How to Fix the "Swalwell Problem" in Congress

An Institutional Cure for the Abuse of Congressional Staff

Not the last time this will happen.

Rampant rape and abuse dominates the halls of Congress, and has for decades. Staffers of both parties are prey and victim to this abuse, led and championed by a bipartisan, seemingly endless parade of damnable members of Congress.

Where does this abuse of staff in Congress originate from? What gives the members less the right, and more the mental framing to be able to conduct themselves so lowly? Beyond the theoretical and base psychological, there is the obvious truth: that granted immense power and total discretionary oversight over staff, each Congress (we are presently in the 119th) will likely produce at least one member who resigns in disgrace after abusing staff. In some Congresses, it produces two, or four, or even more, to say nothing of the base criminals that have yet to be uncovered.

It’s of course indefensible, and the rot is built into the foundation. Newly elected members, chosen by the voters due more to financial connections than personal merit or virtue, arrive in Washington, and overnight each of them becomes effectively masters of their specific office, that is, their physical office space and the staff that resides within. In total, it sums up to several million dollars per member per year, resulting in each member overseeing a dozen or more often young staffers in both their district and DC. At no point does anyone, other than whatever remains of private journalists in America, check whether they can or should be managing people.

How can such a shoddy system produce anything other than shoddy results? In the best case, handing an office to someone with no managerial experience produces on average ordinary incompetence and a few unhappy constituents. The worst case need not be imagined; simply look at the headlines. To a layperson scanning those headlines, the People’s House can start to look like a den of thieves more than anything else, and that layperson would not be entirely wrong.

Structurally, a Member of Congress is judge, jury, and executioner over every staffer who works for them. There is no real HR in Congress. The member is HR. Advancement, references, transfers: all of it flows through the personal favor of one elected individual who answers to almost no one save some spuriously leaderless, specious, agglomerated voter blob. It is grotesque to have to say it, but practices that any other industry would have stamped out decades ago, like trading favor, sexual and otherwise, for promotion, survive in Congress precisely because the institution is built to let them survive.

Picture the same arrangement anywhere else. Say you want a normal job at an accounting firm. To be considered at all, you must first find a manager angling for a promotion and attach yourself to them, unpaid, for months, driving them to meetings, fetching coffee, dialing phones, with three dozen people behind you ready to be more slavish than you are. Suppose the manager gets promoted and suppose you are rewarded with a paid position, which itself is no guarantee. You are now on minimum wage and more the manager’s plaything than ever. Want a raise, a transfer, that parking spot? Please the boss, by whatever means the boss requires, because the firm has no HR oversight, not even paltry labor laws. The boss is not only HR, but also wrote the labor laws that govern not just your employment rights but the entire country’s. And if you try to report him to any real authority, you can find yourself frozen out of the entire industry for life.

No other modern organization functions like this. Those that do are dead or dying, their ranks attrited of competent staff by want of basic labor rights.

In an ideal world the Ethics Committees of both chambers would handle these criminals effectively and rapidly, from the first inkling of abuse. In the real world, it is easier to pull every tooth from every Member’s head than to get Ethics to police its own. The committees obviously rarely investigate themselves, and when modern hyperpartisanship takes hold, they investigate only the other party. A Republican Member could do something to a staffer on the Floor in front of everyone and it would be Democrats alone demanding removal while Republicans mounted a defense, and the reverse holds true just as surely. The “do nothing” option always wins, because doing nothing protects everyone’s side equally.

Of course, sexual abuse of staff is only the most blatant, disgusting part of the status quo. So let us be plain about the whole catalogue of what is wrong, because the sexual abuse, as monstrous as it is, is only the sharpest edge of it:

• Staff lack the compensation and the worker protections that comparable industries take for granted.

• Staff have no path to advance on merit; advancement is tied to personal relationships.

• Staff are pressed into unpaid campaign labor as the price of being placed in a job at all.

• Staff, underpaid, often leave for private and nonprofit work, where the institutional knowledge the public paid to build is turned against the public interest.

