[House Report 104-846]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-846
_______________________________________________________________________


 
                  CIVIL RIGHTS COMMISSION ACT OF 1996

                                _______
                                

 September 26, 1996.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

_______________________________________________________________________


 Mr. Canady of Florida, from the Committee on the Judiciary, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3874]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3874) to reauthorize the United States Commission on 
Civil Rights, and for other purposes, having considered the 
same, report favorably thereon with amendments and recommend 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendments...................................................     1
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................    10
Committee Consideration..........................................    10
Votes of the Committee...........................................    10
Committee Oversight Findings.....................................    11
Committee on Government Reform and Oversight Findings............    11
New Budget Authority and Tax Expenditures........................    11
Congressional Budget Office Cost Estimate........................    11
Inflationary Impact Statement....................................    13
Section-by-Section Analysis and Discussion.......................    13
Changes in Existing Law Made by the Bill, As Reported............    14
Dissenting Views.................................................    16

    The amendments (which are technical in nature) are as 
follows:
    Page 1, line 9, strike ``1986'' and insert ``1983''.
    Page 3, line 3, strike `` ``agency'' '' and insert `` 
`agency' ''.

                          Purpose and Summary

    The United States Commission on Civil Rights was originally 
established in 1957 as a temporary agency designed to serve as 
an independent, bipartisan, fact-finding agency of the 
executive branch. As currently constituted, the Commission has 
eight members: four appointed by the President, two appointed 
by the Senate and two appointed by the House. 42 U.S.C. 1975 et 
seq. The Commission's current authorization expires on 
September 30, 1996.
    H.R. 3874, the ``Civil Rights Commission Act of 1996,'' 
extends the authorization of the U.S. Commission on Civil 
Rights for one year and authorizes funding at $8.75 million. In 
response to issues raised as a result of oversight conducted by 
the Subcommittee on the Constitution, the legislation also 
makes needed changes to the Commission's authorization statute. 
The legislation proposes two minor changes to the Commission's 
authorization statute to inject accountability into its 
proceedings: (i) It requires a vote of a majority of the 
Commissioners, a quorum being present, to issue subpoenas; and 
(ii) allows a majority of the Commissioners to vote to remove 
the Staff Director.

                Background and Need for the Legislation

    In October 1995, after receiving numerous allegations of 
mismanagement and waste and pursuant to its oversight 
authority, the Subcommittee on the Constitution requested 
information and documents from the Commission relating to its 
program management, personnel practices, and procurement.
    While some of the requested information was provided, many 
of the requests were unanswered or only responded to in part. 
Subsequently, the Chairman requested that the General 
Accounting Office investigate the Commission's program, 
personnel and procurement practices. In addition, the Office of 
Personnel Management was asked to conduct a thorough Personnel 
Management Evaluation. Both of these investigations are 
ongoing.
    Also in October 1995, the Subcommittee held an oversight 
hearing to investigate reports of disturbing activities at the 
Commission. The Commission had failed to comply with the 
statutory requirement that it submit to Congress at least one 
report each fiscal year that monitors federal civil rights 
enforcement (for fiscal year 1995), even though it had received 
an additional $1.2 million in funding; three Commissioners were 
not given a proper opportunity to vote on a Commission report 
entitled ``Funding Federal Civil Rights Enforcement'' in June 
of 1995; and perhaps of greatest concern, the Commission used 
its subpoena authority in a manner that ``chilled'' the First 
Amendment-protected activities of individuals in connection 
with hearings conducted in Miami, Florida in September 1995.

