I might say the FCC is one of the worst offenders in this respect. I wish we had some of the guarantees and protections that we put into this law and into this proposal for the average individual in the FCC law-it just is not there. Mr. HARRIS. Mr. Chairman, will the gentleman yield? Mr. GOODELL. I yield to the gentle man. Mr. HARRIS. The gentleman has made a statement which I would respectfully ask him to review and to look at the Federal Communications Commission Act and determine if his statement is accurate. I think that he would then understand what the law is as the statutes provide. Mr. ROOSEVELT. Mr. Chairman, will the gentleman yield? Mr. GOODELL. I yield to the gentle man. Mr. ROOSEVELT. May I say to the distinguished chairman of the Committee on Interstate and Foreign Commerce, I think the difference is that under our statute we can go directly to the court while in the statute to which the gentleman refers, they must first go through all of the Administrative Procedure Act, and they cannot get into court until they exhaust every piece of administrative machinery available to them. Under our law, they can go directly to court. Mr. HARRIS. Mr. Chairman, will the gentleman yield? Mr. GOODELL. I yield to the gentle man. Mr. HARRIS. The gentleman is stating the facts incorrectly, if he knows what the proceedings are with regulatory agencies. The laws and the regulations of the FCC provide that a matter before the Commission can be appealed directly to the circuit court of appeals. The Federal Communications Commission Act itself says nothing about management being controlled by Government or the operation of matters concerning employment or personnel that come under the jurisdiction of the Commission. Mr. GOODELL. I appreciate the gentleman's contribution. I think every Member here has received a great many letters criticising the FCC's overzealous recordkeeping requirements. People are upset about it. I am glad to hear that you have the same kind of protections, to a degree at least, in the Federal Communications Commission Act that we are trying to guarantee in this act. I say to the gentleman and to my colleagues that this is a vital sector of title VII. I emphasize that we are creating Commission with very little authority of its own. This is unlike most of the commissions about which we complain and about which our constituents complain In those cases, the Commission itself can go in and make a finding and a determination of facts and when anyone goes to court to try to appeal that finding it is largely a futile and vain enterprise, because, if there is even a scintilla of evidence supporting the Commission's finding, the court will uphold those findings. This Commission would not have such power. This Commission is to be charged with a responsibility of investigating. If it finds facts which it believes justify further action, it may attempt to conciliate and thereafter take the matter to court. The Commission must prove the case in court. We should not deprive the Commission of its only real authority; that is, the right to lay down some general standards as to what kind of evidence must be preserved in order for the matter to be determined in court. To do so would completely strip the section of any effectiveness at all. This is a nice device to make the Commission completely ineffectual. I say that the Commission could not operate without this kind of authority. We have restrained the Commission in every way we could think of. We have made the requirement reasonable, necessary, and appropriate. We have permitted access directly to the court, if the Commission exceeds its authority. Before any regulations are set up, there will have to be public hearings. The burden will be on the Commission to prove its case. If this Commission were like most commissions now set up under the law, the burden would be on the employer himself to prove himself innocent. That would not be the case in regard to this Commission. The burden is to be completely on the Commission to go to court and prove that discrimination has taken place. The charge would have to be made within 6 months of the occurrence. Thereafter the recordkeeping problem would not occur. I hope the section will be upheld and the amendment Gefeated. The CHAIRMAN. The question is on the amendment offered by the gentleman from Virginia [Mr. SMITHÌ. The question was taken; and on a division demanded by Mr. KYL) there were--ayes 61, nocs 135. So the amendment was rejected. C. CONGRESSIONAL DEBATE ON TITLE XI Title XI of the Civil Rights Act of 1964, which has the label "Miscellneous," contains provisions that apply to Title VII, as well as other titles of the law. Section 1101, for example, provides for a trial by jury in any proceeding for criminal contempt arising under Titles II, III, IV, V, VI, or VII of the Act. Other sections deal with double jeopardy, intervention rights of the Attorney General, relationship to state laws, appropriations, and a saving clause. Pertinent excerpts of congressional debate on Title XI, as it relates to Title VII, follow. Title XI: In General EDITORS' NOTE: