[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]

                     CIVIL RIGHTS DIVISION OF THE 
                         DEPARTMENT OF JUSTICE 



                               BEFORE THE


                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                            DECEMBER 3, 2009


                           Serial No. 111-81


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
JUDY CHU, California                 TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
JUDY CHU, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel

                            C O N T E N T S


                            DECEMBER 3, 2009


                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     3
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     5


The Honorable Thomas E. Perez, Assistant Attorney General, Civil 
  Rights Division, U.S. Department of Justice, Washington, DC
  Oral Testimony.................................................    48
  Prepared Statement.............................................    53
Ms. Eileen Regen Larence, Director, Homeland Security and Justice 
  Issues, U.S. Government Accountability Office, Washington, DC
  Oral Testimony.................................................    81
  Prepared Statement.............................................    83
Ms. Grace Chung Becker, former Acting Assistant Attorney General, 
  Civil Rights Division, U.S. Department of Justice, Washington, 
  Oral Testimony.................................................   101
  Prepared Statement.............................................   104
Mr. Joseph D. Rich, Director, Fair Housing Project, Lawyers' 
  Committee for Civil Rights Under Law, Washington, DC
  Oral Testimony.................................................   131
  Prepared Statement.............................................   133


Material submitted by the Honorable Lamar Smith, a Representative 
  in Congress from the State of Texas, and Ranking Member, 
  Committee on the Judiciary.....................................     7
Material submitted by the Honorable Trent Franks., a 
  Representative in Congress from the State of Arizona, and 
  Member, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................   145


Material submitted for the Hearing Record........................   155



                       THURSDAY, DECEMBER 3, 2009

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:09 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Conyers, Watt, Scott, 
Johnson, Cohen, Chu, Sensenbrenner, Smith, Franks, King, 
Jordan, and Gohmert.
    Staff present: (Majority) David Lachman, Subcommittee Chief 
of Staff; Elliott Mincberg, Chief Oversight Counsel; and 
Crystal Jezierski, Minority Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order. Today I will first recognize myself for a 5-minute 
opening statement.
    Today this Subcommittee continues its oversight of the 
civil rights division of the Department of Justice. With the 
authority to enforce this Nation's civil rights laws the 
division is the guardian of our fundamental values: freedom of 
religion, the right to be treated fairly, the right to cast a 
vote in a free and fair election, the right to a job, the right 
to a home, the right to an education without discrimination, 
and with the enactment of the Hate Crimes Prevention Act 
recently, the right to live one's life free from the threat of 
violent hate crimes.
    As our Subcommittee has documented, the division has been 
deeply troubled over the past 8 years. Career civil rights 
attorneys were routinely overruled by political appointees, 
hiring was illegally politicized, enforcement was in some key 
areas grossly neglected, and morale was as bad as at any time 
since the division's establishment. The loss of dedicated 
career staff was alarming.
    We now have a new Assistant Attorney General, Tom Perez, 
who will be our first witness. He is a career civil rights 
lawyer and he has a tremendous job ahead of him.
    In addition to the historically challenging work of the 
civil rights division he must rebuild a decimated and 
demoralized office and he must do so with such monumental tasks 
as the decennial redistricting on the horizon. We would have 
liked to have had him here sooner but some of our colleagues in 
the other body apparently didn't have the same sense of urgency 
in getting him on the job.
    I hope to hear from Mr. Perez how he plans to meet these 
    We will also hear from the Government Accountability 
Office, which has produced two extensive reports on the civil 
rights division at the request of Chairman Conyers, Mr. Watt, 
and myself. I think the analysis and recommendations will help 
move the division forward as it meets the challenges of the 
next few years.
    I want to welcome all our witnesses, and I look forward to 
their testimony.
    I will now recognize the distinguished Ranking Member of 
the Subcommittee, Mr. Sensenbrenner, for 5 minutes for an 
opening statement.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    I guess we on this side of the aisle have a little 
different view of what happened in the last 8 years, and in the 
second panel Ms. Becker will be able to, I think, maybe educate 
the Chairman and my Democratic colleagues as Mr. Perez, I 
guess, is going to educate those of us on this side of the 
aisle. That being said, let me say that the legitimacy of our 
elected leaders depend upon the legitimacy of our election 
process, and the civil division of the--civil rights division 
of the Justice Department plays a role in safeguarding that 
    During the last election one organization became notorious 
for threatening the integrity of our election through a massive 
campaign of improper election activity. That organization, 
called ACORN, is mired in criminal investigations in at least 
12 states, which now include New York, Louisiana, Pennsylvania, 
Florida, and Nevada.
    While the national reach of ACORN's corruption firmly 
established, it is time for this Committee to conduct an 
investigation of its own. Let me read a few sections of ACORN's 
extensive rap sheet, which spans from coast to coast and has 
led the Census Bureau of the IRS, major foundations, and the 
Nation's most prominent banks to cut ties with ACORN over the 
last several months, notwithstanding the fact that there have 
been appropriations writers cutting them off of Federal money.
    In Seattle local prosecutors indicted seven ACORN workers 
following a scheme the Washington secretary of state called 
``the worst case of voter registration fraud in the state's 
history.'' Of the 2,000 names submitted by ACORN over 97 
percent were fake.
    In Missouri, officials found that over 1,000 voter 
addresses submitted by ACORN didn't exist. Eight ACORN 
employees pled guilty to Federal election fraud there.
    In Ohio, an employee of one ACORN affiliate was given crack 
cocaine in exchange for fraudulent registrations that included 
underage voters and dead people.
    In my own state of Wisconsin, the Special Investigations 
Union of the Milwaukee Police Department issued a report that 
concluded that eight people were sworn in as deputy registrars 
who were convicted felons under the supervision of the State 
Department of Corrections. ACORN was their sponsoring 
    The 67-page Wisconsin report generally describes what it 
calls ``an illegal organized attempt to influence the outcome 
of the 2004 election in the state of Wisconsin.'' The report 
found that between 4,600 and 5,300 more votes were counted in 
Milwaukee than the number of voters recorded as having cast 
ballots. Nice if you can do it, having more votes than voters.
    Mike Sandvick, the head of the unit, said that the problems 
his unit, said that the problems his unit found in 2004 are 
only the tip of the iceberg of what could happen today. Sure 
enough, during the 2008 election ACORN's executive director had 
to admit that, of the 1.3 million new voters ACORN claimed to 
have registered, only a third of those, or 450,000, were 
legitimate, and that the organization was forced to fire 829 of 
the canvassers that it hired for job-related problems, 
including falsifying voter registration forms.
    Beyond voting fraud, the New York Times revealed that ACORN 
chose to treat the embezzlement of nearly $1 million as an 
internal matter and didn't even notify its board or law 
enforcement. The Louisiana attorney general, who is conducting 
an investigation in the state where ACORN is headquartered, has 
since indicated the embezzlement may amount to as much as $5 
    It is tragic enough when voluntary donations are used 
illegally, but ACORN also receives millions of taxpayer dollars 
and it is eligible to receive millions more if the prohibition 
on its funding Congress recently enacted beyond its current 
sunset in mid-December.
    The Justice Department has funded a loan of a couple 
thousand dollars to ACORN or its affiliates, as most of its 
funding comes from housing programs administered by HUD. But 
even so, the Justice Department's inspector general found just 
last month what limited funds the department distributed to 
ACORN or its affiliates were largely mismanaged in programs 
involving crime prevention and tax counseling--yes, I said 
crime prevention and tax counseling.
    Astonishingly, in the midst of all of this, the lawyer for 
President Obama's election campaign wrote a letter to the 
Justice Department last October demanding that it investigate 
not ACORN, but the McCain campaign for daring to mention what 
the lawyer referred to as ``manufactured allegations targeting 
the organization.'' That lawyer, Robert Bauer, is now White 
House counsel.
    Mr. Bauer may be interested in reading an internal June 
2008 memorandum prepared by ACORN's own lawyer that recently 
became public. The memo found systematic problems with ACORN 
and its associated entities, which it described as operating 
like a family business more than an accountable organization. 
The same memo also described the potentially improper use of 
charitable dollars for political purposes, illicit money 
transfers, and potential conflicts created by employees working 
for multiple affiliates.
    I would ask Mr. Perez to please relay ACORN's rap sheet to 
Mr. Bauer just in case he hasn't gotten the memo, and I yield 
back the balance of my time.
    Mr. Nadler. I thank the gentleman.
    I will now recognize the distinguished Chairman of the full 
Committee for an opening statement.
    Mr. Conyers. Thank you, Mr. Chairman.
    I wanted to thank the Chairman emeritus for pointing out 
how important it is that we investigate ACORN, and would the 
gentleman--does the gentleman need any more time to--he looked 
like he had more to add to his dissertation.
    Mr. Sensenbrenner. Well, if the gentleman will yield, I 
appreciate your generosity, but more will come at a later date.
    Mr. Conyers. Okay.
    Well, I take it, then, from you and Lord knows what Steve 
King is going to say, that this is the most important issue for 
the civil rights division and the voter rights section to 
consider. Is that fair, Mr. Sensenbrenner?
    Mr. Sensenbrenner. If the gentleman will yield, I think 
that the whole Justice Department is sworn to uphold the law 
and it doesn't matter which division is upholding the law and 
enforcing it against those who break it; it doesn't make any 
difference as long as people who are suspected of breaking the 
law are brought to justice.
    Mr. Conyers. So that is a long way of saying yes, I take 
    Mr. Sensenbrenner. If the gentleman will yield further----
    Mr. Conyers. Yes, I will yield again.
    Mr. Sensenbrenner [continuing]. No, I didn't say yes. I 
said what I said.
    Mr. Conyers. Oh, you didn't say yes? Okay. You didn't say 
no and you didn't say yes, but you said what you said.
    Well, that is not as helpful as I thought it would be. Now, 
could I ask my friend, Mr. Sensenbrenner, were you at the 
hearing on Tuesday at 1 o'clock that was sponsored by 
Republican members of this Committee that talked about ACORN?
    Mr. Sensenbrenner. If the gentleman will yield, I was not 
because I had a conflicting engagement.
    Mr. Conyers. I see.
    Well look, you have lots of important considerations, and 
this one is so important that here we are discussing the 
responsibilities of the civil rights division containing voter 
rights enforcement for the first time in a new Administration 
    Mr. Sensenbrenner. Will the gentleman yield to me?
    Mr. Conyers. Of course.
    Mr. Sensenbrenner. Was the gentleman from Michigan at that 
hearing on Tuesday?
    Mr. Conyers. No, sir, I wasn't.
    Mr. Sensenbrenner. Will the gentleman further yield to me?
    Didn't the gentleman, at a hearing of this Subcommittee in 
February, suggest that we have an investigation of ACORN?
    Mr. Conyers. No.
    Mr. Sensenbrenner. If the gentleman will further yield, I 
distinctly remember him saying that, and if the gentleman will 
further yield, if there was representation of why we should 
investigate ACORN why has not the Chairman called for that 
    Mr. Conyers. Couldn't we just meet on this without taking 
up the time of all of our witnesses? I would be happy----
    Mr. Sensenbrenner. Well, I will be glad to yield back 
whatever time he had.
    Mr. Nadler. Thank you. I would just like to observe that 
whatever the merits of--or demerits, in my view--of a hearing 
on ACORN may have been previously, now that Congress has 
repeatedly passed the bill of attainder cutting off ACORN from 
all funds there is no further subject for an investigation. 
There may be law enforcement issues for various law enforcement 
agencies, but Congress has already taken action.
    Normally we would hold an investigation and then, depending 
on what one finds in that investigation, take action. We put 
the cart before the horse so I don't think there is any need 
for the horse at this point.
    But we have already taken the action. I view it as an 
unconstitutional action; I think the courts will overturn it 
because it is a bill of attainder.
    But Congress has already done everything it could 
conceivably do. We don't declare people or organizations--at 
least we shouldn't--guilty of crimes except in rhetoric. It is 
now up to state investigations--to other investigating agencies 
to do whatever they may want about Mr. Sensenbrenner's and 
others' various accusations.
    I will yield back.
    I now yield 5 minutes to the distinguished gentleman from 
    [Cross talk.]
    Mr. Smith. Thank you, Mr. Chairman.
    In his confirmation hearing Attorney General Holder stated 
that ``law enforcement decisions and personnel actions must be 
untainted by partisanship. Under my stewardship the Department 
of Justice will serve justice, not the fleeting interests of 
any political party.'' Yet, since taking over at the helm of 
the Justice Department there have been troubling decisions that 
can only be explained by just such partisanship, and nowhere 
have they been more apparent than in the civil rights division.
    One of the most troubling of these is the department's 
decision in May to dismiss charges of voter intimidation 
arising out of the 2008 presidential election. On Election Day 
2008, two members of the New Black Panther Party brandished a 
baton in a threatening manner and made verbal threats to those 
who wanted to vote at a Philadelphia polling location.
    According to the department's complaint, the individuals 
``made statements containing racial threats and racial insults 
at both Black and White individuals and made menacing and 
intimidating gestures, statements, and movements directed at 
individuals who were present to aid voters.'' One individual 
carried credentials as a member of the local Democratic 
    In January, the civil rights division filed a complaint 
against the New Black Panther Party and three of its members 
for violating the Voting Rights Act, which prohibits any 
attempt to intimidate, threaten, or coerce any voter and those 
aiding voters. Neither the New Black Panther Party nor its 
members responded to the lawsuit.
    The department effectively won the case when the judge 
directed the civil rights division to file a final motion, but 
in May the department suddenly and inexplicably dismissed all 
but one of the charges. No facts had changed; no new evidence 
was uncovered.
    Would the Justice Department have dismissed these charges 
if the defendants had been members of the KKK, dressed in robes 
and hoods, brandishing a nightstick and taunting voters outside 
a polling place, say, in Alabama? Very unlikely.
    When Members of Congress asked for an explanation as to why 
the department dismissed the case, we were met with silence. 
For 5 months we have sought answers from the department, and 
still no response from the self-proclaimed ``most transparent 
Administration in history.''
    Continued silence by the Justice Department is an implied 
admission of guilt that the case was dropped for purely 
political reasons. The department owes the American people the 
truth, not another round of empty excuses.
    Of equal concern is the department's apparent inaction with 
regard to the numerous examples of improper and possibly 
illegal conduct committed by employees of ACORN. On Tuesday 
Republican members of the Judiciary and Oversight and 
Government Reform Committees held a joint forum to examine the 
numerous allegations of wrongdoing allegedly committed by ACORN 
employees, especially involving voter fraud, which falls within 
the civil rights division's portfolio.
    We heard whistleblower testimony from former ACORN employee 
Anita MonCrief and state law enforcement and elections 
officials who pleaded for Federal law enforcement to initiate a 
nationwide investigation into ACORN. As one of the witnesses, a 
former Justice Department attorney himself stated, ``The 
government has initiated major investigations of businesses and 
government contractors on much less evidence of possible 
    I would like to insert their statements into the record for 
this hearing, Mr. Chairman.
    Mr. Nadler. Without objection.
    [The information referred to follows:]