                    Subpoenas for the Miami Hearing

    At its October 1995 oversight hearing, the Subcommittee on 
the Constitution investigated claims that the Commission used 
its subpoena power to force individuals engaged in legal and 
constitutionally-protected political activities to testify 
before the Commission and to submit copies of their 
organizations' internal records at its September hearings in 
Miami, Florida. Once the Commission's activities were subject 
to the scrutiny of the press and calls for a Congressional 
investigation, it backed down.
    As part of its continuing series of hearings on the issue 
of ``Racial and Ethnic Tensions in American Communities: 
Poverty, Inequality, and Discrimination,'' on September 14 and 
15, 1995, the Commission held two days of hearings in Miami, 
Florida. 1 In preparation for the hearings, Commission 
staff contacted potential witnesses including JoAnn Peart, a 
housewife who is President and Co-Founder of Floridians for 
Immigration Control; Robert Ross, President of the Florida-187 
Committee; and Enos Schera, Vice-President of Citizens of Dade 
United.
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    \1\ Hearings were also held in Washington, D.C. (January and May, 
1992), Chicago, Illinois (June, 1992), Los Angeles, California (June, 
1993), and New York City, New York (September, 1994 and July, 1995).
---------------------------------------------------------------------------
    These individuals, engaged in legitimate and 
constitutionally-protected political activities, were 
eventually served with subpoenas to compel attendance against 
their will, along with detailed requests for internal records 
and documents regarding their First Amendment-protected 
activities.
    After having repeatedly been contacted by Commission 
Attorney Sicilia Chinn and informed that her attendance would 
be compelled by subpoena, if necessary, on August 25, 1995, 
Mrs. Peart wrote to Florida Congressman Mark Foley complaining 
that, ``Since I am not an expert and have no firsthand 
information relating to the ostensible purpose of the Hearings, 
then I do not understand why I am being threatened by an 
employee of the federal government with forced attendance at 
the Miami Hearing.'' (Letter of JoAnn Peart, August 25, 1995).
    On the same date, Congressman Foley wrote to Ms. Mary 
Mathews, Staff Director for the Commission, asking her to 
``respond to Mrs. Peart's specific comments'' and to ``specify 
the Commission's official policy in these circumstances.'' 
(Letter of Rep. Mark Foley, August 25, 1995) Ms. Mathews 
responded to Congressman Foley by letter dated August 30, 1995, 
but on September 2, the subpoenas directed to JoAnn Peart and 
Robert Ross were served by federal marshals.
    Shortly after the subpoenas were served, there was an 
outcry in the press that the heavy-handed tactics of the 
Commission were chilling First Amendment rights. 2
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    \2\ ``Civil Rights Panel Subpoenas Anti-Immigration Leaders,'' Palm 
Beach Post, 9/7/95; ``Racial Hearings Stir Up Speakers,'' Sun-Sentinel, 
9/7/95; ``Subpoena Tactics Draw Fire,'' Tampa Tribune, 9/7/95; ``U.S. 
Panel Orders Anti-Immigration Leaders to Appear,'' AP wire story, 9/7/
95; ``Sparks Flying Over Civil Rights Subpoenas,'' The Herald, 9/8/95; 
``Illegal-immigrant foes get subpoenas'' Washington Times, 9/11/95.
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    On September 8, 1995, the Commission held its monthly 
meeting at which time Commissioners Constance Horner, Carl 
Anderson and Robert George expressed concern over the scope of 
the subpoenas and their impact on First Amendment rights. In 
response to charges that Mrs. Peart, Mr. Ross and Mr. Schera 
were unfairly singled out, Chairperson Berry argued that the 
subpoenas were a ``routine tool'' needed to insure attendance 
by witnesses and that all witnesses within the 100 mile radius 
of the hearing were subpoenaed without regard to their point of 
view. With respect to the requests for internal documents of 
their organizations, Berry stated that the subpoena duces tecum 
issued to Ross was not unlike that issued to other witnesses 
with opposing viewpoints, such as Orvaldo Soto, President of 
the Spanish American League Against Discrimination. 3 She 
also noted that the subpoenas duces tecum did not explicitly 
ask for membership lists and, therefore, did not violate the 
First Amendment. Berry also asked the Commission staff to 
prepare a memo on the Commission's practices and policies 
related to the issuance of the subpoenas.
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    \3\ The subpoena duces tecum issued to Robert Ross asked for 
internal documents and ``drafts'' of the proposed constitutional 
amendment. The subpoena duces tecum to Orvaldo Soto only requests 
public materials--no drafts or internal documents. Also, individuals 
who would be an excellent source for documents containing factual 
information to the Commission such as Dr. Max Castro, Professor of 
Sociology and Director of the North-South Center's Research Program on 
Immigration and Refugees at the University of Miami and Dr. Raymond 
Mohl, Chairman of the History Department at Florida Atlantic University 
(whose teaching and research fields include American Urban History, 
Race and Ethnicity, American Social History, Modern American History, 
Florida History, and Historiography) were not asked to bring any 
documents. In contrast, it is curious that a housewife with a 
discussion group on immigration-related issues is served with a 
subpoena to empty out her ``files'' on the activities of her group.
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    After the Chairman of the Subcommittee announced there 
would be a congressional oversight hearing on the matter and 
recipients of the subpoenas threatened to file a lawsuit, Berry 
wrote to Mrs. Peart, Mr. Ross and Mr. Schera informing them 
that if they chose not to attend, she would not enforce the 
subpoenas served them.
    These actions have had the effect of chilling the lawful 
exercise of First Amendment rights by citizens. In addition, 
because of the nature of the topic, it has created the 
appearance that the powers of the Commission are being used to 
target individuals based on the content of their political 
advocacy.

          With respect to its subpoena authority, the 
        Commission's authorizing statute provides: The 
        Commission may issue subpoenas for the attendance of 
        witnesses and the production of written or other 
        matter. Such a subpoena may not require the presence of 
        a witness more than 100 miles outside the place wherein 
        the witness is found or resides. * * * In case of 
        contumacy or refusal to obey a subpoena, the Attorney 
        General may in a Federal court of appropriate 
        jurisdiction obtain an appropriate order to enforce the 
        subpoena. 42 U.S.C. Sec. 1975a(e)(2).

