Unfit to Hold Office: Sexual Harassment and the Minnesota Legislature

Are Minnesota legislators who sexual harass colleagues or members of the public unfit to hold office? The answer should be yes, and both the Minnesota House and Senate should be prepared to reach this conclusion if Representative Cornish and  Senator  Schoen do not resign  and the two legislative bodies are required to judge the fitness of these two members to remain in office.
There appears to be a sea change afoot in politics when it comes to gender discrimination.  Inspired by the accounts of the like of Bill Cosby, Harvey Weinstein, Roy Moore (Senate candidate in Alabama), and Donald Trump, it is possible that there is a new political standard emerging in politics that make the creation of a sexually hostile environment by elected officials wrong.  If that  is the case, then the standard of conduct expected of public officials is only 30 years behind the times.
In 1986 in Meritor Savings Bank  v. Vinson,  477 US 57 (1986) the US Supreme Court ruled that sexual harassment in the workplace was actionable as sexual discrimination  under the 1964 Civil Rights Act.  Prior to that decision, short of actual unwanted  physical conduct, women (who are mostly the victims) had little recourse against their bosses or co-workers when they made unwanted sexual advances or engaged in unwanted sexual language.  Meritor Savings changed that.  It, along with rulings by the Equal Employment Opportunity Commission (EEOC) said that there were two forms of sexual harassment or discrimination.
The first is quid pro quo–conditioning employment upon the exchange of sexual favors (“Sleep with me if you want to keep your job”).  The second is hostile environment–creating a workplace where  unwelcome conduct based on sex or gender that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.  Such conduct need not br specifically directed at a particular person, but it can include offensive jokes, remarks, pictures, and general discussion by employers, managers, or coworkers.
Across the public, private, and non-profit sectors, most people get it, sexual harassment is wrong, and grounds for discipline and dismissal.   But some still do not, and among those who don’t, it appears some are elected officials.  It should not only be wrong to harass your staff, but also your legislative colleagues and even lobbyists and members of the public.  While the public may not always view legislators and lobbyists  favorably, they should not be sexually harassed.  For legislators, unwanted sexual advances are part of the good old boys club that pervaded for so long, and which appears to persist.  It sends a signal that women are second rate, and that they, their work, and the legislation they advance is  judged not on it merits but how they look in a dress.
Lobbyists advocate for their members and they should not be hit on when doing they job.  While not employees of the legislature, they nonetheless are in a power differential position when it comes to legislators, potentially feeling that  they must  acquiesce to sexual overtures as a condition of doing their job.   Such behavior  sends signals also to constituents and the general public that if they too are female they may to exercise their First Amendment rights in a sexually hostile environment..  The point here is that sexual harassment by legislators  undermines democracy by chilling half the population out of exercising their rights to free speech.
So what should be done?  Ultimately the conclusion should be that all forms of sexual harassment by Minnesota State Legislators is wrong and grounds for removal from office by the House and the Senate.  The Minnesota Constitution, Article IV, Section 6 declares that: “ Each  house shall be the judge of the election returns and eligibility of its own members.”  This clause gives each house the power to set and judge the ethical standards of its members, setting their own standards on evidence needed to prove violations.  It need not be a standard of beyond a reasonable doubt found in criminal law, but something less than that in the judgment of the House and Senate.  The level of proof demanded in many ways sets the standard of ethical conduct for its members.
Senate Rule 56 declares that it may discipline members who display behavior that “violates accepted norms of Senate behavior, that betrays the public trust, or that tends to bring the Senate into dishonor or disrepute.”  House Rule 6.1 says the same thing.  One would hope that the two chambers would conclude that sexual harassment of not just staff but other legislators, lobbyists, and the general public, would be something that violates these standards, rendering members who do this unfit to serve.

American Politics Ala Jerry Springer

What has happened to civility in American politics? This question dominated the news following the shooting of Representative Giffords a few months ago, but it has been an on-going leitmotif of political writing and analysis for the last few years. Two questions are prompted by the civility question: (1) Is American politics any less civil than it was 10, 20, or maybe a 100 years ago; and if so 2) What is the cause of that increased incivility?

