- Table of Contents
- Executive Summary
- I. Creating the Commission
- II. The Commission’s Early Years
- III. The 60s: Laying the Foundation for Legislation
- IV. The 70s: School Desegregation and an Expanded Mandate
- V. The 80s: Dismantling the Commission
- VI. The 90s: The Commission Devolves
- VII. The Post-Millennial Commission
The Post-Millennial Commission
The commission’s last authorization expired at the end of 1996. Although attempts were made to reauthorize the commission over the next several years, no legislation was enacted. Instead, the commission continues to operate through the annual appropriations process. An opinion from the comptroller general’s office provides legal support for the commission to continue operating on this basis. However, without congressional authorization, the commission lacks a process for assuring its stability. The congressional debate in the mid-90s indicates that even the commission’s supporters remained troubled by the agency’s penchant for bickering over administrative matters in lieu of scholarly debate.126
Despite the managerial challenges described by the GAO and tensions among the commissioners themselves, the commission produced a number of significant reports in the last years of the Clinton administration. In the mid1990s, several SACs issued reports on a wave of church burnings that were occurring throughout the South. Other SACs conducted hearings and issued reports on racial and ethnic tensions in their states. The commission continued its own ongoing investigation into that subject as well, conducting hearings in Chicago, Los Angeles, New York, Washington, D.C., and Miami. Several SACs examined police-community relations in their communities and the commission issued a report in 2000 on Police Practices and Civil Rights in New York City. That same year it issued a report on the effectiveness of the Americans with Disabilities Act and a second report examining police-community relations throughout the country, Revisiting Who is Guarding the Guardians? A Report on Police Practices and Civil Rights in America.
In 2001, the commission released a draft report on the controversy surrounding the 2000 presidential election and allegations of voter disenfranchisement in Florida. While the report and the process by which it was released generated criticism from some in the media and within the commission itself, many of its findings were validated by subsequent reports, including one jointly prepared by the Massachusetts Institute of Technology and the California Institute of Technology and another by a consortium of newspapers that subsequently examined many of the same issues.127 Lost in the debate were some noncontroversial recommendations, including better training for poll watchers, upgraded voting equipment, and better resource allocation for voter education. The state of Florida adopted some the commission’s recommendations in time for the 2002 election cycle. During this same time frame, the commission continued to release periodic reports on federal civil rights enforcement efforts, including Bridge to One America: The Civil Rights Performance of the Clinton Administration in 2001 and Funding Federal Civil Rights Enforcement: 2000-2003.
However, congressional concern over the commission’s management practices persisted. In April 2002, the House Judiciary Subcommittee on the Constitution held another oversight hearing to examine whether the commission had fully implemented management reforms recommended by the GAO in 1997. Tension among the commissioners had increased over the years with respect to how projects were selected, the length of time for completion of projects, communication between staff and commissioners, and handling of dissents from commission reports and recommendations.128 By 2002, The Washington Post had concluded that the agency had become little more than a partisan battleground:
[the Commission’s early moral] authority began breaking down during the 1970’s, and the decline hastened during the Reagan administration, which sought to turn the commission’s ideological direction around and make it a voice for conservative policies. The result was a pitched ideological battle. And the battle has continued….129
Even some commissioners were skeptical about the agency’s ongoing viability. In a statement submitted to the subcommittee for the April 2002 hearing, Commissioner Jennifer C. Braceras acknowledged that prior to her appointment to the commission by President George W. Bush, she had published an article in The Weekly Standard stating that the commission had outlived its usefulness. The article went on to express Braceras’ view that "the politicization of the commission and its work has greatly compromised the Commission’s integrity and intellectual honesty, thereby rendering the Commission irrelevant." Nevertheless, when asked to join the commission, she accepted on the grounds that she might "contribute to efforts to impose greater discipline and oversight to Commission management, and thereby help to promote a new era of civility and bipartisanship in discussions regarding civil rights."130
Testimony submitted by Staff Director Les Jin addressed the criticisms aimed at the commission by pointing to the commission’s recent record of accomplishments, including the reports on police-community relations, the Americans with Disabilities Act, and civil rights enforcement under the Clinton administration, as well as additional work on the racial and ethnic tensions project. He also placed the management issues in the context of long-standing congressional concerns dating back to the 1980s as well as the commission’s budget constraints. The commission’s appropriation had remained stagnant for nearly a decade. Commissioners and staff directors throughout this period testified in Congress about the impact that this "flat-line funding" had on the commission’s ability to accomplish its mission.131
Although no further oversight hearings were held until March 2005, the GAO continued to look into the commission’s activities and - according to one of the commission’s congressional overseers - staff of both the House and Senate Judiciary Committees were actively conducting investigations as well. In October 2003, the GAO reported that the commission lacked good project management and transparency in its contracting procedures. A year later, the GAO recommended improved strategic planning and increased oversight. In early 2005, the GAO again found deficiencies in financial management and internal controls. The 2005 report contained 39 recommendations to the commission to strengthen its overall financial management and internal controls.132