     The ability of the Commission to use subpoenas to engage 
in fact-finding was upheld by the United States Supreme Court 
in Hannah v. Larche, 393 U.S. 420 (1960) and U.S. v. O'Neill, 
619 F.2d 222 (1980). In establishing that the Commission has 
the power to subpoena witnesses and documents, the O'Neill 
court also explains that this power is limited by statute to 
that which is ``pertinent, relevant and non-privileged.'' 619 
F.2d 222, 224 (1980).
    Of course, the subpoena authority must be exercised within 
the framework of constitutional guarantees. In NAACP v. Alabama 
ex rel. Patterson, 357 U.S. 449 (1958), the U.S. Supreme Court 
held that the state of Alabama could not compel the National 
Association for the Advancement of Colored People (NAACP) to 
reveal to the state's Attorney General the names and addresses 
of all of its Alabama members. The NAACP put forth evidence 
showing that compelled disclosure of its members on past 
occasions had subjected them to economic reprisal, loss of 
employment, threat of physical coercion, and general public 
hostility. In articulating the right protected, a unanimous 
Court declared:

          Effective advocacy of both public and private points 
        of view, particularly controversial ones, is undeniably 
        enhanced by group association, as this Court has more 
        than once recognized by remarking upon the close nexus 
        between the freedoms of speech and assembly. It is 
        beyond debate that freedom to engage in association for 
        the advancement of beliefs and ideas is an inseparable 
        aspect of the ``liberty'' assured by the Due Process 
        Clause of the Fourteenth Amendment, which embraces 
        freedom of speech. Of course, it is immaterial whether 
        the beliefs sought to be advanced by association 
        pertain to political, economic, religious or cultural 
        matters, and state action which may have the effect of 
        curtailing the freedom to associate is subject to the 
        closest scrutiny. NAACP v. Alabama, 357 U.S. 449 (1958) 
        (internal citations omitted.)

    In a letter to Chairman Charles Canady dated September 18, 
1995, Chairperson Berry stated, ``[j]udicial supervision makes 
it impossible to `chill' any constitutionally-protected 
activity by subpoenaing a witness.''
    It is true that an individual whose rights are violated by 
a government agency can seek redress through the courts if that 
individual can afford the commitments of time and money to hire 
an attorney to match the resources of the federal government 
and if that individual does not fear further intimidation, 
humiliation and alienation. Having to go to court to protect 
yourself means that your freedom has already been ``chilled.'' 
In addition, individuals who desire to express similar ideas or 
political views are less likely to speak up for fear they too 
may be visited by a federal marshal serving a subpoena.
    Individuals should not be forced to suffer this burden in 
order to exercise rights granted by the Constitution. The 
burden is on the government agency, in the first instance, to 
abide by the Constitution and to insure that its actions do not 
infringe upon or chill constitutional rights.
    Testimony received by the Subcommittee at its October 1995 
hearing did little to comfort Members of Congress and the press 
that the Commission's subpoena authority was being exercised in 
a responsible fashion. At that hearing, Staff Director Mary 
Mathews and then Deputy General Counsel Stephanie Moore 
informed the Subcommittee about the Commission's current 
practice of issuing subpoenas. All witnesses within the 100-
mile radius of proposed hearings are routinely subpoenaed. The 
Commission's staff determines who to subpoena and then the 
chair signs the subpoenas provided by the staff. Under current 
Commission procedures, the Commissioners agree to a project 
design and have an opportunity to suggest witnesses, however, 
they are excluded from the process of selecting witnesses and 
are not permitted to review or approve subpoenas and subpoenas 
duces tecum prior to such subpoenas being issued.
    The Commission staff selects witnesses for the hearings and 
prepares subpoenas and subpoenas duces tecum as they see fit. 
Even where witnesses express reservations about being 
subpoenaed to provide testimony, those concerns are not passed 
on to the Chair who signs the subpoenas so that they can be 
served by U.S. Marshals. In this instance, for example, when 
Chairperson Berry wrote to Mrs. Peart and others informing them 
that she would not enforce the subpoenas against them, she 
indicated that she had learned of their concerns through 
``press accounts.'' Even more alarming, Staff Director Mathews 
testified before the Subcommittee that she did not inform the 
Chair that Congressman Foley had written to her expressing 
concern that his constituent was being harassed by Commission 
attorneys and felt her rights were being violated. Further 
testimony at the October hearing indicated that Commission 
staff had little awareness or concern for protecting basic 
constitutional rights. For example, Ms. Moore testified that, 
other than asking for membership lists, she could not think of 
any way in which issuing a subpoena could infringe First 
Amendment rights and that the issuance of subpoenas to 
individual citizens involved in political activities could not 
have a chilling impact on their First Amendment rights. 4
---------------------------------------------------------------------------
    \4\ See ``U.S. Commission on Civil Rights,'' hearing before the 
Subcommittee on the Constitution, 104th Congress, 1st Session (October 
19, 1995), 68.
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                  Failure to submit a statutory report

    The Commission failed to comply with the mandate in its 
authorizing statute which requires it to submit to Congress at 
least one report every fiscal year that monitors federal civil 
rights enforcement in the United States.
    In Fiscal Year 1995, the Commission failed to comply with 
its statutory mandate which provides:

          The Commission shall submit to the President and 
        Congress at least one report annually that monitors 
        Federal civil rights enforcement efforts in the United 
        States. 42 U.S.C. Sec. 1975a.