    Mr. Smith. With regard to the GAO report that will be 
discussed during the second panel, it is important to remember 
that we are here today to conduct oversight on the current 
civil rights division. Playing the Bush blame game is not 
effective oversight of the Obama administration. We can 
certainly learn things from the past, but this hearing is about 
determining whether the Obama administration is going to 
effectively, fairly, and without prejudice, enforce civil 
rights laws in the future.
    Thank you, Mr. Chairman, and I will yield back.
    Mr. Conyers. Mr. Chairman?
    Mr. Nadler. Gentleman from Michigan?
    Mr. Conyers. I mentioned my good friend Steve King's name 
during my presentation. I know you don't usually let everyone 
make opening statements, but could we allow Steve King to make 
any response or observations he would like?
    Mr. Nadler. I will recognize the gentleman from Iowa 
briefly for a response.
    Mr. King. Thank you, Mr. Chairman.
    And I thank the Chairman of the full Committee, Mr. 
Conyers, for opening this discussion up. I think there is a 
point of clarification that needs to be made. When the inquiry 
was made of Mr. Conyers, did he show interest in or speak about 
the hearings on ACORN in February, I think Mr. Conyers' answer 
was precisely correct. It was actually March 19 that he 
indicated that interest, and I would point out also that in 
that dialogue that took place in that hearing that day, when 
Mr. Conyers stated that he believed that it was worthy of our 
interest, the Chairman of the Constitution Subcommittee, Mr. 
Nadler, responded to the effect of, ``When I see credible 
evidence.'' And then the response that came back----
    Mr. Nadler. Finish the sentence. When I see credible 
evidence what?
    Mr. King. When I see credible evidence I will consider 
    Mr. Nadler. Exactly.
    Mr. King. I think it is important that that clarification 
also be made.
    And then the response from Mr. Conyers--and this is from 
memory, not from data in front of me, so it may not be 
precisely right--was, ``I think we see evidence in front of us 
of our interest.''
    Heather Heidelbaugh had already testified, or prepared to, 
that she had achieved a partial injunction against ACORN in 
Pennsylvania, and I had pointed out the--I will say the 
openness in the election laws across the country. So I think it 
is very, very important that we have this discussion about 
hearings on ACORN, and it appears to me that ACORN has 
corrupted the election process in the United States so much 
that it threatens the very Constitution itself, and it very 
much is the business of this Committee, and it is the business 
of the Civil Rights Commission as well.
    And one of the things that I hope that we can resolve is, 
whether there is any determination or resolve on the part of 
Chairman Conyers and Chairman Nadler to look into this most 
outrageous corruption of our election process in the history of 
the United States of America, will we follow through with our 
constitutional duty? I don't believe it pays to have any more 
private conversations about this; it is time for this Congress 
to move in more than one Committee, but especially the 
Judiciary Committee and specifically the Constitution 
    So that is my position and view on it, Mr. Conyers, and I 
appreciate you giving me that opportunity to say so at this 
time. I yield back.
    Mr. Conyers. And I appreciate hearing from you about this, 
    Mr. Nadler. If the gentleman would yield, let me just 
respond to that. I will repeat essentially what I said a few 
minutes ago. Congress has done everything it could do against 
the private organization. We have defunded ACORN. I believe 
that that action is unconstitutional; the courts will determine 
that. But we have done that.
    There is no further thing that Congress could do. There is 
no function for congressional investigation leading toward 
possible action because we have already taken the action.
    All these allegations are allegations--are just that, 
allegations. I think it is a little stretching the point to say 
it is the worst conspiracy ever, but forgetting that, these are 
all allegations. Allegations ought to be investigated if there 
is anything to them by state, local, Federal law enforcement 
agencies at their discretion if they think there is anything to 
those allegations. It is up to them, not to us.
    Now I hope we can get back----
    Mr. Sensenbrenner. Will the gentleman kindly yield to me?
    Mr. King. I would yield. It is my time.
    Mr. Sensenbrenner. Given the argument that the gentleman 
from New York has made, that means that we shouldn't be 
investigating anything the Bush administration did during its 8 
years in office because the voters took care of that, and that 
is a matter of history as well.
    Mr. King. And reclaiming my time, the continuing resolution 
that shut off funding to ACORN expires December 18--that is 
this month, in just a couple of weeks. And so at that point any 
action Congress may have taken will have also been negated.
    And furthermore, the Congress has passed in the past 
rescissions bills, where we have shut off funding after it 
passed the President's desk, and that is all that happened with 
the continuing resolution. And the bill of attainder, there is 
no case precedent that would be a precedent that is on point on 
this particular subject. And I would yield back.
    Mr. Nadler. I thank the gentleman.
    And now maybe we can get back to the subject of the 
hearing, which is the civil rights division, not ACORN. In the 
interest of proceeding to our witnesses and mindful of our busy 
schedules, I ask that other Members submit their statements for 
the record.
    Without objection all Members will have 5 legislative days 
to submit opening statements for inclusion in the record. 
Without objection the Chair will be authorized to declare a 
recess of the hearing, which we will do only in case there are 
votes or something unforeseen.
    We will now turn to our first panel. As we ask questions of 
our witnesses, the Chair will recognize Members in the order of 
their seniority in the Subcommittee alternating between 
majority and minority provided that the Member is present when 
his or her turn arrives. Members who are not present when their 
turns begin will be recognized after the other Members have had 
the opportunity to ask their questions.
    The Chair reserves the right to accommodate a Member who is 
unavoidably late or only able to be with us for a short time.
    Our first panel consists of one witness, Thomas Perez, who 
was nominated by President Obama to serve as the Assistant 
Attorney General for the Civil Rights Division and was sworn in 
on October 8, 2009, a mere 2 months ago. Mr. Perez previously 
served as the secretary of Maryland's Department of Labor, 
Licensing, and Regulation.
    From 2002 until 2006 he was a member of the Montgomery 
County Council. He was the first Latino ever elected to the 
council and served as council president in 2005.
    Earlier in his career he spent 12 years in Federal public 
service, most of them as a career attorney with the Civil 
Rights Division of the Justice Department. As a Federal 
prosecutor for the division he prosecuted and supervised the 
prosecution of some of the department's most high profile civil 
rights cases, including a hate crimes case in Texas involving a 
group of White supremacists who went on a deadly racially-
motivated crime spree.
    Mr. Perez later served as Deputy Assistant Attorney General 
for Civil Rights under Attorney General Janet Reno. He also 
served as special counsel to the late Senator Edward Kennedy 
and was Senator Kennedy's principal advisor on civil rights, 
criminal justice, and constitutional issues.
    For the final 2 years of the Clinton administration Mr. 
Perez served as the director of the Office for Civil Rights at 
the United States Department of Health and Human Services. Mr. 
Perez was a law professor for 6 years at the University of 
Maryland School of Law and was a part-time professor at the 
George Washington School of Public Health.
    He received a Bachelor's degree from Brown University, a 
Master's of public policy from the John F. Kennedy School of 
Government, and a Juris Doctorate from Harvard Law School in 
    I am pleased to welcome you, sir. Your written statement in 
its entirety will be made part of the record. I would ask that 
you summarize your testimony in 5 minutes or less.
    To help you stay within that time there is a timing light 
at your table. When 1 minute remains the light will switch from 
green to yellow, and then red when the 5 minutes are up. I will 
advise this witness, as I will others, that I am a little loose 
with the timing, but not too loose.
    Before we begin it is customary for the Committee to swear 
in its witnesses. If you would please stand and raise your 
right hand to take the oath?
    [Witness sworn.]
    Mr. Nadler. Let the record reflect that the witness 
answered in the affirmative.
    You may be seated. I thank you and you are recognized for 5 

                         WASHINGTON, DC

    Mr. Perez. Thank you, Mr. Chairman. I appreciate your 
leadership on this and so many other issues, and I want to 
acknowledge Chairman Conyers' longstanding leadership on a wide 
range of issues. It is great to be back before your Committee 
today, Mr. Chairman.
    And Ranking Member Smith, thank you for your courtesy 
throughout. And I look forward to working with all of you on a 
wide range of issues.
    It really is a great privilege to be back home in the 
Department of Justice civil rights division, where I learned 
how to be a lawyer, and I look forward to an active and open 
dialogue with this Committee on a wide range of issues. My 
goals today are to respond to the GAO report and offer my 
perspective on the challenges and opportunities confronting the 
Civil Rights Division.
    I want to thank you again for your leadership in 
commissioning these two GAO reports, and let me state right at 
the outset, we accept them, we intend to implement their 
recommendations, and we have already begun to do so, plain and 
simple, and we will be moving forward in this regard.
    This is the first time I have had the privilege of 
appearing before this Committee so I wanted to take a moment 
simply to tell you a little bit about my past work in the Civil 
Rights Division. I have been on the job for less than 2 months, 
as you correctly point out, but I am no stranger to the 
department and to the division.
    My first job was a summer clerk under Attorney General Ed 
Meese in 1986. I entered the department in the honors program 
in 1989 under Attorney General Thornberg, had the privilege of 
serving on the honors committee in 1992, 1993, and 1994, and I 
stayed in the department until 1999 when I was deputy assistant 
attorney general for civil rights and I moved over to the 
Department of Health and Human Services. And I am equally proud 
of my service under both Republican and Democratic 
administrations--my service as both a career and a non-career 
person in the Civil Rights Division.
    I know firsthand the commitment and dedication of the 
career staff and I have great respect for the work that they 
do. More than 50 years after its creation the division's 
mission and scope have grown exponentially and the division 
continues to serve as the conscience of the Nation within the 
Federal Government.
    Our mandate in the Civil Rights Division is clear: to 
enforce all--and I underscore all--of the civil rights laws 
under our jurisdiction fairly, independently, and in a 
nonpartisan fashion. Regrettably, as documented in the two GAO 
reports we will discuss today and an earlier report of the 
inspector general that was dated January 2009, there have been 
times when the division has failed to fully live up to this 
    Upon becoming assistant attorney general my goal has been 
very straightforward: Find out what is working and continue it, 
and find out what is broken and fix it. That is my job plain 
and simple. The GAO report has been very instructive in this 
regard, as was the I.G. report.
    And when I entered the division I observed that there were 
a number of initiatives that had been put in place in the Bush 
administration that were very productive, and I intend to 
continue them--initiatives in human trafficking; initiatives to 
combat racial--religious discrimination; and initiatives to 
enforce the language minority provisions of the Voting Rights 
Act. And I want to commend Congressman Sensenbrenner and so 
many others on this Committee for his leadership in the 
renewal--reauthorization of the Voting Rights Act.
    You played a very important role, and I wanted to 
acknowledge that here today.
    However, as I said, our obligation is to enforce the civil 
rights law--all of the laws--and to use all available, lawful 
tools in our arsenal. The GAO report and the data clearly 
document civil rights areas where enforcement waned or was 
virtually nonexistent. For instance, during the years covered 
in the report the division pursued very few pattern or practice 
cases in the employment context.
    Despite considerable evidence of abusive, discriminatory 
behavior by lenders and servicers that contributed to the 
foreclosure crisis, the division did not make any use in the 
Bush administration of critical tools in its law enforcement 
arsenal--the Equal Credit Opportunity Act, the Fair Housing 
Act--to hold lenders accountable.
    In the Clinton administration, the appellate section filed 
643 briefs in courts of appeal; in the Bush administration, 
424. In the Clinton administration the disability rights 
section brought 228 lawsuits, compared with 126 in the Bush 
administration. In the Clinton administration, the housing 
section brought 676 cases, compared with 324 in the Bush 
    From 2005 till 2007 a total of 16 USERRA cases--these are 
cases where we protect our servicemembers who serve our Nation 
overseas and come home and find that they don't have their job 
back--16 cases were brought from 2005 to 2007. In the first 8 
months of the Obama administration, 18 such cases have been 
    In the Clinton administration, the voting section filed 35 
Section 2 cases, compared with 15 filings in the Bush 
administration. In fiscal year 2006 the division prosecuted the 
lowest number of hate crimes cases in more than a decade--10--
compared with 43 in 1995, when I was a deputy chief in that 
section. Human trafficking is critically important and 
righteous, but it shouldn't come at the expense of hate crimes 
    In addition to these troubling facts, a number of changes 
took place in the longstanding operating practices that have 
greatly hampered the division's effectiveness. For instance, 
the career staff in most instances was frozen out of the hiring 
process by the non-career staff. As a result, section chiefs 
were frequently notified the week before that a new person, 
whom they had never interviewed and never seen, was going to 
show up and serve in their office.
    When I served on the hiring committee, under both 
Republican and Democratic administrations, the hiring process 
was governed by the same principle: Search for the best 
qualified candidates, plain and simple. As the I.G. report has 
documented, hiring in the past years under the Bush 
administration was frequently governed by improper ideological 
    Communications between sections and between career and non-
career staff, which has been a lynchpin to the effective 
operation of the division for decades, waned. For instance, the 
appellate section in the Bush administration was prohibited 
from having case-related discussions with other sections. How 
can you get the casework done if you can't communicate with the 
trial lawyer?
    These sorts of issues and challenges were one of many 
reasons why, in 2003, if you took a snapshot of the lawyers who 
were in the division, and then you took a snapshot in 2007, 70 
percent of the lawyers who were there in 2003 had departed the 
division by 2007. From the moment the new Administration took 
office the division, with the Attorney General's full backing, 
took decisive steps to emphasize core enforcement priorities in 
each of the four litigating sections that are the subject of 
the report and throughout the division as a whole.
    With respect, as I said earlier, to all of the 
recommendations of GAO, I concur with them all and I thank them 
for their diligent service.
    I also want to thank my predecessor, Loretta King, for her 
work in making sure that we moved forward in the interim during 
the 9 months between January and my confirmation in October. 
She did a wonderful job. I think it is equally important to 
thank former Attorney General Mukasey, who began the process of 
depoliticization during his tenure as Attorney General.
    Our task ahead is a task of restoration and transformation. 
Our goal is not to create the Civil Rights Division capable of 
years back, but to create a division capable of responding to 
today's and tomorrow's challenges, both emerging and 
longstanding. It is a formidable task, but it is one that can 
and will be accomplished.
    We recognize that committed career attorneys and 
professional staff are the most critical single ingredient to 
fulfilling this mission, and one of our first priorities has 
been to revamp the hiring process to ensure that we select the 
best qualified candidates for the job. And if you look on our 
Web site today you will see the new hiring process--
transparent, posted so anyone who wants to apply can see how 
the process works from soup to nuts.
    Working with the career staff, we are implementing a number 
of other important changes. We will continue to invest 
resources in areas such as religious discrimination, human 
trafficking, and Section 203 enforcement, which were well done 
in the prior Administration, but we can and will do much more 
in a wide range of areas, including lending discrimination, 
hate crimes, and voting rights.
    By better leveraging our current resources, making the most 
of additional resources that are in the President's fiscal year 
2010 budget, and through more effective management we will 
enforce all of the laws in the division's arsenal aggressively 
and comprehensively. We are actively engaged in the enforcement 
of the new hate crimes bill and I was proud to have testified 
recently on the Senate side on the Employment Nondiscrimination 
    And last week, just in the disability area alone, we filed 
briefs in three separate cases urging enforcement of the 
Supreme Court's landmark decision in Olmstead, which stands for 
the proposition that unnecessary institutionalization of people 
with disabilities is a form of discrimination under the ADA, 
including a seminal case in New York State that I believe will 
enable us to really move the ball forward. Last month we 
obtained the largest monetary settlement ever by the department 
in a Fair Housing Act case, when the owners of numerous Los 
Angeles apartment buildings located in the Koreatown section of 
the city agreed to pay $2.7 million to settle allegations that 
they discriminated against African Americans and Latinos and 
families with children.
    I know this will not be easy, but I am absolutely confident 
that we can get the job done and I look forward to implementing 
the recommendations set forth in the GAO report. I look forward 
to working with all of the Members of this Committee and I 
appreciate the time that you have given me this morning. And I 
am more than willing to answer any questions that you have.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Perez follows:]
          Prepared Statement of the Honorable Thomas E. Perez



