Workings of the Legislative Process: Civil Rights Act of 1964
General: Interaction between Court and Congress; Court by not ruling on vague statute, forces Congress to define the statute more clearly or to more clearly define their intent.
(1) Why Enact the Civil Rights Act when we have the Equal Protection Clause?
a. Constitution: Brown v. Board of Education construes EP clause to forbid school segregation; Korematsu declares race a suspect class and subjects statutes including racial classifications to heightened scrutiny.
b. Why do we need this Statute:
i. Creates Specific Cause of Actions and Remedies and Accesses the vague Constitutional Storehouse.
ii. Grant Enforcement Power to Executive Branch (Agency (EEOC) or Attorney General)
iii. Substantive Breadth / Limits: A statute can define the rights which Constitution allows, but failed to enumerate.
iv. Authorize Cause of Action against Private Parties (EP only applies to states)
v. Creates Majoritarian Legitimacy.
(2) Actions and Goals of Players in Legislative Process wrt CRA:
a. White House/Executive Branch:
i. Agenda Setting Function: President Kennedy put the issue on the table.
ii. JFK chose to have bill introduced in the House in order to avoid early filibuster by Southern Dems. & build momentum for the bill.
iii. Deal-Making Function: LBJ called in markers from when he was majority leader, to ensure cloture could be had.
iv. Galvanize Public Opinion: President Johnson eulogized JFK, thereby transforming the bill into his legacy.
b. Emmanuel Celler (D-NY): Chairman of House Judiciary Committee
i. Celler, with McCulloch, was responsible for mustering support on the floor of House to ensure southern amendments were defeated.
c. Bill McCulloch (R-OH): Ranking Republican on House Judiciary Committee
i. Deal-Making Function: McCulloch pledged his support of bill based on two conditions on which he agreed with administration:
1. JFK agreed not to allow Senate to water down bill.
2. President Kennedy promised to give bipartisan credit.
ii. Brought with him necessary Republican support; Convinced Rep. Clarence Brown to mutiny on judiciary committee and force Judge Smith to hold hearings.
d. Judge Howard Smith: Chairman of Rules Committee in House
i. Southern Strategy of Delay: Intended to delay rule governing floor debate, thereby killing the bill.
ii. Two Reasons Why Delay was not an Option: (1) President’s assassination swung public opinion. (2) Clarence Brown (R-OH) & House Rule XI: Permits any 3 members of a committee to request chairman to call a meeting to consider a bill; if the meeting is not scheduled within 3 days, a majority of the committee may schedule one (5 liberal democrats + 3 Republicans)
e. Sens. Mansfield: Majority Leader in the Senate
i. Developed strategy for passing the bill in the Senate:
1. Step One: Avoid referral to Senator Eastland’s Judiciary Committee by placing bill directly on Senate Calendar.
2. Step Two: Muster the 67 votes needed to invoke cloture against the inevitable Southern filibuster.
f. Senator Hubert Humphrey: Majority Whip & primary debate floor leader
i. Set up “quorum duty” system to ensure there would always be sufficient senators on floor to prevent the Southerners from adjoining Senate.
ii. Organize effort to maintain support for bill in press and public at large.
g. Sen. Everett Dirksen: Republican Senate Minority leader
i. Dirksen was instrumental in gaining Republican support for cloture.
(3) How a Bill Becomes a Federal Law
a. Legislative Process (1) Constitution provides basic structure of the legislative process; (2) Each Chamber of Congress has its own procedures rooted in custom and history.
b. Theories of Legislative Motivations
i. Public Choice Model
ii. Positive Political Theory
iii. Motivated by Self-Interest (Raise Money / Political Capital)
c. Introduction of Bills: While bill may be drafted by anyone, including the present in his agenda setting function, it may only be introduced by legislator.
d. Committee Consideration
i. Presiding officer of chamber refers bills to standing committees.
ii. Committee Power of Negation: Committee can kill the bill by never holding hearings on it or referring it to subcommittee.
iii. Chairman’s Power: Schedule Hearings, Determine who will testify.
iv. After marking up the bill and voting, the committee refers it to the full chamber and issues its report.
v. Bypassing Committees: A Majority of the House can vote for discharge petition which bypasses the committee and sends the bill to the floor.
vi. In the Senate Expedited Consideration of a bill is accomplished by unanimous consent agreement, thereby bypassing committee.
e. Justification for Committees
i. Efficiency via Specialization
ii. Benefit individual senators by providing them means to benefit their constituents and/or interest groups
f. Scheduling
i. House: The Rules Committee issues the rule describing the debate process, setting time of debate, the manner of making amendments, and the rules of debate.
