Double Standards

Here’s a formula to determine whether major legislation being considered by Congress is really good for America: If Congress is [...]

April 1 1994 by Edwin J. Feulner


Here’s a formula to determine whether major legislation being considered by Congress is really good for America: If Congress is covered by the law, it may be OK; if Congress exempts itself, the legislation is probably bad news.

Consider President Clinton’s Health Security Act, which he obviously thinks will be the greatest thing since Medicare. Will members of Congress and their families be enrolled in the system? Of course not. At least not until 1998, after lawmakers have seen how the Clintons‘ backdoor scheme for nationalizing U.S. health care has affected everyone else. When federal workers (that includes Congress and the very administration officials who created the Clinton health-care proposal) discovered they would be forced into the plan’s “standard benefits package,” which would severely restrict their choice of health-care plans, they went ballistic. They didn’t want to give up the Federal Employees Health Benefits Program-which provides them with a range of choices-and raised such a ruckus that the White House backed down. They can keep FEHBP until they see how the Clinton plan works. In other words, let the public serve as the guinea pigs.

So when lawmakers consider whether or not to pass the Clinton health-care reform plan, they won’t be worrying about its effects on them personally. Makes decision making a whole lot easier.

Apparently many Americans don’t realize that Congress regularly exempts itself from major legislation it passes for the rest of the country.

Thomas Hopkins of the Rochester Institute of Technology, quoted in a Wall Street Journal editorial, estimates U.S. businesses now pay $564 billion per year to comply with federal mandates and regulations from which Congress is largely exempt. Some of the more notable examples: the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the National Labor Relations Act, the Occupational Safety and Health Act, the Equal Pay Act, the Family and Medical Leave Act. Until recently, Congress was even exempt from the Social Security Act.

Why don’t America‘s lawmakers have to comply with many of the country’s most annoying, expensive laws? According to analyst Dan Greenberg, congressional leaders say Congress must be above the law to preserve the constitutional separation of powers. If Congress were covered by these laws, they claim, the executive branch could threaten criminal or civil prosecution to intimidate lawmakers into supporting the administration’s agenda.

But members of Congress already are covered by normal tax and criminal laws-two of the areas most subject to potential political abuse-without suffering harassment or intimidation from other branches of government. And if such harassment were to occur, Congress ultimately has the power to change the law to prevent it.

No doubt many lawmakers don’t think forcing Congress to live by the laws it passes would make any real difference to America. But this misses the point, one understood well by the framers of the Constitution themselves. And they left no doubt about their stand on this matter. In laying out their vision for the new American system of governance, James Madison wrote in “Federalist Paper No. 57″ that members of Congress would “make no law which will not have its full operation on themselves and their friends, as well as on the great mass of society.” Exempt the ruling class, Madison said, and “every government degenerates into tyranny.”

Thomas Jefferson agreed. His “Manual of Parliamentary Practice,” which at least in theory remains part of the internal rules of the House of Representatives, said, “The framers of our constitution…[took] care to provide that the laws should bind equally on all, and especially that those who make them shall not exempt themselves from their operation.”

In other words, our Founding Fathers realized that if lawmakers had to consider how new laws would affect their own lives, they might be more reluctant to impose unjust or burdensome laws on the rest of us.

In addition to eroding public confidence in government, the congressional double standard has set Congress up as a privileged class that is increasingly out of touch with those it governs. Unlike business executives and other private citizens, members of Congress can, for example, discriminate in hiring on the basis of race, sex, religion, age, disability, or national origin with virtual impunity. Congress is under no obligation to comply with the many rules businesses must follow in negotiations between labor and management, or even their public-sector counterparts. And Congress faces none of the heavy fines that can be imposed on businesses for having unsafe or unhealthy work environments.

This exemption blinds lawmakers to the day-to-day economic and social costs of their decisions, since they don’t have to deal with the rules and regulations, red tape, and meddlesome bureaucrats that make everybody else’s lives so miserable. Lawmakers might think more about business’ problems if inflexible rules governing overtime pay in the Fair Labor Standards Act prevented them from keeping campaign workers on the job till the wee hours. Imagine the look on a congressman’s face if, the day following passage of the Family and Medical Leave Act, his No.1 political aide announced he would be gone for the next three months to care for his new baby or elderly parent-and that he expected his job to be waiting for him when he returned.

Greenberg, the analyst, recounts how Rep. John Boehner, R-Ohio, once invited an Occupational Health and Safety team to inspect his office to demonstrate what private-sector workplaces have to endure. If OSHA covered Congress, Boehner found his office could have been fined $1,500 for such “hazards” as carpets with ragged edges. Boehner and other House members later requested a GAO audit of congressional offices, which uncovered 140 OSHA violations worth $1 million in fines. Private companies routinely have to pay heavy fines for violating such stringent OSHA rules.

The comments of some members of Congress on this matter can be pretty entertaining-and revealing. For example, when Sen. Wendell Ford, D-Ky., heard that smoking might be banned in Senate rooms lacking separate ventilation, he bemoaned the “administrative confusion” it would cause. “One day we will have an EPA administrator in our office…telling us our separate ventilation system for tobacco is inefficient,” the senator agonized. “The next day, the OSHA inspector will tell us we do not have sufficient ventilation for fumes coming from the new carpeting or the paint or the varnish. Next thing you know, HHS will tell us we cannot eat lunch at our desks.” Congress would be a very different institution if it were covered by the laws that apply to the rest of us. A number of proposals are already on the table for applying laws to Congress, including the Congressional Accountability Act, with 237 co-sponsors. But virtually all the proposals fall short, because they contain weak enforcement provisions.

Real reform must make Congress’ legal status as comparable to the private sector as possible with regard to liability, judicial procedures (including trial by jury), and enforcement, so members of Congress face the same penalties as private companies and individuals for breaking the law-instead of the current secretive procedures that seldom uncover wrongdoing and that exempt lawmakers from damages.

“If men were angels,” James Madison wrote, “no government would be necessary.” Since they’re not, it’s best to ensure that when they are placed in position to rule, they feel the sting of their own edicts.


Edwin J. Feulner, Ph.D., is president of The Heritage Foundation, a Washington, DC-based public policy research institution. He also serves on the boards of several other foundations and research institutes. Dr. Feulner is the author of “Conservatives Stalk the House.”