    Mr. Nadler. I thank you.
    And I will begin the questioning by recognizing myself for 
5 minutes.
    Mr. Perez, I was very concerned about the examples that the 
GAO found during 2001 to 2007 of civil rights cases, 
particularly in employment and voting, in which career civil 
rights attorneys wanted to pursue investigations but were 
forbidden from doing so, as we have discussed. For example, the 
GAO found that the career staff at the voting section wanted to 
pursue a claim that African American voters were illegally 
intimidated by state officials over the course of a voter fraud 
investigation, but that officials at the division front office 
where political appointees work refused to even allow ``any 
further contact with state authorities on this matter.''
    In employment, the career attorney wanted to go forward 
with a supplemental investigation in a pattern and practice 
case, but all the file said was that the matter was closed with 
no further information as to why it was closed or anything 
    As the top political appointee in the division, what would 
you do or instruct your staff to do in those types of cases 
where career attorneys want to pursue investigations?
    Mr. Perez. Thank you for your question, Mr. Chairman. In 
connection with the voting case that you mentioned, first of 
all, my first learning of that was when I read the GAO report, 
and we have taken further action once I learned of it in the 
GAO report. I can't comment further regarding the specifics 
other than to say that, thank you for having the GAO report, 
which brought it to our attention. And similarly, the other 
matters that you mentioned.
    It is really important--I think part of the restoration 
part of the agenda of the Civil Rights Division involves 
communication, and we have implemented a number of systems, Mr. 
Chairman, which ensure that we have active communication with 
our attorneys. We have had to make a number of critical calls 
in various cases and I have met with career staff and I have 
gone around the room, ``What is your opinion? What is your 
opinion? What is your opinion?'' because I want everyone's 
opinion. I don't care if everyone has the same opinion; I 
believe that decision making is best when you have the robust 
dialogue that existed when I worked for John Dunne and existed 
when I worked for Deval Patrick, and that is the dialogue that 
I think leads to good decision making.
    Mr. Nadler. Thank you. Well, I assume you would not 
tolerate a case being closed for political reasons.
    Mr. Perez. Correct.
    Mr. Nadler. And can we get an assurance from you that you 
will look into the cases specified in the GAO report and report 
back to us as to what you find?
    Mr. Perez. Yes.
    Mr. Nadler. And to what actions you end up taking?
    Mr. Perez. Yes.
    Mr. Nadler. Thank you.
    As I have stated at previous hearings, I have been very 
concerned--and you mentioned--the decrease in pattern and 
practice cases in the division under the last Administration. 
As you know, these pattern and practice cases are the cases 
that really have the most impact in employment, housing, and 
other areas because they are general cases.
    Can you explain what steps you are taking or will take to 
restore the bipartisan tradition of aggressively pursuing 
pattern and practice cases, including cases based on disparate 
    Mr. Perez. Yes. Again, there are two types of 
discrimination. There are two ways to prove discrimination, as 
you have correctly pointed out--proving intentional 
discrimination or proving that there was a policy and practice 
that had a disproportionate adverse impact. And those cases, 
the facts demonstrate, were few and far between over the last 8 
    And so in the lending context, for instance, which is a top 
priority of the Attorney General and a top priority of mine, we 
are using that too. And every circuit that has looked at the 
issue of whether disparate impact is a viable theory, whether 
it is housing, whether it is voting, whether it is employment, 
has said that disparate impact is indeed a viable theory.
    So both in the housing context, and the employment context, 
in the Section 2 voting context, where you can show effects and 
intentional discrimination, we will be using all of the tools 
in our arsenal as we move forward assuming the facts support 
moving forward under that theory.
    Mr. Nadler. And thank you.
    Now, a third subject: As you may know, our Subcommittee has 
had a series of oversight hearings on the division in the past, 
and I have become very concerned about how under the last 
Administration the bipartisan tradition of effective civil 
rights enforcement was severely damaged in a number of areas. 
You have indicated that your goal for the division--and you 
have stated several times this morning--is restoration and 
    Can you explain more specifically what you intend to do to 
restore that bipartisan tradition?
    Mr. Perez. Well again, I came to the civil rights division 
when Ed Meese was the Attorney General. I entered as a career 
hire under Dick Thornberg. I have profound respect for John 
Dunne. I served on the hiring committee under Republican and 
Democratic administrations.
    And everything I have learned in my professional career was 
built upon the foundation of serving as a career attorney 
during this period of time. And that bipartisan tradition of 
decision making that is governed by a careful review of the 
facts and the application of the facts to the law, that is what 
we will ensure exists in 100 percent of the matters that we 
review in this division.
    Mr. Nadler. Thank you.
    And my last question is, we are coming up on the census in 
the next couple years, and I am very concerned about the census 
and the need to avoid undercounting and the significant amount 
of redistricting that will result based on the data that the 
census collects. I know the Commerce Department has the 
responsibility for the census, but your division is responsible 
for reviewing districting plans, both to consider whether plans 
in Section 5 jurisdiction should be pre-cleared and to consider 
whether other redistricting plans have discriminatory effects 
under Section 2.
    Can you explain what you are planning to do or have done in 
these areas, particularly to get ready for the significant work 
you will have to do on redistricting in the next few years?
    Mr. Perez. We are meeting regularly with our colleagues in 
the Census Bureau. I actually have a call later today with the 
general counsel at the Department of Commerce, Mr. Kerry, to 
continue our discussion on a host of issues.
    We are ramping up staffing-wise and we are very grateful 
that the President's budget includes a healthy increase for the 
Department of Justice. If the budget is adopted--and hopefully 
when the budget is adopted--there will be 102 new slots and I 
am quite confident that a substantial portion of those slots 
will be allocated not only for attorneys but for analysts, 
because when the data comes in we need to have that core 
competency to review that data and make the requisite judgments 
about various plans that are under submission.
    And so we have a very robust agenda so that we are going to 
be prepared for not only the census but for the redistricting 
that follows it and to implement the Northwest Austin decision 
so if we get requests for bailout we are prepared for that.
    Mr. Nadler. Thank you very much.
    My time is expired. I now recognize the gentleman from 
    Mr. Franks. Well thank you, Mr. Chairman.
    Thank you, Mr. Perez, for being here. Mr. Perez, I know we 
are all familiar with the mass shooting tragedy at Fort Hood.
    Mr. Perez. Yes, sir.
    Mr. Franks. Major Hassan, the alleged shooter in that 
situation, has made statements in the past suggesting that 
crimes like this should be expected by the military due to the 
religious motivations of military personnel who would balk at 
being sent to fight in Islamic lands. He also said that 
military members or those who are not Islamic would be targets 
of such crimes.
    And so I guess my question to you: If a crime is motivated 
by animus toward a group who failed to belong to a certain 
religious group--are you with me?--if a crime is motivated by 
animus toward a group who failed to belong to a certain 
religious group, as in the case of Major Hassan's stated 
rationale of crimes, then does that mean that Major Hassan--
that his crime was actually a hate crime as well?
    Mr. Perez. The crimes that occurred in Fort Hood were 
    Mr. Franks. But were they hate crimes? Was it a hate crime?
    Mr. Perez. I have not been involved in the investigation of 
that. It is a criminal investigation and so I don't have----
    Mr. Franks. In the situation that I have given you, if--let 
me just put in hypothetical. If a crime is motivated by animus 
toward a group who failed to belong to a certain religious 
group, as in the case of Mr. Hassan's crime, would that then be 
a hate crime? If someone perpetrated a violent crime based on 
someone not being a member of a particular religious group 
would that be a hate crime?
    Mr. Perez. We have prosecuted a number of cases----
    Mr. Franks [continuing]. The question, Mr. Perez?
    Mr. Perez. I am attempting to, sir.
    Mr. Franks. Okay.
    Mr. Perez. We have prosecuted a number of cases in the 
civil rights division under 18 of the United States Code, 
Section 245, which prohibits force or threats of force against 
another person on account of a person's race, color, national 
origin, religion. And so if there are racial--if there are 
religiously-motivated acts of violence and we can demonstrate 
that that person acted on account of that religious animus and 
on account of the person exercising what is called a federally-
protected right, under Section 245, then those are the types of 
cases that are brought under Section 245. And there have been a 
number of cases relating to desecrations of mosques, 
desecrations of synagogues, desecrations of other places of 
    Mr. Franks. Well, I think that is a close as I am going to 
get, and I appreciate it, because I think under your answer 
that Mr. Hassan's crimes would be hate crimes. But that is--we 
will let the other people decide.
    I don't think I have time to ask a second question, but it 
is related to the Black Panthers case. My understanding from 
Ms. Loretta King, who was acting as a political appointee at 
the time, is the person most likely for being responsible for 
ordering the dismissal of this case. And because of this 
decision by the Department of Justice the department was taken 
to task by the U.S. Commission on Civil Rights for dismissing 
this case that would have been probably a slam-dunk case for 
the department.
    And in what is arguably the worst and most egregious and 
most high profile nationally-televised violation of Voting 
Rights Act in broad daylight, in which members of the New Black 
Panthers wield nightsticks at a voting poll entrance while 
shouting racial slurs--I mean, that is a pretty high profile 
case--the department dismissed the case and they failed to 
answer questions about this dismissal that have come from 
Members of this Committee, other Members of Congress, and now 
even the U.S. Commission on Civil Rights.
    And I understand that the department policy may prevent you 
from speaking to the media about pending investigations, but 
there is an exception for matters of the public interest. And 
further, your internal policy shouldn't undo the duty that you 
have to answer to the oversight committees of the people's 
Congress. And of course there are Federal statutes that require 
all Federal agencies to cooperate fully with the Civil Rights 
    And my understanding is that Chris Coats and Christian 
Adams, two lawyers at the DOJ who had responsibility for this 
case, have received subpoenas from the U.S. Commission on Civil 
Rights. And I also understand that the two of them have been 
instructed not to comply with these subpoenas by the 
department, and that at least one of them has hired a lawyer to 
assist him in how to handle the conflicting mandates of 
complying with Federal law by telling the U.S. Commission on 
Civil Rights the truth versus complying with the demands of the 
political appointees by the Obama Department of Justice.
    So my question is, will you cooperate with the U.S. Civil 
Rights Commission subpoenas to the department employees 
regarding the dismissal of the lawsuit against the Black 
Panthers--New Black Panthers case for voter intimidation in 
Philadelphia by instructing your employees to comply with the 
commission's subpoenas, and will you instruct your employees to 
tell the truth to the U.S. Commission on Civil Rights? Will you 
do that?
    Mr. Perez. Sir, thank you for your question, and a number 
of things I want to correct. Loretta King is a career attorney, 
has been a career attorney for roughly 30 years, has never been 
a political appointee in the civil rights division.
    Mr. Franks. I stand corrected.
    Mr. Perez. The case was not dismissed. The case was 
reviewed by two attorneys, including Loretta, who have a 
combined total of 60 years of experience, and they made the 
determination that, based on the law of the third circuit, that 
the case against the person who wielded the stick, that we 
should indeed seek the maximum penalty, and that maximum 
penalty was sought and obtained, and the case against the other 
defendant should be dismissed, and the case against the 
national party should also be dismissed. So that was the 
determination that was made and so I needed to correct the 
record because the case was not indeed dismissed and those two 
career attorneys, with 60 years of experience, made that 
    The requests from the Civil Rights Commission to which you 
refer were received shortly before Thanksgiving and the Civil 
Division, which handles all such requests, sent a letter to the 
Civil Rights Commission shortly after that receipt outlining 
the very extensive protocols that exist, and have been in 
existence for decades under DOJ policy, for handling requests 
of this nature. And we are awaiting word from the Civil Rights 
Commission because that letter, as I understand it, because the 
Civil Division is handling that request--that letter made a 
number of requests of the Civil Rights Commission and the ball 
is in their court to respond.
    So those protocols, which again, are nonpartisan protocols 
that have been in place pursuant to a 1951 Supreme Court 
decision and regulations that were promulgated there too, those 
protocols will govern and we look forward, under the leadership 
of the Civil Division, to getting the answers to some of the 
questions that Civil Division asked of the Civil Rights 
Commission as we move forward.
    Mr. Franks. Thank you, sir.
    And thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    I will now recognize the distinguished gentleman from North 
Carolina for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    Welcome, Attorney Perez.
    Mr. Perez. Thank you.
    Mr. Watt. Great to see you here. I welcome the tenor and 
tone and content of your opening statement, and never like to 
miss the opportunity publicly--although Mr. Sensenbrenner 
generally disappears after he beats up ACORN--I never like to 
miss the opportunity publicly to join with you in praising him 
for his role in the extension of the Voting Rights Act. We 
differ on a number of issues, but I don't think there was a 
more ardent fighter for the extension of the Voting Rights Act 
than Chairman Sensenbrenner--or Ranking Member Sensenbrenner, I 
guess it was at the time that that reauthorization was going 
    You mentioned a couple of times--once in your opening 
statement and I think once in response to Chairman Nadler's 
question--that one of the things you are planning to do is 
pursue lending discrimination cases, and I just wanted to delve 
a little bit into that further because I understand that 
Attorney General Holder has set up a kind of a task force or a 
division or something special to deal with the kind of meltdown 
financial crisis issues, as I understand it, that got us into 
the economic meltdown substantially.
    One part of that is a gross, obvious pattern of 
discrimination against minorities in the extension of credit 
because even well financially qualified minorities ended up 
getting disproportionately subprime loans. And it seems to be 
that that part of it has a civil rights component to it.
    Can you talk to us a little bit about how the Civil Rights 
Division will work with this new task force and your perception 
of whether it may be possible to, as a sub-part of that larger 
task force responsibility, delve further into the massive 
financial services discrimination that was taking place with 
respect to loan decisions made about extending credit to 
    Mr. Perez. Thank you for your question. And I am part of 
the task force. The Attorney General set up this task force.
    It is an interagency task force so it doesn't simply 
involve the Department of Justice. It involves HUD; it involves 
people at the Fed; it involves people at Treasury, et cetera.
    And I am a co-chair of the nondiscrimination working group 
in that task force, and you are indeed right. The foreclosure 
crisis has touched every community, but the data is 
overwhelmingly that it has disproportionately touched 