1. Closed Rule: Prohibits all floor amendments
2. Modified Closed Rule: permits specified floor amendments
3. Open Rule: Permits all amendments
ii. Place the Bill on the Calendar: 5 Calendars in House and 2 Calendars in Senate
g. Floor Consideration
i. Debate: Pack legislative history with remarks favorable to your interpretation of proposed bill
ii. Filibuster and Cloture in the Senate
iii. Types of Amendments (1) Perfecting Amendment: Change merely text of bill; (2) Saving Amendment: Attempt to attract more support for bill; (3) Riders: Amendments seeking to add irrelevant matter to a bill; (4) Killer Amendment: Hostile amendment meant to sway moderate voters toward rejecting bill (I.e. Sex added to Title VII); (5) Amendments in the Nature of a Substitute: Seeks to replace entire bill and insert entirely new text; (5) Substitute Amendments: Offered when another amendment is pending, and it changes part of the proposed amendment
h. Vote: (1) Voice Vote; (2) Division of the House (yeas and nays rise to be counted); (3) Tellers; (4) Roll Call.
i. Reconciliation: Conference Committees
j. Presentment for the Executive
i. Has 10 days to sign or veto
ii. Veto may be overridden by 2/3 vote in Congress (both chambers)
iii. If Congress is in session and president takes no action within 10 days, the bill becomes law without the President’s signature
iv. Pocket Veto: If Congress is in recess and president takes no action within 10 days, the bill dies.
SUMMARIZING NOTES:
(1) Bills are fragile
a. House: (1) Committee Power can kill it; (2) Rules Committee; (3) Hostile Amendments
b. Senate: (1) Procedurally easier to bypass committees; (2) But, harder to push bill through due to Filibuster (60 votes for c
egarding employee testing & should grant injunction with respect to 4 employees hired after 1955.
REASONING:
(1) Disparate Impact is Sufficient; Discriminatory Intent is not Necessary.
(2) Testing and Diploma are functional equivalents of policy denying Blacks’ promotions on basis of race.
(3) Legislative History supports EEOC interpretation: Original amendment granting employer right to test employee was unacceptable because overly broad, and was then limited to tests necessary to determine if employee is qualified/trainable for a specific job.
Girggs II (Supreme Court of the United States)
HOLDING: Supreme Court heard case and found for ps. The Court established the disparate impact test.
ANALYSIS:
(1) Evidence of Intent to Discriminate is not necessary; Showing of Disparate Impact is Sufficient.
(2) USSC said neutral practices that have disparate impact could give rise to case for job discrimination under Title VII.
FALLOUT: Employers do not want to be accused of neutral practices that engender disparate impact, so they enact “voluntary” affirmative action plans. Griggs, then, pushes employers to institute voluntary affirmative action.
Drift Model: POLICY SHIFTS
EEOC/
USSC House Senator69 Pres.
Liberal Conservative
Vetogates: Different players in legislative process can kill bill. So, the ultimate Act will only be as liberal as the most conservative veto-possessing institution.
If President were more conservative than Senate, then policy reach would be limited by conservative president and his ability to veto.
USSC decision in Griggs actually moves policy to the Left.
– Courts can make policy just like legislatures; judges have values.
– But, if court moves policy to the left, Congress can always move it back.
a. Very Difficult: Liberal members of chambers are now in stronger bargaining position b/c they are satisfied with status quo (liberal) created by USSC.
McDonald v. Santa Fe Trail Transp. Co.
HOLDING: Title VII prohibits racial discrimination against whites as well as blacks.
NOTE: Makes Weber’s argument that voluntary affirmative action program were unlawfully discriminatory against him, a white, under Title VII, possible.
*United Steel Workers of America v. Weber
FACTS:
(1) Prior to 1974 Kaiser had a facially race-neutral policy, hiring only craft workers who had prior experience in field (disparate impact on Blacks). Only 5 of 274 craft workers were African American. After Griggs, Kaiser had economic/social incentive to make policy change.
USWA and Kaiser entered collective bargaining agreement including voluntary affirmative action plan (actually a Quota System) designed to eliminate racial imbalance in Kaiser’s workforce by training current production workers (unskilled
