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court will interpret next year. Judicial flexibility has supplanted judicial consistency and precedent is readily sacrificed to expediency under the banner of "modern adaptability." Even with respect to the most tightly drawn statute, legislative intent as reflected in legislative history, is with the greatest facility, misinterpreted by the courts. When the statute is loosely drawn, vague, ambiguous and obscure, the judicial branch is handed a blank check, signed by the legislative branch.

For these reasons, because the Judiciary Committee never fully considered the exact version of the bill reported to the House, and because it is impossible to do on the floor of the House the work the Judiciary Committee should have done, legislative prudence dictates that this bill be recommitted.



As a member of Subcommittee No. 5 of the Judiciary Committee which considered the civil rights matter for many months, I submit these additional individual views:


In early 1963 the administration recommended a comparatively innocuous civil rights bill calling principally for continuation for 4 years of the Civil Rights Commission and a voting rights title. Administration bill

In June 1963, the President sent a second message calling for a broad civil rights package that was introduced as H.R. 7152 on June 19. This bill was attacked by many as being the broadest civil rights bill proposed in history and unduly injecting the Federal Government into new, potentially dangerous areas of activity. H.R. 7152 contained the following basic provisions:

1. A voting rights title prohibiting differing standards, outlawing denial of voting because of "immaterial" errors, requiring literacy tests to be in writing, creating an absolute presumption of literacy for those with a sixth grade education where "instruction is carried on predominantly in English," and empowering the Attorney General to petition upon his certification that less than 15 percent of a racial group is registered to vote for the appointment of a temporary referee who could register voters even before a finding of a pattern or practice of discrimination had been found to exist by the court.


2. A broad public accommodations section, based upon the interstate commerce clause and thus covering any lodging that served transient guests, any motion picture or amusement where its entertainment "customarily moves in interstate commerce,' any restaurant or other retail or service establishment where it affects or is affected by interstate commerce. The Attorney General was empowered to bring suit on behalf of any aggrieved party.

3. A public education title providing for educational surveys, technical assistance, grants, and loans to assist in desegregation and racial imbalance, and empowering the Attorney General to initiate court action.

4. Establishment of community relations service.

5. Extension of Civil Rights Commission for 4 years, with additional powers to serve as a national clearinghouse, and to provide technical and advisory services and increasing subpena powers.

6. Discretionary power in the President to carry out a declaration that no law providing Federal assistance by "grant, contract,

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loan, insurance, guarantee, or otherwise," shall require such assistance to be furnished in circumstances in which persons are discriminated against.

7. Gave the President's Committee on Equal Employment Opportunity, dealing in the field of Government contracts, legislative sanction.

Hearings were held on this bill until August when subcommittee markup of the bill commenced. This proceeded for about 6 weeks until September 25, 1963, the day the vote on the tax bill took place, and every indication was given until then that the bill would be considered on an impartial, bipartisan basis and in an attempt to write as good a bill as possible.

When the tax bill was passed the mood and modus operandi noticeably changed. The majority on the subcommittee submitted previously prepared amendments, many of which had not been theretofor considered; they were crammed through and a much stronger bill emerged than the very strong bill recommended by the administration.

Out of this display of partisan "we've got the votes" bulldozer procedure in subcommittee emerged the subcommittee bill about which the "civil libertarians" bragged as being the foremost bill in this field in the history of Congress.

Subcommittee bill

The subcommittee bill contained entirely new provisions, such as: 1. A compulsory FEPC title.

2. A broad, catchall 14th amendment approach to public accommodations.

3. Specific application of the voting rights title to State as well as Federal elections.

4. Unlimited powers of the Attorney General in a new title III to bring actions on behalf of aggrieved citizens to protect any constitutional or legal rights.

5. A new public facilities section providing the Attorney General with power to sue in cases involving denial of rights to full use of any facility "owned, operated, managed, controlled, or supported" by a public authority.

6. Made mandatory withholding of any Federal "grant, contract, loan insurance guarantee, or otherwise" with power to force compliance by injunctive process and providing for only limited review through the Administrative Procedure Act.

7. Provided for a voting census as a basis for considering in the future the possible implementation of the 14th amendment, which provides for withdrawal of congressional representation from a State that discriminates.

8. A right of appeal but only in civil rights cases was provided on a remand order issued by a district court sending the case back to the State court.

This subcommittee bill, which became known as the committee print (No. 1 of H.R. 7152) dated October 2, 1963, thus contained some eight major further "strengthening" amendments to the already extremely strong administration bill.

Thus, on October 2 the full Judiciary Committee commenced executive hearings on the subcommittee bill.

