Critics of congressional exemptions point to two other laws that they believe should apply to Congress -- the Occupational Safety and Health Act (OSHA) and the Freedom of Information Act (FOIA).
LAWS THAT DO NOT APPLY TO CONGRESS
Occupational Safety and Health Act of 1970
The Occupational Safety and Health Act (OSHA)46 requires each covered employer to provide a place of employment free from recognized hazards that may cause serious physical harm or death, and to comply with the Act's occupational safety and health standards. The Act is intended to protect employees from personal injuries and illnesses resulting from work situations. Both the Secretary of Labor and the Occupational Safety and Health Review Commission perform duties related to the enforcement of the Act.47 The Secretary may inspect work premises, investigate, and issue citations to employers for statutory violations.
If an employer contests a citation or an employee alleges that the period of time specified in the citation for the abatement of the violation is unreasonable, a hearing may be held by the Commission.48 The Secretary of Labor or any person adversely affected or aggrieved by an order of the Commission issued after a Commission hearing may seek judicial review.49 OSHA does not create a private right of action for injured employees or against employers or third parties; no private cause of action is implied under the Act or under Federal common law. The provisions and regulations of OSHA ``are sufficiently comprehensive to make such a private right of action unnecessary to effectuate the congressional policy underpinning the substantive provisions of the statute.''50
OSHA applies to ``any person engaged in a business affecting commerce who has employees.'' Under the Act's definitions, the term employer ``does not include the United States.''51 OSHA therefore does not apply to Congress. Although the United States is specifically excluded from the Act's definition of ``employer,'' the Act makes it ``the responsibility of the head of each Federal agency to establish and maintain an effective and comprehensive occupational safety and health program which is consistent with'' the national standards promulgated by the Secretary under the Act.52 An executive order states that this statutory provision is applicable to all Federal employees and directs the Secretary to consult with the heads of all agencies in the legislative and judicial branches to help them develop safety and health programs.53 There is no analogous program for Congress, nor for the Executive Office of the President.
Freedom of Information Act and Privacy Act
The Freedom of Information Act (FOIA)54 does not apply to Congress, and congressional coverage under this measure would raise different issues from those posed by the application to Congress of the civil rights, labor, or other laws discussed above.55
The FOIA provides a statutory right of access to a wide range of government information to allow citizens to be informed of government affairs.56 Even though not covered by the Act, Congress makes available to the public an extensive amount of information about congressional activities, including the Congressional Record, committee reports and hearings, etc. But not all documents relating to legislation are generally accessible; certain administrative records of the House and Senate are not publicly available; and certain other congressional correspondence and documents are not routinely disclosed.
Litigants in civil cases, prosecutors and defendants in criminal actions, journalists, and other citizens have at times sought the disclosure of various congressional documents that were not generally available to the public. Such requests and demands, although often complied with by both bodies, implicate the privileges of the House and Senate.57 These privileges have roots in the Constitution, principally the speech or debate clause, but also the publication clause58 and the separation of powers doctrine.
The argument could be made, on the one hand, that Congress could be subject to the same information disclosure requirements imposed on the executive branch inasmuch as the purpose of the Act -- ``ensur[ing] an informed citizenry, vital to the functioning of a democratic society''59 -- would be served by congressional coverage. On the other hand, application to Congress might impinge on Congress' privilege with regard to its papers, pose administrative burdens on congressional offices, and involve Congress in law suits filed by persons appealing the denial of their FOIA requests. Finally, not all congressional records would necessarily be subject to disclosure under the FOIA because they may come within one or more of the Act's nine exemptions.60
Similar constitutional and practical difficulties may be encountered in an effort to extend the Privacy Act61 to Congress. Under this law, an agency is prohibited from disclosing ``any record which is contained in a system of records'' to any person or other agency, unless there is the consent of the individual to whom the records pertain or the disclosure is permitted under one of the dozen exceptions from the prohibition.62 The Act also permits an individual to gain access to agency records pertaining to himself/herself63 and to request amendment of such records if the individual believes they are not accurate, complete, relevant, or timely.64 Furthermore, the Act imposes a variety of requirements on agencies, such as maintaining an accurate account of certain disclosures of records,65 maintaining only relevant and necessary information about an individual,66 and collecting certain information to the greatest extent practicable directly from the individual who is the subject of the records.