• Staff are abused, assaulted, and otherwise mistreated by Members who answer to almost no one save their own conscience for how they run their offices.

What is needed is not a carve-out in labor law, not merely a staff union, but a full institutional reworking of how Congress staffs itself. The aims of that reworking are these: a clear career path for every staffer, prospective or presently serving, from entry through merit-based advancement to a dignified retirement inside the institution; a staffer-run grievance arm where abuse can be investigated and escalated; pay and benefits on par with the senior civil service or well-paid private industry; a reservoir of institutional knowledge measured in decades, so that Members and parties may come and go while the institution endures; and, not least, a Congress with the prestige and knowledge to meet the Executive and the Judiciary on something nearer to equal footing. For Congress is only as good as its staff. If its staff is universally underpaid, young, burnt out, abused people, then its output will only ever be that good. Compared to the titans in the Executive and Judicial branch, it is no wonder then that the Legislative branch has become the weakest it has ever been.

Sine Qua Non: Founding Principles

Before the machinery, the principle, because everything that follows is only plumbing in service of it. The way you stop the abuse is to take career power away from the individual Member and vest it in the institution. The quid-pro-quo, sleep with me or you are finished in this town, only works because one person controls your future. Sever that control and the threat collapses on its own. The abuser loses his leverage not because we have asked him nicely to stop, but because he no longer holds the thing he was extorting people with. Everything below, the ranks, the exams, the placement system, the Censor, exists to move that single lever of power out of one fallible human’s hands and into a structure that outlives him. So everything below follows from this central logical underpinning: Members of Congress should not be small business owners, overseeing staff as petty feudal lords oversaw serfs.

A Cursus Honorum, for Staff

Without staff, Congress does not function. There are no sessions, no constituent mail answered, no bills drafted; the building itself would come apart at the seams (literally so!). Every Member alive, even the worst of them, knows this. But staff alone is not the point. The word that matters is institution: a stable structure that outlasts any one person, a set of rules and procedures that make civilized work possible. Congress already contains institutions of this kind. What are the Architect of the Capitol, the Library of Congress, the Parliamentarians, the standing committees, if not exactly that?

And notice something about them. To get hired as a librarian or an architect at the Capitol, you do not have to perform sexual favors, and you do not have to redesign a Member’s lake house for free as a proving ritual. These are professional bodies with their own nonelected leadership, leadership that still answers to the full elected Congress, to be clear, and yet that leadership alone is capable of enforcing professional standards. The model is sitting right there inside the building. We have simply never extended it to the people who sit in the Members’ own offices.

The inspiration is old. Rome before the Caesars had the cursus honorum, the ordered ladder of offices a man climbed with experience, from military tribune through the lower magistracies and on to the higher ones, up to consul. Imperial China filled its bureaucracy by examination, advancing officials on demonstrated merit rather than birth or favor. Take what is useful from both and we can build something genuinely new for America: a career service for Congressional staff in which advancement turns on what one knows and how long they have known it, judged by their peers and their superiors alone, and not the favor of the transient members of Congress that come go every cycle.

The Congressional Censurate, the Censor, and the Censure

One new federal agency is needed, the Congressional Censurate, led by a singular Censor, who possesses the unique power of Censure. This agency is the body that stands between Congress’s staff and the Members who would abuse them. It is the keeper of a basic decency the institution has never managed to keep on its own.

In sum:

• Congress shall establish a Congressional Censurate, a new agency overseeing every Congressional staffer in the chambers and the districts.

• The Censurate shall be led by a single Censor, appointed to renewable five-year terms by the concurrence of both chambers, with no Presidential role in the appointment.

• The Censurate shall set the procedures for hiring, firing, and transferring staff, and shall house both a placement arm and a separate, independent grievance-and-investigations arm.

• The grievance arm shall be an independent sub-agency, charged with investigating all cases of malfeasance committed by or against staff.

• The Censor, as befits their title, shall have the sole privilege to enter the wells of either Chamber of Congress during any session, and lay upon the body the charge of official Censure against any sitting Member of Congress for that respective Chamber.

