Not more than two days into the 86th Texas Legislature, the 150-member House of Representatives approved a new, stronger reporting process to secure justice for victims of sexual harassment at the Capitol. The unprecedented (at least in recent history) move comes in the wake of the #MeToo movement, which ousted abusive male figures from their perches in politics, journalism, and Hollywood. And it follows a string of shocking media reports from last session that alleged harassment in the halls of the Capitol building from Democrats and Republicans alike over several years. Those reports ignited conversation within both legislative chambers on how best to respond to inappropriate behavior moving forward.
However, one body is noticeably working more steadfastly â and openly â on the issue than the other.
The House Committee on Administration acted quickly, proposing a first draft in December 2017 that was seen as a solid start that needed more work. Former Speaker Joe Straus then created a working group in May 2018 to examine the Texas House’s sexual harassment policy and recommend ways to improve it. The 10-member group, led by Reps. Donna Howard, D-Austin, and Linda Koop, R-Dallas (who lost her re-election bid in November), was tasked with researching best practices in other states to “prevent and eradicate” misconduct in the Legislature. The latest iteration, approved as a resolution by a unanimous vote of the House on Jan. 9 after months of review, moves misconduct complaints to a House investigating committee with subpoena power, adding real teeth to a once-feeble policy.
Meanwhile, the Senate â recently encumbered by allegations of lewd behavior against one of its most powerful members, Georgetown Republican Charles Schwertner, has taken a slower approach. While the Senate elaborated its misconduct policy from one to six pages some five months after the House released its first draft, it has no plans to hold hearings or take a formal vote as the House did. Lt. Gov. Dan Patrick, never as engaged on the issue as Straus, also opted not to conduct a Senate investigation into Schwertner, instead taking the wait-and-see route as a University of Texas investigation played out. Both the Senate’s weaker policy and its inaction in the Schwertner case have drawn criticism on the state’s editorial pages, including a piece penned by former Sen. Wendy Davis.
During the few months of the current regular session, the Senate has the power to strengthen and codify its rules, but will it? Or does the upper chamber hope the issue of sexual misconduct â and public complaints against its members â gradually falls by the wayside?
Cleaning Up the House
Groping. Suggestive comments. Sexual propositions. Unwanted touches. Crude jokes and watching porn at their desks.
Women, both anonymously and publicly, have put the Capitol on notice with their stories of inappropriate behavior, harassment, and even sexual assault in various publications covering the Lege, including The Daily Beast, Texas Observer, and The Texas Tribune. Former legislative intern Taylor Holden and former aide Genevieve Cato shared their experiences facing indecent behavior at the state Capitol with the Chronicle in December 2017, right as the House released its first draft policy (“State Capitol Sexual Abuse Policies Remain a Work in Progress,” Dec. 22, 2017). Both women said they felt too powerless to report the incidents and would have been helped by clear-cut harassment policies.
Despite what’s acknowledged to be a fairly pervasive pattern of misconduct, including accusations calling out lawmakers by name, no formal complaint of sexual harassment has been filed in the House since 2011, and none in the Senate since 2001. To many, that’s not a sign that abuse isn’t occurring, but rather that the system in place has not instilled confidence in those abused, ultimately failing survivors over the years.
“I began to hear primarily younger women in the Capitol talk about how they chose not to complain because of fear of being further victimized or having their jobs jeopardized,” said Howard, who helped lead the charge in crafting new policies. “There was a severe lack of trust in the system, and I think because of that we felt an urgency to address it as seriously and as quickly as possible.”
The insufficient and opaque former House policy didn’t make clear where a complainant could file a report, or even what behaviors or actions would constitute sexual harassment. It depended on legislative staffers with little authority and few incentives to enforce the rules, and it failed to define consequences for offenders. When the House updated those policies last DecÂemÂber, it dramatically strengthened protections for victims, outlining the specific steps they can pursue to file internal complaints, laying out what constitutes sexual harassment, and mandating sexual harassment sensitivity training. It also better protected victims against retaliation, required confidentiality, and offered avenues on how to seek victim counseling.
âWe tried to make sure we covered every angle we could, to ensure the reporting process for victims was clear and that they felt safe and supported.â â Rep. Donna Howard, on the new House policy
However, questions still lingered about the impartiality of those who would investigate incidents and how the body could hold elected legislators â who answer to constituents, not supervisors â accountable. In a survey of 160 members and staffers in the House, conducted in October by professor Noel Landuyt of UT’s Steve Hicks School of Social Work, half of respondents felt that if a complaint were filed, they would worry about it negatively impacting their job, and half also didn’t feel comfortable reporting in the first place. “Most people feel the policy is good on paper, but in practice it’s a little more questionable,” said Landuyt during a November meeting at the Capitol of the House sexual harassment policy working group. “They are skeptical [that] the organizational structure is actually going to support them.”
