The Leadership Conference on Civil and Human Rights

• Table of Contents
• Executive Summary
• Introduction
• 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
• Conclusion
• Recommendations
• Acknowledgements

The 90s: The Commission Devolves

In November 1989, just two days before the commission was scheduled to cease to exist, President George H. W. Bush signed a compromise bill extending the life of the commission for another 22 months, until September 30, 1991.¹⁰⁶

President Bush’s support for the commission had helped the Senate and House to resolve their differences. Nevertheless, the reauthorization was considered by some in Congress to be a probationary period for the agency. Rep. Don Edwards, D. Calif., chair of the House judiciary subcommittee with oversight and authorization responsibility for the commission, stated:

By adopting this compromise, the Commission will have the opportunity to once again become strong, independent, credible, and effective.... The Commission has the opportunity to regain its respectability by conducting public hearings and issuing reports on major civil rights issues that affect our nation, instead of shooting personal opinions from the collective hip.¹⁰⁷

New commissioners were appointed, raising hopes that the commission would re-establish its independence and address the management issues uncovered by the GAO. Russell Redenbaugh, an investment banker from Philadelphia, was appointed on the recommendation of Sen. Robert Dole, R. Kan., and was the first person with a disability to serve on the commission. Redenbaugh brought a business background to the commission and throughout his tenure was a strong voice for management reform. In early 1990, President George H. W. Bush named Arthur Fletcher to chair the commission. Fletcher, a Black Republican, had been assistant secretary for labor in the Nixon administration and was a supporter of affirmative action. At his first meeting as chair, Fletcher stated that he wanted the commission to once again be a voice of authority on civil rights. The other two appointments were Carl Anderson, vice president for public policy for the Knights of Columbus and former legislative assistant to Sen. Jesse Helms, R. N.C., and Charles Wang, a Democrat and president of the China Institute in America, Inc.

Despite the new chair’s stated commitment to restoring the commission’s authority and his occasional willingness to part company with the Bush administration on civil rights issues, Congress and the GAO continued to cast a critical eye on the agency. In a reauthorization hearing in late July 1991, the House Judiciary Subcommittee on Civil and Constitutional Rights took Chairman Fletcher to task for the paucity of work product during his tenure. At the time, the commission was requesting a 25-year extension, on the grounds that the constant uncertainty about the commission’s survival was adversely affecting its ability to attract and retain quality staff and, in turn, to produce the kind of work that would restore the commission’s credibility in the eyes of Congress and the American people.¹⁰⁸ Chairman Fletcher defended both the quality and quantity of the commission’s work product during his tenure, even as he continued to seek increased resources, citing the severe budget cuts of the 1980s as the primary reason for the agency’s inability to produce more. Fletcher pointed out that in 1983 the commission had more than 250 full-time permanent employees. By 1991, the staff had shrunk to 79, while the budget had been cut nearly in half.¹⁰⁹

In response to a question from the panel, Chairman Fletcher acknowledged that the commission’s credibility had been destroyed by the Reagan administration, but that under his leadership the agency’s credibility was being restored.¹¹⁰ The subcommittee remained skeptical, however, primarily because of the commission’s lack of tangible evidence to back up Fletcher’s claim. The commission had failed to produce any reports on federal civil rights enforcement, despite a specific earmark of funds in its annual appropriation for this critical monitoring function. On the positive side, however, the commission had re-opened three regional offices that had been shut down after the initial round of budget cuts in the 1980s. And, in a demonstration of independence from the Bush administration, the commission endorsed the Civil Rights Act of 1990, which sought to overturn several U.S. Supreme Court decisions that had narrowed the coverage of civil rights statutes and to correct an anomaly in civil rights laws related to awards of damages to victims of discrimination.

Modest progress and evidence of re-emerging independence led Congress to approve a three-year reauthorization in 1991. The legislation represented a compromise between the Senate bill proposing a four-year reauthorization and the House bill proposing a two-year reauthorization provided that appropriations for the commission be authorized annually.¹¹¹ The first year’s appropriation was pegged at $7.2 million, although the administration had proposed a 10-year authorization and funding at $10.8 million a year. The extension legislation required the commission to produce at least one annual report on federal civil rights enforcement efforts. Some congressional leaders, particularly in the House, cautioned that the commission was not out of the woods yet. House Judiciary Committee Chair Jack Brooks, D. Texas, stated that while the legislation would not "require the agency to cut programs or staff, it prevents the commission from expanding without first fulfilling its statutory mission to investigate discrimination. . . . These provisions oblige the agency to allocate its resources wisely and, I trust, will secure the Commission’s return to its fact-finding mission." Rep. Edwards, who chaired the subcommittee with oversight responsibility for the commission, warned that if the commission failed to perform adequately, it should be prepared to cease operations after 1994.¹¹²

