An idea whose time has come: a comparative procedural history of the Civil Rights Acts of 1960, 1964, and 1991.

• Author: Gueron, Nicole L.

The congressional enactment of legislation involves many elements. Some are well known and well publicized: the clashes of personality, the cautious attention to public opinion and political ramifications, and the place of a bill within the larger political agenda of an administration or a legislature. Less visible, but no less influential, are the procedural mechanisms relied upon by members of Congress to transform a legislative aspiration into a binding law of the United States. A full analysis of the legislative process requires an understanding of the ways lawmakers use procedural tools to outmaneuver one another. Furthermore, procedure can be especially critical in the passage of legislation that addresses controversial issues such as race and civil rights, for legislators can escape public criticism or accountability by using procedural intricacies to mask the content of particular votes or committee recommendations. As Charles Tiefer, Deputy General Counsel to the Clerk of the House of Representatives, asserts, "Congressional procedure is the language of legislative action; its central aspects . . . have at least the meaningfulness and the importance--if not more--possessed by civil procedure as the language of the courts and international law as the language of diplomacy."(1)

Despite congressional procedure's important effects on the passage of bills, laws are frequently analyzed without any discussion of their procedural histories. Almost every published study of the Civil Rights Act of 1991(2) overlooks entirely the procedural events in the bill's evolution. Given the remarkable political events surrounding the Act's passage, perhaps it is not surprising that the few existing discussions of the bill's procedural history seem to begin and end with two names: Anita Hill and David Duke.(3) Yet such a concentrated focus on the public political events of autumn 1991 ignores the vital procedural mechanisms that directed and shaped the 102d Congress and the 1991 Civil Rights Act. This Note uses the procedural history of the 1991 Act to demonstrate the power of congressional procedure in shaping legislation.

We cannot fully understand the passage of the 1991 Act without studying its procedural history; neither can we understand that procedural history without an examination of the origins of the procedural rules that shaped it. Many of the rules under which the 102d Congress operated were the products of significant procedural reforms of the 1970's. As numerous studies of Congress and legislation in the 1960's and 1970's demonstrate, these reforms grew out of the dissatisfaction of liberal members of Congress with the disproportionate power of Congress' "conservative coalition,"(4) which had greatly obstructed the passage of measures such as the Civil Rights Acts of 1960(5) and 1964.(6) The ensuing liberal procedural reforms diminished the power of the conservative coalition by weakening the political power of its Southern Democratic members through changes in the seniority and committee leadership systems, cloture rules in the Senate, and the composition of the House Rules Committee.

This Note analyzes the procedural history of the Civil Rights Act of 1991 in comparison with the procedural histories of the 1960 and 1964 Civil Rights Acts in an effort to highlight the procedural reforms that took place within Congress in the intervening years and their impact on the passage of legislation. Because the 1991 Civil Rights Act had direct analogues in 1960 and 1964, it provides a useful test case for comparing two eras of legislative activity to see whether the procedural reforms of the 1970's made a difference in the passage of legislation. Part I of this Note recounts the procedural history of the Civil Rights Act of 1991. Part II describes, more briefly, the procedural histories of the Civil Rights Acts of 1960 and 1964. Part III focuses on specific procedural reforms of the 1970's and their impact on the 1991 civil rights legislation, through comparisons to the procedural maneuvers of 1960 and 1964. Part IV concludes that reforms concerning seniority, committee organization, and the House Rules Committee had a significant impact upon the passage of the 1991 Civil Rights Act, and increased the overall representativeness of Congress.