communities of color. I saw that as I spearheaded Governor 
O'Malley's foreclosure prevention efforts in Maryland, where 
African Americans and Latinos were disproportionately 
victimized and subjected to discrimination, quite frankly. And 
that is why there is a civil rights dimension to this 
    There are two jurisdictional hooks that the Civil Rights 
Division has: the Fair Housing Act and the Equal Credit 
Opportunity Act. In the Clinton administration, these 
provisions were used to hold accountable lenders who had 
engaged in the precise types of practices that you describe. 
Decatur Federal Savings & Loan in Georgia is one example; Chevy 
Chase Bank is another example.
    And we will and must use those tools again to ensure that 
both, in the origination side and in the modification side, 
there is not discrimination. And that is precisely what we will 
do in the Civil Rights Division.
    Mr. Watt. So you view that civil rights component--the 
discrimination component--as being part and parcel of this--the 
responsibilities of this task force that the Attorney General 
has set up?
    Mr. Perez. And the Attorney General views it that way as 
well. And it gets back to Chairman Nadler's question about 
disparate impact, because many of these cases are made by using 
disparate impact theory, and that was how Decatur--well, 
Decatur was both an intent and a disparate impact theory, but 
that is a very important component in our arsenal as we move 
    Mr. Watt. Thank you, Mr. Chairman. My time is expired, and 
I yield back.
    Mr. Nadler. I thank the gentleman.
    And I now recognize the gentleman from Iowa for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    Mr. Perez, thank you for your testimony. There are a number 
of subjects I would like to take up.
    One of them that caught my interest in your response to one 
of the other Members was that in the Philadelphia case of the 
New Black Panthers voter intimidation, which I believe was the 
most clear cut open and shut case of voter intimidation in the 
history of the United States of America, you stated that the 
case was not dismissed but it was reviewed and that the maximum 
penalty was obtained for one individual. What was the charge 
and what was the maximum penalty that was obtained, and was 
that a confession? What was the case of the disposition of that 
    Mr. Perez. The maximum penalty available under the relevant 
provision of the Voting Rights Act, Section 11, is injunctive 
relief, and that was the penalty that was obtained in that 
particular case against that particular person.
    Mr. King. In other words, don't do this again.
    Mr. Perez. And the injunction is in place until 2012. Those 
are the statutory tools that we have. If Congress chooses to 
amend those statutory tools to provide additional penalties we 
will, of course, enforce the statutory tools that you provide 
    Mr. King. But to make this clear, for the clearest case of 
voter intimidation, a paramilitary--similar paramilitary 
uniformed individual standing in front of the polling place in 
Philadelphia with what has been described as a billy club and 
uttering racial epithets to people coming in to vote, the only 
penalty--the strongest penalty that you have available is 
injunctive relief.
    Mr. Perez. That is the statute--that is what the statute 
provides, sir, and that was the penalty that was sought and 
obtained against that individual----
    Mr. King [continuing]. Charges that might have applied that 
were outside the Voting Rights Act?
    Mr. Perez. I am sorry?
    Mr. King. Did you review if there were any other charges 
that might have applied outside of voter intimidation?
    Mr. Perez. Well again, I wasn't here at the time. It is my 
understanding that a criminal review was conducted and the 
judgment was made to decline prosecution of that matter. The 
local authorities also showed up----
    Mr. King. Would you be willing to go back and take another 
look at that case, Mr. Perez?
    Mr. Perez. Pardon me?
    Mr. King. Would you be willing to go back and take another 
look at that case?
    Mr. Perez. Well, there are multiple reviews of--going on by 
the Office of Professional Responsibility and I look forward to 
the results of their review, and I welcome their review.
    Mr. King. Okay. Then on the issue that has to do--I am 
going to first take you down through a couple of empiration 
questions if I can. You are familiar with the DREAM Act----
    Mr. Perez. Yes, sir.
    Mr. King [continuing]. The DREAM Act that provides for in-
state tuition discounts for students who are unlawfully present 
in the United States. And I am looking at a quote from you that 
says, ``We have a legal obligation to make the same commitment 
to hundreds of immigrant high school students who have made 
Maryland their home.'' You don't say illegal immigrant high 
school students; I presume that is what you mean. Did you say 
that? And if so, what would be the legal obligation to provide 
tuition discounts to those that are in the United States 
illegally and otherwise deportable?
    Mr. Perez. The DREAM Act and similar provisions have been 
enacted across this country by Republican and Democratic 
governors--Texas, California, Utah, New York, and other places, 
and when I was serving in state government--or in local 
government, I think that is the context of that--I talked about 
how people who came here at the age of three or four through 
actions of their parents----
    Mr. King. You are referencing the state statute of this 
DREAM Act in Maryland.
    Mr. Perez. Correct.
    Mr. King. Are you aware of the Federal statute that 
prohibits those tuition discounts from being offered to any 
student unless they are offered to every student who is also 
lawfully present in the United States, regardless of their 
state of residence?
    Mr. Perez. I am aware of the fact that this is an issue 
that has been under discussion in Congress for a number of 
years. I haven't participated in that debate.
    Mr. King. Were you aware of the Federal statute that I was 
    Mr. Perez. I am aware of the fact that--the statute that I 
was referring to in Maryland was a statute that would mirror 
Texas, Utah, California, and other states that allowed in-state 
tuition for people who had been living in their state and who 
made a commitment to adjust their status as soon as they became 
eligible to do so.
    Mr. King. With regard to the state statute in Maryland 
versus the Federal statute that prohibits a special discount 
for illegals unless that same discount, in-state tuition, is 
offered to every American citizen student whatsoever--were you 
aware that there is a conflict between the state statute and 
the Federal statute?
    Mr. Perez. Well, the other states have--a number of other 
states have implemented this and it is my understanding that--
    Mr. King. Without regard to other states, I am speaking of 
    Mr. Perez. Yes. It is my understanding that there are ways 
to devise that legislation at a state level, as Republican and 
Democratic governors have done----
    Mr. King. You really weren't so sure that what you said 
here, ``We have a legal obligation to make the same commitment 
to hundreds of illegal immigrant high school students who have 
made Maryland their home''--you really weren't that confident, 
I don't think, Mr. Perez, and I regret that my time has 
expired. I do appreciate your testimony.
    Mr. Perez. Thank you, sir.
    Mr. King. I yield back to the Chairman.
    Mr. Nadler. Thank the gentleman.
    I now recognize for 5 minutes the gentleman from Virginia, 
Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    And welcome, Mr. Perez.
    Just very briefly on the ACORN case, there is obviously a 
lot of fraud. People were being paid for registrations and they 
were submitting to their employer registrations that were 
fraudulent to make the money. My question is, how many people, 
on the evidence that you have available, actually voted as a 
result of this fraud?
    Mr. Perez. I can't answer that question, sir.
    Mr. Scott. Is there any evidence that anybody voted?
    Mr. Perez. I don't know the answer to that, sir.
    Mr. Scott. Okay. Under the Voting Rights Act felony 
disenfranchisement is alive and well in many states. Is there 
anything that the Federal Government can do to address that 
where the felony disenfranchisement has the effect or was 
instituted with the intent to have an adverse effect on the 
minority community?
    Mr. Perez. Well, the issue of felony disenfranchisement has 
been addressed by a number of states in recent years, and 
obviously I appreciate your leadership on this issue. I recall 
my time with Senator Kennedy and your leadership on this issue. 
And again, it continues to be an issue that is the subject of 
discussion as we move forward.
    Mr. Scott. Is there anything the Federal Government can do 
constitutionally to restore the right felons and states where 
the felony disenfranchisement laws have had the effect or were 
implemented with the intent of diluting minority voting 
    Mr. Perez. If we receive an allegation of that nature we 
will certainly investigate it.
    Mr. Scott. Is there anything you can do in light of the 
constitutional provisions that the states get to decide who 
registers and felony disenfranchisement is legal?
    Mr. Perez. I would have to review specific factual 
circumstances. It is very difficult to talk in generalities 
about this.
    Mr. Scott. On housing, there are reports that there is 
still widespread discrimination in housing. Hopefully your 
answer to that issue will be too long for my little 5 minutes, 
so if you could provide information on your strategies to 
reduce discrimination in housing I would appreciate it.
    Mr. Perez. Happy to.
    Mr. Scott. And also, on widespread discrimination in 
employment, we have had reports that if your resume sent in 
reflects ethnic minority--the person is a minority--that alone 
will diminish the opportunities they may have. And if you could 
provide information on strategies of reducing employment 
discrimination I would appreciate that.
    A couple years ago the Bush administration Office of Legal 
Counsel issued a memo suggesting that the Religious Freedom 
Restoration Act actually overruled statutory antidiscrimination 
laws. Are you familiar with that Office of Legal Counsel memo?
    Mr. Perez. I have not reviewed it myself, sir.
    Mr. Scott. You know what I am talking about?
    Mr. Perez. I am aware of the issue in general terms, yes.
    Mr. Scott. Well, if you could take a look at that, because 
it was not the intent of anybody who was involved in the 
passage of the Religious Freedom Restoration Act, and there are 
a number of groups--religious groups--that have complained that 
it was inaccurate.
    Since 1965 to 2001 anybody running a federally-funded 
program could not discriminate based on race, religious, race, 
color, creed, national origin, or sex. The Bush administration 
changed that so that some can, in fact, discriminate based on 
religion, and inferentially, probably race. When is the 
Administration going to restore the law the way it was from 
1965 to 2001?
    Mr. Perez. I think this Administration--I know the 
Administration is committed to ensuring that we partner with 
faith-based organizations in ways that are consistent with both 
our laws and our values----
    Mr. Scott. The law changed, and we want to know when they 
are going to change the law back. The President, during his 
campaign, said that he would have faith-based organizations 
with no discrimination, no prostelization. My question is, when 
are we going to get around to implementing that?
    Mr. Perez. Again, I think the department will continue to 
evaluate these legal questions that arise with these programs 
to ensure----
    Mr. Scott. It is not a legal question; it is a policy 
    Let me get one more question in. You mentioned 
trafficking--Section 1593(a) has a lower standard for 
prosecuting trafficking. It says, ``Whoever knowingly benefits 
financially or by receiving anything of value from 
participating in a venture which was engaged in any act in 
violation of Section 1581(a), knowingly or recklessly disregard 
the fact that the venture was engaged in such violations shall 
be fined and imprisoned.''
    That removes the requirement that you have to prove force 
or coercion in terms of a pimp forcing or coercing a prostitute 
from engaging in the activity. It just says if he benefits 
financially that is all you have to prove. Can you get back 
with me and let me know how the Administration is using 1593(a) 
instead of the more problematic statute--a lot of people it is 
hard to get the testimony because people are intimidated. If 
you could get back to us and let us know how you are using 
1593(a) rather than the other statutes I would appreciate----
    Mr. Perez. I am happy to get back to you.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Nadler. I thank the gentleman.
    I now recognize the gentlelady from California for 5 
    Ms. Chu. Thank you, Mr. Chair.
    Mr. Perez, you said that the GAO report indicated that 
during the last 7 years of the last Administration that was 
examined by that report, hate crime prosecutions dropped. I was 
particularly shocked by this. I was the chair of California 
State Assembly's select committee on hate crimes and I know 
that hate crimes increased in California by 300 percent in the 
year following 9/11, particularly against Arabs and Muslims and 
those thought to be Arab or Muslim.
    Can you explain what happened and also how, under your 
leadership, enforcement of hate crime laws will be different 
from that of your predecessors?
    Mr. Perez. Sure. Again, by way of reference, in 1994 there 
were 35 hate crime prosecutions; in 1995 there were 43; in 1996 
there were 38. By comparison, in 2005 there were 12, 2010 there 
were--2006 there were 10, 2007 there were 12, 2008 there were 
21, 2009 there were 24, trending in the right direction but 
still a ways to go. And again, it gets to my point that 
trafficking is a very important priority and will continue to 
be a priority but we can't do these cases at the expense of 
other cases.
    We certainly have seen and the data demonstrates increases 
in hate crime activity across the country, and we know that the 
FBI data understates the extent of the problem because a number 
of jurisdictions don't report. So we have the new statute that 
I started working on in 1996 when I was working with Senator 
Kennedy that is going to give us additional tools to address 
some of the jurisdictional hurdles that have prevented us from 
bringing some of these cases in recent years, and I think that 
will really allow us to put our best foot forward.
    The Attorney General is very personally committed to moving 
forward on these and we have, I think, a very--again, with the 
resources that will hopefully flow from the budget that we hope 
will be passed in the near future, that will provide us with 
opportunities to expand our hate crimes enforcement.
    Ms. Chu. Thank you. That is very good news.
    On another topic, the Voting Rights Act, of course we know 
it is critical to ensuring the democratic participation of all 
citizens, especially racial and language minorities. But the 
GAO report found that when compared with the Clinton 
administration there was a significant drop in the enforcement, 
and it found a sharp decline of that enforcement from more than 
four cases a year under Mr. Clinton to fewer than two cases a 
year under Mr. Bush.
    The Voting Rights Act is particularly important to my 
district, with its large number of Latino and Asian Americans 
who are primarily proficient in other languages. What emphasis 
will you place on Section 203 issues, which does have to do 
with language minority persons, and how will you ensure that 
protecting the democratic rights of communities with large 
percentages of non-English speaking people is still a priority 
for the Civil Rights Division?
    Mr. Perez. The Section 203 work that was done by the Bush 
administration was very important and very effective, and we 
will continue that. However, you cannot do Section 203 work at 
the expense of Section 2. In the Clinton administration the 
voting section filed 35 section 2 cases; in the Bush 
administration 15 were filed.
    Section 2 is a lynchpin of the Voting Rights Act and our 
voting rights protection in the country, and I think we can do 
both. I don't think it is an either/or question. If we leverage 
our resources properly we have the additional resources coming 
that I mentioned, and the partnerships that we can put in place 
with the U.S. attorneys' offices, I think all of these--and 
frankly, working smarter and working more efficiently, I am 
confident that we can accomplish everything that we need to 
accomplish to ensure that we enforce the laws--all of the laws.
    Ms. Chu. Okay. Thank you.
    And finally, the January report by the department's 
inspector general cited internal e-mail and personnel files and 
it confirmed that in the last Administration that political 
appointees sought to hire conservatives and block liberals to 
career positions, contrary to civil service laws. I understand 
that the Attorney General is committed to making the Civil 
Rights Division one of the strongest in the department, and to 
that end you are expecting to hire 60 to 100 additional 