    When one considers that the Commission received a $1.2 
million increase in FY 1995 over its prior year appropriation, 
failure to properly manage resources in a manner so that it can 
fulfill its statutory mandate also becomes a concern.
    Commission staff prepared a report on enforcement of Title 
VI of the Civil Rights Act of 1964 which was to have fulfilled 
the statutory requirement. The report was voted on by the 
Commissioners at their regular monthly meeting on July 14, 
1995, but as drafted failed to meet the approval of a majority 
of the Commissioners. Chairperson Berry announced that she was 
voting against the report so that she could bring it up for a 
revote at a later date and that she would:

          [D]iscuss with the Staff Director the possibility of 
        revising the Executive Summary and the findings and 
        recommendations to reflect more clearly [items that are 
        already in the report] . * * * And then to present it 
        to the Commission again with taking into account some 
        of the other comments that have been made here, in 
        September. But I do think with the great expenditure of 
        money and time and effort, and the fact that we do not 
        have another statutory report, and the importance of 
        the subject that it is worth a try to get it 
        approved.5
---------------------------------------------------------------------------
    \5\ Unedited remarks of Commission Chair Mary Frances Berry, p. 
121-122, Commission Transcript, Meeting of July 14, 1995.

    Commissioner George then asked the Chair if it would be 
appropriate to submit memoranda through the Staff Director in 
order to make the requested changes. Berry responded, ``What 
you should do is if you are moved to do so, you should give a 
memo to the Staff Director with your comments, and do it as 
soon as possible.'' 6
---------------------------------------------------------------------------
    \6\ Id. at 125.
---------------------------------------------------------------------------
    On August 15, 1995, four of the Commissioners (Anderson, 
George, Horner and Redenbaugh) sent a memorandum to Staff 
Director Mary Mathews discussing in detail issues that were 
raised during the Commission's meeting on July 14, 1995 and 
offering ways to resolve those issues.
    On August 18, 1995, Chairperson Mary Frances Berry and 
Vice-Chairperson Cruz Reynoso responded to the memorandum, 
stating, ``if the nature of this draft as an enforcement report 
were clearly understood by every Commissioner, we have no doubt 
it would garner the votes necessary for its approval.'' In sum, 
they thought it was unnecessary to make any changes. Mathews 
never responded to the August 15, 1995 memorandum from the four 
Commissioners.
    At the Commission's monthly meeting on October 6, 1995 when 
Commissioner Horner raised the issue of the August 15, 1995 
memorandum offering to work out changes to the Title VI report, 
she was informed by Berry and Mathews that it was the policy of 
the Commission that the Staff Director would not receive any 
memorandum purporting to be from Commissioners unless signed by 
the Commissioners themselves. Since the memorandum requesting 
changes to the report was not signed, it was not accepted. 
7
---------------------------------------------------------------------------
    \7\ It is not clear why, if Mathews was in doubt about the source 
of the memo, she did not contact the Commissioners to verify its 
authenticity, especially when at the end of the July meeting, she was 
present when the Commissioners discussed the fact that they would be 
sending the memo. The origin of the policy on ``signed'' memos is also 
unclear. One could credibly argue that Mathews was under some 
obligation to try to work out the concerns of the Commissioners so that 
the Commission could comply with the mandate of its authorizing 
statute.
---------------------------------------------------------------------------
    Berry also informed the Commissioners that they had reached 
an impasse because four Commissioners found the report 
perfectly acceptable and four did not. As far as she was 
concerned there was ``nothing to discuss.'' Finally, an 
agreement was reached whereby the Commissioners' Staff 
Assistants were instructed to meet in order to attempt to 
resolve the impasse.
    The report was finally approved by the Commissioners in 
January of 1996. The final published version was issued in 
August of this year--almost a year after the deadline.
    Unfortunately, it appears that this fiscal year the 
Commission will fail to comply with the mandate of its statute 
that it issue one report monitoring federal civil rights 
enforcement. Again this year, the staff of the Commission 
failed to provide an acceptable draft report to the 
Commissioners so that it can be approved and published prior to 
the end of the 1996 fiscal year.

                         Voting Irregularities

    The Staff Director closed the voting on adopting a report 
without giving all the members of the Commission the 
opportunity to cast a vote.
    By memorandum dated June 6, 1995, Staff Director Mathews 
sent to the Commissioners a draft report entitled, ``Funding 
Federal Civil Rights Enforcement'' and informed them that it 
was important to issue the report as soon as possible so as to 
``provide a meaningful contribution to the analytical process 
on the Hill.'' She also proposed that ``a poll vote be taken 
for approval of this report at a time convenient to all 
Commissioners.'' 8
---------------------------------------------------------------------------
    \8\ As of the writing of this memo, this report has still not been 
transmitted to Congress.
---------------------------------------------------------------------------
    On Friday, June 9, 1995, the Commission held its monthly 
meeting at which time Berry announced, ``the hope is that you 
could read it and that we could take a poll vote at some point 
and if it seems not to be contentious that we could pass it and 
send it up because they will be marking up appropriations bills 
on the Hill before we meet again.'' 9 It was agreed that 
there would be a telephone poll vote at a convenient time.
---------------------------------------------------------------------------
    \9\ Monthly Meeting of the U.S. Commission on Civil Rights, June 9, 
1995, 47-48.
---------------------------------------------------------------------------
    On June 19, 1995, Commissioners Horner and Redenbaugh wrote 
to Berry, with the accord of Commissioners Anderson and George, 
informing her that:

