warrants endeavors to correct the situation by conciliation, by persuasion, by a conference, or any informal action in an effort to settle the matter.

Mr. ERVIN. It says:

If two or more members of the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall

The bill says nothing about the identity of the Commissioners who are to make the investigations to determine whether the charge is true. It merely specifies that two or more Commissioners shall make the investigation and decision. As a consequence, the Commission acts through two Commissioners, one of whom may be the very man who preferred the charge in the first place.

Mr. CASE. I am sorry. We cannot disagree about plain language, and this language is not very abtruse about what happens. One man can start it off by a charge. Then, following an investigation, two members may decide there is reasonable cause to believe there has been discrimination. The Commission then attempts to settle the matter by conciliation and persuasion.

Mr. ERVIN. Yes. The decision is to be made by two Commissioners, one of whom may be the man who preferred the charge. I think it is expecting too much of human nature to believe that a public official can make a charge and then be depended upon to make a proper determination of whether the charge is true or false.

Mr. CASE. It requires a majority of the Commission to decide whether to prosecute; that is, to bring an action. A majority of the Commission must do this. The other steps relate to the conciliation and persuasive functions of the Commission.

Mr. ERVIN. Will the Senator point out to me any words which provide that the truth or falsity of the charge shall be investigated by the full Commission, distinguished from two Commis

as

sioners?

Mr. CASE. The language is very clear in a separate section from the section dealing with conciliation. I refer to section (b) at the bottom of page 40.

If the Commission has failed to effect the elimination of an unlawful practice and to obtain voluntary compliance with this title, the Commission, if it determines there is reasonable cause to believe the respondent has engaged in, or is engaging in, an unlawful employment practice, shall, within 90

days, bring a civil action to prevent the re spondent from engaging in such unlawf practice.

Mr. ERVIN. What is there to prevent the Commission from basing its conclusion solely upon the investigation and decision made by the two Commissioners?

Mr. CASE.

The Senator is suggesting pure malevolence on the part of two individuals who are employees of the United States. I can see no reason for that. It is similar to saying that a single prosecutor, on his own motion, if he does not like the color of a man's eyes, can determine to bring an action.

Mr. ERVIN. That may not disturb the Senator from New Jersey. It does disturb me. I wish I had time to read a of the opinion of the court in the Wong Yang Sung case and the statements of the congressional committee quoted in it The quoted statements certainly state that it is essential to the proper administration of justice that the functions of prosecutor and judge should be separated.

Mr. CASE. And I agree with that right down to the ground; and this title does not involve any violation of ths: principle, because the function of the judges are exercised only by the courts of the Nation, and would not be exercised by the Commission, which would be only a party plaintiff, without the benefit of any presumption of validity attached t any finding it might make. It wouk have to start de novo, and would haw to prove its case by a preponderance of the evidence introduced into the court record.

Mr. ERVIN. But the question of whether the proceedings would ever go into court depends on the Commission's decision

Mr. CASE. Just as the question of whether a case will be brought in court depends on the decision of the prosecutor, if he proceeds by way of presentstion, rather than by indictment.

Mr. ERVIN. I invite the Senator's attention to the text of subsection (c), on page 41:

(c) If the Commission has failed or de clined to bring a civil action within the time required under subsection (b), the perso claiming to be aggrieved may, if one member of the Commission gives permission writing, bring a civil action to obtain relie as provided in subsection (e).

My question is this: Could not the er tire Commission, after investigating the matter, and there is absolutely no mer

whatever in the claim that there had been discrimination; and yet a single Commissioner could give the claimant authority to go into court and to harass the employer by filing a suit?

Mr. CASE. I think all the Senator from North Carolina is saying is that the bill would prohibit the harassment of employers, except in the unusual situation in which permission was given by a Imember of the Federal agency. Ordinarily, one who violates a law is subject to being sued, without let or hindrance, by the individual affected.

But the bill would not allow a plaintiff to go into court in a case of this sort to file suit against an employerunless he obtained the permission of one member of the Commission to bring the suit. Generally speaking, no one can tell a citizen whether he can or cannot bring a suit; a citizen who feels that he has been aggrieved is the one to make the decision as to whether he will sue.

Mr. ERVIN. But is it not true that, under the bill, one member of the Commission can grant a claimant the right to sue, notwithstanding the fact that all the Commissioners had decided there was no merit to the claim?