In March 2005, the House oversight subcommittee held a hearing on the most recent GAO report. By the time of the hearing, there had been major changes in the commission’s membership and leadership. The terms of the previous chair and vice chair, Mary Frances Berry and Cruz Reynoso, had expired at the end of 2004. To replace Berry, President Bush had appointed Gerald Reynolds, a Black Republican who had formerly been assistant secretary for civil rights in the U.S. Department of Education. The New York Times described Reynolds as a "bookish veteran of conservative policy groups," including the Center for Equal Opportunity, which was headed by Linda Chavez - former commission staff director during the Reagan administration. The president appointed Abigail Thernstrom, already a sitting commissioner, as vice chair. Thernstrom had been a harsh critic of the commission’s policies, practices, and procedures throughout her tenure on the commission. She had been particularly critical of the agency’s management and decision-making practices under the leadership of former Chair Berry.133 President Bush also appointed Kenneth L. Marcus as staff director. Marcus had been a deputy to Reynolds at the Department of Education. Other new commissioners included Michael Yaki, a Democrat appointed by the House of Representatives on the recommendation of then-Minority Leader Nancy Pelosi, D. Calif. Later in 2005, Arlan D. Melendez was appointed on the recommendation of then-Senate Minority Leader Harry Reid, D. Nev. Yaki, a lawyer in private practice in San Francisco, is a former member of the San Francisco Board of Supervisors. Melendez, the second American Indian to serve on the commission, is chairman of the Reno-Sparks Indian Colony and vice president of the Inter-Tribal Council of Nevada.
At the March hearing, the new staff director acknowledged the long-standing concerns with the commission’s management and pledged to "tackle the task of solving the problems that developed over a period of years and even decades." He testified that the agency had already begun to implement a number of GAO recommendations. He also raised the issue of budgetary constraints that had been a consistent theme of commission personnel since the mid-80s. The staff director acknowledged that the GAO reports "are a wake-up call for this agency that we must implement substantial change and confidence in as ‘the conscience of the Nation’ on civil rights." He then outlined several reforms the agency had begun to implement to strengthen accountability and transparency and pledged to adopt a "lengthy series of reforms ... to ensure that the Commission complies with all legal requirements and that its management is sound."134
But perhaps the most interesting testimony at the March hearing was that of Commissioner Russell Redenbaugh. Commissioner Redenbaugh, a Republican appointed by Sen. Robert Dole, R. Kan., in 1990, had recently announced his resignation from the commission. Redenbaugh had been critical of the commission’s performance and management throughout his tenure. Although he initially believed that the commission’s "problem was political or based on personalities," by 2005 he had come to the conclusion that it was neither of those. Rather, he testified, "I became convinced that the problem with this commission is structural and unfixable." He recommended that Congress "close this Commission and start another one." He went on to say:
I’d take out a blank sheet of paper, and . . .ask the question: What is the purpose of the Civil Rights Commission today? Because when the Commission was originally constituted in the 1950’s, its purpose was a mighty one. It was to be the conscience of America, and America needed a conscience. And through the work of many people and this Commission in part, that conscience manifest and produced the civil rights legislation that we have today.
So the situations are very different [between then and now]. We still have discrimination and too much of it. But those of us who are discriminated against have many powerful remedies. We don’t need, as one of those remedies, the weak, inconsistent, anemic, conflicted voice of this Commission. We deserve better. The country deserves better.135
The following May, the GAO issued yet another report, The U.S. Commission on Civil Rights: The Commission Should Strengthen Its Quality Assurance Policies and Make Better Use of Its Advisory Committees. The report had been requested by Sen. Orrin Hatch, R. Utah, and Rep. James Sensenbrenner, R. Wis., the chairs of the Senate and House Judiciary Committees, respectively, and by Rep. Steve Chabot, R. Ohio, the chair of the House Judiciary Subcommittee on the Constitution. In the course of its investigation, the GAO found that the commission lacked policies for ensuring that its national office reports were objective and that the commission was not sufficiently accountable for the decisions made on these reports. The GAO reported, for example, that the commission’s leadership "has not consulted with all Commissioners at key points in the development of its reports." In addition, the GAO found that most of the SACs were unable to function because their charters had expired. Although the SACs were considered the "eyes and ears" of the commission and accounted for 200 of the 254 reports issued by the commission since 1980, the agency had not incorporated their work or their role into its strategic planning and decision-making processes.136
In responding to the report, Staff Director Marcus outlined steps the commission had taken to implement prior GAO recommendations and to initiate other policies and procedures aimed at improving the agency’s fiscal and program management. The staff director also described changes adopted by the commission regarding the operation of the SACs and the role commissioners play in project planning. In conclusion, he stated:
The Commission’s recent reforms, including those mentioned in this letter, demonstrate an ongoing commitment to quality, balance and transparency.
