Why you should care

Because right now, sleazy behavior is covered by your pocketbook.

Over the past two decades, more than $17 million has been spent to settle sexual harassment cases for members of Congress. But federal lawmakers haven’t had to feel that pain in their own purses, because the cost has come out of yours.

The #MeToo movement has prompted a rethinking of sexual harassment at age-old institutions, including the U.S. Capitol, where lawmakers are debating how to reform settlements and reporting standards around abuse of power and position. Millions of taxpayer dollars have gone to settle these claims in Washington and in state legislatures nationwide in recent years. But why should Americans have to cough up to help potentially sleazy lawmakers? Rather than making us cover the cost, what if we let politicians and the people who put them in office pay these legal fees instead?

The goal would be to make politicos more accountable. As of now, the laws around harassment claims are substantively the same as the private sector, says Tom Spiggle, whose law firm handles wrongful termination cases. The major difference? From a public relations standpoint, politicians can’t risk seeing their alleged misdeeds on prime-time television. That, and the fact that the Treasury Department has a fund for covering lawmaker settlements means “you almost never see them go to court,” Spiggle says. There also is little incentive not to quietly settle harassment claims away from the public eye, because “it’s not coming out of their pocket,” he adds.

Why not have shady money cover shady behavior?

But what if the law required that, when accusations were filed, politicos had to either pay from their own funds or disclose the bill to their donors and ask them to foot it? Even if donors don’t care about sexual harassment, they “might get cold feet if they know it’s about to come to light,” Spiggle says. Another, wonkier option: Tax super PACs (political action committees that can raise unlimited amounts of “dark money” for a party or candidate with few requirements to disclose the source of their cash) a percentage of every dollar they collect over $1 million, which would go to the state or federal elections commissions. You could even have like go to like: conservative donor dollars to fund conservative settlements, liberal money for liberal settlements.

Sure, there are significant legal challenges to consider. Any tax on political contributions is bound to draw constitutional scrutiny, since the Supreme Court case Citizens United v. FEC defined spending by such committees as part of a First Amendment right to free speech. What’s more, targeting the donations to cover a specific party would “create a bigger opportunity for legal challenge,” implying “the state is favoring specific candidates or trying to tilt the playing field rather than create a fair playing field,” says John Wonderlich, president of the Sunlight Foundation, which advocates for greater transparency in government.

The funds would almost assuredly have to come from fees instead, levied when a super PAC or similar organization files with the state or federal election board, which could then be put aside to fund settlements. Unless that fee had some teeth, it “might be a symbolic gesture, but not enough,” Wonderlich says, noting that “if you said every $10 million that goes to a super PAC would be taxed at 10 percent, it might result in effective dollars, but would be legally problematic.”

Still, there are ways to make the fee weighty enough, even if the fat cats funding campaigns wouldn’t be thrilled with it. There are other bills working their way through Congress to address some of the transparency and payment problems surrounding congressional misdeeds, although the most promising one has stalled in the Senate. Whatever the solution, it will have to make it clear to lawmakers that accusations will “impact them — whether it hits their wallet” or comes from having to beg their donors for backup, Spiggle says. So why not have shady money cover shady behavior?

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