Ethics in Government Act of 1978
Although the Ethics in Government Act of 1978 (Public Law 95-521, as amended) is one of the laws that is often cited as ``exempting'' Members of Congress, it is inaccurate to say that Members of Congress are exempt from all the provisions of that law.67 Members of Congress are generally covered by the ethics and conflict of interest rules of the Ethics in Government Act, including specifically, the requirements for filing annual, public financial disclosure reports, the amendments to the ``revolving door'' law requiring a one-year ``cooling off'' or ``no contact'' period for high-level officials, as well as all of the outside employment and income restrictions and bans added in 1989. Specifically, Members of Congress are still covered by the honoraria ban that has been found unconstitutional for executive branch officials and employees.68
The independent counsel provisions of the Ethics in Government Act of 1978 were originally adopted as a remedy for the serious ``structural'' or inherent ``conflicts of interest'' that have arisen when the President or the Attorney General must conduct or supervise a criminal investigation of themselves, or of their Administration colleagues in the executive branch.69 Under our Constitution, and the separation of powers doctrine, the function of Federal law enforcement is lodged exclusively in the executive branch of the Federal Government.70 The Attorney General and the President thus have both practical and structural control, and supervision, of the conduct of criminal investigations by their appointees and staff, including criminal investigations of themselves or of their colleagues in the Administration. The Attorney General is also statutorily directed to act as the legal advisor to the President and to the executive agencies. Where high level officials in the executive branch were implicated in potential crimes, serious and practical conflicts of interest and problems of conflicting loyalties arose in cases where the Attorney General and the President supervised and controlled investigations of themselves or their colleagues, and when the Department of Justice had to act at the same time as both prosecutor of and legal advisor to the executive branch or executive agencies.71
Under the separation of powers doctrine, the legislative branch of the Federal Government, however, has no such control over and exercises no discretion in or supervision of criminal law enforcement, criminal investigations, or criminal prosecutions. A Member of Congress, in the legislative branch, cannot fire or remove a Federal prosecutor,72 appoint a Federal prosecutor, supervise Federal prosecutions or investigations, nor make decisions which affect the day-to-day conduct of criminal investigations.73 It is thus argued that an investigation and prosecution by an officer of the Department of Justice in the executive branch is, in fact as well as in principle, ``independent'' from day-to-day legislative branch supervision and control, and thus no structural nor inherent conflicts of interest were seen to exist generally when the Department of Justice or the United States Attorneys prosecute Members of Congress or others in the legislative branch. Furthermore, in our history there has been no record of difficulty demonstrated for the Department of Justice and the Attorney General in the executive branch, under supervision and control of the President, to conduct criminal investigations of and to prosecute Members of Congress in the legislative branch.
Members of Congress were not exempt from the independent counsel law. The Attorney General was expressly authorized by the law to ask for the appointment of an independent counsel for ``any person,'' if the Attorney General believes that it is a personal, political, or financial ``conflict of interest'' for the Attorney General or the Department of Justice to investigate or prosecute that individual. 28 U.S. Code 591(c).74 There was no congressional exemption from this provision expressly stated in the law, nor any implied in the legislative history of the provision. The entire provision authorizing the Attorney General to ask for an independent counsel was allowed to expire in December 1992, and therefore is no longer in effect. As the Act was configured at the time it expired, the Attorney General could have made the request for the appointment of an independent counsel for an investigation of a Member of Congress whenever the Attorney General believed that a conflict of interest existed.
