On the morning the Office of Compliance first opened, there was a ribbon cutting. Some of the sponsors of the bill that established the bureau, now known as the Office of Congressional Workplace Rights, gathered to say a few words.
But they weren’t the first visitors to the brand-new office, created to ensure that legislative branch bosses adhere to the Congressional Accountability Act of 1995, which forced Congress to comply with many federal labor laws for the first time ever. Kevin Mulshine was already busy helping a worker file the office’s first claim when then-Rep. William Goodling arrived for the ceremony.
“We had to move out of the small office where I was meeting with [the employee] confidentially and actually stepped over the seat of Mr. Goodling,” said Mulshine, who was a senior adviser and counsel. “I thought this is quite the scene, where an employee meant to benefit from the procedures and rights granted by the CAA is literally stepping on the shoes of [a] main sponsor.”
Signed by President Bill Clinton on Jan. 23, 1995, the CAA was the first bill enacted by the 104th Congress, and the first pillar of Newt Gingrich’s “Contract with America” that swept Republicans into power that year. Civil rights advocates, business lobbyists and union leaders alike all heralded the law’s passage.
Thirty years later, the CAA has mostly faded into the background of Capitol Hill. The law saw renewed notice at the height of the #MeToo movement — leading Congress to pass a 2018 update to the law — and again when the House cleared the way for member and committee staff to unionize in 2022.
“The reason I introduced this legislation is because I kept getting questions from constituents in Iowa of how come we don’t have to live under the laws they live under,” the bill’s Senate sponsor, Charles E. Grassley, R-Iowa, recently told Roll Call.
“It’s a moral issue,” he added.
When Congress began to regulate employer-labor relations through laws like the Fair Labor Standards Act of 1938, it exempted itself from those standards and kept up that practice. So while other employers — including much of the executive branch — had to pay minimum wages or, after the Civil Rights Act of 1964, refrain from discriminating on the basis of a worker’s race, religion or sex, Congress didn’t have to bother.
This exemption applied not just to Senate and House staffers, but to all the workers who keep the Capitol operating, including cleaners for the Architect of the Capitol, cops in the Capitol Police and researchers at the Library of Congress.
Grassley struggled for years to get the CAA enacted, as he detailed in a 1998 law review article. Other lawmakers argued in public that the Constitution’s Speech and Debate clause insulated Congress, or that the separation of powers doctrine meant no executive or judicial agency could regulate legislative workplaces. But as Grassley argued at the time, they mostly just didn’t want to be bothered by the rules. “These critics prefer self-regulation,” Grassley wrote. “My opinion is that self-regulation, when not conducted by a disinterested and neutral third party, does not constitute credible regulation at all.”
One of the other reasons Grassley pursued the bill, he wrote in 1998, was so lawmakers would feel the weight of the federal regulatory yoke on their necks. “The CAA gives us an incentive to change the laws that we, based on firsthand experience, find unnecessary and burdensome,” he wrote.
But in the years since, federal labor statutes have mostly remained untouched, and to the extent they’ve changed, Congress has expanded protections instead of culling regulations.
Grassley also argued in his law review article that these laws should apply to federal judges too. “Just as we, in Congress, should live under the laws we make, the Judiciary should live under the laws it interprets,” he wrote.
Yet today, the Senate Judiciary chairman suggested he no longer feels it is the legislature’s place. He told Roll Call that the judicial branch is capable of policing itself, despite recent scandals related to political activists lavishing gifts on conservative Supreme Court justices, which have eroded the public’s faith in the institution.
Locked doors, flammable liquids
With Grassley and others pushing, Congress began to adopt some workplace regulations in fits and starts, including through the Civil Rights Act of 1991. For years, the issue was the subject of joint committee hearings, task forces and amendment battles, but it never got a clean, up-or-down floor vote — until it became the first peg in the GOP’s Contract with America.
Released before the 1994 midterm elections, the Contract with America promised voters that Republicans would enact a series of commonsense, popular proposals if they took control, starting with ensuring “laws that apply to the rest of the country also apply equally to the Congress.” The pledge worked — they gained 54 House seats and 8 Senate seats, reclaiming both chambers — and the CAA went on to pass in the Senate by a vote of 98-1 and the House, 390-0.
The compliance office opened a year later and immediately started making an impact — a physical impact, said Mulshine, pointing to new occupational safety and health requirements.
At the time, it was common practice to chain up external doors to the Capitol outside of business hours. The nighttime cleaning crews complained that this created a safety hazard for them — if there were a fire, they’d be trapped. Inspections by the OOC spurred action on that and other obstacles to evacuating the complex, a topic whose urgency was shown just a few years later as Capitol workers fled on Sept. 11, 2001.
Similarly, Mulshine noted how flammable liquids used to be stored haphazardly across the campus. The OOC issued citations in 1998, leading the Architect of the Capitol to start cleaning up its chemical storage act.
But after about two years at the new agency, Mulshine — who had written a law review article arguing for the creation of something like the compliance office — left it, feeling disappointed, to take a compliance job at the AOC. “I realized that the office was really not the proactive place that I had hoped it would become,” he said. “Everyone on staff was just waiting for someone to walk in the door to file a claim as opposed to reaching out and really becoming, not so much advocates for employees, but advocates for the office and the law. That was very frustrating.”
That passive attitude continues to this day, in Mulshine’s view. “Unfortunately OCWR has become sort of a backwater agency,” he said. “The people in OCWR for whatever reason don’t want to be advocates.”
While Grassley says he’s perfectly happy with how the OCWR has turned out (“As far as I’m concerned, it’s been administered properly,” he said), Mulshine argued the oft-ignored office with a static rotation of the same few board members falls short of the law’s intention. “This is exactly what Newt Gingrich wanted to avoid. We have a bureaucracy that is more interested in laying low and not creating controversy and having it as an ongoing, persisting bureaucracy rather than having new blood injected into it from time to time, to have Congress put in line, and having to explain its practices.”
The OCWR declined to comment.
Confidentiality rules have also made it hard to track progress. As part of the update to the CAA enacted in 2018, lawmakers added new reporting requirements for awards and settlements, meaning the public can now see the names of members whose offices have paid out through a taxpayer-funded account, along with the amount.
Annual reports from the office provide topline numbers on the number of claims, information requests and advisory requests filed, along with the basis (e.g., discrimination and harassment). That data includes a breakdown of employing offices, but only in the broadest terms — out of 59 total claims filed in 2023, we know that two were filed against House member offices that year, but not which members.
The CAA tasked the OCWR with promulgating regulations tailored to the peculiarities of Congress. Some of those rules required Congress to affirmatively adopt them before they could take effect, and Congress has not always done so. In 2022, the House finally adopted a resolution to approve labor organizing protections for its staffers (other workers, like the Capitol Police, were allowed to unionize long ago), but senators can still union-bust if they so choose.
The post Living under the laws they make: How a workplace push changed Congress appeared first on Roll Call.