To be clear: The Censor cannot technically censure anyone. The Constitution leaves each chamber to discipline its own members, and nothing here touches that. What the Censor holds is narrower and sharper. It is the privileged right to enter the well of either chamber, name a Member, lay out the charge, and compel a recorded floor vote on a motion of censure. The chamber is still the only body that decides on the charges; the Censure power (as all other powers) remains unchanged. But the chamber can no longer decide by doing nothing.

That is the whole mechanism, and it is worth expanding on why it bites. Ethics (the Committee and process) is toothless nowadays because its favorite move is silence: to refer, delay, and to let each matter die before it ever comes to anything approaching a vote. Take silence off the table and we change everything. Faced with a Censor’s motion, a Member’s own colleagues must now go on the record, by name, voting yes or no on whether to shield an accused predator. That is a vote no party wants to cast and no party can hide. Had such an office existed, a case the Ethics Committee preferred to bury could have been dragged onto the floor and forced into the daylight, with colleagues made to own their vote on it. Think of a Swalwell-style scandal, or pick any other known example; justice and the interests of the victims could and should have been championed by an independent body with the power to act on its own prerogative.

Imagine: a legislative aide of a Member of Congress comes forward credibly accusing their assigned Member of Congress of rape. Following a thorough independent investigation by the grievance agency that confirms the charges, the Censor arrives one day onto the Floor of the Chamber where the accused sits as a Member. No one can stop the Censor from entering the Floor, taking control of it, and doing what comes next: laying an official charge of Censure brought against the Member of Congress for the crime of rape. From there, Congressional rules, adjusted for this new reality, take hold. There is limited debate, and if in a pro forma session, the chamber schedules the vote (or trial) to commence only once the full session is back. If the accused demands it, there is a speedy trial, with witnesses and evidence allowed. Then, a roll call vote. Every single member’s vote is recorded on the charge of Censure, with a simple majority upholding the charge. There is no right to appeal before another body once the vote has taken place. If passed, the Censure takes effect immediately, as well as the punishment: it strips the Member of all committees, privileges, salaries (repeal the 27th Amendment, otherwise this is impossible!), benefits, and more, making them a Member in name only. The only thing that can strip the taint of this empowered Censure would be them being elected to Congress again by either their own district or state or another’s in spite of the Censure, at which point, Congress should consider permanently removing and barring that individual from public office.

To be sure: this is a great and terrible power to place in one person’s hand, who isn’t even an elected official. A single, credible accusation could end the career of a very powerful, perhaps even popular person, and many would prefer to not challenge the status quo, much less with someone who isn’t even in the club, so to speak. All the more reason therefore to create an institution to aggregate away from the individual and into an organization. The Censor is both above and beyond the constraints of the Congressional Ethics Committees and yet also merely a functionary of the Congressional Censurate, and it is this body’s prestige and reputation that shall serve as the careful cudgel to keep potentially abusive members in check. Obviously, the grievance arm of the Censurate must ensure that high evidentiary bars are met before a Censor even considers approaching the chamber, and a Censor who brings spurious charges the chambers overwhelmingly rejects should lose either the privilege, or the post. Rather, the Censor’s supreme power to lay charges of censure should be the object of last resort. If there is active, known harm ongoing, with the Member in question shielded from reproach by either partisan, popular, or other means, then the Censor is the sole person with both a duty and power to act.

Of course, the Congress should still retain their respective Ethics Committees and ways of censuring and removing Members of Congress. The Censurate should work alongside both, as well as law enforcement, to ensure that the interests of potential victims and survivors are upheld, and to keep Congress a safe place to work as a professional environment of the highest national prestige. Nothing about the Censurate, the Censor, or the censureship process precludes or preempts Ethics Committee work. This new body just carves out the staffing and HR responsibility that each Member has, while making each Member more immediately and directly responsible to their respective chamber based on their treatment of staff. In cases of egregious mistreatment, the Censor’s censure is the essential ‘break-glass’ scenario, a situation where there was no other choice but for them to act.

Assigning Staff

Recall that the Censurate also assigns and appoints staff to Members of Congress. This is worthy of expansion.