    What will you do to ensure that these new staffers have a 
range of diverse backgrounds and experiences? And what 
departments within the Civil Rights Division will you focus 
these additional staff resources? And how does this reflect 
your priorities?
    Mr. Perez. Sure. Three of the priority areas that I have 
discussed a number of times have been our fair lending work, 
our voting rights work, and our hate crimes work, and so I 
expect that a substantial portion of the new resources will be 
focused in those areas. We haven't made the final staffing 
allotments yet, but budgets should reflect your priorities and 
so those areas will receive substantial attention as we move 
    Ms. Chu. And the diversity of the----
    Mr. Perez. Oh, yes. And again, our Web site has our new, 
written hiring policy. I apologize for not addressing that. And 
I am confident our--the new policy, which is much more 
transparent and available to anyone who is interested in 
applying, specifically sets forth that we are looking for the 
best qualified people, and I believe that we can--for instance, 
in the 203 context I have been--I have spent a lot of time in 
California in my short tenure in this job and there are many 
people out there--I keep encouraging them to apply--a lot of 
203 experts and advocates, and I am confident that in the end 
of the day we will recruit both the best qualified candidates 
and candidates that reflect those diverse backgrounds. That is 
certainly the best way to restore and to carry out our mission.
    Ms. Chu. Thank you.
    I yield back.
    Mr. Nadler. Thank you.
    I will now recognize the gentleman from Georgia for 5 
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Perez, the stats that you just gave to us about the 
number of cases that the Civil Rights Division has handled 
insofar as hate crimes--are those statistics right there, are 
they based on data that was acquired during the Bush 
    Mr. Perez. This is data--for instance, the criminal 
prosecutions that I just described, I have data going back to 
1993. When I was a career attorney in the section we kept data 
every year, and so that is why I can tell you that in fiscal 
year 1994 there were 35 hate crimes cases brought. Of those 35 
cases, 16 were cross-burning cases and the remainder were other 
sorts of cases. So this data has been collected throughout a 
number of years.
    Mr. Johnson. Now, your record-keeping--the GAO report talks 
about the record-keeping and it being a real problem for this 
division under the Bush administration. What specific steps 
have you taken to improve your information systems and does 
that deficiency have any connection to the recent data that you 
rattled off to us over this current decade?
    Mr. Perez. The data on the number of cases, I am confident, 
are accurate data, but that does not obviate the need for us to 
implement the recommendations that were set forth in the GAO 
report. I actually am having a meeting next week with a 
technology working group that we are putting together so that 
we can ensure that we are in the 21st century technologically, 
that we have systems in place that can capture almost any 
question that you might pose to use regarding the casework that 
we do.
    So we have plenty of room for improvement, and that was 
documented in the GAO report, and we remain committed to 
implementing those steps.
    Mr. Johnson. In a particular division where the 
deficiencies are greater than the others----
    Mr. Perez. I am sorry, I was unable to hear you.
    Mr. Johnson. Is record-keeping at any of the divisions----
    Mr. Perez. Yes.
    Mr. Johnson [continuing]. Of civil rights--are there any 
particular departments that seem to stand out as far as these 
statistics are concerned?
    Mr. Perez. Well, the statistics in terms of----
    Mr. Johnson. Well, let me ask the question----
    Mr. Perez [continuing]. Cases going up and down, or just 
the data collection capacity?
    Mr. Johnson. Let me ask a question. The Civil Rights 
Division, the voter rights division--the division that deals 
with voting rights--have those been particularly problematic 
during the course of the last 10 years?
    Mr. Perez. The data speaks for itself. I mean, there were 
certainly a lesser number of Section 2 cases that were brought. 
There was enhanced enforcement in Section 203; there were a 
number of cases brought there. And there were other areas where 
there wasn't as much done. The data certainly bears that out.
    Mr. Johnson. Are there any officials in your department--
high level officials--who were appointed under the Bush 
administration and their positions turned into career positions 
so that they could stay?
    Mr. Perez. I think you are referring to the phenomenon of 
burrowing in--non-career people who became career people. I 
would want to confirm that and get back to you. I am unaware of 
any non-career people who burrowed in, but I haven't examined 
it carefully enough to feel 100 percent confident in that 
answer as it relates to the Civil Rights Division, and I will 
be happy to get back to you.
    Mr. Johnson. And a problem with burrowing in is the fact 
that new policies could be changed somehow. Will you get back 
to me on----
    Mr. Perez. Absolutely.
    Mr. Johnson [continuing]. On that issue?
    Mr. Perez. I will certainly. Thank you, sir.
    Mr. Johnson. Thank you.
    Mr. Nadler. Thank you.
    I now recognize the gentleman from Texas for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    Thank you for being here, Mr. Perez.
    Mr. Perez. Good morning, sir.
    Mr. Gohmert. I appreciate that very much.
    Hypothetical: If in November 2010 you receive evidence that 
two members of the KKK in Mobile, Alabama appear, from the 
evidence you receive, to have been intimidating potential 
voters what would be the reaction of your office?
    Mr. Perez. We will receive the allegation, we will conduct 
an investigation, we will apply the facts to the law and reach 
a conclusion.
    Mr. Gohmert. If you have people who are long-term employees 
of the Department of Justice and the Attorney General's office 
who indicate that this is clearly abuse and you can take action 
against the individuals and on getting a judgment you would be 
able to pursue discovery and find out whether it was a 
widespread plot or just locally, wouldn't you go ahead and 
pursue that?
    Mr. Perez. We will include all of the people involved in 
the decision making process----
    Mr. Gohmert. Then why would you not do that with the Black 
Panthers when you got the video of what occurred in 
Philadelphia instead of ordering the dismissal of what was 
clearly going to be a judgment and could have allowed for 
discovery to be forthcoming and sought out whether or not there 
was a widespread conspiracy or whether this intimidation was 
limited to Philadelphia?
    Mr. Perez. Sir, two career attorneys with over 60 years of 
experience reviewed the decisions that were made on January 7, 
2009 by the previous Administration, reached a conclusion that 
the charges against one of the defendants were warranted, 
sought and obtained the maximum penalty, and concluded that 
based on the facts and the application of the facts to the law 
that the charges were not sustainable against the remaining 
defendant. And----
    Mr. Gohmert. Were you aware that they did not even file an 
answer? How is that not sustainable? They didn't file an 
answer. They were going to get a judgment. And what were the 
names of those two career officers who could not figure out 
that the judgment that the judge had asked for and to be 
prepared and submitted that it certainly appeared he would 
sign, there was no response--what are the names of those two 
individual brilliant legal jurists who said they couldn't get a 
    Mr. Perez. The law of the third circuit requires that 
before a default----
    Mr. Gohmert. Okay. But what were the names of the two 
career individuals----
    Mr. Perez. Loretta King and Steve----
    Mr. Gohmert. My question is----
    Mr. Perez. Loretta King and Steve Rosenbaum, sir----
    Mr. Gohmert. I guess, okay, thank you. Loretta King and who 
    Mr. Perez [continuing]. And they came up and made 
themselves available----
    Mr. Gohmert. Loretta King and who else?
    Mr. Perez. Steve Rosenbaum, who was the Acting Deputy 
Assistant Attorney General for Civil Rights.
    Mr. Gohmert. Had those two been handling the case?
    Mr. Perez. They were the two people in the front office--
the two career people--who were overseeing that case.
    Mr. Gohmert. They were overseeing but they were not 
handling that case, were they?
    Mr. Perez. They were reviewing the case, and they reviewed 
the entire record and made the judgment regarding the 
application of the fact to the law.
    Mr. Gohmert. Is it your opinion, with your distinguished 
career and your great education and experience, that when you 
have a judgment that the judge has asked for and the 
respondents have not responded that you could not get a 
judgment in that case? Is that your opinion?
    Mr. Perez. Sir, it is my view that we have to follow the 
laws of the circuit, and in the third circuit the law is that 
if you are going to seek a default judgment you need to be able 
to represent to the court--there is a rule, Rule 11, that 
requires you to be able to represent to the court that the 
charges you are putting forth are charges that are supported by 
the facts and the evidence, and----
    Mr. Gohmert. Did you review the video of those guys out in 
front of that polling place?
    Mr. Perez. Whenever a case is brought to anyone's 
    Mr. Gohmert. My question is, did you review the video of 
the individuals out in front of that polling place?
    Mr. Perez. It is important, Congressman, to review the 
totality of the circumstances and not make----
    Mr. Gohmert. And I am asking you to get to the totality you 
reviewed, if anything, did you review the video of those guys 
out in front of the polling place, and one of them with a billy 
    Mr. Perez. Sir, I am not the person who reviewed the case 
because it was--I was not working----
    Mr. Gohmert. So your answer to my question is no, you did 
not review that video. Is that correct?
    Mr. Perez. Sir, I have incredible confidence in the 
judgment of the two career people who made the judgment----
    Mr. Gohmert. So the answer to my question is no, you never 
saw the video. Isn't that right?
    Mr. Perez. I have actually seen the video, sir----
    Mr. Gohmert. Okay, there we go. Thank you.
    Mr. Perez [continuing]. But I----
    Mr. Gohmert. Thank you. That was the question. That helps 
me know whether you reviewed the totality of the circumstances 
    Mr. Perez. No, I haven't reviewed the totality of the 
circumstances myself, and I look forward to the report of the 
Office of Professional Responsibility, which was asked for by 
this Committee and----
    Mr. Gohmert. And Mr. Perez, as smart as you are you know 
how important around the world that it is to avoid voter fraud 
and voter intimidation, and so in Iraq they dip their finger, 
under threat of death, in purple permanent ink knowing that 
they would be subjected to death. And here we can't even get 
the Justice--I don't care which Administration----
    Mr. Nadler. Time is expired, but I will let the witness 
answer the question.
    Mr. Gohmert. But you understand----
    Mr. Nadler. The gentleman's time is expired. The witness 
may answer the question.
    Mr. King [continuing]. Unanimous consent the gentleman be 
recognized for an additional minute.
    Mr. Perez. I am not sure what the question is, sir.
    Mr. Nadler. We cannot do that. We have 6 minutes left on 
the vote on the floor.
    The witness may answer the question.
    Mr. Perez. I wasn't sure that there was a question----
    Mr. Gohmert. The question started with, were you aware? Or, 
you are aware of how important----
    Mr. Perez. Sir, I certainly share your desire and interest 
in ensuring that elections are carried out in a manner that is 
free of intimidation, and I also share your desire to ensure 
that investigations are fully and fairly carried out. I look 
forward to the results of the OPR investigation. We have 
cooperated fully; we will continue to do so and await their 
    Mr. Gohmert. Please do so with the KKK or anybody else that 
you find there is evidence of voter intimidation.
    Mr. Perez. Yes, sir.
    Mr. Nadler. Thank you.
    Without objection the gentleman from Virginia is recognized 
for--briefly to ask a question which the witness will give an 
answer to later.
    Mr. Scott. Thank you.
    If you could get back to me on the answer, under Parents 
Involved in Community Schools v. Seattle and the Michigan 
affirmative action cases the court has made it clear that 
voluntary desegregation programs and affirmative action 
programs are legal but only if they are done correctly. My 
question to you is if you could provide us the guidance you are 
providing to local school systems and universities and others 
about how to fashion desegregation programs and affirmative 
action programs so that they can pass constitutional muster? 
And if you could get back to me on that I would appreciate it.
    Mr. Perez. I look forward to discussing that issue with 
    Mr. Nadler. So I thank the witness. I thank the Members. So 
that we don't miss the votes on the floor--there are now four 
votes on the floor; there is 4 minutes and 45 seconds left on 
the first vote. So we will recess the hearing until the 
conclusion of those votes.
    I ask the Members and the witnesses to be back as soon as 
the votes conclude, as rapidly as possible thereafter.
    Mr. Perez, you are excused with our thanks.
    Mr. Perez. Thank you.
    Mr. Nadler. And the hearing is recessed until the 
conclusion of the votes on the floor.
    Mr. Perez. Thank you, Mr. Chairman.
    Mr. Nadler. The Subcommittee will come back to order again. 
I thank everyone for waiting while we were voting.
    We will now proceed with our second panel, and I would ask 
the witnesses to take their places. In the interest of time I 
will introduce you once you have taken your seats, which you 
    Eileen Regan Larence currently serves as director of the 
homeland security and justice issues at the U.S. Government 
Accountability Office. In this capacity she manages 
congressional requests to assess various law enforcement and 
Department of Justice issues as well as the state of terrorism-
related information sharing since 9/11. Ms. Larence has a 
Master's in public administration degree and extensive 
experience at GAO.
    Grace Chung Becker served as the Acting Assistant Attorney 
General for the Civil Rights Division at the United States 
Department of Justice from 2007 until the beginning of 2009. 
She previously served as an associate deputy general counsel at 
the Department of Defense.
    She also has worked as a Federal prosecutor in the Criminal 
Division of the Justice Department, the Assistant General 
Counsel of the United States Sentencing Commission, counsel to 
the Senate Judiciary Committee, and an associate at the law 
firm of Williams and Connolly. Earlier in her career Ms. Becker 
clerked for Judge James L. Buckley of the United States Court 
of Appeals for the District of Columbia circuit and Judge 
Thomas Penfield Jackson on the United States District Court for 
the District of Columbia.
    She graduated magna cum laude from the Wharton School of 
Finance through the University of Pennsylvania and obtained her 
law degree magna cum laude from the Georgetown University Law 
Center, where she was a member of the Order of the Coif and was 
an associate editor on the Georgetown Law Journal.
    Joseph Rich is the director of the Fair Housing Project at 
the Lawyers' Committee for Civil Rights Under Law. He has 
served in this position since 2005.
    Before joining the Lawyers' Committee Mr. Rich spent his 
entire legal career in the Department of Justice's civil rights 
division, where he litigated and supervised hundreds of civil 
rights cases. From 1999 to 2005 he has served as chief of the 
voting section.
    Prior to his tenure in the voting section, Mr. Rich spent 
12 years as deputy chief in the Housing and Civil Enforcement 
Section of the Civil Rights Division. Additionally, he served 
as deputy chief and trial attorney in the Civil Rights 
Division's Educational Opportunities Section, where he 
litigated and supervised approximately 100 school desegregation 
and other equal education cases.
    Mr. Rich received his J.D. degree cum laude from the 
University of Michigan Law School and his B.A. in history from 
Yale University.
    I am pleased to welcome all of you. Your written statements 
will be made part of the record in its entire--in their 
entirety. I would ask each of your to summarize your testimony 
in 5 minutes or less.
    To help you stay within that time there is a lighting--a 
timing light at your table. When 1 minute remains, the light 
will switch from green to yellow, and then red when the 5 
minutes are up.
    Before we begin it is customary for the Committee to swear 
in its witnesses. If you would please stand and raise your 
rights hands to take the oath?
    [Witnesses sworn.]
    Mr. Nadler. Let the record reflect that the witnesses 
answered in the affirmative.
    You may be seated.
    I will now recognize in order, first, Ms. Larence for 5 

