« PreviousContinue »
[(c) Sixty days after the submission of its final report and recommendations the Commission shall cease to exist.]
SEC. 105. (a) There shall be a full-time staff director for the Commission who shall be appointed by the President by and with the advice and consent of the Senate and who shall receive compensation at a rate, to be fixed by the President, not in excess of $22,500 a year. The President shall consult with the Commission before submitting the nomination of any person for appointment to the position of staff director. Within the limitations of its appropriations, the Commission may appoint such other personnel as it deems advisable, in accordance with the civil service and classification laws, and may procure services as authorized by section 15 of the Act of August 2, 1946 (60 Stat. 810; 5 U.S.C. 55a), but at rates for individuals not in excess of [$50] $75 per diem.
(b) * * *
* * *
(g) In case of contumacy or refusal to obey a subpoena, any district court of the United States or the United States court of any territory or possession, or the District Court of the United States for the District of Columbia, within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or is domiciled or transacts business, or has appointed an agent for receipt of service of process, upon application by the Attorney General of the United States shall have jurisdiction to issue to such person an order requiring such person to appear before the Commission or a subcommittee thereof, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation; and any failure to obey such order of the court may be punished by said court as a contempt thereof.
(i) The Commission shall have the power to make such rules and regulations as it deems necessary to carry out the purposes of this Act.
SECTION 1447(d), TITLE 28, UNITED STATES CODE
1447. Procedure after removal generally.
(a) * * * (b) * *
(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise [.], except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.
ADDITIONAL MAJORITY VIEWS OF HON. ROBERT W. KASTENMEIER
Although I join in the majority opinion recommending passage of H.R. 7152 as reported by the committee, because I believe it is a good bill, it seems important to record the differing views on what the bill ought to contain, views largely embodied in the version of the bill that was approved by the subcommittee handling the legislation.
The subcommittee held intensive hearings for over 4 months, during which period every aspect of the problem of discrimination was considered. Testimony was taken from scores of persons representing groups on every side of each issue. After much thought and discussion the subcommittee recommended a bill to the full committee which was designed to provide for all Americans the rights guaranteed by the of the differences and the one now before the House, I wish to explain my preference for the bill as originally drafted by the subcommittee.
It is extremely difficult, if not impossible, to write a perfect bill, and certainly the subcommittee bill had its flaws. The provisions in the subcommittee bill providing for the impounding of ballots was maladroit and contributed to the elimination of the entire temporary voting referee procedure. The broad language of title III of the subcommittee bill perhaps should have been tightened to show that the Attorney General was intended to have the power to intervene only in cases involving a denial of constitutional rights because of race, color, religion, or national origin. It was probably a mistake to try to limit the Community Relations Service to six members, as provided in the subcommittee bill; that mistake played a part in the elimination of that useful Service in the reported version of the bill. Limiting the voting census to areas recommended by the Civil Rights Commission, as the reported bill does, rather than making it apply to the entire Nation as provided in the subcommittee bill, is clearly an improvement. Nevertheless, in several important respects, the subcommittee bill was superior and would have proved more effective in dealing with racial inequality.
In title I, the subcommittee bill would have covered all elections with respect to the terms and administration of voting qualifications, not merely Federal elections as in the reported bill. This would conform with the 1957 and 1960 civil rights laws, which drew no such distinction. For Negroes in the South today, the ability to exercise the franchise in local elections is in many ways more important than their right to vote in Federal elections. Many of the disabilities under which they suffer are inflicted by locally elected officials, acting under color of law, and it is the complete corruption of democracy to permit these officials to operate in contempt of the wishes of the people they govern. No serious constitutional difficulty is presented by applying the provisions of the title to State and local elections, nor is there merit in the claim that the expense of administration would preclude States from enforcing different standards for Federal and
local elections. Indeed, certain States of the Union have shown a great willingness to incur considerable expense and inconvenience, even to closing an entire public school system, to avoid granting equality to their Negro citizens. The State of Virginia, at this writing, is considering shouldering the expense of maintaining a poll tax requirement for State elections if the test is made unconstitutional for Federal elections. It is to be expected that these States would continue to deny the right of some of their citizens to participate equally in local elections even while equal participation in Federal elections is guaranteed by law.