The design here is trying to fix an essential management problem without pretending staff are interchangeable clerks. They are not. A Member is elected to advance a particular agenda and needs people who believe in it and whom they can trust, and the voters arguably chose that when they chose the Member. And so:

• Staff shall be assigned to Members on the basis of ideology, prior geographic ties, and policy interest, with the aim that every Member gets the most competent staffer who genuinely fits with all those requirements. Members can also take recommendations and reject placements.

• A Member may decline an assigned staffer who is a poor fit, and a staffer may decline placement with a Member for whatever valid reason. What a Member loses is not the power to choose among qualified, compatible staff; it is the power to exploit them.

• Staff who cannot be matched to any Member shall be placed in committee work or other, non-Member-specific work within the Censurate until a suitable opening appears. No one is forced into a bad pairing, and no one is left idle.

• Errands of personal servitude, such as dry cleaning and chauffeuring, are banned absent the explicit consent of both the staffer and the Censor, along with the member of Congress in question. A staffer may take on extra duties, but only for extra compensation, and taking undue advantage shall trigger automatic referral to the grievance arm.

• Staff shall be kept with their preferred Members and vice versa. No one will get a staffer/member they don’t want.

• Staff responsibilities will be based on merit ranking rather than job title, although job titles will still exist.

• Existing and former staff shall be grandfathered into the merit-ranking system that follows.

Merit Rankings

Who gets to be a Chief of Staff, and who gets to be the undersalaried caseworker in the district? In the former, we find wives and boyfriends, friends of friends, confidants and suckers alike, with of course many, many dedicated professionals and public servants in between (perhaps even the vast majority). Even in the latter, we find their ranks filled by many who depended on some preexisting relationship with that member of Congress, often working as campaign staff. In either case, you can have twenty years of professional experience and be a caseworker, or be a newly elected member’s previously unemployed wife and now be his well-paid Chief of Staff. Both have happened, and happen often enough.

Getting a job, getting promoted on Congress turns not on what you know, but on whose favor you keep and get to keep. To be sure, the existing staff of Congress must be saluted and commemorated, for the sheer fact that they are able of surviving through the daily indignities of working in the Capitol. They make the Legislative branch function, and without their sacrifice, America (the idea, if not the very country), would fall. So even if some hold their present position in spite of their merit, that should not condemn the rest, who already sit high amongst the worthy, and will sit thereafter upon the Censurate reform.

For the future generations especially, advancement should turn on what you know and how long you have known it, not on whose favor you keep. This is where the central idea of the Censurate does its quiet work. Because promotion is decided by peer panels and senior staff rather than by any Member, Members can no longer hold careers hostage. The leverage simply is not there to be abused.

To be sure, a system weighted purely toward seniority calcifies and shelters the mediocre, and “judged by peers” can curdle into a popularity contest, a gentler cousin of the favoritism we are hoping to kill. The resolution rests in belting off two of the higher merit ranks with comprehensive examinations.

At Merit Rank Four, an individual must complete several examinations that test the breadth, depth, and practical applicability of their legislative and governmental potential. The examinations will also be paired with a mandatory thesis, which must be defended before a body of their peers and higher-ups. Those who fail will still find a lifetime of succor in pay and benefits at Merit Rank Four (it should be the first rank where one can comfortably retire at), and still possess the opportunity to retake failed examinations. Those who pass all examinations and have their thesis accepted will be awarded both a fully accredited Bachelor’s and Master’s Degree, with all possible honors. (Yes, the power to confer to college and advanced degrees to meritorious staffers will be a power granted to the Censurate by Congress.)

At Merit Rank Six, another rigid course of examinations follows, which if successful earns one a fully accredited law degree, as well as the right to practice law before any US Court.

If this works, this new system will tie prospective and current employees for life to an institution that rewards the most successful, the best, with better and better rewards and benefits; the modern standard of any successful institution—the bare minimum one should expect of the supposedly prestigious US Congress.