          ``Because we have serious questions and reservations, 
        we feel it is necessary to discuss this report--among 
        the Commissioners and with the staff authors--before 
        voting. We kindly request that you arrange for such an 
        opportunity through the Office of the Staff Director.'' 
        10
---------------------------------------------------------------------------
    \10\ Memorandum, June 19, 1995.
---------------------------------------------------------------------------
    On June 21, 1995, by memorandum, Mathews informed the 
Commissioners that a poll vote had been taken on the report 
which ``resulted in approval of the report.'' Also by 
memorandum dated June 21, 1995, Mathews wrote to Berry 
informing her that the report had been approved by a vote of 4-
1 with three Commissioners not voting.11 The memorandum 
stated that the poll was conducted ``in accordance with 
Commission procedure'' and that:
---------------------------------------------------------------------------
    \11\ Voting in favor of the report were Berry, Cruz Reynoso, 
Charles Wang and Arthur Fletcher. Commissioner Horner's written vote 
against approving the report was submitted to the Staff Director prior 
to the date of the vote. The votes of Commissioners Redenbaugh, 
Anderson and George were not recorded.

          As in other instances, individual Commissioners 
        expressed a desire for a delay or made other 
        suggestions which would have prevented the polling from 
        occurring (sic). However, the poll proceeded according 
        to Commission policy that the Staff Director implements 
        a Commission decision to poll unless prevented by lack 
        of a quorum.12
---------------------------------------------------------------------------
    \12\ Memorandum of Staff Director to Chairperson Mary Frances 
Berry, June 21, 1995.

    By letter of June 23, 1995, Commissioners Anderson, George, 
Horner and Redenbaugh wrote to Chairman Canady asking that he 
not accept the report because ``[t]he report in its current 
form was published prematurely and represents neither a 
majority nor a consensus of the Commission.'' In addition, the 
---------------------------------------------------------------------------
letter states:

          If all Commissioners had voted, the report would not 
        have passed in its current form. Staff Director Mary K. 
        Mathews and Chairperson Mary Frances Berry were so 
        advised in advance of the telephonic vote. In fact, * * 
        * we were attempting to work with Chairperson Berry to 
        draft a consensus document, and were in telephonic 
        communications with the Office of the Staff Director 
        even as the Staff Director arbitrarily stopped the 
        vote. Moreover, the report was released so hastily 
        that, in violation of normal procedures, Commissioners 
        could not file dissenting opinions, thus denying 
        Congress the differing views of half of this 
        Commission.

    By memorandum of June 27, 1995, Commissioner Redenbaugh 
reiterated the problem to Berry, Reynoso, Fletcher and Wang, 
stating:

          On Tuesday afternoon, I stated to the Staff Director 
        that if the commissioners were required to have our 
        votes recorded on that date, Commissioner Anderson and 
        I must have our votes recorded as ``no.'' She indicated 
        to me that it would be possible to have the vote held 
        over until the next day, and I relied on that 
        representation.

    Staff Director Mathews continues to insist that the poll 
was taken in accordance with ``standard commission procedure.''
    However, there are no specific Commission procedures which 
govern adoption of reports by notational voting, telephonic 
voting or poll voting which permits, directs or requires the 
Staff Director to implement a Commission decision to poll 
unless prevented by lack of a quorum, or requiring or 
authorizing telephone voting polls to be closed out in a single 
day where Commissioners had expressed their desire to vote a 
day or two thereafter.
    If it is true that the vote was indeed conducted in 
accordance with ``standard Commission procedure'' then it is 
clear that ``standard Commission procedure'' does not protect 
the rights of the Commissioners to vote and have their votes 
counted.
    And despite clear evidence to the contrary, Mathews 
continues to insist that ``every commissioner had a full 
opportunity to vote.'' It is disturbing that a federal 
commission charged by law with investigating voting rights 
abuses should deny its own members a vote on a report to 
Congress.
    The October 1995 hearing focused on serious problems that 
had been brought to the attention of the Subcommittee. Those 
concerns were raised with the Staff Director and the 
Commission's General Counsel during that hearing. 
Unfortunately, the Commission has not taken any action to 
prevent these problems from recurring. The Commission 
leadership has failed to address very these serious problems, 
including: use of subpoenas to chill First Amendment rights, 
the failure to accomplish the one task mandated by Congress--
issuing a statutory report for fiscal year 1995; and serious 
allegations that the Staff Director denied Commissioners the 
opportunity to vote on a report issued in 1995.
    These are just a few of the serious problems that have been 
uncovered at the Commission. The legislation proposes sensible, 
minor changes to the Commission's authorizing statute intended 
to address some of these problems. Once the Subcommittee has 
heard from GAO and OPM, a more comprehensive approach to 
reauthorization can be pursued.
    Now, more than ever, this nation needs an effective voice 
of leadership to address the sensitive issues of racial 
discrimination and racial hatred and to bring hope to those who 
seek a reasoned and peaceful solution to these serious 
problems. The Commission is the institution designated by 
Congress and the President to fulfill this role for the nation. 
Hopefully, the authorization statute will advance the 
Commission's fufillment of this important role.

