I don't make this shit up. http://www.rules.house.gov/Archives/jcoc2ai.htm LAWS THAT DO NOT APPLY TO CONGRESS 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).
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 Independent Counsel 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.'' Personal Gain 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.
FOOTNOTES
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.
believe should apply to Congress -- the Occupational Safety and Health
Act (OSHA) and the Freedom of Information Act (FOIA).
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 Independent Counsel 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.'' Personal Gain 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.
FOOTNOTES
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.
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