Rest assured that the Commission remains committed to an ongoing process of reform and appreciates the contribution GAO has made to that process.137
Commissioners Thernstrom and Braceras were less deferential. In a letter to the GAO, they were highly critical of the report, the investigations on which it was based, and its conclusions. They argued that the report was "lacking in balance" and labeled some of its conclusions "misleading and irresponsible."138 Finally, they stated:
It is time that the previous leadership of this agency is held accountable for the mismanagement of the agency. It is they, and not the current Commissioners or staff who led this agency into chaos.
While we are committed to working with the Congress and take seriously the recommendations of the GAO in this process, we feel that this particular report is lacking in balance and undermines some of the efforts that are still in progress.139
While continued congressional oversight and GAO investigations may bring about some needed management reforms, the status of the SACs continues to be an issue. The rechartering process described in the GAO report has proceeded slowly, and the SACs have been unable to meet or conduct studies or hearings in the absence of a charter. In addition, the process for selection of SAC members, which had largely been the responsibility of the regional office staff, has changed. While the regional staff continues to make recommendations, the role of the staff director in selecting members has increased dramatically. In addition, the commissioners approved a 10-year term limit for SAC members, and, by making it retroactive, precluded reappointment of many experienced members. Some commissioners and members of Congress have expressed concern that this process has resulted in SACs that are not representative of the communities they serve and dominated by individuals whose support for vigorous enforcement of civil rights is questionable. The commission’s response has been that its new membership criteria prohibit "racial preferences" and ensure that the committees represent a diversity of skills and experiences. These changes, according to the staff director, will ensure the representation of diverse viewpoints and improve the quality of SAC reports by making them more intellectually rigorous and data-driven.140
It may be too soon to analyze the long-term impact of these changes on the work product of the SACs, but it is clear that the membership changes have been significant. Resource allocation is an ongoing impediment, both for the committees and for the regional offices that support them. Moreover, in addition to asserting greater influence over the membership of the SACs, the current commission’s practice of soliciting committee assistance for national projects has limited their ability to focus on local issues.141 But whatever the explanation - lack of resources, changes in membership, less freedom to initiate local projects - according to the commission’s own Performance and Accountability Report for FY 2007, the number of SAC meetings and briefings has decreased significantly in the last several years. The number of SAC reports released in that same time frame has remained relatively constant, but amounts to a fraction of the SACs’ output in earlier decades.
Not only are the majority of the SACs not functioning, but the commission’s own methodology for producing reports has also changed significantly. The agency now relies almost exclusively on monthly briefings as its primary fact-finding, investigatory tool. These usually consist of a two-hour forum in which several experts are invited to present testimony and discuss topics recommended by commissioners or by the staff director. Briefings are a more cost-effective way to gather information than the more labor-intensive hearing process, which requires, among other things, the issuance of subpoenas and the taking of testimony under oath.
Through the briefing process, the commission can explore a broader array of civil rights issues than might otherwise be the case. It is an alternative that has been relied on in the past for similar reasons. Chairs Fletcher and Berry relied on briefings as a way to explore current civil rights issues.142 However, during their tenures as chair, the commission also conducted a number of other studies, held hearings around the country on various issues, and produced a variety of reports. In addition, in the past, the commission did not issue findings and recommendations as part of a briefing report, on the ground that briefings did not provide an adequate basis on which to formulate findings.143 The current commission has issued findings and recommendations with almost every briefing report it has published. In at least one recent instance, sufficient controversy arose within the commission over this practice to force the commissioners to eliminate the findings and all but one recommendation from one of its briefing reports.144
Finally, appointments to the commission by President Bush and the Senate Republican leadership appear to have once again struck at the very core of the commission’s statutory mandate - to remain a bipartisan, independent agency insulated from political influence. On two occasions in recent years, sitting commissioners have changed their party affiliations from Republican to Independent, thus enabling President Bush to appoint additional Republicans to the commission. One of those commissioners, Russell Redenbaugh, who left the commission in 2005, publicly stated that he felt Bush’s use of his re-registration as an Independent to appoint a Republican was "inappropriate."145 The new appointments have brought into question the president’s commitment to maintain bipartisanship as required by the commission’s charter.
