill needs more diversity, "including mine."

"We need to do better," Ros-Lehtinen said in a recent interview. "Shame on us. Shame on us."

The delays on the #MeToo bill have raised concerns for advocates such as Anna Kain, who, along with other former congressional staffers, sent a letter to Congress on Sept. 20 warning that "time is running out."

"The status quo not only isn't good enough - it's actually hurting people, it's disempowering people, it's completely unacceptable," said Kain, whose allegations of harassment against a former chief of staff led Rep. Elizabeth Esty, D-Conn., to not seek reelection.

Lawmakers also expressed frustration at the pace of the talks.

"The fact that it's taken this long is disconcerting," House Democratic Caucus Vice Chair Rep. Linda T. Sánchez, D-Calif., vice chair of the House Democratic Caucus, said in a recent interview.

In a statement, leaders of the House Administration Committee said the House is "optimistic the reconciliation will accomplish the same necessary goals" as the lower chamber's bill, including protecting workers and taxpayer dollars.

"The two chambers have been working in a bipartisan, bicameral manner to reconcile the two approaches taken" since late May, said Reps. Gregg Harper, R-Miss., and Robert A. Brady, D-Pa.

A former Senate Rules Committee chairman cast doubt on the idea that a deal will be reached during this Congress.

"Obviously nothing's going to happen now," Sen. Richard C. Shelby, R-Ala. said last week.

Pointing to the coming session between the elections and a new Congress, he added: "Will anything happen in the lame duck? Maybe not."

First published in The Washington Post.

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