                                Hearings

    The Committee's Subcommittee on the Constitution held one 
day of oversight hearings of the U.S. Commission on Civil 
Rights on October 19, 1995 and one day of hearings on H.R. 
3874, the ``Civil Rights Commission Act of 1996,'' on July 24, 
1996. On October 19, 1995, testimony was received from six 
witnesses: Representative Mark Foley; Representative Louise 
Slaughter; Representative Dana Rohrabacher; Mary Mathews, Staff 
Director, U.S. Commission on Civil Rights; Stephanie Moore, 
Deputy General Counsel, U.S. Commission on Civil Rights; and 
Robert Ross, Jr., Executive Director, FLA-187 Committee, Inc.
    On July 24, 1996, testimony was received from six 
witnesses: Mary Frances Berry, Chairperson, U.S. Commission on 
Civil Rights; Mary Mathews, Staff Director, U.S. Commission on 
Civil Rights; Wade Henderson, Executive Director, Leadership 
Conference on Civil Rights; Robert George, Commissioner, U.S. 
Commission on Civil Rights; Carl Anderson, Commissioner, U.S. 
Commission on Civil Rights; and Russell Redenbaugh, 
Commissioner, U.S. Commission on Civil Rights.

                        Committee Consideration

    On July 25, 1996, the Subcommittee on the Constitution met 
in open session and ordered reported favorably the bill H.R. 
3874 by a vote of five to two, a quorum being present. On 
September 18, 1996, the Committee met in open session and 
ordered reported favorably the bill H.R. 3874 without amendment 
by a recorded vote of twelve to six, a quorum being present.

                         Votes of the Committee

    1. Amendment offered by Mr. Watt to delete provisions of 
H.R. 3874 dealing with the Commission's issuance of subpoenas 
and requirements for dismissal of the Commission's Staff 
Director, which was defeated by a rollcall vote of 7-14.

        AYES                          NAYS
Mr. Berman                          Mr. Hyde
Mr. Nadler                          Mr. Sensenbrenner
Mr. Scott                           Mr. McCollum
Mr. Watt                            Mr. Gekas
Ms. Lofgren                         Mr. Coble
Ms. Jackson Lee                     Mr. Canady
Ms. Waters                          Mr. Inglis
                                    Mr. Buyer
                                    Mr. Hoke
                                    Mr. Bono
                                    Mr. Bryant (TN)
                                    Mr. Chabot
                                    Mr. Flanagan
                                    Mr. Barr

    2. A motion to favorably report H.R. 3874 was agreed to by 
a rollcall vote of 12-6.

        AYES                          NAYS
Mr. Hyde                            Mrs. Schroeder
Mr. Moorhead                        Mr. Scott
Mr. McCollum                        Mr. Watt
Mr. Coble                           Ms. Lofgren
Mr. Canady                          Ms. Jackson Lee
Mr. Inglis                          Ms. Waters
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Chabot
Mr. Flanagan
Mr. Barr

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House rule XI is applicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(C)(3) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 3874, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 20, 1996.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3874, the Civil 
Rights Commission Act of 1996.
    Enacting H.R. 3874 would not affect direct spending or 
receipts. Therefore, pay-as-you-go procedures would not apply 
to the bill.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                              James L. Blum
                                             (For June E. O'Neill).

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    1. Bill number: H.R. 3874.
    2. Bill title: Civil Rights Commission Act of 1996.
    3. Bill status: As ordered reported by the House Committee 
on the Judiciary on September 18, 1996.
    4. Bill purpose: H.R. 3874 would authorize the 
appropriation of $8.75 million for fiscal year 1997 for the 
United States Commission on Civil Rights, the same amount as 
the commission's 1996 appropriation. In addition, the bill 
would change certain laws governing the commission's operation. 
Specifically, H.R. 3874 would modify the commission's authority 
to issue subpoenas, specify terms for removal of the 
commission's staff director, and make the commission subject to 
the Freedom of Information Act and other laws relating to 
public accountability.
    5. Estimated cost to the Federal Government: Enacting H.R. 
3874 would affect discretionary spending, subject to 
appropriation of the authorized funds, as shown in the 
following table. This estimate assumes that the authorized 
amount will be appropriated for fiscal year 1997 and that 
spending will occur at the historical rate for the commission. 
Other provisions of the bill would have no significant impact 
on spending by the Civil Rights Commission.

                                    [By fiscal year, in millions of dollars]                                    
----------------------------------------------------------------------------------------------------------------
                                                                  1996   1997   1998   1999   2000   2001   2002
----------------------------------------------------------------------------------------------------------------
Spending Under Current Law:                                                                                     
    Budget Authority a.........................................    8.8     --     --     --     --     --     --
    Estimated Outlays..........................................    8.8     --     --     --     --     --     --
Proposed Changes:                                                                                               
    Authorization Level........................................     --    8.8     --     --     --     --     --
    Estimated Outlays..........................................     --    8.4    0.4     --     --     --     --
Spending Under H.R. 3874:                                                                                       
    Authorization Level a......................................    8.8    8.8     --     --     --     --     --
    Estimated Outlays..........................................    8.8    8.8    0.4     --     --     --     --
----------------------------------------------------------------------------------------------------------------
a The 1996 level is the amount appropriated for that year.                                                      