The Attorney General's position

The Attorney General appeared before the committee and disowned a few of the eight major strengthening amendments but embraced a majority of them, thus setting the stage for a bill much stronger than the administration recommendations of June 20 embodied in the original H.R. 7152. The Attorney General refused to recommend deletion of the following:

1. Compulsory FEPC.

2. A revised 14th amendment broad approach to public accommodations (in reply to questions).

3. Powers of the Attorney General to bring suits on behalf of aggrieved persons in specific cases.

4. Public facilities new title.

5. Mandatory rather than discretionary withholding of Federal funds.

6. Voting census taking.

7. Appeal on remand order of only civil rights cases.

Therefore, in each of these respects the Attorney General upheld the basic action of the subcommittee and despite the impression generally given in the press to the contrary he testified in favor of a bill much stronger than the original administration bill.

In all fairness, the Attorney General did testify that he thought the new title IIl was too broad, while at the same time maintaining that there were cases in which he should have the right to sue on behalf of the aggrieved party and despite the fact that Congress defeated title III in 1957. Likewise, however, the Attorney General, after issuing a statement to the press that he thought the 14th amendment approach to public accommodations was of questionable constitutionality he recommended its retention in amended form during interrogation. Also, he was violently opposed to the subcommittee's sound amendment providing for impounding the votes in temporary referee cases under the voting rights, title I, which was one of the few "softening" amendments adopted in subcommittee. In this latter instance, then, he testified for a bill stronger than the subcommittee bill.

Thus the ground shifted on the entire civil rights question from a possible compromise between the administration bill as originally introduced, which many thought was too tough, and a more moderate approach. A so-called compromise bill in some instances is broader than the subcommittee bill.

When it became obvious that the full committee was not going to try to perfect the subcommittee bill, which became apparent when the first amendment offered to delete State elections and limit title I to Federal elections and in that respect return the title to the administration's original version was withdrawn, the Moore motion was offered to report out the subcommittee bill in hopes that the House, in working its will, would give fair and reasonable consideration to the subject. It became obvious that the full committee did not intend to do the job.

The so-called compromise bill

A vote on the Moore motion was put off until Tuesday, October 29, after frantic efforts over the weekend by certain members of the Judiciary Committee to draft a so-called compromise with the obvious objective of offsetting the Moore motion.

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No purpose would be here served by a recitation of how the "compromise" was drafted or who participated in it. Although I was a member of the subcommittee that considered the matter for months, I was not invited to participate nor was I informed of its contents until 10:30 p.m. when a Justice Department messenger delivered my copy on the Monday before the Tuesday meeting. Thus, a new version, some 56 pages in length was "considered" at 10:30 on Tuesday It was read, discussed 2 minutes, without amendment, and without even points of order or parliamentary inquiries being recognized, and it was passed by 12 noon.

Such steamroller tactics on a subject of such vital importance when adequate time could have easily been allowed for full discussion, amendments, and consideration of this 56-page substitute (which is now known as Committee Print No. 2) and which drastically differed from any bill previously considered, and which contained some provisions on which no hearings were held, cannot be permitted to occur without calling them to the attention of the public unless we are to abdicate our individual rights under the rules of the House or unless we are to be accused of tacitly acquiescing in such procedures by failing to expose them. For that reason I reiterate this brief analysis of the legislative history of H.R. 7152.

The legislative history is complete only upon consideration of what this so-called compromise contains, which can lead only to the inescapable conclusion that it is not much of a "compromise." It is substantially stronger than the original administration bill in a majority of the more important aspects. Let me cite a few examples:

1. Compulsory FÉPC remains with the slight modification of a right to a court trial de novo when the Commission brings such action, which it "shall" do when "discrimination" is found to exist (title VII).

2. The 14th amendment approach to public accommodations is not limited to the narrower definition of "establishment" under the interstate commerce approach and covers broad State "custom or usage" or where discrimination is "fostered or encouraged" by State action (sec. 201(d)).

3. A catchall new section 202 outlaws or preempts any law, "ordinance, regulation, rule, order of any State or political subdivision thereof" if it "purports" to require "discrimination or segregation." (This was not in either the subcommittee or the original bill.)

4. Desegregation of public facilities, title III, was retained from the subcommittee bill with power of the Attorney General to bring suits on behalf of the aggrieved.

5. A new version of the old title III of the 1957 civil rights bill, defeated by Congress, was included in section 302 which gives the Attorney General the power to intervene in any matter dealing with "equal protection of the laws." This was not in the original administration bill and has a broader application than even the 1957 title III.

6. Mandatory withholding of Federal funds, limited to "grants, contracts, or loans," but only with limited review under the Administrative Procedure Act was maintained under title VI.

7. The Civil Rights Commission was made permanent rather than on a 4-year extension as proposed in the administration bill.

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