Commenting on Title XI, Senator Carlson (R., Kan s.) pointed out a number of things the law does not affect. Senate 5-11-64 p. 10520 TITLE XI The final title of the bill contains four sections dealing with technical matters. The first preserves existing authority of the Attorney General. The second preserves consistent State laws. The third authorizes the appropriation of funds necessary to carry out the provisions of the act. The final section stipulates, as is usual in comprehensive statutes, that the invalidity of any portion of the act shall not affect the validity of the remainder. Because many false and misleading claims have been made about the bill, it is most important to note what it does and does not do. The bill does not affect homes or apartments. The bill does not take away anyone's right to jury trial. To the extent it deals with Jury trial at all, the bill gives a right to jury trial where it would not otherwise exist. The bill does not tell businessmen that they must serve, or hire or fire any particular individual; retailers remain wholly free to refuse to serve the drunk, the disorderly, the unkempt, etc., and employers remain wholly free to hire, fire, and promote on the basis of ability and qualifications. All that is prohibited is discrimination on grounds of race, religion, or national origin. The bill does not cover all retailers. It applies only to certain designated places— hotels, motels, restaurants, lunch counters, gasoline stations, movie theaters, concert halls, and the like-all public commercial establishments which are established to serve, and invite the patronage of, the general public. The bill does not cover private clubs, professions, or service establishments. The bill does not create any hiring quotas. The bill does not affect union seniority. The bill does not require the firing of whites in order to hire Negroes. The bill does not affect social security or veterans' pensions or bank deposit insurance. The bill does not permit massive or wholesale cutoffs of Federal assistance. The bill does not give the Attorney General any unusual powers; he is authorized merely to sue in the Federal courts to enforce constitutional and other basic rights. The bill does not give great powers to the Federal Government-in every instance, first reliance is placed on State and local authorities to deal with illegal discriminatory practices. In short, all the bill actually does do, even in areas in which discrimination is most prevalent, is to try to assure for all of our citizens the rights and opportunities which most of us take for granted. Title XI: Jury Trial for Criminal Contempt-In General EDITORS' NOTE: In an exchange with Senator Javits (R., N. Y.), Senator Talmadge (D., Ga.) explained his objections to the jury-trial provisions of the Mansfield-Dirksen substitute amendment. In Senator Talmadge's view, everyone charged with criminal contempt, in all courts and in all matters, should be accorded the right to trial by jury. Senate 5-5-64 p. 10085 I ask the Senator, if it is not true that under his amendment, a man could be sent to jail by a judge, without a jury? Mr. TALMADGE. Certainly, for civil contempt. I told the Senator that a moment ago. Mr. JAVITS. Does the Senator believe that there is an effective remedy in a situation in which a registrar unlawfully refuses to register a voter in spite of a court order directing the registrar to register the voter-if the election for which the voter sought to register is held, and he is unable to vote? Mr. TALMADGE. Certainly there is. Mr. TALMADGE. I point out also that there are six criminal statutes which guarantee the right to vote, and which make it a criminal offense, without the establishment of criminal contempt. Mr. JAVITS. That is the fundamental argument of the Senator against the bill. It does not relate to the particular situation under discussion-that if the bill is passed and the order is violated, the particular situation which I have described is irremediable. The only thing that can be done is to punish the man. Mr. TALMADGE. If the court issues an order, he has the power to detain the defendant until he complies with the order. The defendant has the keys to the jail in his own pocket. He can release himself when he complies with the order of the court. But what we are discussing is a situation in which a judge makes up his mind to punish a defendant. In some instances, defendants have been put in jail for criminal contempt for 4 years without a jury trial. The Senator from Georgia does not believe that that comports with the liberty expressed in our Constitution, in our courts, or in the traditions of America. Mr. JAVITS. Is it not a fact that a defendant could be jailed for 4 years if he did not comply with an order of the court in a civil contempt case? Mr. TALMADGE. Of course. But he could release himself from contempt in a civil contempt case, as the Senator knows. Mr. JAVITS. Where a registrar has been charged with violating an order of the court pertaining to registering a person to vote, is it not possible for the defendant to purge himself of