In a democracy there can be no excuse for failing to protect the right to vote of all citizens at every level of government. If the ability of the people to register their just grievances at the polls is frustrated, is to be expected that they will seek other ways of making their views known. Peaceful street demonstrations are one such way. Even this avenue of protest, however, guaranteed by the Constitution, has been closed by force in many communities of our Nation. The men who wrote our Constitution knew from experience the danger to stable government that results when the governed have no legitimate way to make their desires felt by those who govern. For that reason the right to vote and the right to assemble peacefully to petition for redress of grievances are made fundamental props of our Government. It is a serious error, in my opinion, to go only part way in protecting the right to vote. That right is both a symbol of the struggle for freedom and the principal tool for effectuating peaceful change within our system of government.
At the same time that protection of the right to vote is limited, there is a curious feature of title V of the reported bill relating to vote fraud. Not contained in any earlier version of H.R. 7152, and not strictly a civil rights matter, section 504 (a) of the reported bill gives the Civil Rights Commission the duty of investigating allegations of vote fraud having nothing to do with race or color. Legislation dealing with voting fraud may indeed be needed, as are laws dealing with other inequities in our electoral system, such as underrepresentation of urban areas, gerrymandering, and obsolete district boundaries, but it can be questioned whether a civil rights bill dealing in every other particular questions of racial discrimination, is the proper vehicle, and the Civil Rights Commission the proper body, to deal with these wrongs. In title II, the bill reported by the full committee is deficient in that it guarantees equal access to only some public accommodations, as if racial equality were somehow divisible. Discrimination is prohibited in the reported version of H.R. 7152 in all hotels and lodginghouses (with a minor exception), eating places, and places of entertainment and spectator sports. At the same time, the bill would allow discrimination to continue in barber shops, beauty parlors, many other service establishments, retail stores, bowling alleys, and other places of recreation and participation sports, unless such places serve food. It is hard to follow a morality which allows one bowling alley to remain segregated, while another bowling alley down the street which serves sandwiches must allow Negroes to bowl. There may be constitutional limitations on what activities can be covered by Federal legislation, but the categories covered by title II of the reported bill are not based on constitutional limitations. In this respect the subcommittee bill, which would have covered virtually
all places of public accommodation, to the limit of the Federal Government's power to legislate, was clearly a better bill, and would have avoided many of the anomalous situations presented by the reported bill.
The broad title III of the subcommittee bill was deleted in the reported version in favor of a provision of more limited scope. Section 301 of the reported bill, relating to the power of the Attorney General to bring suit where a person has been denied the right to equal access to public facilities, derives from title II of the subcommittee bill. All that remains of the extensive title III of the subcommittee bill, which would have allowed the Attorney General to initiate suit in virtually any situation in which a person was deprived of his constitutional rights, is section 302 of the reported bill. This provision would allow the Attorney General to intervene in-but not to initiate any suit alleging denial of equal protection of the laws on account of race, color, religion, or national origin. Protection of the rights guaranteed to every American by our Constitution would depend on the complaint of persons who may not be able, because of lack of resources or ignorance, to bring suit, or who may be unwilling to bring suit because of intimidation or fear.
Title VII of the reported bill is inferior to the FEPC section of the subcommittee bill because its procedure is slower and more cumbersome. The administrative agency envisioned by the subcommittee bill, which would have been able to hold hearings and issue enforceable orders on a finding of discrimination in hiring or union membership, has been abandoned. Instead, the reported bill provides principally for a legal agency to bring court suit on behalf of any person who has been discriminated against. This system has all the disadvantages of a slow and costly court action in which a person denied employment because of his race may have to wait as long as 2 years for relief. It should be noted that that FEPC section in the subcommittee bill had already been reported favorably by the House Education and Labor Committee.
Once these differences and shortcomings are pointed out, however, it must be said that the civil rights bill now before the House is a good bill. Although its coverage is not as broad as some of us would like, in the areas with which it is concerned it is well drafted and designed to be effective.
Some of its features, particularly the three-judge court provision for expediting voting cases, may prove to be more effective than any of the earlier versions of the bill. In addition, several of the improvements made in the original version of the bill by the subcommittee are retained in the reported bill. These included using both the 14th amendment and the commerce clause as the authority for prohibiting segregation in places of public accommodation, allowing the Attorney General to initiate suits to desegregate all public facilities as well as schools, requiring that the Federal Government "shall take action" to prevent the use of Federal funds in support of segregated facilities (the original administration bill would have made action discretionary), making the Civil Rights Commission a permanent agency, and providing for review of the decision of a Federal district court to remand a civil rights case to the State court from which it was removed. For these reasons, I joined with my colleagues in voting out the