The thesis of this blog is simple: The Jerry Springer Show is a metaphor for American politics. It is about staged conflict and drama and not about a rational discourse about public policy. It is the drama of good versus evil and demonizing opponents.

What prompts me to write about it is an event at the Minnesota Legislature this past Tuesday. I was supposed to testify before the House Civil Law Committee against another abortion bill. This is the one banning women from terminating pregnancies after 20 weeks. I had previously testified against the bill, contending it was unconstitutional. The bill was originally queued second on the committee’s schedule, allowing me time to testify and then make it to class. A request was made to put me on the testimony schedule. When I arrived two things had occurred. First, the bill was moved to near the end of the schedule and, second, I was not on the list to testify. Apparently the schedule had been changed to accommodate the preferences of the majority who wanted to placate one of their witnesses. Regularly, both parties, when in the majority, change hearing times and make it miserable for opponents to testify. This happened to me a few years ago also with a judiciary bill I sought to testify against. It became so clear that they did not want me to testify that we had to arrange for me to stay outside the room and out of committee sight until testimony was called for so I could then sneak into the room to talk. So much for committees and legislators wanting to use hearings to gather facts, but that is another story.

However the second thing occurred once I left this past Tuesday to go to class (less my students run away). Miraculously about five minutes after I left the bill was called up. A mere coincidence that it occurred after I had just left! However, the ACLU and a minister testified against the abortion banning bill. Afterward, Representative Tony Cornish called both (according to those who told me) “reprehensible and disgusting.”

Now maybe Cornish did not agree with the policy positions of the ACLU and the minister, but was it necessary to call them names? When I was growing up I learned two things from my parents ”Sticks and stones will break your bones but names will never hurt you” was one. The other was that it was childish and immature to call people names. I think my parents were correct. Name-calling is childish and immature. You only call people names when you wish to demean others, or when you have no other way to respond to arguments. It is what guests do on Jerry Springer–they simply insult one another. It may make for cruel humor but it does not substitute for rational, informed debate.

American politics has a long history of wide-open, robust, and often uncivil debate. Accusations about George Washington buying elections with rum date back to before the American Revolution. The 19th century regularly featured harsh cartoons and editorials attacking candidate and party character. The 1950s McCarthy era featured accusations of disloyalty. The list goes on. Only the most halcyonic or rose-colored view of American history would say politics was cleaner or more civil then. Yet there is clearly an incivility today, and the question is why or what seem to be the roots of it today?

One answer is the change in party composition in America. Parties are more polarized now than they have been in at least 50 if not more years. There is a big gulf or divide over some issues such as abortion and gay rights. There are fewer conservatives in the Democratic Party and the same for liberals among the Republican Party. Thus, the more ideological strain of American politics produces more polarization and that in turn inflames rhetoric.

Moreover, the good versus evil or extremist politics play well in the 24/7 news cycle. I find that I cannot watch any national news talk show. They are so predictable and boring. Pick individuals of extreme views on opposing sides, have them yell at other, and we call that fair and balanced news. The same is done with the media picking one person from the other side to interview and that person holds very unorthodox views. All this is a Jerry Springer approach to the news. Whoa be it that a news station places rational, thoughtful individuals on a panel to discuss real issues and solutions.

Parties, or at least candidates and elected officials pander to this polarization. We are at a point where each side demonizes the other, accusing its opponent as evil, calculating, as some type of low-life. We make the other party or other side the enemy, and the purpose of doing that is to motivate the base. Make the battle one of good versus evil. This is what Tony Cornish did. The abortion hearing was televised and supporters of his position were in the audience. It was good copy to call names and demonize the opponents. I bet he runs the tape on You-Tube and for his next election. Again, it was a Jerry Springer moment.

My point here is that incivility has always been with us in politics. The current causes are new, rooted in 24/7 news cycles, changing notions of news, party polarization, and candidates pandering to all these events by using inflamed rhetoric for perhaps personal electoral advantage.

The result of all of this has produced the stalemates we see in Congress and legislatures across the country. How do you negotiate and compromise the devil? You cannot. Thus, what we have yielded is a take no prisoners and a do not compromise rhetoric and approach to critical issues that precludes any reasonable and meaningful debate. Facts be damned, legislative hearings are not about making good policy, they instead are staged events, no less different than the Jerry Springer Show.