Limitations on Gifts
The Ethics Reform Act of 1989 provides a statutory provision barring the receipt of gifts from persons with certain interests in or business before one's agency. 5 U.S. Code 7353. That provision covers all officers and employees of the government, including Members of Congress. The differences in the application of the gifts provision come not from the coverage of the law, which applies to all officers and employees, including Members of Congress, but from the regulations adopted in the executive branch regarding exceptions and exemptions from the ban, as opposed to the House and Senate rules adopted by the House and the Senate, respectively, concerning permissible gifts and exceptions from the statute.75
In the executive branch, the Office of Government Ethics has permitted gifts to employees from prohibited sources if a gift does not exceed $20, and if all gifts from the same source in a year do not exceed $50 (See 5 CFR 35.201 et seq.).
In the House and Senate the rules respectively adopted by each body broadly limit gifts, from all sources except relatives, regardless of whether the donor has an interest in official matters. There is a $250 yearly aggregate limit for gifts from a single source. However, only gifts which have a value in excess of $100 will be counted in the $250 yearly aggregation. Exemptions to the gift rule are gifts of local meals (unless they are in connection with an overnight stay), the expenses of a reception honoring the Member, and ``necessary expenses'' of travel and transportation for the Member's participation in a conference or the like sponsored by the party providing such expenses, for a limited time period.
Non-Official Activities As Agent or Attorney
Section 205 of 18 U.S. Code prohibits outside, non-official activities of acting as an ``agent or attorney,'' with or without compensation, for private parties when this service is given more importance than service to the United States Government and prohibits such activities in court when the United States is a party or has a direct and substantial interest. The law applies to officers and employees of the Federal Government, but does not apply to Members of Congress, the President, the Vice President, or to Federal judges.
If this provision were amended to apply to Members of Congress it would not appear to have substantial or significant impact or consequences on Members' conduct, since Members of Congress are already prohibited from receiving compensation for similar private ``representational'' activities (18 U.S. Code 203), and are expressly prohibited by law from practicing any profession outside the Congress for compensation that involves a ``fiduciary relationship'' (which would apparently be inherent in acting as another's ``agent or attorney''; see 5 U.S. Code app. 7, 502). Application of the provision would not affect official duties and official contacts or interventions with agencies in the course of a Member's official representational or legislative duties, as it does not apply to actions ``in the proper discharge of . . . official duties.''
The principal financial conflict of interest law for Federal employees, 18 U.S. Code 208, prohibits officers and employees of the executive branch from taking official governmental action on any matter in which they have any personal financial interest. Government officials are barred from participating in any matters in which they have any personal financial interest. The statute does not apply to any elected officials of the Federal Government, so Members of Congress, the President, the Vice President, and Federal judges are exempt.
The law, which was originally passed around the time of the Civil War, has not applied to elected Federal officials because it has been seen as possibly interfering with their constitutional duties and functions. Similar to the concerns expressed about the President being forced to recuse himself from signing legislation, there is concern that the law, which would require Members of Congress to recuse and disqualify themselves from carrying out their functions of voting or working on legislation, would disenfranchise the entire constituency of a Member who is forced to disqualify himself or herself on a matter. Unlike appointed bureaucrats in the executive branch, there is no assistant or deputy Member of Congress to work on that issue for those constituents.
Honoraria and Outside Compensation
Section 209 of 18 U.S. Code prohibits employees of the executive branch of government from receiving private compensation or salary supplementation for their government work or as payment for activities within the scope of their official governmental duties. The statute does not apply to Members of Congress, legislative branch employees, the President, Vice President, or Federal judges.