                         WASHINGTON, DC

    Ms. Larence. Thank you, Mr. Chairman and Members of the 
Subcommittee. I appreciate the opportunity to summarize the 
results of our review of the activities of the voting, 
employment, housing, and special litigation sections at the 
Justice civil rights division from 2001 through 2007. We hope 
this information will serve as a useful baseline for the new 
Administration's future plans.
    In general, the sections have obtained leads about possible 
civil rights violations from agency referrals, the Congress, 
advocacy groups, the public, media coverage, and other means. 
Sections pursue matters or cases based on their legal merit. 
They close matters without pursuing the case, for example, 
because of a lack of merit or evidence or because the issue can 
be resolved without litigation.
    Sections have both statutory mandates and discretion for 
deciding what matters and cases to pursue. They respond to 
division or section priorities, and some sections give priority 
to matters and cases that address the pattern or practice of 
discrimination because resolving these can have the greatest 
    The voting section is responsible enforcing statutes that 
protect the rights of racial and language minorities, disabled 
and illiterate persons, and overseas and military voters in 
addition to laws that address voter registration, voting 
systems, and other issues. Most of the section's 442 matters 
and 56 plaintiff cases involved language minorities, especially 
Spanish speakers under Section 203 of the Voting Rights Act, 
which requires bilingual voting materials.
    One section chief noted this was a shift in priorities for 
this section, given progress in addressing racial 
discrimination in at-large voting systems and emerging tensions 
over immigration, although the current section chief said 
concerns with at-large systems still exist. The section pursued 
about a third of its matters and a fourth of its cases under 
Section 2 with half of these matters and three of these cases 
on behalf of African Americans and one case on behalf of 
    The section also pursued cases involving the purge of 
ineligible voters from registration lists, a division priority, 
and spent half of its time on its mandate to pre-clear almost 
120,000 proposals from jurisdictions to change voting 
procedures. The section objected to 42 changes primarily 
involving redistricting.
    The employment section focused most of its 3,200 matters on 
issues of employment discrimination against individuals and 
because of referrals from other agencies, although the number 
of referrals declined of the 7 years. The section filed 60 
cases as plaintiff, including 11 pattern or practice cases, 
mostly involving sex and racial discrimination, including the 
section's first two pattern or practice cases brought on behalf 
of Whites.
    Current section staff would not speculate on why the 
section focused its efforts in particular areas. We could not 
determine the subject and protected class of more than 80 
percent of the matters for this section because the division 
did not require all sections to record these data or the 
reasons matters are not pursued in their case management 
    The housing section is responsible for enforcing statutes 
prohibiting discrimination in housing, credit transactions, and 
public accommodations as well as religious discrimination and 
land use. The section had discretion, except for certain 
referrals from HUD, which the section had to file in court.
    Most of its 947 matters and 277 cases were pursued under 
the Fair Housing Act and involved a pattern or practice of 
discrimination. They addressed discrimination based on race and 
disabilities, in part because of section priorities, and land 
use, zoning, and rental issues.
    The section's workload decreased during the 7 years. 
According to the section, this was in large measure due to HUD 
referrals decreasing.
    As to discrimination in lending, matters addressed age and 
marital status discrimination and cases addressed race and 
national origin issues.
    The special litigation section focused most of its efforts 
on addressing conditions of those confined in institutions, 
such as correctional or mental health facilities, with priority 
on juvenile correctional facilities. The section also enforced 
statutes prohibiting law enforcement misconduct, although the 
time spent on these issues decreased over the 7 years. At the 
direction of division management, the section placed lower 
priority on enforcing religious freedoms of institutionalized 
persons, including prisoners.
    In closing, Mr. Chairman, I wanted to reemphasize that 
because the division did not require sections to record key 
data in its case management system the division could not fully 
account for its actions to the department, the Congress, or the 
public. We recommended that the department require sections to 
record data on the subject and the protected class in its case 
management system as well as consider how to record data on the 
reasons for closing matters as it explores its future case 
management system needs. The department agreed and is already 
taking actions division-wide.
    Mr. Chairman, that concludes my statement, and I would be 
happy to answer any questions.
    [The prepared statement of Ms. Larence follows:]
               Prepared Statement of Eileen Regen Larence



    Mr. Nadler. Thank you.
    I now recognize Ms. Becker for 5 minutes.

                    JUSTICE, WASHINGTON, DC

    Ms. Becker. Thank you, Chairman Nadler.
    And good morning, or good afternoon, to Chairman Franks and 
the other Members of the Committee.
    It is an honor and a privilege to appear before you today 
to talk about the work of the Civil Rights Division in the 
prior Administration. The 700 men and women that I supervised 
in the division set new records, spearheaded enforcement of 
over a half dozen new civil rights statutes while continuing to 
vigorously pursue traditional voting right--civil rights 
    For example, the voting section filed substantially more 
cases in the 8 years of the Bush administration than in the 8 
years of the Clinton administration. In calendar year 2006 
alone the men and women in the section filed 18 lawsuits. That 
is more than twice the annual average over the preceding 30 
    They filed more cases under the language minority 
provisions of the Voting Rights Act than the Clinton, Bush I, 
Reagan, Carter, and all other previous Administrations 
combined, including the first case ever on behalf of Korean, 
Filipino, and Vietnamese voters. They set new records in the 
number of cases filed on the voter assistance provisions of the 
Voting Rights Act, including the first case ever on behalf of 
Haitian voters.
    They set record high numbers in sending Federal monitors 
and observers to the polls in 2004. They filed 15 lawsuits 
under Section 2 of the Voting Rights Act, including 27 on 
behalf of African Americans, and worked with the appellate 
section and the solicitor general's office to successfully 
defend the Voting Rights Act--the reauthorized Voting Rights 
Act--from constitutional challenge.
    The men and women in the criminal section also set new 
records. In fiscal year 2008 they filed the highest annual 
number of cases in the history of the division, and in 2006 
they had a 98 percent conviction rate, the highest ever in the 
division's history. They increased human trafficking 
prosecutions by 600 percent and charged 200 defendants in 135 
hate crime cases.
    Similarly, the men and women in the employment litigation 
section filed more lawsuits in 2008 than in any previous year 
of the division's history. They also broke the record then for 
the highest number of lawsuits filed in a single year under the 
Uniformed Services Employment and Reemployment Rights Act, and 
I am heartened to hear that the new Administration has already 
broken that record.
    The men and women of the special litigation section more 
than tripled the number of settlements of police departments in 
the last Administration. In the first 6 years of that 
Administration they increased by over 250 percent the number of 
juvenile justice investigations that they opened. And in 
calendar year 2007, they opened 17 new investigations, as 
compared to the annual average of 10 in the preceding 13 years.
    The men and women of the disability rights section helped 
over 3 million individuals with disabilities through its 
Project Civic Access agreements in all 50 states. They brought 
accessible seating to the largest football college stadium in 
the country, the University of Michigan, and worked with the 
International Spy Museum to create state-of-the-art technology 
to help visitors who are hard of hearing or who have low vision 
or are blind.
    The men and women in the housing and civil enforcement 
section set new records in the number of undercover fair 
housing tests in fiscal year 2007, pursuant to an attorney 
general initiative called Operation Home Sweet Home. They then 
broke that record again in 2008.
    And they increased by 36 percent the number of sexual 
harassment cases filed under the Fair Housing Act in the last 
Administration. And as the GAO report indicates, they spent 90 
percent of their time working on pattern and practice cases.
    The men and women in the appellate section were also very 
productive and successful. In fiscal year 2007, their 95 
percent success rate was the highest since they started keeping 
statistics over 30 years ago.
    And lastly, the men and women in the employment, education, 
appellate, special litigation, and housing and civil 
enforcement sections worked to protect perhaps one of the most 
traditional civil rights that we have, one dating back to the 
colonists who first came to this country to avoid religious 
persecution. The work of these individuals helped fight 
religious discrimination against Jews, Muslims, Sikhs, Hindus, 
Christians, Buddhists, Native American religious assemblies, 
and others. And during that time period the division won 
virtually every religious discrimination case in which it was 
involved and sharply increased the enforcement of religious 
liberties throughout the country.
    As a career attorney who worked for over a decade in all 
three branches of the Federal Government before being selected 
for a leadership position at the Civil Rights Division, I 
appreciate the hard work and dedication of these fine men and 
women, and I am confident that they will continue to carry on 
the proud tradition of the Civil Rights Division. Thank you.
    [The prepared statement of Ms. Becker follows:]
                Prepared Statement of Grace Chung Becker


    Mr. Nadler. Thank you.
    And I now yield Mr. Rich 5 minutes.