    The costs of this bill fall within budget function 750.
    6. Pay-as-you-go considerations: None.
    7. Estimated impact on State, local, and tribal 
governments: H.R. 3874 contains on intergovernmental mandates 
as defined in the Unfunded Mandates Reform Act of 1995 (Public 
Law 104-4), and would have no significant impact on the budgets 
of state, local, or tribal governments.
    8. Estimated impact on the private sector: H.R. 3874 would 
impose no new private-sector mandates as defined in Public Law 
104-4.
    9. Previous CBO estimate: None.
    10. Estimate prepared by: Federal Cost Estimate: Mark 
Grabowicz. State and Local Government Impact: Karen McVey. 
Private Sector Impact: Matthew Eyles.
    Estimate approved by: Robert A. Sunshine (for Paul N. Van 
de Water, Assistant Director for Budget Analysis).

                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.R. 
3874 will have no significant inflationary impact on prices and 
costs in the national economy.

                      Section-by-Section Analysis

Section 1. Short Title

    This section provides that the Act may be cited as the 
``Civil Rights Commission Act of 1996''.

Section 2. Extension and Authorization of Appropriations

    Section 2 of the bill would authorize an appropriation of 
$8,750,000 for the Commission for Fiscal Year 1997. This is the 
same amount appropriated for the Commission in Fiscal Year 
1996, and it is in accord with the amount approved by the House 
in the Commerce, Justice, State and the Judiciary 
Appropriations bill, H.R. 3814.
    In addition, this section provides for a one-year 
reauthorization of the Commission. The General Accounting 
Office and the Office of Personnel Management are both 
currently conducting intensive studies of various aspects of 
the Commission's activities and policies. The one-year 
reauthorization will permit the Commission to continue its 
ongoing projects, and it will permit the authorizing committee 
to revisit next year the composition, duties, and powers of the 
Commission.

Section 3. Subpoenas

    The Commission has the statutory authority to issue 
subpoenas in furtherance of its investigatory responsibilities. 
42 U.S.C. Sec. 1975a(e)(2). It is standard practice for the 
Commission staff to issue subpoenas to all witnesses at 
hearings, whether or not there is any reason to believe that 
such compulsory process is necessary or warranted. Subpoenas 
are signed by the Chairman. The Commissioners are not involved 
in the decision to issue subpoenas, and are unable to monitor 
the scope of the requests for documents.
    There appears to be widespread agreement that possession of 
the subpoena power is necessary for the Commission to 
accomplish its statutory mandate. Current Commission practice, 
however, allows the issuance of subpoenas in the absence of 
careful consideration and sound judgment. The Subcommittee has 
not been alone in these concerns--they have also been raised by 
the individuals subpoenaed to appear at the Commission's 1995 
Miami hearing, Members of Congress, civil libertarians and 
members of the press.
    The reauthorizing statute would amend the subpoena 
authority by requiring ``a majority vote of those 
[Commissioners] present and voting'' before a subpoena could be 
issued. This is a measured attempt to inject some 
accountability into the Commission's invocation of this most 
potent statutory authority and to help insure that the subpoena 
authority is exercised with the necessary due care and good 
judgment. It would make the Commission's subpoena power much 
like Congress, where subpoenas may be issued only after a vote 
by the relevant committee or subcommittee members. 13 Of 
course, this change to the statute does not preclude the 
Commission from implementing additional safeguards in the 
future should it choose to do so.
---------------------------------------------------------------------------
    \13\ See, Rule XI, Clause 2(m)(2), Rules of the 104th Congress, 
U.S. House of Representatives.
---------------------------------------------------------------------------

Section 4. Staff Director

    While the eight Commissioners alone have the right to vote 
on Commission business, they are only involved with the 
Commission on a part-time basis. The day-to-day operations of 
the Commission are directed by the full-time staff, and in 
particular by the Staff Director. The Staff Director, who is 
appointed by the President with the concurrence of a majority 
of the Commission (i.e., at least five of the eight 
Commissioners), serves ``as the administrative head of the 
Commission,'' 42 U.S.C. Sec. 1975b(a)(1). The Staff Director 
thus exercises an extraordinary amount of influence over the 
Commission's activities.
    In order to provide an incentive for the Staff Director to 
work more cooperatively with all Commissioners, the 
reauthorizing statute provides that the Staff Director may, at 
any time, be removed from office by a majority vote of the 
Commissioners (i.e., by at least five Commissioners). If the 
Commissioners were to exercise this power, the President would 
have to appoint a new Staff Director acceptable to a majority 
of the Commission.

Section 5. Application of Freedom of Information, Privacy, and Sunshine 
        Acts

    This section is needed to correct an oversight in the 
existing statute. As currently constituted, the Commission is 
technically exempt from a variety of federal laws providing for 
greater public accountability and accessibility. This provision 
makes sure that those laws will apply by making it explicit 
that the Commission is an ``agency'' for purposes of these 
statutes.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                  CIVIL RIGHTS COMMISSION ACT OF 1983

          * * * * * * *

SEC. 3. DUTIES OF THE COMMISSION.