Of course, people don’t need to wait until they are at the appropriate Merit Rank to begin studying. With such a plain, published, clear career path ahead, and with all examination materials made available beforehand (similar to how other professional certification examinations are made available, such as the LSAT and others), people would likely start studying at a young age for such an opportunity. And even then, an individual would need at minimum four years of practical work in the legislative branch before they become eligible for that coveted Master’s degree, and then at minimum nine years for the law degree.

This also resolves the revolving door, where staffers leave public service to become lobbyists. The plain truth is that no one is going to want to leave Congress, especially for a less prestigious, less well-paid position in private lobbying. With more advancement (more benefits, more pay) possible, to higher and higher Merit ranks, each granting more power and responsibilities, many will opt for the long haul. Of course, a person that fails to convince their peers and superiors will stall out at a lower rank, lower than the effective maximum of ten (or at ten itself), but still be highly respected and paid regardless.

The goal herein is to make the legislature operate at peak legislative and constitutional efficiency, regardless of who has been elected to Congress. Elected members could possess only a child’s inkling of a base idea, yet a high merit ranking official should be able to turn that base idea (or any other idea) into sprawling legislation, codices of action, complete with philosophical, legal, economical, and metaphysical discourses from that singular idea. The output of Congress should always be one of genius perfection, where few can doubt the merit or need for the laws it passes. If the Executive or Judicial Branches ever disagree with the Legislative, woe to them if they do not have similar intellectuals in their own court!

The Rankings Themselves

Merit Rank One

• Open to any US Citizen or permanent resident over the age of eighteen regardless of prior education or experience, save actual Congressional experience (which is grandfathered into this system).

• Minimum service before eligibility for promotion: 1 year.

• Advancement is judged by four other Rank One staffers familiar with the work, plus one Rank Four staffer.

• Likely assignments: pages (no one under the age of 18 should work in Congress), caseworkers, staff assistants.

Merit Rank Two

• Minimum service in Rank Two before eligibility: 0.5 years. Minimum total service: 1.5 years.

• Advancement is judged by four other Rank Two staffers, plus one Rank Four staffer.

• Likely assignments: caseworker, staff assistant, press assistant.

Merit Rank Three

• Minimum service in Rank Three before eligibility: 1.5 years. Minimum total: 3 years.

• Advancement is judged by four other Rank Three staffers, plus one Rank Four staffer.

• Likely assignments: caseworker, staff assistant, press assistant, scheduler.

Merit Rank Four

• Minimum service in Rank Four before eligibility: 1 year. Minimum total: 4 years.

• Additional requirement: to advance to Rank Five, the staffer must pass a circuit of examinations, completion of which grants a Master’s degree.

• Advancement is judged by four other Rank Four staffers, plus a committee of Rank Seven staffers.

• Likely assignments: a deliberate rotation. The Censurate sends DC staff to the districts and district staff to DC, where they do similar work as before while now overseeing Ranks One through Three beneath them.

Merit Rank Five

• Minimum service in Rank Five before eligibility: 3 years. Minimum total: 7 years.

• Advancement is judged by four other Rank Five staffers, plus a committee of Rank Seven staffers.

• Likely assignments: legislative staff. From Rank Five on, staffers begin editing, writing, and compiling legislation. They may also serve as Press Secretary or Communications Director.

Merit Rank Six

• Minimum service in Rank Six before eligibility: 2 years. Minimum total: 9 years.

• Additional requirement: to advance to Rank Seven, the staffer must pass a circuit of examinations, completion of which grants a Juris Doctorate degree as well as bar accreditation.

• Advancement is judged by four other Rank Six staffers, plus a committee of Rank Seven staffers.

• Likely assignments: senior legislative staff, drafting and shepherding legislation.

Merit Rank Seven

• Minimum service in Rank Seven before eligibility: 4 years. Minimum total: 13 years.

• Advancement is judged by four other Rank Seven staffers, plus a committee of Rank Eight staffers.

• Likely assignments: Legislative Director, overseeing the lower ranks.

Merit Rank Eight

• Minimum service in Rank Eight before eligibility: 5 years. Minimum total: 18 years.

