Today, I have column up at the Federalist, “Should Congress Handle Sex Harassment Cases Like Business Does?,” which takes the perhaps unpopular views that: (a) public employees may need more due process in terminating their employment than private employees; and (b) that such may be warranted even when considering Congresspeople and Senators.
For reasons of assigned length, one is almost bound to leave things out, and this is particularly tough when addressing a sensitive, hot-button topic. For example, when addressing (a), I probably should have added at least a sentence noting that the Supreme Court may require due process in terminating public employment in certain cases. Instead, I focused on the issue of campus kangaroo courts because: (1) those are the sorts of cases more likely to resonate with a more conservative audience; and (2) they demonstrate the value of due process where the state or state money is implicated regarding people who are more sympathetic accuseds than politicians are.
I did make sure to include was my opinion that so far, these cases do not appear to be shaping up as witch hunts, about which I have two additional thoughts.
First, it’s notable that the way these cases are being evaluated by the public so far roughly tracks the way the law might: we are giving weight to cases where there are multiple accusations by women who don’t know each other, often establishing a pattern of behavior by the accused, often corroborated by “prompt outcry” witnesses (people other than the authorities to whom accusers reported the alleged incidents, often at the time they occurred) or those who can corroborate circumstantial aspects of the accusations (e.g., people familiar with Roy Moore’s behavior at the Gadsden mall).
Second, the fact the public is evaluating the allegations in a generally rational way should underscore the importance of continuing to do so, rather than let a moral panic run wild and immediately validate cases that may have weaker evidence. As Bari Weiss noted the other day, “ ‘believing all women’ can rapidly be transmogrified into an ideological orthodoxy that will not serve women at all.”
I also thought it worth at least starting to think about (b) now, because this is where the news is probably headed. While the case of Rep. John Conyers neatly teed up the special problem of elected officials, the real issues will probably arise in the Senate, particularly if Roy Moore is elected in the face of credible allegations of sexual abuse of a minor.
The Senate Ethics Cmte reportedly has already opened a preliminary inquiry into allegations that Sen. Al Franken is a serial groper of various women over the years. If Moore is elected, partisanship (and fairness) will probably require that Moore receive what ever process Franken gets.
If the Senate is forced to address both cases, it will also have to wrestle with two seeming differences: (1) the accusations against Moore seem more serious than those against Franken because they involve minors; and (2) Moore will have been elected with knowledge of these accusations, whereas voters were not aware of the accusations against Franken when he was re-elected.
Regarding the first issue, a court of law would be well-equipped to distinguish between the two cases, though the misconduct is serious in both. In the Senate, if there are Senators from both parties in the dock, one fears politics may unduly influence that calculus in some way by either political party.
Regarding the second issue, a court of law would not care, but the Senate may care a great deal, given the respect afforded to election results, as discussed in the column. Personally, I would be fine with the Senate expelling Moore if its investigation concluded that sanction was warranted. While legislators arrive in Congress as essentially free agents, each chamber is entitled to expel someone upon a two-thirds vote as a collective expression of the standards expected of each chamber.
Lastly, the column notes that the Congressional Office of Compliance, while intended to help legislative employees in cases like this (and in total fairness, likely is an improvement on what existed before), has failed to provide voters or Congress with the sort of information that would allow them to address cases of sexual misconduct.
It’s certainly not the first time that a reform has turned into its own scandal, in part because the regulated and their attorneys are often more nimble in subverting or avoiding reforms than a government body is in responding to those subversions or evasions. And one might argue that this is where the private sector should be deemed superior. But you would not, for example, want to live in a world where the IRS can alter what it does instantly because it doesn’t like how you took a deduction or exemption. A bedrock principle of due process is knowing what the rules are. Post-Weinstein, the rules are changing in an instant. That’s fine for private businesses, but you probably don’t want to place that much power in the hands of politicians, even where the accuseds are also politicians.
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