The working group researched best practices from other state legislatures and spoke with a number of stakeholder groups, including advocates for survivors of sexual abuse. “We tried to make sure we covered every angle we could, to ensure the reporting process for victims was clear and that they felt safe and supported,” said co-chair HowÂard. The final product â passed in a 142-0 vote earlier this month â transfers investigative duties for complaints of abuse to the chamber’s General Investigating Committee, which could recommend punishment. The committee would appoint an independent investigator if the complaint involved a House member. And, significantly, the committee has subpoena power, said Howard, and the ability to cite an alleged abuser for contempt if they dismiss a subpoena.
In addition to its subpoena power, the General Investigating Committee can initiate investigations without receiving an official complaint. The Senate does not have a corresponding committee, even though it could. In fact, folks in the upper chamber could have easily walked across the hall and learned from the House’s plan and moved to adopt an analogous strategy. Instead, they have remained stagnant.
The Senate’s Silence
“I just really want to fuck you,” Charles Schwertner allegedly wrote in a text to a graduate student he met at a UT-affiliated event in August last year. The young woman, who hoped to one day work at the Legislature, says he also sent other lewd text messages and an explicit photo said to be of his genitals. “Please stop, this is unprofessional,” she retorted. “I’m a student interested in learning about Healthcare Policy. These advances are unwanted.”
The deeply troubling allegations spurred the university to investigate; UT hired JohnÂny Sutton, the former U.S. attorney for the Western District of Texas (which includes Austin), to determine if SchwertÂner had violated UT policies or federal Title IX requirements protecting the student. He found the student did receive the messages in question and that they did appear to her to be from Schwertner. The senator and the student originally connected on LinkedIn; the phone number Schwertner then gave the student, from which the lewd messages were sent, was attached to an account on Hushed, an app that allows callers to communicate without using their real cell phone numbers.
Schwertner’s lawyers told Sutton that a third party, with whom the senator shared the logins for his Hushed and LinkedIn accounts, sent the messages, but would not disclose who that person wasor any more details. Schwertner’s lack of cooperation stonewalled Sutton’s investigation, which proved inconclusive at the end. Sutton “repeatedly” asked to interview SchwertÂÂner, but the senator refused; he also declined to answer five questions designed to “bring clarity to the investigation.” Schwertner “has access to information that could allow a more definitive conclusion to this matter, but is unwilling to share that information, and the University lacks authority to compel him to cooperate more fully,” wrote Sutton. Schwertner’s lawyers said they prevented the senator from participating in a supposedly “unfair” process that would not protect his confidentiality.
Schwertner, who infamously damaged a glass table last legislative session gaveling a pro-choice witness into silence, relinquished his powerful spot as chair of the Health and Human Services Committee in early January, just a few weeks after the UT report. While Schwertner, who is a prominent orthopedic surgeon, contends it was fully his decision to step down (to focus on other issues important to his constituents and, yes, to spend more time with his family), the choice may have been made for him behind closed doors; Patrick’s office hinted that the lieutenant governor was poised to move in a different direction regardless.
Disturbing charges of misconduct in the state Senate aren’t new â women have told stories of inappropriate behavior from Sen. Borris Miles, D-Houston, and former Sens. Carlos Uresti, D-San Antonio (convicted of fraud last year), and Craig Estes, R-Wichita Falls (defeated in last year’s primary). All have denied the accusations.
“Bitch, you want to fuck with me tonight?” Miles allegedly asked a legislative intern at the Continental Club in 2013, when he was still a state representative, The Daily Beast reported in a 2017 story headlined, “‘You Want to F*ck With Me Tonight?’: Horror Stories from the Texas Capitol.” Miles, who has a reputation for out-of-bounds behavior in general, also allegedly “forcibly kissed” a political reporter in 2011 outside his office, the Beast reported. Despite the unflattering attention it’s received from these reports, the Senate has opted not to conduct its own investigations into any of these allegations, or to update its policies to identify who has the authority to hold senators accountable, and what penalties offenders might face.
The Senate’s inaction prompted Wendy Davis, who served two terms in the chamber representing Ft. Worth, to pen a critical editorial in the Statesman earlier this month demanding that the upper house get its act together. Among her chief complaints: There remains no legitimate recourse for people who are sexually harassed by legislators; there is no independent, third-party investigator to whom such complaints can be made; the Senate policy fails to define consequences for violations and has not extended its subpoena power, which could have compelled Schwertner (or others) to testify or provide information.
“What happened after the credible allegations against Sen. Schwertner â and also Sens. Miles and Uresti â starkly highlights how broken the system is,” Davis told us. “I found myself feeling very upset and frustrated after reading the UT report. I was angry on behalf of the young woman and on behalf of many others who have endured sexual harassment at the Capitol. It’s disappointing that the Senate appears disinterested in further investigating the incident.”
Because there was no formal complaint made to the Senate, as the policy necessitates, the chamber wasn’t required to act. In fact, the graduate student likely wouldn’t be protected under the policy to begin with, as she doesn’t fit the definition of someone whose work requires them to visit the Capitol on a “regular” basis.
