December 7, 2011
Congress Isn’t Supposed to Be Above the Law—A Commentary by Stephen L. Carter '79
The following commentary was posted on Bloomberg.com on December 7, 2011.
Congress Isn’t Supposed to Be Above the Law
By Stephen L. Carter
The recent publicity surrounding the very old news that members of Congress aren’t prohibited from trading stock using nonpublic information has the House and Senate running for cover. Hastily drafted bills are picking up co-sponsors on both sides of the aisle.
Yet it is something of a wonder that there is so much public excitement at the discovery that regulations that apply to lots of other people turn out to be largely irrelevant to those who serve in Congress. This isn’t an exception to congressional practice. It is, far too often, business as usual.
One of the most memorable lines from the billionaire Ross Perot’s quixotic presidential run in 1992 went something like this: “Capitol Hill is the only workplace in America where the employees can park and the owners can’t.”
Perot was being under-inclusive, of course. Even then, pretty much every place peopled by supposed public servants met the description. Yet he was right about the principle at work. It has become all too easy for members of Congress to grant themselves special privileges, among them exemption from many complex laws and regulations that apply to everyone else.
Consider the Occupational Safety and Health Administration. For all its good intentions, OSHA is considered by many companies a bane of their existence, the source of a constant stream of regulations and enormous costs, often for relatively small benefits. Sometimes the rules are important. Sometimes they are silly. Either way, it’s no concern of our national legislature, which, in its wisdom, has exempted itself.
Actually, the entire federal government is exempted from OSHA. But federal agencies are at least required to develop operational rules that are “consistent with” OSHA standards. This minimal requirement doesn’t include Congress, which turns out not to be an agency.
Then there is financial regulation. Critics have lamented that no equivalent of the Sarbanes-Oxley Act applies to Congress. The chief executives of public companies must certify their accounts, and face fines of up to $5 million and as many as 20 years in prison if they do so falsely. Members of Congress (like all federal officials) can make up numbers out of whole cloth without any sanction at all. Incorrect corporate numbers can mislead markets. Incorrect federal budget numbers can mislead the nation. (Perhaps the federal budget, like corporate balance sheets, should be vetted by independent third-party auditors.)
Examples abound. Federal minimum-wage laws apply to private employers and federal agencies; but, once again, Congress isn’t an agency. For the same reason, the Freedom of Information Act doesn’t apply. The National Labor Relations Act exempts the federal government generally, but there are special rules relating to collective bargaining and unfair labor practices of federal employees -- rules that don’t, however, apply to Congress. The Merit System Protection statutes shield personnel in executive agencies, and even in the Administrative Office of the United States Courts; not in Congress. And so on.
Even when Congress does decide to apply statutes to itself, members have trouble resisting the temptation to treat themselves differently. So, for example, Title III of the Civil Rights Act of 1991 extended the reach of several (not all) antidiscrimination statutes tocover congressional employees, but with provisos stripping the protections of much of their force. One has to love this sentence, amending Title VII, the most prominent federal law against employment discrimination: “Notwithstanding any other provision of this title, the provisions of this title shall apply to the Congress of the United States, and the means for enforcing this title as such applies to each House of Congress shall be as determined by such House of Congress.”
In short, the prohibitions apply, but the remedies are up to each house. Unsurprisingly, each house has created its own complex system of adjudication that bypasses the procedures facing mere private employers accused of identical acts of discrimination.
This wasn’t supposed to happen. James Madison, in Federalist No. 57, scoffed at the idea that members of Congress would exempt themselves from laws that applied to other people. They “can make no law,” he wrote, “which will not have its full operation on themselves and their friends, as well as on the great mass of the society.”
This principle, Madison declared, creates between the legislature and the people “that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.”
We’re not headed for tyranny, but the problem is serious. No branch of the federal government is less admired than Congress. Part of the reason is surely the attitude that Perot identified two decades ago: the tendency of members to forget that they work for the public rather than the other way around.
Most members of the House and Senate, on both sides of the aisle, are decent and well-meaning public servants. Unfortunately, they have been caught up in a culture so imbued with privilege that Madison’s principle has been forgotten. In place of his “communion of interests,” we find countless exceptions.
No doubt there is sometimes good reason for a congressional exemption. But there are good reasons to exempt lots of companies from lots of laws, and, unless those companies are very powerful, our national legislature is generally less interested in their uniqueness than its own. And it isn’t likely that the case for exemption is equally strong with respect to all the many bills that happen to exclude Congress.
Madison insisted that the American spirit -- “which nourishes freedom, and in return is nourished by it” -- would rise up against any effort by members of Congress to make “legal discriminations in favor of themselves.” He added: “If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty.”
Today we tolerate plenty of laws not obligatory on the legislature. Certainly it’s a lot easier to pursue great goals when the costs of that pursuit fall on other people. If Congress truly wants to improve its public standing, a good place to start would be by breaking the habit of treating itself as special. Passage of new stock-trading rules should be treated as only a tiny first step on a very long road.
(Stephen L. Carter, a novelist, professor of law at Yale University and the author of “The Violence of Peace: America’s Wars in the Age of Obama,” is a Bloomberg View columnist. The opinions expressed are his own.)