1. A PROCEDURAL HISTORY OF THE CIVIL RIGHTS ACT OF 1991

   On January 3, 1991, Representative Jack Brooks (D-Tex.) introduced House Bill 1 (H.R. 1), the Civil Rights and Women's Equity in Employment Act of 1991, on the floor of the House of Representatives.(7) The bill was given the number H.R. 1 to symbolize its prominence on the legislative agenda and to underscore its need for immediate momentum,(8) and was referred to both the Judiciary Committee and the Education and Labor Committee.(9) H.R. 1 closely resembled Senate Bill 2104 (S. 2104), the Civil Rights Act of 1990, which had passed both chambers of Congress the year before only to be vetoed by President Bush and fail in an override attempt.(10) The 1991 bill differed from the 1990 bill in a few of its specifics, including language defining the "business necessity" requirement of disparate impact suits(11) and the damages provision for intentional discrimination.(12) The 1990 bill had created a punitive and compensatory damages remedy under Title VII of the 1964 Civil Rights Act for victims of intentional discrimination;(13) a $150,000 cap on these damages had been added to the 1990 bill as a compromise during the legislative battle.(14) In 1991, however, the sponsors of H.R. 1 chose to introduce the civil rights bill without the damages cap.(15) The Bush Administration followed a similar strategy in proposing its version of the 1991 Civil Rights Act, H.R. 1375, moving away from compromise positions it had accepted in 1990.(16) In the words of Representative Bill Goodling (R-Pa.), ranking Republican of the House Education and Labor Committee: "'[The Democrats] started more to the left. We started more to the right.'"(17)

   The 1991 Civil Rights Act moved rapidly through its first House committees under the guidance of their chairmen.(18) On March 12, the House Education and Labor Committee, chaired by Representative William D. Ford (D-Mich.), approved H.R. 1 by a voice vote.(19) The House Subcommittee on Civil and Constitutional Rights, chaired by Representative Don Edwards (D-Cal.), also approved the bill on the same date.(20) The bill was then approved by the full Judiciary Committee on March 19 by a vote of 24 to 10,(21) with the support of all the Committee's Democrats and three Republicans, including the Committee's ranking minority member, Representative Hamilton Fish, Jr., of New York.(22) Both the Education and Labor Committee and the Judiciary Committee rejected the substitute versions of the bill proposed by committee Republicans for the Bush Administration.(23) Remaining differences between the Education and Labor Committee and the Judiciary Committee versions of the bill were to be reconciled in the House Rules Committee.(24)

   The Civil Rights Act's smooth progress through Congress was to end there. Since December of 1990, civil rights activists had been negotiating over the bill's language with the Business Roundtable, a coalition representing about 200 large U.S. corporations, in the hope of crafting an acceptable compromise that the two-thirds of Congress needed to override a near-certain presidential veto could support.(25) On April 9, White House Counsel C. Boyden Gray informed the negotiating business leaders of the Bush Administration's disapproval of the talks;(26) the talks broke down several days later. Negotiators on both sides later charged that the talks had been scuttled by the White House, specifically by C. Boyden Gray and Chief of Staff John Sununu.(27) Hopes for a bipartisan, White House--supported civil rights bill were shaken, and the bill's passage seemed in jeopardy.

   In the next month, several compromise versions of the Civil Rights Act were developed, including a substitute proposed jointly by Representative Brooks, chairman of the House Judiciary Committee and lead sponsor of the bill, and Representative Fish, ranking minority member of the House Judiciary Committee. The substitute, announced on May 2,(28) included three important provisions. First, it added a provision explicitly stating that the bill neither required nor permitted quotas. Second, it reinserted the cap on punitive damages available for intentional sex discrimination that had passed both chambers in 1990. Third, the Brooks-Fish substitute altered the language concerning the "business necessity" defense available to defendants in disparate impact lawsuits.(29)

   The House Rules Committee convened on May 29 and 30 to write a Rule for H.R. 1.(30) Judiciary Committee Chairman Brooks and nine other Representatives testified before the committee at that time.(31) The resulting Rule--House Resolution 162 (H.R. Res. 162)--provided for the House to resolve itself into the Committee of the Whole(32) for three hours of general debate on the bill, to be equally divided between the minority and majority parties.(33) The Rule then called for the amendment process to begin, with only three substitute amendments in order, and no amendments in order on those amendments.(34) The amendments would be considered in a "King of the Hill" fashion, meaning that whichever of the proposed substitute amendments passed last would prevail.(35) The three substitutes would be voted upon in specified order: first, the Towns-Schroeder substitute, which replaced H.R. 1 with the original, more liberal, version of the Civil Rights Act that had passed the House Education and Labor Committee in 1990; second, the Michel substitute, proposed by House Minority Leader Robert H. Michel (R-Ill.), which replaced H.R. 1 with H.R. 1375, the Administration's bill; and, last, the recently developed Brooks-Fish compromise substitute.(36) After votes on all three...