Section 209 is the provision of Federal law that restricts the receipt of outside, private compensation, whether in the form of a salary, stipend, reimbursement, or one-time ``honorarium'' payment, by an official of the government for activities which are considered to be in the scope of the official's governmental duties. If section 209 were applicable to Members of Congress there would not be significant impact on Members from actual compensation or payment for outside activities which might be considered part of their duties. These activities might include appearances and speeches on public policy issues before various groups, since Members of Congress are now flatly prohibited from receiving any compensation or payment in the form of ``honoraria'' from any private sources for speaking or writing on any subject, whether considered within the scope of the Member's official duties or not. The honoraria ban, at 5 U.S. Code app. 7 501(b), although found unconstitutional for executive branch personnel, does apply to Members of Congress.76
This statute has also been interpreted as restricting the payment or reimbursement of travel expenses, including food and lodging given directly to a Federal employee (as opposed to the employee's agency when the rules allow) if the activities in which the employee are to engage are within the scope of the employee's official government duties. (If the activities are not within the scope of the employee's official governmental duties, but are private, outside activities, then 209 is inapplicable).77 Currently, under existing law and House and Senate rules, Members may accept reimbursement directly from a sponsor for necessary expenses, or the provision of transportation, food, and lodging when giving a speech or participating in a conference, even if the subject matter or the duties performed could arguably be considered ``official'' or officially-related, for up to 3 days (or 4 days in the House) for domestic travel and 7 days on foreign travel. See Senate Rule 35(c); House Rule 43; and 5 U.S. Code, app. 7, 505(3).
If this statute of criminal law were to apply to Members of Congress, it might restrict Members from receiving any reimbursements or payments for travel, food or lodging expenses from private sources for speeches to groups of private citizens on subjects of ``public policy'' with which the Congress deals or will be dealing, that is, matters that may arguably place the Member's speaking activities within the ``scope'' of his or her official representational duties. This statute might also criminalize the receipt of such expenses from private parties for ``fact finding'' tours by Members, which are related in some manner to official duties and responsibilities.
It is noted that rank-and-file Federal employees in the executive branch are not and have never been flatly barred from accepting all transportation expenses and expenses of travel for private ``honoraria'' events, that is, for providing private, non-governmental services to private parties or organizations on their own time, even during the period when executive branch employees were barred from accepting the honorarium itself by the 1989 legislation.78 Such employees may accept that transportation (and now the honorarium as well), for private, non-governmental services, as long as the acceptance from the particular payor, donor, or sponsor does not create a conflict of interest; the activities do not involve the use of government resources, supplies or non-public information; the expenses or payment is not offered merely because of the individual's status as a government official; and the subject matter does not focus specifically on a particular matter on which the employee is currently assigned to work or has been assigned to work on within the last year, or if the subject focuses on a particular policy of the employee's agency. A Federal employee is expressly allowed to receive honoraria and travel payments, however, for speaking on issues and public policy matters, even those which are within the employee's scope of official expertise because of his or her education, training, and employment and even though the employee's agency may deal with the subject matter.79
For a Senator or Representative there may not be such a neat division concerning, on the one hand, what is within the Member's ``official'' representational duties with regard to speeches and discussions of public policy matters before private citizen groups and organizations, and, on the other hand, ``private'' activities that can be reimbursed and compensated privately if 209 were to apply to Members of Congress. It would thus appear that a practical result of applying 209 to Members may be to inhibit and limit a Member's appearances and speeches before citizen groups, organizations and the public, thus limiting a Member's contact with such groups, since the Member would have to pay for transportation and other expenses of travel out of his or her own pocket to make an appearance or public speech before the group. Since Members of Congress act in a representational capacity, there may be certain policy questions about whether it is desirable to restrict a Member's public appearances and the explication of the Member's ideas and public policy positions. An alternative would be to increase Member allowances for travel expenses, so that the taxpayers would pay for what would be considered public speaking and appearances of the Member in an officially related nature.
Labor and Employment Laws that have No Relevance to the Activities of Congress
Many statutes concerning labor and employment have no application to Congress primarily because the subject matter of the law has no relation to the activities of Congress. The Migrant and Seasonal Agricultual Worker Protection Act,80 Federal Mine Safety and Health Act,81 Black Lung Benefits Act,82 Longshore and Harbor Workers Compensation Act,83 Railway Labor Act,84 (rail and airline85 labor relations), Federal Employers Liability Act86 (injuries to rail employees), and Norris-Laguardia Act87 (restriction on Federal court injunctions in labor disputes) would have no logical application to activities of Congress.
