The legislative clerk read as follows: On page 35, between lines 20 and 21, insert the following new subsection:

"(h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice (1) for an employer to hire any individual, or for an employment agency or labor organization to refer for employment, at the request of an employer, any individual, of a particular race, color, religion, sex, or national origin, in those certain instances where the employer involved believes, on the basis of substantial evidence, that the hiring of such an individual of a particular race, color, religion, sex, or national origin will be more beneficial to the normal operation of the particular business or enterprise involved or to the good will thereof than the hiring of an individual without consideration of his race, color, religion, sex, or national origin, or (2) for an employer to fall or refuse to hire any individual in those certain instances where the employer involved belleves, on the basis of substantial evidence, that the hiring of such individual would not be in the best interests of the particular business or enterprise involved, or for the good will thereof."

Mr. MCCLELLAN. Mr. President, I ask that the amendment be modified so as to read:

On page 45, between lines 13 and 14, insert the following new subsection: “(k)".

The PRESIDING OFFICER. The amendment will be so modified. Mr. MCCLELLAN. On my amendment, I ask for the yeas and nays.

The yeas and nays were ordered. Mr. MCCLELLAN. Mr. President, I yield myself 2 minutes.

The amendment permits the hiring by an employer, or by an employment agency or labor organization to refer for employment at an employer's request, of any individual of a particular race, color, creed, or religion, when the employer believes, on the basis of substantial evidence, that the hiring of such an individual of a particular race, color, religion, sex, and so forth, would be more beneficial to the normal operations of his particular business or to its good will than the hiring of an individual of another particular race, color, or creed; and it would also permit an employer to fail or refuse to hire any individual under the same circumstances.

The provisions of the bill as now written, which this amendment is designed to amend, are destructive of property rights and are confiscatory in their consequences; therefore, these provisions should be eliminated. The present provisions of the bill constitute an infringement on personal liberty, denying to the employer the right to exercise his judgment in his own business affairs as to whom he might employ to help him carry on his business and whom he might employ to make the business more prosperous.

The PRESIDING OFFICER. The time of the Senator from Arkansas has expired.

Mr. MCCLELLAN. Iyield myself half a minute.

The provisions of the bill are also coercive, in that they deny to the individual who has created a business the freedom of choice to employ his assistants and those who will be associated with him in carrying on the business.

Without this amendment, the bill as now written constitutes destruction of the right of a person to be free in the United States.

The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Arkansas. The yeas and nays have been orderedMr. MCCLELLAN. Mr. President, I note the absence of a quorum.

Mr. CASE. Mr. President, will the Senator withhold his suggestion of the absence of a quorum?

Mr. MCCLELLAN. I am glad to do so. Mr. CASE. Mr. President, I yield myself half a minute.

The issue is clearly drawn by this amendment. The Senator from Arkansas does not believe in the FEPC title of the bill and would eliminate them, in effect, by the provisions of his amendment. I think there is no question about that.

We who believe in fair employment practices and the intervention of the Federal Government in this field to the extent provided for by the leadership amendment must resist the amendment of the Senator from Arkansas with all our power, because it would destroy the bill.

Mr. MCCLELLAN. Mr. President, I yield myself half a minute.

I intended no subterfuge, no deception. I think the terms of the bill as they are now written are abhorrent to our sense of freedom, justice, and human liberty; therefore, I oppose them and ask that they be eliminated.

Mr. CASE. Mr. President, I yield myself 5 seconds.

The Senator from New Jersey never suggested any dissembling on the part of the Senator from Arkansas.

Mr. MCCLELLAN. I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk called the roll, and the following Senators answered to their names:

The PRESIDING OFFICER (Mr. KENNEDY in the chair). A quorum is present. The question is on agreeing to the amendment of the Senator from Arkansas [Mr. MCCLELLAN].

On this question, the yeas and nays have been ordered; and the clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. WALTERS (when his name was called). On this vote, I have a pair with the Senator from Maryland [Mr. BREWSTER]. If the Senator from Maryland were present and voting, he would vote "nay." If I were at liberty to vote, I would vote "yea." I withhold my vote. The rollcall was concluded.

Mr. HUMPHREY. I announce that the Senator from Maryland [Mr. BREWSTER] is absent on official business.

I also announce that the Senator from California [Mr. ENGLE] is absent because of illness.

I further announce that the Senator from Pennsylvania [Mr. CLARK] and the Senator from Texas [Mr. YARBOROUGH] are necessarily absent.

I further announce that, if present and voting, the Senator from California [Mr. ENGLE] and the Senator from Pennsylvania [Mr. CLARK] would vote "nay."

Mr. KUCHEL. I announce that the Senator from Kentucky [Mr. COOPER] and the Senator from Illinois [Mr. DIRKSEN] are absent on official business.

The Senator from Texas [Mr. ToWER] is necessarily absent.

The Senator from Arizona [Mr. GOLDWATER] is detained on official business. If present and voting, the Senator from Kentucky [Mr. COOPER] would vote “nay.”