contempt after the election has been held; and would that not end the matter? Mr. TALMADGE. The remedy provided in such a situation is the use of the six criminal laws already on the statute books. Mr. JAVITS. The Senator is arguing that he does not want this bill passed at all, really? Mr. TALMADGE. There are already six criminal statutes on the books. The Senator from Georgia is saying that the Federal Government should enforce the statutes which are already on the statute books relating to civil rights. Mr. JAVITS. Does the Senator feel that the amount of punishment which is specified in the Mansfield-Dirksen substitute amendment does or does not represent the limitations which we normally, as lawyers, consider punishment for a petty offense? Mr. TALMADGE. No. I do not believe that the constitutional right of a trial by jury ought to be weighed in terms of a difference of 1 cent, or 1 second. As the Senator knows, under the Mansfield-Dirksen substitute, if a judge put a man in jail for 30 days and 1 second, he would be entitled to a jury trial. But if he put him in jail for 30 days, he would not be entitled to a jury trial. As the Senator knows, under the Mansfield-Dirksen substitute, if the fine were $300, he would not be entitled to a jury trial. But if the fine were $300.01, he would be entitled to a jury trial. I do not think we can weigh justice on any such basis as that. I point out further that under that substitute, a judge would have to pretry the case. First, he would have to make up his mind whether he would hold a hearing for criminal contempt. Then, when he made up his mind that he was going to hold a hearing for criminal contempt, before he even proceeded to the hearing he would have to say, "What am I going to do with this defendant?" He would have to make a determination as to the guilt or innocence of the defendant. Third, he would have to make a determination as to the sentence he was going to impose. When he did that, he would have decided whether he was entitled to a jury trial. Mr. JAVITS. Mr. President, I was rather surprised to hear the Senator start his answer to my question by making the point that there was a constitutional right to a trial by jury in criminal contempt cases. It is my understanding that the Senator from Georgia did not contend that to be the case. Mr. TALMADGE. The Court has so held by a 5-to-4 decision, as the Senator knows. But it does not comport with the idea of justice of the Senator from Georgia that a man can be put in jail as punishment for what a judge considers to be a crime, for 4 years, without a trial by jury, while any citizen is entitled to a trial by jury if he is litigating about any commodity worth more than $20. Mr. JAVITS. But it does comport with the Senator from Georgia's idea of justice to keep a man in jail for 4 years if he does not comply with an order of the court, if it is civil contempt, without a trial by jury. it and I am sure the Senator will correct me if I am in error-covers the whole ambit of the Federal Code with respect to orders of courts which may be violated and a violation would constitute a criminal contempt. Can the Senator tell us why, in drafting his amendment, he did not confine it to the civil rights bill which the Senate is trying to pass? Mr. TALMADGE. Because I believe that all who are charged with criminal contempts, in all courts, in all matters, are entitled to jury trials. Mr. JAVITS. In short, the Senator would make a broad scale revision of Federal law in the bill, would he not, affecting every branch of law, other than those which are specifically affected by the Clayton Act, the Landrum-Griffin Act, the Norris-La Guardia Act, and the Civil Rights Act of 1957? Mr. TALMADGE. That is correct. I want to have justice under the law and in accordance with what I think our forefathers intended in the Constitution; namely, that no person shall be tried for a crime except by a jury of his peers. Mr. JAVITS. Does the Senator feel, as a lawyer, that a court ought to have, in and of itself, without recourse to any other body, including a jury, the power to invoke some minimal deterrent or punishment when the violation of an order is irremediable by a civil contempt proceeding? Mr. TALMADGE. Congress did not think so in the four statutes just enumerated by the Senator from New York; neither does the Senator from Georgia. The Senator from Georgia believes equity powers can be enforced by the court under civil contempt. The Senator from Georgia points out, further, than in one or two of the statutes mentioned by the Senator from New York, even one accused of civil contempt is entitled to trial by jury. I believe that is true of the Clayton Act and, of the Norris-La Guardia Act, also. Mr. JAVITS. But Congress has not changed, unless it would do so pursuant to the Senator's amendment, the whole range of Federal law which is affected by court orders and other actions that have been specifically mentioned. Mr. TALMADGE. I would hope the Senate would do what it did in 1957, when it passed the identical amendment, paragraph by paragraph, page by page, line for line. |