American Elephants


Is Congress Above the Law? Is the President? by The Elephant's Child

In Monday’s Wall Street Journal Gerald D. Skoning argued that we need a 28th Amendment to the Constitution providing that all members of Congress have to comply with all laws that other citizens have to obey.

“Congress shall make no law,” the amendment might read, “that applies to the citizens of the United States that does not apply equally to the senators and/or representatives, and, Congress shall make no law that applies to the senators and/or representatives that does not apply equally to the citizens of the United States.”

I agree absolutely. We would not have this disgraceful mess of ObamaCare legislation were not the members of Congress and the government excused from any participation in it. Some may have faith in the high moral character of their elected officials and argue that it shouldn’t take an amendment to make the members of Congress behave. True, it shouldn’t, but it apparently does. Mr. Skoning enumerates a bit of the telling  history:

  1. In 1938, the Fair Labor Standards Act established the minimum wage, the 40-hour workweek, and time-and-a-half for overtime. Congress exempted itself from coverage of the law, and congressional employees were left without the protections afforded the rest of Americans.
  2. In 1964, President Johnson signed the Landmark Civil Rights Act, including Title VII, which protected all Americans from employment discrimination on the basis of race, color, religion, sex or national origin. Congress exempted themselves, and staffers and employees were left with no equal-opportunity protection, nor protection against sexual harassment, of which there have been innumerable examples.
  3. The same blanket exemption of Congress was contained in a total of 10 other federal statutes regulating the American workplace, including protections from age and disability discrimination, occupational safety and health , family and medical leave — all issues that Congress felt were important to impose on American industry, but not to civilian employees working in the Capitol.
  4. The Reform of the Civil Rights Act of 1991 left critics unable to eliminate the exemption. Members of Congress remained immune to lawsuits for compensatory and punitive damages in cases of employment discrimination. Instead they enacted a self-policing system where Congress investigated and enforced its own compliance with civil rights laws.
  5. In 1995, with Republicans in control of both houses, the Congressional Accountability Act was passed eliminating the congressional exemption for all workplace laws and regulations. Some thought that was the end of Congressional exceptionalism. They were mistaken.
  6. Insider trading (buying or selling stocks based on insider information not available to the public) has been a violation of federal securities laws for almost 80 years. It was never illegal for members of Congress. CBS’s 60 Minutes did a segment with the Hoover Institution’s Peter Schweizer for his book “Throw Them all Out”. He testified that it was an opportunity to leverage your position in public service and use that position to enrich yourself, your friends and your family. Six months later, Congress passed and the president signed the “Stop Trading on Congressional Knowledge Act of 2012” — which required online posting of their financial transactions. Just last week while voters were focused on gun control and immigration, House and Senate members voted to repeal the provision that required the online posting of their financial transactions.

If the question is — does it take a Constitutional Amendment to make the members of Congress behave responsibly? — the answer seems to be  yes indeed, and Congress isn’t all that inclined to obey the letter of the Constitution either, nor is the President. Something to think about. America has always been a nation of laws, but it’s certainly getting a little loosey-goosey isn’t it?


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