    Mr. Rich. I was invited today to offer comments on the 
Civil Rights Division's record primarily in the period of 2001 
to 2007 because that was the period that the GAO addressed in 
their report that is being released today. On prior occasions I 
have testified, spoken, and written about the Civil Rights 
Division during this same period. Most pertinent to this 
hearing is testimony I presented in March of 2007 to this 
Committee and a report I helped prepare entitled ``The Erosion 
of Rights: Declining Civil Rights.''
    My testimony and the report focused on the unprecedented 
politicization of the division during the Bush administration 
and the enforcement record of three sections: the criminal, 
employment, and voting sections from January 2001--January 20, 
2001--through the beginning of 2007. And it is worth noting 
that that period is a little different than the GAO report that 
covered fiscal year 2001, which was partly in the Clinton 
    Initially, I want to emphasize that the most serious 
concern in my 2007 testimony and in the ``Erosion of Rights'' 
report was the unprecedented politicization that permeated the 
division in this period and the impact this politicization had 
on the morale of the career staff. Politicization of the hiring 
process in the department has already been carefully documented 
in four inspector general reports, including one which 
discussed only the Civil Rights Division. The impact of this 
politicization was especially severe.
    In a September 1 New York Times article it was reported 
that a transition report before the Obama administration found 
that there were close to--there was close to a 70 percent 
attrition rate in division staff during this period from 2003 
to 2007, an especially shocking statistic which reflects the 
devastating impact on career staff from the politicization.
    While the GAO report does not directly address issues 
concerning the impact of the politicization there is data in 
the report that confirms this alarming statistic. It reports 
high attrition rates in the employment section from 23 percent 
in 2003, to 35 percent in 2004, to 22 percent in 2005. Voting 
section similarly was 31 percent attrition rate in 2005, 27 
percent in 2006, 21 percent in 2007, and similar statistics for 
the special litigation section.
    Turning to analysis of enforcement records, I have limited 
my--primarily limited my written testimony to looking at 
employment and voting, which were the two sections that we 
looked at most carefully during the writing the report, and it 
shows two major shortcomings: first, the reduction in systemic 
enforcement actions in both section, pattern or practice 
employment cases, and vote dilution cases under Section 2 of 
the Voting Rights Act. I would add a third area, which Mr. 
Perez alluded to, was the reduction in fair lending cases, 
something that has been documented in another report that I 
participated in last year with the Lawyers' Committee called 
the Future of Fair Housing.
    In this report there was only nine pattern or--in the 
period that we looked at there were only nine pattern or 
practice employment cases filed and only one alleged 
discrimination against African Americans. By contrast, in the 
first 2 years alone, Clinton's administration filed 13 pattern 
or practice employment cases, eight of which had race 
    Similarly, Section 2 vote dilution cases, which have been 
the highest priority of the Administrations going back to 1982 
when Section 2 was amended, came to a virtual standstill during 
the Bush administration. We found that in the first 6 years 
there were only five vote dilution cases, only one of which 
could be credited to the Bush administration, which was brought 
on behalf of African Americans. And since this report there 
were only two other cases filed for the remaining period of the 
    The damage to the Civil Rights Division from 8 years of 
politicization has been extremely serious. The GAO report, 
while neutral in its presentation, contains data that confirms 
my earlier testimony and ``The Erosion of Rights.'' I know I 
speak on behalf of almost all former employees who left in this 
period in our fervent hope that this and other reports will be 
vigorously addressed by the Obama administration.
    The signs are very favorable to hear Mr. Perez talk about 
enforcing all the laws, which was, I think, the biggest 
shortcoming in the enforcement record of the Bush 
administration, is encouraging, as well as the major change in 
the hiring process.
    Thank you.
    [The prepared statement of Mr. Rich follows:]
                  Prepared Statement of Joseph D. Rich


    Mr. Nadler. Thank you very much.
    I will yield myself 5 minutes to begin the questioning.
    Ms. Larence, your report explains that you were not able to 
look comprehensively at the reasons various civil rights cases 
were closed in 2001 to 2007 because of insufficient record-
keeping. You did look at the underlying files in a number of 
the closed cases, and I am very concerned about what you found.
    In employment and voting, you found a number of cases where 
career civil rights attorneys wanted to pursue investigations 
but were forbidden from doing so by the political appointees on 
top, as we have discussed earlier in this hearing. Do you have 
any additional information on these cases or copies of the 
    Ms. Larence. We had three files in the voting section that 
indicated that the division did not agree to move the cases or 
matters forward. We don't have----
    Mr. Nadler. Were there any reasons given for that?
    Ms. Larence. In two of the cases no; in one of the cases, 
the division raised concerns about the resources--the relative 
resources that would be used in that case versus the outcome. 
We do have data that would allow us to track those cases or 
those matters back to the original files, but we do not have 
information on the parties involved in those cases.
    Mr. Nadler. Were you allowed to keep copies of the files 
you looked at?
    Ms. Larence. No. We looked at files on site.
    Mr. Nadler. But you were not allowed to copy copies--to 
make copies?
    Ms. Larence. No. We just tracked information from the 
    Mr. Nadler. Is that the normal procedure?
    Ms. Larence. Pardon?
    Mr. Nadler. When you examine a government department, when 
you have examined the Department of Justice prior to 2001, is 
it the normal procedure that you can't copy documents, you can 
only inspect them?
    Ms. Larence. In some cases the department asks us to not 
keep files because of the sensitivities of the people under 
investigation. And so in some matters we do agree to honor 
their concerns about that and use those file on site----
    Mr. Nadler. Were there sensitivities of those natures 
present in these cases?
    Ms. Larence. In some cases I think the parties under 
investigation may not have been aware that they were under 
investigation, so that was sensitive information and we agreed 
to honor that concern by the department.
    Mr. Nadler. Thank you.
    Mr. Rich, you were a career attorney, head of the voting 
section until 2005. Do you have any information about these 
cases or the other voting cases at page 142 of the GAO report?
    Mr. Rich. I am looking at it right now.
    Mr. Nadler. Can you talk a little louder, please?
    Mr. Rich. The first matter was on--was a complaint on 
behalf of Native Americans and involved a possible violation of 
Section 2 of the Voting Rights Act based on the county's use of 
an at-large collection system. This is the very type of vote 
dilution case which had been tremendously reduced that I 
    Mr. Nadler. And this was a case that was closed?
    Mr. Rich. This was a case that the recommendation from the 
staff was just to investigate it, not to--we weren't----
    Mr. Nadler. This is a vote dilution case based on a county 
at-large representation system----
    Mr. Rich. Yes, and----
    Mr. Nadler. The recommendation from the staff was to 
investigate and the decision was----
    Mr. Rich. It was denied, and to me it was a--one of the 
examples of a political decision making in the department at 
that time.
    Mr. Nadler. And what were the politics?
    Mr. Rich. Pardon me?
    Mr. Nadler. What do you think the politics were?
    Mr. Rich. The politics had to do with the fact that the 
reason given to us for not pursuing this was that they thought 
the results of the election were because there was a vast 
majority of Republicans in that jurisdiction and that because 
of that there was no basis for us suspecting that there was a 
discrimination against Native Americans.
    Mr. Nadler. I don't understand that. Because a lot of 
Republicans are in a jurisdiction, therefore you can't--nobody 
can discriminate against Native Americans?
    Mr. Rich. Well, in a Section 2 vote dilution case one of 
the key elements is to show that there is polarized voting, 
that the minorities are polarized from the White, and we 
suspected that was very much the case when we recommended this. 
The decision was that no, just because there are so many 
Republicans in the district that we are not going to 
investigate it, and I thought that that reflected a political 
motive for it.
    I would add, too, that the--subsequently the ACLU did bring 
a case against this very jurisdiction and brought it 
    Mr. Nadler. So the courts found that not only should it 
have been investigated, but had it been investigated it would 
have been a successful investigation.
    Ms. Becker, you were at the division beginning in 2006. Do 
you have any information on the cases that the GAO found that 
career attorneys were stopped from pursuing? On the voting case 
I mentioned, in particular, can you tell us anything about why 
even further contact with state officials was forbidden?
    Ms. Becker. Thank you, Chairman Nadler.
    I was not given the opportunity that Mr. Rich was to 
analyze the GAO report prior to coming here today. I was given 
a copy of it after I submitted my testimony.
    I was not at the division when that particular case arose. 
I can tell you, based upon my experience working in the Civil 
Rights Division for almost 3 years in the Bush administration, 
that disagreements are rare, and certainly while they----
    Mr. Nadler. Excuse me. Disagreements between the career 
officials and the political officials----
    Ms. Becker. The non-career and the career officials in a 
management setting is very rare. And so I would not----
    Mr. Nadler. Your testimony that it is very rare, is from 
the time you were there after 2000-and-when?
    Ms. Becker. Well, I can only speak based upon my personal 
    Mr. Nadler. Which was starting in----
    Ms. Becker [continuing]. But I also can tell you, based 
upon my personal experience, responding to subpoena requests by 
this Committee while we were there looking at certain time 
periods at voting records that even at that time period we 
found very, very small numbers--I mean, you can count them on 
one had--the number of disagreements even within the voting 
    Mr. Nadler. Well, that is exactly the opposite of what the 
GAO found and what Mr. Rich testifies to.
    Ms. Becker. I think they were talking anecdotally about a 
specific case; I don't know if they were saying that it was 
pervasive, sir.
    Mr. Nadler. Okay. My time is expired.
    The gentleman from Arizona is recognized.
    Mr. Franks. Well thank you, Mr. Chairman.
    I am going to, if I could, direct this to Ms. Becker first, 
and then ask the others to respond as there is time. We have--
lay a little foundation here, Mr. Chairman.
    Ms. Anita MonCrief, former ACORN employee, has given 
testimony under oath, and I would like to summarize parts of 
that testimony and ask for your reaction. Ms. MonCrief's 
testimony reflects the following facts: In November 2007 
Project Vote was contacted by the Obama presidential campaign. 
Project Vote received an Obama donor list from the Obama 
campaign. Project Vote solicited Obama donors to pay for the 
voter registration and to ``get out the vote.''
    Project Vote received donor lists from other Democrat and 
labor unions sources. Project Vote developed a plan to approach 
maxed-out presidential donors and allegedly use the funds for 
voter registration drives.
    ACORN employees were paid through Project Vote for partisan 
campaign activities telling voters to not vote for certain 
candidates. There were inadequate divisions between the staff 
of ACORN and Project Vote, and persons working for one entity 
actually performed work for either or both organizations.
    ACORN chose which states in the Project Vote would conduct 
voter registration drives based on political considerations. 
Registration drives by Project Vote were conducted in 
battleground states that could change the outcome of the 
    So I would like to ask--this is her testimony, the things 
that I just delineated. This is Anita MonCrief.
    So I would like to ask each of the witnesses whether they 
think that these statements raise any issues regarding 
violations of the Federal Elections Campaign Act of 1971, as 
amended, which prohibits corporate contributions to campaigns 
of Federal candidates or corporate expenditures to support or 
oppose a Federal candidate and to also prohibit expenditures by 
nonprofit or corporations such as ACORN and Project Vote, which 
are made in coordination with, at the request, behest, or 
suggestion, or the material involvement of a Federal campaign 
such as the presidential campaign of Mr. Obama.
    I know that is a mouthful, but can--Ms. Becker, if you 
would respond first, and I will ask the others to respond after 
    Ms. Becker. Thank you, Chairman Franks. Those do sound like 
very serious allegations, but the campaign finance laws are 
laws that are not enforced by the Civil Rights Division, and so 
my experience in the Civil Rights Division it sounds like it is 
a campaign finance issue and may be outside of our 
    Mr. Franks. That was pretty short and sweet.
    Mr. Rich?
    Mr. Rich. Pretty much my answer, too. I would say----
    Mr. Franks. Mike, please, again.
    Mr. Rich. In my experience the--we work closely with 
criminal election branch during election, and when you get 
allegations of fraud or campaign misspending of this nature 
they are referred to the criminal division's election crimes 
branch, and they are the ones with the expertise on these laws 
and they are the ones to ask this question to. I don't feel I 
have the expertise in these laws to comment on whether they 
have been violated.
    Mr. Franks. Thank you.
    Ms. Larence?
    Ms. Larence. Well, I can't speak to the legality of these 
particular instances. We have initiated, at the request of a 
number of Members of the Senate and House, a review of Federal 
agencies' grants to ACORN and the way in which Federal agencies 
are providing internal controls, and tracking the use of, those 
    Mr. Franks. Well, thank you.
    And thank you, Mr. Chairman. I am going to go ahead and ask 
unanimous consent to place into the record the testimony on the 
New Black Panther Party for Self-Defense and Malik Zulu--if 
you--and the declaration of Bartle Bull, without objection.
    Mr. Nadler. Without objection.
    [The information referred to follows:]