Other Federal laws do not apply to Congress, such as Title VI of the 1964 Act prohibiting discrimination based on race, color, or national origin in ``any program or activity receiving Federal financial assistance.''88 Similarly, the 1975 Age Discrimination Act bans all arbitrary age distinctions in the operation of Federally assisted programs aid. The Constitution makes Congress the originator of all Federal appropriations, yet no court to date has viewed Congress as a ``recipient'' of Federal financial assistance subject to application of these laws.
The National Labor Relations Act, as amended by the Labor Relations Act of 1947,89 guarantees the right of employees to form, join, and assist the collective bargaining of labor organizations and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The Act also protects the right to strike. It applies to all private employers whose work involves interstate commerce. The Act's definition expressly provides that the term employer ``shall not include the United States or any wholly owned Government corporation'' 90
The Worker Adjustment and Retraining Notification Act91 requires any employer with 100 or more employees to provide at least 60 days notice of any plant closing or mass layoff involving 50 or more employees. Employees of the Congress and of the Executive Office of the President are exempt.
The Employee Polygraph Protection Act of 198892 prohibits employers from utilizing lie detectors except as expressly permitted by the Act. The Act does not apply to the United States Government, therefore it does not apply to employees of the Congress.
The Employee Retirement Income Security Act of 197493 governs all aspects of employee benefit plans established or maintained by employers, labor organizations, or both. It does not apply to any plan established or maintained by the U.S. Government. Therefore, it has no application to Congress or the executive branch.
46 29 U.S. Code 651-78.
47 29 U.S. Code 655-59.
48 29 U.S. Code 659(c).
49 29 U.S. Code 660.
50 Jeter v. St. Regis Paper Co., 507 F.2d 973, 977 (5th Cir. 1975).
51 29 U.S. Code 652(5).
52 29 U.S. Code 668(a).
53 E.O. 12,196, 1-102, reprinted as note following 5 U.S. Code 7902.
54 U.S. Code 552.
55 The questions presented by extension of the FOIA to Congress are examined in detail in ``Application of the Freedom of Information Act to Congress: A Legal Analysis,'' CRS Rept. No. 92-403 (Apr. 28, 1992). Although the discussion in that report is limited to the FOIA, similar issues would seem to be raised by proposals to extend the Privacy Act of 1974 to the House or Senate.
56 The FOIA requires publication in the Federal Register of various types of information, such as descriptions of agency organization and procedures, and also requires that certain materials, such as specific policy statements and certain staff manuals, be made available for public inspection. The Act also provides that all other records are to be disclosed in response to a specific request by any person, except records that fall under one of the nine exemptions from the disclosure requirement. The Act provides for both administrative and judicial appeals.
57 See Kaye, Congressional Papers and Judicial Subpoenas, 23 U.C.L.A. L. Rev. 57 (1975); Kaye, Congressional Papers, Judicial Subpoenas, and the Constitution, 24 U.C.L.A. L. Rev. 523 (1977).
58 Art. I, 5, cl. 3.
59 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
60 5 U.S. Code 552(b).
61 5 U.S. Code 552a.
62 5 U.S. Code 552a(b).
63 5 U.S. Code 552a(d)(1).
64 5 U.S. Code 552a(d)(2).
65 5 U.S. Code 552a(c).
66 5 U.S. Code 552a(e)(1).
67 see, for example, New York Times editorial, April 12, 1993.
68 NTEU v. United States, F.2d (D.C. Cir. 1993) (1993 WL 88463 (D.C. Cir.)).
69 ``Final Report of the Senate Select Committee on Presidential Campaign Activities'', S. Rpt. No. 93-981, 93d Congress, 2d Session 80-82, 96 (1974); ``Removing Politics from the Administration of Justice'', Hearings on S. 2803 and S. 2978 Before the Subcommittee on Separation of Powers, Senate Committee on the judiciary, 93d Congress, 2d Session 18, 200, 216 (1974); ``Watergate Reorganization and Reform Act of 1975'' Hearings Before the Senate Committee on Governmental Operations on S. 495 and S. 2063, 94th Congress, 1st Session (1976); ``Providing for a Special Prosecutor'', Hearings, Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 2d Session (1976).