Sen. Kirk Watson, D-Austin, applauds the work of Sen. Lois Kolkhorst, R-Brenham (who, ironically, has replaced Schwertner as chair of Health and Human Services), who seems to have single-handedly worked to update the Senate policy and produce the current version, released in May. (Kolkhorst’s office did not respond to multiple requests for comment.) However, he says the rules are lacking, especially when it comes to assurances of accountability and impartiality. “It’s a better policy than we used to have, but I will say very strongly there’s still a lot of work to be done,” said Watson. “I do believe the policy falls short and I remain disappointed in how it stands today. But I’m hopeful we can improve it.”
There appears to be a âgreater interest in protecting the [Senate] than in protecting young women working at the Capitol.â â Wendy Davis
He points to a flawed process. “One of the failings of the process is having a single member [Kolkhorst] take the responsibility and burden of crafting the Senate policy in isolation,” said Watson. Also, the Senate only asked for limited invited testimony when designing the policy, rather than (as the House did) hold an open hearing allowing for public testimony and input from other experts to recommend best practices and fix gaps in the policy. “It should be subject to a higher level of debate and discussion and insight from people so that we can improve it,” he said. “Let’s let it go through the normal process. Then let’s bring it to the floor for a vote.”
Davis slams the policy as “a little more than window dressing, but not a whole lot more.” She notes the “glaring differences” between Straus’ leadership and Patrick’s. “Straus supported the effort in an authentic and sincere way, with an open process and a work group,” said Davis. “On the Senate side, there is more of an appearance of a process, but without any real desire to hear from experts and people who may have been on the receiving end of sexual harassment at the Capitol. To me, the process looked more like a kangaroo court.”
There appears to be a “greater interest in protecting the body than in protecting young women working at the Capitol,” says Davis. “It’s often part and parcel of the way elected bodies function â if you protect your members, you gain their loyalty.” Sexual misconduct at the Capitol is an open secret among members, she says, and she had her own brush with harassment as a freshman senator. During a social, UT-affiliated event, a House member, clearly inebriated, touched her inappropriately. She says it took that member three years to apologize; she never reported the incident because the Senate’s policy did not make clear where or who to report to. Even if there had been a direct path, there was no hope that anything would come of it because there were no defined consequences, she says.
“We need to apply continued pressure on the Senate,” said Davis. “We cannot give them a pass on this.”
A Resolution to the Problem?
Echoing Watson and Davis, Sen. JosĂ© RodrĂguez, D-El Paso, believes the updated Senate policy is a “good first step, [but] I would like to see us go further,” he tells the Chronicle. That’s why he’s filed Senate Joint Resolution 6, a proposed constitutional amendment that would establish a new state agency, the Sexual Harassment Oversight Commission.
The five-member body would include appointments by the governor, leaders of the Senate and House, and the presidents of the State Bar of Texas and the largest union representing state employees. The commission would establish a standardized sexual harassment policy for the Capitol that applies to legislators, employees, and third parties (like journalists and lobbyists); review and investigate all complaints; and impose appropriate sanctions. The catchall commission would also offer a report every other year that includes descriptions of each violation (excluding confidential information). It’s a comprehensive and robust fix to many of the problems plaguing the upper chamber.
“Any time you have a body investigating themselves internally, there is always the chance of the investigation not being done, or worse, a cover-up,” said RodrĂguez. “I’m not saying that’s what will happen at the Senate, but I am saying having a commission with subpoena power and the ability to sanction will provide the public more confidence and reassurance to victims that someone independent is reviewing their complaints.”
Considering the way the Senate has dragged its feet on the issue, it’s unlikely it will make SJR 6 a priority, but that isn’t stopping the senator from standing firm. When passed, joint resolutions go to citizens for a vote on amending the state constitution. “I thought it would carry a lot more weight and send a stronger message to have people vote on this,” he said.
Howard, Davis, Watson, and RodrĂguez all agree that even if policies are strengthened, a simultaneous culture shift also needs to occur. Just looking at the numbers, it’s not difficult to see why the Capitol can feel and act like a boys’ club: Women make up less than a quarter of the Lege, a conservative, GOP-dominated body that continually and unabashedly chips away at women’s health and rights in the name of sexist ideology. The House claims 33 women (27 are Dems), while the Senate has nine (six are Republicans). In its entire history, as highlighted in a recent analysis by The Texas Tribune, only 168 women have been elected to the Texas House or Senate; if they were all alive today, they would still not occupy all 181 seats in the Legislature.
The hostile environment needs transforming, said Chris Kaiser of the Texas AssocÂiation Against Sexual Assault. The Capitol is a breeding ground for exploitation of power imbalances, and its members enjoy the unique position of having to answer only to constituents, not to bosses or boards of directors that can terminate miscreants on the spot. The allegations of misconduct are not just an HR issue, but an official abuse of office, he notes.
Kaiser, who helped advise the House on its policy, is optimistic of the progress made in the lower chamber and hopes the Senate will follow the House’s lead. In the end, only time will tell if the rules amount to real consequences for abusers. “Actions speak louder than words. We are not going to know how effective the new policies are until we see who ends up faring better â harassers, or those who speak up and ask for accountability,” he said. “Until leadership proves to take sexual harassment seriously, even the best policy is not worth the paper it’s written on. We need to keep scrutiny on this issue. … The worst thing would be to stop paying attention and assume the policies in place have resolved the problem.”
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