    Mr. Franks. Thank you, and I yield back.
    Mr. Nadler. The gentleman from Virginia is recognized.
    Mr. Scott. Thank you, Mr. Chairman.
    Ms. Larence and Mr. Rich, Ms. Becker said that the 
disagreements between career and political were not pervasive 
but occasional. Was that your experience and what you found?
    Ms. Larence. We were able to look at a small set of files 
for matters across the four sections, and within--so, for 
example, we only looked at maybe about 50 files per each of the 
sections, and within those--for example, in the voting section 
we were--those files only contained three instances in which 
the information we had indicated that there may have been a 
disagreement with the division.
    Mr. Scott. Okay.
    Mr. Rich?
    Mr. Rich. I think in my experience in the voting section up 
until 2005 there were a significant number of disagreements. In 
the ``Erosion of Rights'' report there is details about 
decision making, for instance, on the Mississippi redistricting 
plan, on the Texas redistricting plan, and on the Georgia voter 
ID plan, all of which were highly controversial and major 
disagreements between the career attorneys, including myself, 
and political appointees.
    I think worse, though, is what happened in the division 
that had never happened before. There was a complete breakdown 
in communication in the period I was there; I was not there 
when Ms. Becker was there.
    But when I was there, there was a complete breakdown, 
almost a conscious effort to separate the career management 
people from political appointees, something that made 
absolutely no sense in a law enforcement agency. And I have 
laid that out also in the testimony I gave 2 years ago and in 
the ``Erosion of Rights'' report. But that lack of 
communication led to a situation in which we did not know what 
priorities were except when they arose and it became very 
apparent to us that political considerations were being 
injected into the decision making, something that never had 
happened before.
    Mr. Scott. Thank you.
    Ms. Becker, I had asked the previous panel about the Office 
of Legal Counsel memo that concluded that the Religious Freedom 
Restoration Act overrode statutory nondiscrimination 
provisions. Are you familiar with that memo?
    Ms. Becker. I am sorry, I haven't seen that memo, sir.
    Mr. Scott. Okay. Well, are you familiar--employment 
discrimination is a significant portion of the Civil Rights 
Division's work. Is that----
    Ms. Becker. That is correct.
    Mr. Scott. Under the faith-based initiative, the faith-
based group sponsors a federally-funded program and hires 
people with Federal money. Are they able to discriminate in 
employment with the Federal money?
    Ms. Becker. Congressman, I think that would be a question 
that is better directed to the current Justice Department.
    Mr. Scott. Well, under the Bush administration could they 
discriminate in employment?
    Ms. Becker. You cannot discriminate on the basis of 
religion in an employment in Title 7 context, sir--in an 
employment context.
    Mr. Scott. So if it is a faith-based organization with 
Federal money, can the sponsoring organization decide to hire 
people based solely on religion?
    Ms. Becker. Congressman, I need to know a little bit more 
about the facts and the law under which they are presumably 
acting to see whether or not it is a legal basis. I----
    Mr. Scott. Wait a minute. Wait a minute. Wait a minute. 
Under the faith-based--the whole faith-based initiative is the 
ability to discriminate in employment, and you don't know 
whether they can discriminate in--you give a vague answer under 
whether or not a sponsor of a federally-funded program calling 
itself faith-based can discriminate and have a policy of not 
hiring people of certain religions? You don't know?
    Ms. Becker. Congressman, you are referring to a memo that I 
have not had an opportunity to look at. I apologize, but I 
    Mr. Scott. I went off the memo. The memo went further than 
the initiative. The initiative just lets you discriminate. What 
the memo did--it says--lets you discriminate notwithstanding 
statutory prohibitions.
    Mr. Rich, were you there when--do you have anything to do 
with employment discrimination?
    Mr. Rich. I did not. That is an employment matter and I did 
not have any knowledge about the memo or how it would apply to 
    Mr. Scott. Well, under the faith-based initiative the 
sponsoring organization can discriminate, just decide as a 
matter of policy, ``We are not going to hire you because of 
your religion.'' That is the faith-based initiative. That is 
the sum and substance of what you get with the faith-based 
initiative. Everything else under the faith-based initiative is 
present law.
    The one thing you get under the executive order under 
faith-based initiative is the termination of the 1965 executive 
order that prohibited discrimination in any Federal contract. 
And what the--it is either a 2001 or 2002 Bush executive order 
said, well, if you are faith-based you can discriminate. You 
are already not covered by Title 7; you are not covered by 
Title 6; and you are not covered by the executive order, so you 
are free to discriminate. And your testimony today is you 
weren't aware of that?
    Ms. Becker. No. My testimony today was that I am not aware 
that the faith-based initiative violated any of the civil 
rights laws that we were enforcing when I was there.
    Mr. Scott. My question to you was, can the sponsoring 
organization discriminate based on religion under the faith-
based initiative----
    Ms. Becker. And I don't know. What I am saying is that the 
faith-based initiative--I am not aware that the faith-based 
initiative violated the civil rights laws that I----
    Mr. Scott. I didn't ask you whether they violated the civil 
rights laws. I asked you whether or not a sponsor of a 
federally-funded program calling itself faith-based has the 
right, under the--during the Bush administration, to deny 
employment opportunities based on religion?
    Ms. Becker. And Congressman, I am telling you I don't have 
enough information to answer that question. I don't know what 
federally-funded program you are referring to; I don't know who 
the sponsor is that you are referring to.
    It is hard for me to answer a hypothetical without the 
factual details. I apologize but I just don't have enough 
information to talk about this particular hypothetical that you 
are mentioning.
    Mr. Scott. It is not hypothetical. The fact is, under the 
Bush administration they allowed it. And you are saying as the 
Acting Assistant Attorney Feneral for Civil Rights you weren't 
aware of that?
    Ms. Becker. No. I am saying that as the Acting Assistant 
Attorney General for the Civil Rights Division I have no reason 
to believe that the faith-based initiatives violated any of the 
civil rights laws that the division----
    Mr. Scott. I didn't say it violated civil rights laws. I 
asked you a simple question: Can the sponsor of a----
    Mr. Chairman, you know, I would like a straight answer to 
this question, if I could.
    Under the Bush administration was it the law--not violating 
anything, but I mean did you have the policy to allow 
discrimination based on religion with federally-funded 
projects--federally-funded, in hiring with Federal money, if 
the sponsoring organization was a faith-based organization?
    Ms. Becker. The policy when I was at the Civil Rights 
Division was to vigorously enforce the Federal civil rights 
laws under our jurisdiction.
    Mr. Nadler. Let me rephrase--if the gentleman will yield--
    Mr. Scott. I will yield.
    Mr. Nadler. Let me rephrase the question. The policy was to 
vigorously enforce the civil rights laws. Was it the view of 
the department that vigorously enforcing the civil rights law 
did not include or did include--which one?--cracking down on 
discrimination by faith-based groups in hiring based on 
religion? Was that viewed as a violation of civil rights law--
    Mr. Scott. With Federal money.
    Mr. Nadler. With Federal money--was that viewed as a civil 
rights violation or was that viewed as permitted under the 
    Ms. Becker. Congressman, maybe I am misunderstanding the 
question here that the two of you are saying.
    Mr. Scott. If the sponsoring organization said, ``We don't 
hire Jews,'' would that be legal under the--with Federal 
money--would that be legal under the Civil Rights Division 
during the Bush administration?
    Ms. Becker. Again, I would want to see what law they are 
purporting to act under that gives them the authority to do 
that and whether or not----
    Mr. Scott. Is there a prohibition?
    Ms. Becker. Congressman, I am not aware that the faith-
based initiatives violated the civil rights laws. I am not. I 
don't know how much more clearly I can say that. I apologize.
    Mr. Scott. So if it was legal that, ``We don't hire Jews,'' 
was legal under civil rights laws you wouldn't have a problem 
with that?
    Ms. Becker. Well, Congressman, if there is a requirement 
for a change in the laws certainly, you know, we----
    Mr. Nadler. I think you have answered the question. I would 
hope you could get a response in writing to us on the very 
specific question, was it the view of the department that a 
faith-based organization with Federal dollars could require 
that the hiring be only from the--for example, the same 
religious group?
    Could a Presbyterian church say, ``We don't want to hire 
Catholics with Federal--for this federally-funded program''? 
Yes or no? That should be an easy question to answer. What was 
your view? Was that a violation of civil rights laws or was it 
not? And I hope you will give us that answer in writing since 
you obviously won't give it to us now.
    The gentleman's time has expired.
    The gentleman from Iowa?
    Mr. King. Thank you, Mr. Chairman.
    I thank the witnesses for your testimony. I am not quite 
adjusted to the testimony I received from Mr. Perez in the 
previous panel, and recall his words when he said that the case 
of the Philadelphia voter intimidation, which I characterized 
as being the most open and shut case of voter intimidation in 
the history of the United States, they had the--a single 
perpetrator had received the maximum--that ``the maximum 
penalty was obtained.''
    That maximum penalty was injunction. That simply says, 
``Don't do this again.'' And I am going to suspect that 
perhaps, Ms. Becker, you have some knowledge of this case and I 
would ask you if that would be the maximum penalty allowed 
under the statue.
    Ms. Becker. Under Section 11(b) of the Voting Rights Act 
the relief that the Justice Department can seek is declaratory 
relief--a declaration that there has been a violation of law--
as well as an injunction. In terms of maximums, what you are 
talking about here is the scope of the injunction, and 
certainly the question would be whether or not the injunction--
what it is that the Justice Department sought to enjoin and 
whether or not that scope of the injunction could have been 
wider or larger, or to incorporate other forms of threat, 
intimidation, and coercion.
    Mr. King. When the witness testified that the maximum 
penalty was obtained, if that--and I am understanding that that 
injunction was specifically for that particular area of 
Philadelphia, not even the entire city of Philadelphia, let 
alone the state of Pennsylvania or the United States of 
America, and that it was limited to a weapon. Is that your 
understanding as well, Ms. Becker?
    Ms. Becker. That is my understanding, sir.
    Mr. King. Then it would be a more clear understanding of 
the maximum penalty that could be obtained under the injunction 
would be a nationwide injunction prohibiting not just the 
brandishment of a weapon at a polling place, but also the 
intimidation components that also are a part of the statute. 
Wouldn't that be true?
    Ms. Becker. That certainly would be something that--a 
question to be asked to the Justice Department, sir.
    Mr. King. And so I will speak as to my interpretation of 
the response that I have gotten here. I think Mr. Perez was a 
very difficult witness to get an answer from, and when he was 
asked repeatedly, ``Have you reviewed the film of the 
Philadelphia voter intimidation case?'' over and over again--I 
have to go back to the film to tell you how many times. I am 
going to say six or eight times Mr. Gohmert asked him that 
specific question and finally at the end of that series of 
repetition of the question he finally said, yes, he had seen 
the film.
    The man could not give a declarative answer to a simple 
question like that but he could, in a declarative fashion, tell 
this Committee that one perpetrator in the voter intimidation 
case of Philadelphia received the maximum penalty. And yet I 
think we have established here he didn't receive that maximum 
    So I am going to make this position, Mr. Chairman: I do not 
believe Mr. Perez was truthful with this panel. And I believe 
the question comes up as to whether we want to look into the 
penalty for being dishonest with this Committee.
    And I would point out that there have been large issues 
made by this Judiciary Committee on significantly smaller 
issues and that there have been people that have gone to jail 
for what I am implying may well have happened before this 
Committee. And I want to go back and review the record 
    Mr. Nadler. I think the gentleman is approaching or may 
have exceeded the bounds of the rules in implying that a 
witness should go to jail. You may want to rephrase that.
    Mr. King. Mr. Chairman, I have suggested. If you review the 
record I don't believe I have crossed the line. I referred to 
it as an implication, and the implications of being untruthful 
to this Committee is something we should be able to speak up 
openly in this panel.
    And this entire panel, Democrats and Republicans, should be 
outraged by any corruption of law, any corruption of the 
electoral process, any kind of a criminal enterprise that might 
be involved in undermining the integrity of our voting rights 
or our votes themselves.
    And so I would then pose another question, and that would 
be, Ms. Becker, if you have an organization that is registering 
voters and they openly go about registering voters that happen 
to be Caucasian, and exclusively or with a pattern of 
Caucasians, would that be a violation of the Voting Rights Act? 
And would it be a violation of the Civil Rights Act, to your 
    Ms. Becker. Congressman, based upon that alone I would need 
additional facts to determine whether or not there would be an 
appropriate violation of law.
    Mr. King. And I would go further and ask this question: If 
there is a statute that specifically sets aside benefits from 
the taxpayer for women and minorities could you tell me the 
distinction between that definition of women and minorities and 
the language that would read, ``anybody but White men''?
    Ms. Becker. Again, Congressman, I would need to look at the 
specifics of the set-asides that you are talking about.
    Mr. King. Then I will just conclude this by my own 
observation, and that is, I ask these questions because ACORN 
is known to have gone out into shopping malls and publicly 
registered voters and gone to only minority voters 
repetitively. I believe that that is a pattern that we should 
look into from a civil rights perspective, and I say that in 
this panel for that purpose, to bring a focus on those kind of 
issues. And I believe when this legislature--when this 
Congress--defines anything in legislation as set aside for 
women and minorities it says the same as this: ``anybody but 
White men.''
    I thank you all for your testimony, and I yield back the 
balance of my time.
    Mr. Nadler. Gentleman's time has expired.
    Since some question has arisen I will place in the record 
the order actually entered into in the New Black Panther case 
which will reveal what, in fact, was actually ordered. It will 
be in the record of the Committee.
    No further questions. I want to thank the witnesses. I want 
to thank the witnesses for your cooperation and for your 
attendance and for your answers.
    Without objection all Members have 5 legislative days to 
submit to the Chair additional written questions for the 
witnesses which we will forward and ask the witnesses to 
respond as promptly as they can so that their answers may be 
made part of the record. Without objection all Members will 
have 5 legislative days to submit any additional materials for 
inclusion in the record.
    And with that, this hearing is adjourned.
    [Whereupon, at 1:13 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X


               Material Submitted for the Hearing Record