70 United States Constitution, Article II, Section 1.
71 Note, for background, CRS Report No. 87-192A, ``Legislative History and Purposes of Enactment of the Independent Counsel (Special Prosecutor) Provisions of the Ethics in Government Act of 1978,'' March 4, 1987.
72 Congress cannot remove any executive branch officer other than through the formal impeachment power, that is, impeachment by the House and trial and conviction by a two-thirds majority in the Senate.
73 Buckley v. Valeo, 424 U.S. 1 (1976); Bowsher v. Synar, 478 U.S. 714 (1986).
74 Added in 1983, Public Law 97-409, 4(a)(2). The provisions of the law thus eventually addressed two types of potential conflicts of interest in federal law enforcement: (1) ``structural'' or ``inherent'' conflicts when the executive branch must conduct an investigation or prosecution of itself, covered under the ``automatic'' provision; and (2) ``individual'' conflicts of interest which may arise on a case-by-case basis for the Attorney General or the Department of Justice to prosecute a particular individual, which were addressed under the ``discretionary'' catch-all coverage of the law.
75 Note 5 U.S. Code 7353(b)(1).
76 NTEU v. United States, F.2d (D.C. Cir. 1993) (1993 WL 88463 (D.C. Cir.)).
77 The prohibition expressly bars an executive branch employee from receiving ``any salary, or any contribution to or supplementation of salary, as compensation for his services as an officer or employee of the executive branch of the United States Government . . . from any source other than the Government of the United States'' (Emphasis added). The issue thus framed by the statute is whether any private pay, honorarium, or compensation that one is receiving is for outside, private services, or is for services one performs as a government employee, that is, whether any ``outside compensation is fairly related to [one's] service for the outside employer rather than to the service . . . for the Government.'' 42 Op. Atty. Gen. 111, 125-126 (1962). As explained by an earlier Attorney General opinion: ``The statute clearly covers a salary received from a private person or source if it is paid or received as compensation or partial compensation for the services rendered to the Government. . . . [I]t is clear that no violation of the statute arises from the mere coincidence of Government employment and the receipt of compensation from a private employer.'' 41 Op. Atty. Gen. 217, 220 (1955) (Emphasis added). See United States v. Muntain, 610 F.2d 964 (D.C. Cir. 1979); and U.S. Department of Justice, Prosecution of Public Corruption Cases, 338-339 (1988): ``Section 209 is based on the principle that Government officials should not be paid for their official acts by private parties. . . . [I]t is critical to demonstrate that the payment was made specifically for the officer's or employee's services as such an officer or employee; the statute, for example, does not prohibit the receipt by an officer or employee of payment made for the official's nongovernmental work . . .'' (emphasis added).
78 See proposed 5 CFR 2636.203, specifically 2636.203(a)(2) and (4), 56 Federal Register 1725 (January 17, 1991) exempting such expenses from definition of ``honorarium''; see also note 13, infra, as to inapplicability of 209 to private, non-governmental outside activities.
79 Office of Government Ethics notes that its regulation: ``does not preclude an employee, other than a covered noncareer employee, from receiving compensation for teaching, speaking or writing on a subject within the employee's discipline or inherent area of expertise based on his educational; background or experience even though the teaching, speaking or writing deals generally with a subject within the agency's area of responsibility.'' 5 CFR 2635.808(a), note, 57 Federal Register 35064, August 7, 1992.
80 29 U.S. Code 1801-72.
81 30 U.S. Code 801-78.
82 30 U.S. Code 901-62.
83 33 U.S. Code 901-50.
84 45 U.S. Code 151-64.
85 45 U.S. Code 181-88.
86 45 U.S. Code 51-60.
87 29 U.S. Code 51-53.
88 Title 42 of the U.S. Code, section 2000d.
89 Title 29, U.S. Code, 141-187.
90 Title 29, U.S. Code, 152(2).
91 Title 29, U.S. Code, 2101-2109.
92 Title 29, U.S. Code, 2001-2009.
93 Title 29, U.S. Code, 1001-1453.