[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
CIVIL RIGHTS DIVISION OF THE
DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
DECEMBER 3, 2009
__________
Serial No. 111-81
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
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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
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
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
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
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
HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa
Georgia TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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DECEMBER 3, 2009
Page
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
WITNESSES
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,
DC
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
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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
APPENDIX
Material submitted for the Hearing Record........................ 155
CIVIL RIGHTS DIVISION OF THE DEPARTMENT OF JUSTICE
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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
challenges.
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
process.
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
organization.
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
million.
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
it?
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
and----
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
hearing?
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
Texas.
[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
committee.
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
wrongdoing.''
I would like to insert their statements into the record for
this hearing, Mr. Chairman.
Mr. Nadler. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
hearings.
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
Subcommittee.
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,
Steve.
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
1987.
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
minutes.
TESTIMONY OF THE HONORABLE THOMAS E. PEREZ, ASSISTANT ATTORNEY
GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE,
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
mission.
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
administration.
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
filed.
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
prosecutions.
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
considerations.
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
Act.
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
else.
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
impact?
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
years.
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
transformation.
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
Arizona.
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
unspeakable----
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
worship.
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
Commission.
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
decision.
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
on.
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
minorities?
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
challenge.
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
forward.
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
penalty?
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
us.
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
referencing?
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
Maryland.
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
strength?
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
question.
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
minutes.
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
employees.
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
forward.
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
minutes.
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
administration?
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
judgment?
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
else?
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
attention----
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
club?
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
yourself.
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
results.
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
you.
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.
[Recess.]
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
have.
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
minutes.
TESTIMONY OF EILEEN REGEN LARENCE, DIRECTOR, HOMELAND SECURITY
AND JUSTICE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE,
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
impact.
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
Whites.
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
system.
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. Thank you.
I now recognize Ms. Becker for 5 minutes.
TESTIMONY OF GRACE CHUNG BECKER, FORMER ACTING ASSISTANT
ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF
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
matters.
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
years.
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. Thank you.
And I now yield Mr. Rich 5 minutes.
TESTIMONY OF JOSEPH D. RICH, DIRECTOR, FAIR HOUSING PROJECT,
LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, WASHINGTON, DC
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
administration.
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
discrimination.
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
Administration.
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
files?
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
files.
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
discussed----
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
successfully.
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
experience----
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
section.
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
election.
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
that.
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
jurisdiction.
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
grants.
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
don't----
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
the--normally----
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
policy?
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
penalty.
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
precisely.
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
knowledge?
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
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Material Submitted for the Hearing Record
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