Other congressional voices were already calling for the commission’s demise. During the debate over the 1991 reauthorization, Rep. F. James Sensenbrenner, Jr., R. Wis., the ranking Republican on the subcommittee with oversight authority, argued that not only had the commission been unproductive during its previous reauthorization, but also that "the bickering and squabbling that marked previous commissions has continued." Rep. Sensenbrenner believed the time had come to put the commission out of business and perhaps start over "from scratch and set up a commission that is really relevant and that all of us are proud of."¹¹³ But a congressional majority was persuaded that changes had been made and that Chairman Fletcher and his new staff director should be given the opportunity to prove their claims that they were new brooms who would "sweep the place out."¹¹⁴

In fact, the commission initiated several new projects and completed several significant reports during Fletcher’s tenure as chair. It produced a major report on the civil rights problems faced by the country’s growing Asian-American population.¹¹⁵ It held a series of hearings examining racial and ethnic tensions across the country and adopted a report detailing the results of sessions held in Washington, D. C., in the wake of rioting in the largely Hispanic Mt. Pleasant section of the city. It also increased its monitoring function, releasing reports on the Fair Housing Assistance Program at the U.S. Department of Housing and Urban Development and on the performance of the U.S. Departments of Transportation and Labor in enforcing Title VI of the 1964 Civil Rights Act.¹¹⁶ Additional monitoring projects were also undertaken. Chairman Fletcher recognized the challenges that civil rights issues of the 1990s presented: "While blatant discrimination, the absolute and open denial of opportunity so pervasive in the past, has lessened over the years, we find in its place subtler forms of discrimination... just as illegal but harder to detect... and harder to prosecute."¹¹⁷ At the same time, he pointed to the rising number of racially provoked incidents across the country. Chairman Fletcher - and many in the civil rights community - argued for an increase in resources to better enable the commission to address these issues and to better fulfill its mission. At the outset of the Clinton administration, both congressional leaders and many in the civil rights community were cautiously optimistic that the commission was on the road to re-establishing its stature.¹¹⁸

In the final days of his administration, President Bush appointed Robert George and Constance Horner to replace William Allen and Esther Gonzalez-Arroyo Buckley, whose terms ended in December 1992. Both Allen and Buckley had been appointed by President Reagan. Bush’s appointments maintained the existing ideological balance on the commission. George, a professor of bioethics at Princeton, has been described as a leading voice for social conservatism. Horner had served in a variety of positions in the Reagan and Bush administrations.

President Clinton, although unable to fill any commission vacancies until the terms of Arthur Fletcher and Charles Wang expired in 1995, nevertheless had the authority to designate a new chair and vice chair, as well as to appoint a new staff director. In each case, the concurrence of a majority of the commissioners was necessary. In 1993, he appointed Mary Frances Berry, a current member of the commission, to chair. In 1994, President Clinton appointed Cruz Reynoso as vice chair. Reynoso, a former justice of the California Supreme Court, had been a Senate appointment to the commission in 1993. Both appointments were approved by a majority of commission members.

The president’s choice for staff director, however, was more controversial among some commissioners.

The conflict over this appointment marked the beginning of a new era of tension on the commission that has persisted to the present day. At the time President Clinton took office, the staff director’s position was vacant. One of the commission’s regional directors, Bobby Doctor, had come to Washington to serve as acting director at the request of the outgoing staff director. In June 1993, a majority of the commissioners wrote to the president to endorse Doctor for the position of staff director. However, in September 1993, Clinton named Stuart Ishimaru to the position. Ishimaru, a former counsel to the House Judiciary Subcommittee that had been critical of the commission in the past, was unable to win the approval of a majority of the commission as required by statute.¹¹⁹

Doctor’s temporary detail to Washington was terminated by the newly-confirmed chair, Mary Frances Berry. The president named Ishimaru to be Acting Staff Director. At least one commissioner questioned the legality of the termination of Doctor’s detail, and the day after Ishimaru’s appointment, a majority of the commission voted to reinstate Doctor. Commissioner Robert George, who had voted not to confirm Ishimaru, brought suit in federal court to challenge the president’s authority to name an acting staff director without subjecting that appointment to the approval of the commissioners. The judge agreed that Ishimaru was not validly appointed and enjoined him from continuing his tenure as staff director.