    (a) * * *
          * * * * * * *
    (e) Hearings and Ancillary Matters.--
          (1) * * *
          (2) Power to issue subpoenas.--The Commission may, by 
        a majority vote of those present and voting issue 
        subpoenas for the attendance of witnesses and the 
        production of written or other matter. Such a subpoena 
        may not require the presence of a witness more than 100 
        miles outside the place wherein the witness is found or 
        resides or is domiciled or transacts business or has 
        appointed an agent for receipt of service of process. 
        In case of contumacy or refusal to obey a subpoena, the 
        Attorney General may in a Federal court of appropriate 
        jurisdiction obtain an appropriate order to enforce the 
        subpoena.

SEC. 4. ADMINISTRATIVE PROVISIONS.

    (a) Staff.--
          (1) * * *
          * * * * * * *
          (3) Removal of staff director.--The Commission may, 
        by a majority vote of the Commission, remove the staff 
        director from office.
          * * * * * * *
    (f) Application of Certain Provisions of Law.--The 
Commission shall be included in the term ``agency'' as such 
term is defined for the purposes of sections 552, 552a and 552b 
of title 5, United States Code.

SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

    [There are authorized to be appropriated, to carry out this 
Act $9,500,000 for fiscal year 1995.] There are authorized to 
be appropriated to carry out this Act $8,750,000 for fiscal 
year 1997. None of the sums authorized to be appropriated for 
fiscal year [1995] 1997 may be used to create additional 
regional offices.

SEC. 6. TERMINATION.

    This Act shall terminate on September 30, [1996] 1997.
                            DISSENTING VIEWS

    While we strongly support the existence of, need for, and 
work of the United States Commission on Civil Rights, we 
dissent to this reauthorization because of the harsh 
restrictions placed upon the Commission within this proposed 
reauthorization.
    Specifically, we object to the following:
    (1) In the view of many (but not all) of us, the Commission 
should be extended for more than one year. It is an unnecessary 
and intrusive requirement to have the Commission constantly 
under the obligation of responding to the many requests made by 
the majority of its time and resources, which a one year 
extension guarantees will be the case. We would prefer a longer 
reauthorization period, which would permit the Commission to 
conduct its responsibilities thoroughly.
    (2) The reauthorization proposes funding at $8.75 million, 
which is level funding (not accounting for inflation), but well 
below the President's request of $11.4 million. We would prefer 
a higher level of funding to help the Commission continue and 
expand its mission of studying, documenting, and publishing 
information about civil rights issues in this nation.
    (3) The proposed change in the subpoena authority of the 
Commission will weaken its ability to gather witnesses to 
testify on sensitive but important matters. The change is 
unnecessary, and we oppose it. The current practice of the 
Commission, notwithstanding its authority, is to only recommend 
enforcement of a subpoena to the Attorney General by a majority 
vote of the Commission. The Democrats offered an amendment to 
codify that in Subcommittee, but that amendment was rejected. 
The proposed change may require a Commission vote of each 
invited witness, a time consuming and unnecessary burden on 
what is a part-time Commission.
    More importantly, the practice of issuing subpoenas to all 
invited witnesses is motivated by a desire to protect those 
witnesses who are intimidated, by community pressure or 
otherwise, from appearing. Commissioners and representatives of 
the civil rights community testified that the practice of 
issuing a subpoena to reluctant witnesses, afraid of 
retaliation from their neighbors, was to protect the witnesses. 
The Commissioners also testified that objectors to the issuance 
of subpoena have been accommodated over the years, through 
negotiation with the Commission's counsel, over the terms or 
effect of the subpoena. There have been virtually no reports of 
abuse of the subpoena power over the many years of the 
Commission, and the one incident testified to at the 
Subcommittee's hearing on this matter has been exploited as 
compelling this statutory change. We believe that the one known 
incident alleging misuse of subpoena authority merits our 
oversight, and consideration, and perhaps recommended changes 
in the practice of the Commission, but not this statutory 
change. We understand that one reason the majority seeks to 
reauthorize the Commission for just one year is to wait for the 
results of a GAO study on the work of the Commission, expected 
in 1997. In our view, that report may shed important light on 
this aspect of the Commission's work, and any statutory change 
to the subpoena authority of the Commission should suspend 
pending the report's release.
    (4) A provision that the Staff Director be removable by a 
majority of the Commission. The Commission's Staff Director is 
currently appointed (and removable) by the President, with the 
concurrence of a majority of the Commission. The majority 
proposes to permit the Commission, by a majority, to remove the 
Staff Director as well, to ``insure that the Staff Director, 
who effectively runs the Commission on a day to day basis, has 
the incentive to work cooperatively with all members of the 
Commission.'' In our view, the Staff Director should be 
removable by the person, in this case the President, that 
appointed her. The proposed change injects a layer of politics 
into the management of the Commission which is unnecessary, and 
divisive.
    For these reasons we oppose this reauthorization of the 
Commission. We remain eager to see the Commission reauthorized, 
but cannot support the restrictions put on it by the majority, 
and so we dissent.

                                   John Conyers, Jr.
                                   Pat Schroeder.
                                   Barney Frank.
                                   Melvin L. Watt.
                                   Xavier Becerra.