Congress has spent millions on human resources-related payouts in past decades. A still-untold number of those payments went to sexual harassment settlements involving members, like the one paid out to an accuser of Rep. John Conyers, D-Mich., in 2015.
The complicated, secretive process by which such settlements are reached has many wondering if the American people will ever be able to see how much of their money was funneled into legally sanctioned cover-up agreements, as well as which members of Congress have used the funds to settle these cases while in office.
CNN anchor Jake Tapper raised the question on Twitter Tuesday morning:
I wonder if any member of Congress will introduce legislation to attempt to render null and void the NDAs from sexual misconduct settlements with members of Congress, so their survivors can talk if they wish.— Jake Tapper (@jaketapper) November 21, 2017
Rep. Ron Desantis then announced Wednesday that he’s currently working on legislation that would unseal the records while prohibiting these kinds deals from being made in the future.
I’m working on legislation to unseal settlement records, bar use of tax dollars to pay claims against members & staff, prohibit members from using office budgets to camouflage payments (a Conyers rule) & require reimbursement of the taxpayer.— Ron DeSantis (@RepDeSantis)November 22, 2017
But the question is a real head-scratcher. The agreements made in the mediation process are binding contracts between private individuals, and that raises the question of Congress’ authority to interfere and — in this case — void the terms of those contracts. While the contracts clause of the United States Constitution applies only to states, there are still limits on how much the federal government can intervene.
While the federal government does have “broad authority” to interfere with contract rights, there are exceptions, based on the Supreme Court’s 1923 ruling in Omnia Commercial Co., Inc. v. United States, and those apply here, says Thomas Wheatley, an attorney in D.C. and a contributor to the Washington Post.
First, Congress loses the power to intervene if the legislation in question “expressly targets an existing contract right,” Wheatley explained in a message to CRTV. Those broad powers also end as soon as at least one party has held up their end of the bargain. After that, it’s out of Congress’ constitutional authority.
Wheatley says that legislation canceling existing non-disclosure agreements would likely be ruled unconstitutional on those grounds, because “the legislation [would] obviously be intentionally targeting contracts of a certain variety,” and the terms of the agreements have already been carried out.
“More than likely with these NDAs, at least one party has paid for the other’s silence,” he concludes. “That payment is performance.” Meaning: By targeted legislation, at least one party (in this case the member of Congress) would be deprived of what he bargained for in the deal.
Alden Abbott, deputy director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, says that while it’s clear that Congress has the ability to prohibit members from signing the agreements going forward, retroactively canceling earlier agreements would be “questionable.”
“Never say never,” Abbott says of the constitutionality of such legislation, “but there’s some serious questions, because this could have an effect on private rights.”
Perhaps there’s still another reason that the agreements could be unsealed.
Dr. John C. Eastman, a law professor at Chapman University in California and founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, says that the agreements themselves are unconstitutional to begin with.
Acknowledging the Supreme Court precedent regarding private contract rights, Eastman says there’s instead an “overarching issue” at hand with the payments: They’re too secretive.
“A lot of these non-disclosure agreements don’t list payouts of federal tax moneys for claims of harassment,” Eastman said in an interview with CRTV. “I would think that you not only could but that Congress has an obligation to void those nondisclosure agreements because they operate in violation of Article 1, section 9” of the Constitution.
The section stipulates that public funds can be taken from the Treasury only when appropriated by Congress and that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
“Well, the nondisclosure agreement is hiding the account of what was paid out and to whom,” Eastman says.
“I think they can’t do that without some national security claim,” he concludes, which would mean that any such nondisclosure agreement would be void automatically. “Congress doesn’t even need a statute to void it.”
In a post at National Review, former federal prosecutor and National Review Institute Senior Fellow Andrew McCarthy calls the contract rights concerns “sensible,” but argues that there’s no reason politicians couldn’t be outed nonetheless, while giving the option of transparency to victims, as Tapper tweeted, “so they can talk if they wish”:
Our public officials are supposed to be accountable and transparent, especially when they are expending public money. It is thus outrageous that Congress has made this cozy arrangement to sweep under the rug malfeasance by members of the club. There is no legal or policy reason to refrain from legislation that would out the lawmakers involved in misconduct settlements — regardless of the type of misconduct (I wouldn’t limit it to sexual episodes).
For at least 22 years, American taxpayers have been footing the bill for secretive payouts that allow members of Congress to skate on claims of sexual harassment. If the details of such agreements and payout of public money can constitutionally be made transparent, the American people deserve to know about them before they go to the ballot box next year.
Editor's note: This piece has been corrected to note that Thomas Wheatley is an attorney in the District of Columbia, not Virginia.
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