The appointment of Gail Herriot to the commission raised a similar issue. Herriot, appointed by the Senate Republican Minority Leader in early 2007, had been a registered Republican until seven months before her appointment. Her reregistration as an Independent made her eligible to be appointed without technically violating the statutory requirement that no more than four of the commission’s eight members be from the same political party.146
In a January 2008 letter to Attorney General Michael Mukasey, the Leadership Conference on Civil Rights, Citizens for Responsibility and Ethics in Government, and several other organizations expressed their concern that, as currently constituted, the commission is politically unbalanced in violation of its charter. The letter took issue with, among other things, the practice of changing party affiliation by sitting commissioners that has allowed the president to fill vacancies with Republicans.147
The day before President Bush’s December 2004 appointment of two new Republicans to the commission (Gerald Reynolds, the current chair, and Peter Kirsanow), the Justice Department’s Office of Legal Counsel (OLC) issued an opinion explaining the statutory requirement that "not more than four of the members [of the Commission] shall at any one time be of the same political party." The OLC memo determined that this provision required that the president assess the party affiliation of sitting commissioners and potential appointees only at the time any new member is appointed.148 This statutory interpretation allows the president to appoint as many commissioners to the Civil Rights Commission of the same political party as he chooses, as long as a sufficient number of sitting commissioners switch their party affiliations prior to any new appointments.
Other legal experts who have examined this issue more recently disagreed with the Justice Department’s analysis. Peter Strauss, a professor of administrative law at Columbia University Law School, stated his view that a court would reject the administration’s interpretation of the statute, especially if the court perceived that the re-registration took place "to manipulate the process."149 In addition, a legal memorandum written by the American Law Division of the Congressional Research Service concluded that "it is likely that a reviewing court would find the OLC opinion unpersuasive and the recent appointments violative of the political balance requirements of the statute."150 The CRS memorandum reviewed the legislative history of the commission, focusing particularly on Congress’ reconstitution of the commission in 1983 in the wake of President Reagan’s attempt to fire five of the six sitting commissioners. The memo describes in detail Congress’ determination to re-establish the commission as an independent entity insulated from undue political influence. The requirement of political balance was a key element in implementing this ideal. The memo concludes:
The situation that precipitated Congress’ 1983 revision of the Civil Rights Commission - the presidential firing of five of the six then sitting commissioners - is arguably indistinguishable from the changes in party registrations that has effectively allowed the President to establish a majority of his political party in control of the Commission. The intent of the 1983 restructuring...was to preclude similar juggling of the Commission’s statutory appointments process. In light of that history...it is likely that a reviewing court would find the OLC opinion unpersuasive and the recent appointments violative of the political balance requirements of the statute.151
Whether promised management reforms and greater civility will bring about improvements in the commission’s operations remains to be seen. The past two decades of congressional oversight, GAO investigations, and OPM reports suggest that this outcome is doubtful. Since the mid-1980s, Congress, the GAO, and OPM have all raised concerns about the commission, which have ranged from poor management to politicization and partisanship. The quality of the commission’s work during this same time frame has also come under scrutiny. The Leadership Conference on Civil Rights has often shared these concerns.
However, these issues may be secondary to the larger question: is the current commission living up to its statutory mandate and continuing to play a vital role in the debate on civil rights? Recent actions suggest that the answer may be "no."
One merely has to observe the role of the commission in one of the most fundamental civil rights issues it and the American people have confronted in the commission’s 50-year life: voting rights. From its earliest days, the commission exposed the obstacles - even dangers - that African Americans in the South faced when they attempted to register to vote. The commission recommended strong federal measures to ensure this most basic of rights - measures that were often initially criticized or dismissed as "going too far," but that ultimately became law. The commission, the hearings it held in the South beginning in 1958, and the reports it issued based on those hearings, all played a key role in the process leading up to the enactment of the Voting Rights Act of 1965. It continued to have an impact on the debate as Congress took up extensions in 1970, 1975, and again in 1982. In 1970, recommendations the commission had made in its 1965 report for the abolishment of literacy tests and poll taxes were adopted. In 1975, the agency issued a major report that documented the need for extension and recommended enactment of provisions to guarantee the voting rights of language minorities - a provision that was included in the 1975 extension. And finally, in 1982, the Mississippi State Advisory Committee testified before the House Judiciary Committee about ongoing challenges confronting African Americans in that state, particularly their difficulty in securing representation at the local level because of long-standing election practices that diluted the impact of their vote. The commission itself testified before both the House and Senate Judiciary Committees in support of extension.