Mr. CASE. They might have decided that, or they might have decided that t would not serve the public interest. They might have reached the conclusion that they did not have enough time to deal with such a suit. On the other hand, they might be very happy to have the suit brought. Generally in other areas of law, the decision of only one nan-the plaintiff-is required, in order o have a suit brought; but under the bill, one more man would be involvedn other words, the permission of one member of the Commission-before the suit could be brought.

Mr. ERVIN. But I point out that no suit could be brought at all on such a cause of action under existing Federal

aw.

Mr. CASE. Well, Mr. President, if the Senator from North Carolina wants Conress to pass a law to deal with discrimination—

Mr. ERVIN. I do not want such a law passed by Congress.

Mr. CASE. I know the Senator from North Carolina does not want it.

Mr. ERVIN. I want those who are engaged in business to be allowed to determine whom they shall employ. They are far better qualified than the Federal Government to know the skills they are seeking to obtain for their business. I believe in free enterprise-not bureaucratic control of business.

The pending bill would remove the power from employers to hire, promote, and discharge their own employees.

Mr. CASE. The Senator from North Carolina knows that is not correct. He knows that the bill provides only that such a decision could not be made on the ground of the color of a man's skin or his national origin or his creed. If the Senator from North Carolina wants to take issue on that basis, I am perfectly willing to take issue on it, and to let the public decide. But let us not fool ourselves in regard to what the bill would do.

Mr. ERVIN. But certainly, on the basis of the provisions of the bill, those rights would be taken away from employers.

Mr. CASE. The bill would only make it illegal for an employer to discriminate on the ground of the color of a man's skin or his national origin or creed.

Mr. ERVIN. The bill would vest that power in a Government employee who might not know what was the top of the machine and what was the bottom of the machine at which the employee he was selecting would work.

Mr. CASE. I suggest that the bill would take effect only when the employer had knowingly discriminated against an employee or a prospective employee because of race, color of the skin, creed, or national origin; and I think it not unreasonable for the bill to provide that the Commission can intervene when such a situation has been proven to exist for years throughout the Nation.

I wonder whether the Senator from North Carolina has completed his questions-because other Senators wish to

speak.

Senate

6-17-64

pp. 14186-14192

Mr. ERVIN. Mr. President, I call up my amendment No. 590 and ask unanimous consent that the reading of the amendment be omitted.

Mr. PASTORE. Mr. President, may we have order?

The PRESIDING OFFICER. The Senate will be in order. The Senator is entitled to be heard.

Mr. RUSSELL. Mr. President, I object to dispensing with a reading of the amendment. I do not know what is in

the amendment.

Mr. ERVIN. I was about to explain

it.

The PRESIDING OFFICER. Objection having been heard, the amendment of the Senator from North Carolina will be stated.

The LEGISLATIVE CLERK. Beginning with the comma in line 5, page 50, strike out all to and including the word "occurred" in line 8, page 50, as follows: "or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this title has occurred".

Mr. ERVIN. Mr. President, I yield myself such portion of my unconsumed 10 minutes as I may require.

The PRESIDING OFFICER. The Senator from North Carolina is recognized.

Mr. ERVIN. Mr. President, I ask for the yeas and nays.

The yeas and nays were ordered.

Mr. ERVIN. Mr. President, the amendment would strike out the portion of title VII which would permit a member of the Equal Employment Opportunities Commission to file a charge of discrimination against an employer. It is a prostitution of the judicial process to combine the role of prosecutor with that of judge. This is what the provision I seek to delete would do.

Some years ago President Truman appointed a Commission on Administration Management, which studied the question of Federal departments and agencies excrcising quasijudicial power. The Commission made a report, a portion of Supreme Court of which was quoted with approval by the United States in the case of Wong Yang Sun v. McGrath, 339 U.S. 33.

Mr. RUSSELL. Mr. President, may we have order?

The PRESIDING OFFICER. The Senate will be in order. Senators who desire to talk will please retire to the cloakroom. The Senate will suspend until there is order in the Chamber. The Senator is entitled to be heard. Senators who do not wish to listen may retire to the cloakroom.

Mr. ERVIN. Mr. President, in the opinion of the Court, which was written by one of the ablest judges this country has known, Justice Jackson, the Supreme Court quoted with approval words which constitute the most effective argument why my amendment should be adopted.