Although the commission’s life was again extended in 1994, this time until September 30, 1996, the lawsuit and the election of 1994 ushered in a new era of internal tensions and external congressional oversight. The midterm election in November 1994 brought a new conservative Republican majority to the House of Representatives, ending 40 years of Democratic control. Six weeks before the midterm elections, as part of its strategy for victory, the Republican Party released a document called "The Contract with America." The Contract, written by a team of conservative representatives, including Newt Gingrich, Robert Walker, Richard Armey, Tom DeLay, and John Boehner, described the actions the Republicans would take if they gained the majority in November. The document incorporated text from Ronald Reagan’s 1985 State of the Union Address and many of its policy recommendations originated at the Heritage Foundation, an influential conservative think tank. When the Republicans gained a majority of seats in the 104th Congress, the Contract was seen as a triumph for both the party leaders who had been involved in its creation and for the American conservative movement.

While the primary legislative focus on the Contract was on such issues as shrinking the size of the federal government, lowering taxes, tort reform, and welfare reform, it seemed clear that the new majority in Congress would also advocate limiting the role of the federal government in enforcing civil rights laws. Early in the 104th Congress, the renamed House Judiciary Subcommittee on the Constitution began a series of hearings on civil rights issues - including affirmative action. As one member of the subcommittee later stated, "[t]he hearings we’ve held on a number of issues, including the affirmative action issue and racial preferences and quotas, does [sic] get to the underlying issues. It gets to the issue of whether or not the problems described have been addressed by that policy [affirmative action] and it gets to the issue of whether or not those policies are, in fact, in some instance counterproductive."¹²⁰

While congressional scrutiny of the commission was less frequent in the decade between the mid-1990s and the present than it had been in the previous decade, it was no less intense. In October 1995, the House oversight subcommittee began a series of hearings that were once again critical of the commission’s work and again relied on the GAO to document problems and make recommendations. The October hearing focused on a range of issues, including the commission’s management practices and the process by which the commission voted on and released reports. Subcommittee members also voiced concerns about a hearing the commission had held in Miami as part of its ongoing study of the causes of racial and ethnic tensions in American society. Some individuals who had been called to testify had complained about allegedly heavy-handed tactics on the part of commission staff.¹²¹

The following year, the chair of the subcommittee asked the GAO to provide information on the commission’s management of projects from fiscal years 1993 through 1996. The results of the GAO’s investigation were released at a hearing in April 1997. The GAO found "broad management problems at the Commission" and characterized it as "an agency in disarray."¹²² Many of the concerns raised by the GAO reflected long-standing problems dating back to the 1980s, but weaknesses in current management controls were also highlighted.¹²³ The GAO cited other contemporaneous reviews of the commission’s operations that were also critical, including, for example, a 1996 Office of Personnel Management (OPM) report concluding that the commission is "badly in need of managerial attention." In addition, the Citizens’ Commission on Civil Rights, a civil rights advocacy organization, issued a report in 1995 concluding that the commission’s performance had been "disappointing."¹²⁴ One concern of the Citizens’ Commission report was that projects were taking so long that changing conditions could render them outdated by the time the project was completed, reducing the effectiveness of the commission’s work.¹²⁵ Commission Chair Mary Frances Berry also testified at the hearing, acknowledging that there were management problems at the commission and pledging to implement the GAO’s recommendations.

Next Section: The Post-Millennial Commission

106. New Opportunities, note 102 above, at 193.

107. Id.

108. Reauthorization of the U.S. Commission on Civil Rights, Hearing Before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 102nd Cong., 1st Sess. (1991) at 6. (Hereinafter 1991 Hearing)

109. Id. at 5; New Opportunities, note 102 above, at 194.

110. 1991 Hearing, note 108 above, at 119.

111. New Opportunities, note 102 above, at 194.

112. Id.

113. 137 Cong. Rec. H9161, 102nd Cong., 1st Sess., November 5, 1991.

114. Id.

115. New Opportunities, note 102, at 195.

116. Id.

117. Reauthorization of the U.S. Commission on Civil Rights, Hearings before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 102nd Cong., 1st Sess. (June 12, 1991) (statement of Arthur Fletcher).

118. New Opportunities, note 102 above, at 195.

119. George v. Ishimaru, 849 F. Supp. 68 (1994).

120. U.S. Commission on Civil Rights, Hearing Before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, 104th Cong., 1st Sess. (1995) at 5 (statement of Rep. Bob Goodlatte, R. Va.).

121. Id.

122. U.S. Commission on Civil Rights, Hearing Before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, 105th Cong., 1st Sess. (1997) at 8,

123. Id. at 10-11.

124. Id. at 11.

125. Id.