By contrast, the commission was largely absent from the 2006 debate on the reauthorization of the Voting Rights Act. No commissioner testified in the House of Representatives. The commission’s voting rights report was released late in the legislative process, in part because congressional hearings began earlier than the agency anticipated. Although the report contained some discussion of other provisions of the Act, it focused primarily on Section 5, the provision requiring covered jurisdictions to submit proposed voting changes to the Department of Justice for preclearance. The report contained no findings or recommendations. Instead, it posited various options for policymakers to consider. For example, the report suggested that the low number of Justice Department objections to local voting changes could show that Section 5 was no longer needed. The report also suggested that the existence of any objections could be proof that preclearance of these changes was still necessary.
Commissioners Thernstrom and Kirsanow testified before the Senate Judiciary Committee, but were speaking on their own behalf, not for the commission. Neither commissioner testified directly in support of, or opposition to, the extension legislation, although their testimony was critical of specific provisions of the statute. Commissioner Thernstrom stated that the Voting Rights Act, rather than protecting the rights of minority citizens, had become an instrument for partisan gerrymandering and had distorted our constitutional structure in the process. Commissioner Kirsanow testified on the language minority provisions of the Act, suggesting that the costs of implementation were disproportionate to their utility. Interviews with individuals knowledgeable about the 2006 reauthorization process suggest that the commission’s involvement was marginal. The contrast with the role the agency played in the original enactment of the Voting Rights Act in 1965 and subsequent reauthorizations is stark, thus raising questions about the commission’s continued relevance.
Nonetheless, many of the individuals interviewed for this report argue for the continuing need for an independent fact-finding agency dedicated to illuminating the ongoing civil rights issues this country continues to face.
Next Section: Conclusion
126. See e.g. Remarks on Rep. Don Edwards, D. Calif., 140 Cong. Rec. H10460, 103rd Cong., 2nd Sess., October 3, 1994.
127. U.S. Commission on Civil Rights, Hearing Before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, 107th Cong., 2nd Sess. (April 11, 2002) at 37 (statement of Hilary O. Shelton, director, NAACP Washington Bureau) (Hereinafter 2002 Hearing); See also, "Discrimination Is Not a Thing of the Past,"The Washington Post, December 22, 2001 at A31 (Letter to the Editor from Wade Henderson, executive director of the Leadership Conference on Civil Rights).
128. 2002 Hearing, note 127 above, at 6-8 (statement of Commissioner Abigail Thernstrom).
129. "Sins of the Commission,"The Washington Post, February 11, 2002 at A24.
130. 2002 Hearing, note 127 above, at 53-54.
131. Id. at 22.
132. Government Accountability Office, U.S. Commission on Civil Rights: Deficiencies Found in Financial Management and Internal Controls (2005) at 3.
133. See e.g., Fiscal and Management Practices of the U.S. Commission on Civil Right, Hearing Before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, 109th Cong., 1st Sess., March 17, 2005, at 74-75.
134. Id. at 14-18.
135. Id. at 7-8.
136. Government Accountability Office, The U.S. Commission on Civil Rights: The Commission Should Strengthen Its Quality Assurance Policies and Make Better Use of Its Advisory Committees (2006).
137. Id., at 46.
138. Id. at 48.
139. Id. at 53.
140. Id. at 44.
141. Telephone interviews with John Foster Dulles III, former Rocky Mountain Regional Director (July 20, 2007) and Constance Davis, former Mid-West Regional Director (July 31, 2007).
142. 1991 Hearing, note 108 above, at 130 (statement of Chair Arthur Fletcher); Interview with Mary Frances Berry, former chair, U.S. Commission on Civil Rights (June 26, 2007).
144. Telephone interview with Commissioner Michael Yaki (August 6, 2007).
145. Charlie Savage, "Maneuver gave Bush a conservative rights panel,"The Boston Globe, November 6, 2007.
146. Commissioner Heriot has stated that her re-registration "had nothing to do with the commission." Id.
147. Letter to the Honorable Michael B. Mukasey from the Leadership Conference on Civil Rights and Citizens for Responsibility and Ethics in Government, January 29, 2008.
148. "Political Balance Requirement for the Civil Rights Commission," Memorandum Opinion to the President from Office of Legal Counsel, December 6, 2004.
149. Savage, quoting Professor Strauss.
150. Congressional Research Service, "Political Balance Requirements at the United States Commission on Civil Rights," January 3, 2008, at 13.