• Advancement is judged by four other Rank Eight staffers, plus the Censor.

• Likely assignments: Chief of Staff; oversight of the Censurate bureaucracy.

Merit Rank Nine

• Minimum service in Rank Nine before eligibility: 2 years. Minimum total: 20 years.

• Advancement is judged by four other Rank Nine staffers, plus the Censor.

• Likely assignments: granted top security clearance; advises the parties, Members, and other government institutions directly on matters of national security as it pertains to the core Constitutional interests of Congress.

Merit Rank Ten

• No fixed minimum of years for advancement.

• From among the Rank Tens, the Censor appoints at most seven to Rank Eleven.

• Likely assignments: whatever the institution needs.

Merit Rank Eleven

• The highest rank below the Censor.

• Congress appoints one of the Rank Elevens to serve as Censor.

• Likely assignments: the governing board of the Censurate.

The Censor

• Technically not a rank.

• Congress (both Chambers) by majority vote confirms the Censor who serves (if not removed by a majority of one chamber at any time) for a renewable five year term.

• The Censor has direct oversight over the entire Censurate, excluding the grievance arm which operates as an investigative independent sub-agency with the power of subpoena, with an independent board and executive director appointed and confirmed separately by Congress.

• Likely assignments: representing the interests of every single employee hired or contracted by the Legislative Branch, defending and advancing the Legislative branch’s core Constitutional interests.

It is important to note that while this proposal tackles Member and Committee staff, it could be broadened to include every other Congressional agency, or indeed, every other governmental agency. Our whole civil service is in desperate need of revamp and reform, especially considering that we have not any refreshing of our mass civil service since the Watergate constitutional crisis. That’s nearly 50 years of stagnation, nearly three professional lifetimes of staid procedures and forms. A Grand Censurate, encompassing the whole of the federal government, that uplifts workers and rewards merit, could just be the solution our bureaucracy needs to survive the challenges of the 21st century. Think of it: don’t we, the people, deserve a government whose competence, whose hard-work, whose dedication, whose moral, ethical, and economic philosophies are beyond reproach? We do, and if you think we don’t: you are wrong.

A Word on Campaign Staff

Campaign staff are out of scope here, and deliberately so. Folding them into the Censurate would dilute the institution and blur its one job, which is to give serving Members the best-qualified help regardless of who those Members are. But “out of scope” is not “fine as is.” Campaign staffing, nay, finance, is its own albatross and needs its own comprehensive, top-to-bottom reform. Elections should be based on the merit of ideas championed by the candidate, not on how well that candidate can beg for money, and campaign work should be its own well paid professional career path, wholly apart from Congressional work.

The Choice

None of this is easy. An overhaul on this scale costs real money up front, with professional pay, real benefits, and pensions, and someone always asks who pays. The honest answer is that we already pay, just worse. We obviously pay in the revolving door, where staff we underpaid walk out the moment they can and sell the institutional knowledge the public funded to whoever lobbies hardest. And yes, that includes America’s enemies. We already pay in the worst possible ways, when we turn a blind eye at first and then we’re forced to pay later, in our tax dollars, for the investigations and restitutions that follow from bad behavior. Fixing a flooded, swampy office often incurs a nasty, one-time cost that makes even sturdy stomachs queasy. But not fixing it always leads to a lifetime of medical, building, and other legal costs that far exceed in exponential magnitude what it would’ve cost to apply the simple, first fix. So it is with Congress.

Congress will never be free of the taint of its worst Members until it takes radical, structural steps, until it moves the power to make or break a career out of one fallible human’s hands and into an institution built to outlast all of them. Yes, the reform would be painful. Yes, it would be difficult.

But weigh that pain against the other kind. Weigh the difficulty of building an institution against the difficulty of being abused by a Member of Congress with no one to turn to and no way out. Then multiply that pain across decades, across generations.

Is there a choice? Shall we have a government of the people, by the people, one that rewards merit and punishes the worst grievances and abuses possible? A government of laws, order, and basic morality? If there is a choice: it is wholly ours.