Equality of Opportunity: The Making of the Americans with Disabilities Act

A Bird’s Eye View of the House Deliberations

By the time the ADA reached the House committees, the basic goals of the bill had been widely affirmed. Many members, however, viewed the legislative process as an incremental one, whereby major policies would be assembled step by step over many years. Passing the ADA was especially challenging because, as Rochelle Dornatt of Coelho’s staff observed, “we were creating a whole new set of rights . . . a whole new set of civil rights.” The principal focus in the House was not the needs of persons with disabilities, which had already been well-established by the Senate, but, rather, the bill’s effect on “covered entities.”* As Melissa Schulman of Congressman Hoyer’s office explained: “What the House was doing . . . was making the bill more acceptable to business."¹⁴ Coelho often noted that “the trick” in the legislative process was “to find that magic number, that 218, to get the bill passed."¹⁵ With the ADA, advocates were trying to get much more than that, but it required extensive work at the committee level to satisfy members concerned with covered entities in their districts.

House consideration of the ADA was different and more complicated than the Senate’s for several reasons. First, the committee structure was more complex. In the Senate, the bill went only to one committee and one subcommittee. There it was considered primarily as a civil rights bill and did not undergo the technical scrutiny of the commerce and transportation committees. In the House it went to four committees (Education and Labor, Public Works and Transportation, Energy and Commerce, and Judiciary), and six subcommittees (Select Education; Employment Opportunities; Surface Transportation; Telecommunications and Finance; Transportation, Tourism, and Hazardous Materials; and Civil and Constitutional Rights). In addition, the Committee on Small Business held a non-legislative hearing to generate information that could be used by other committees or during floor deliberations. These multiple committee referrals meant that the ADA would have to withstand the scrutiny of various technical experts, especially with regard to transportation. Moreover, 164 representatives, compared with 16 senators, and many more House staff than Senate staff reviewed the bill in committee. This increased the chance of a committee altering, delaying, or even killing the bill and posed a major challenge to coordinating the deliberative process and keeping the bill intact. All indications suggested that a bill would pass. But, as Neas explained, “there was always the possibility that having to go through four committees . . . could endanger some of the best and strongest provisions."¹⁶ According to Arlene Mayerson, it was “an overwhelming strategic nightmare."¹⁷

A second factor also complicated the House deliberations. In the Senate, the chief sponsors of the bill, Senators Kennedy and Harkin, were chairmen of the full committee and subcommittee with jurisdiction. In the House, however, Congressman Hoyer was not even a member of any of the committees reviewing the bill. He was “responsible for shepherding . . . the bill through the process,” explained Schulman, even though he had to do it without committee authority, relying on forming relationships with chairmen who often guarded their committee jurisdiction jealously. Keeping everything together was a challenging task indeed. But Hoyer rose to the challenge. As Neas said, he “put on one of the best legislative shows of all time."¹⁸ One cannot underestimate Hoyer’s importance. “Unless you have somebody who is going to take responsibility for seeing that it all gets done and there is some cohesion in the process,” Schulman said, “it never would have happened."¹⁹

Congressman Hoyer and staff member Schulman were central players, if not the leaders, in every aspect of the bill’s development in the House—cosponsorship, hearings, committee review, negotiations, committee and floor amendments, interactions with the White House, floor deliberations, conference proceedings, and crisis management. They feared that the committees might significantly weaken the bill, and that the disability community might walk out of the process in frustration. Hoyer thus committed to meeting with any member who wanted to discuss the bill. He even walked through a Giant Food store with concerned parties to explore the practical impact of the ADA.²⁰ Schulman remained confident that the bill would pass. But at times, she said, “it just looked next to impossible."²¹

The legislative process in the House also differed in a third respect: the roles assumed by the business and disability communities and the Bush administration. The ADA went through the Senate like a “blitzkrieg."²² This had compelled many business lobbyists essentially to throw in the towel with respect to the Senate and strategically focus their efforts on the House. The disability community, on the other hand, had been very much on the offensive throughout the Senate deliberations, seeking to persuade senators and the Bush administration to support its goals for an accessible America. Although many compromises had to be made to achieve presidential and Senate support, the disability community had been generally satisfied with an ADA that emerged from the Senate. And with respect to the Bush administration, it had been an active participant in hammering out a compromise bill that could win the endorsement of President Bush, which Bush granted on August 2, 1989.

The circumstances were much different in the House. While business groups worked extensively with the Senate and the Bush administration in developing a compromise bill, activity was primarily in Washington: there were only limited efforts to apply pressure on members from their constituents at home. But, during House deliberations, the business community vigorously lobbied the House by mobilizing constituent pressure. By the time the ADA reached the House, Mayerson said, the National Federation of Independent Business (NFIB) was distributing “millions of flyers to every business across the country."²³ Moreover, because of President Bush’s endorsement of the ADA, outright opposition was futile and apathy was dangerous. Barring an unexpected calamity, the bill was going to pass, at least in some form. If businesses wanted their voice to make a difference and meet some of their objectives, they had to support the overall concept of the bill. Persons with disabilities, on the other hand, were now more on the defensive. Their chief goal was to hold as much ground as possible amidst an onslaught of proposed revisions.

The disability community continually reminded opponents that a Republican president backed the ADA.²⁴ Indeed, President Bush was a strong advocate of the ADA and had been in the forefront of promoting civil rights legislation for people with disabilities. By endorsing the negotiated version of the ADA on August 2, 1989, President Bush set the stage for the House deliberations, where passage consequently seemed imminent. Attorney General Richard Thornburgh most actively articulated the Bush administration’s support. For example, on September 19, Thornburgh wrote a powerful letter to the editor of the New York Times on behalf of the ADA. He underscored his and the president’s support of the ADA. In particular, he challenged the errors of a Times article—for example, its allegation that there had been “surprisingly narrow public scrutiny” of the ADA. Thornburgh described how the Bush administration, the Senate, and interested parties had entered “painstaking negotiations” that resulted in “a carefully balanced measure."²⁵

On October 12, Attorney General Thornburgh testified on behalf of the administration, before the House Subcommittee on Civil and Constitutional Rights and gave a ringing endorsement of the ADA. He noted that many people with disabilities continue to live “in an intolerable state of isolation and dependence” and argued that the ADA could be “the vehicle that brings persons with disabilities into the mainstream of American life.” It was a “historic opportunity,” he said, to have the chance to help move the ADA through Congress.²⁶ Thornburgh’s testimony was important because it demonstrated the Bush administration’s continued support of the ADA and reflected President Bush’s desire to see the ADA passed quickly.

For the most part, however, compared with its intense and consistent interaction with the Senate, the Bush administration participated in the House deliberations only intermittently. Proponents of the ADA widely assumed that the administration stayed in the background because the administration was willing to let the House modify the bill and perhaps implement proposals the administration had been unable to negotiate with the Senate.²⁷ House Republicans, for their part, preferred that the White House let them have the freedom to conduct their own analysis and revisions of the bill. House Democrats wanted the administration to speak out more authoritatively on behalf of the negotiated ADA, but they would settle for not having the administration advocate any weakening amendments.²⁸ President Bush satisfied all parties by remaining outside the fray. 

The House deliberations were also characterized by ideological distinctions. ADA supporters widely hailed the bill as bipartisan legislation.²⁹ Indeed, in the final analysis the ADA received overwhelming support from both parties—93 percent of the vote in each chamber and at least 86 percent of the vote in each party.³⁰ There were also key advocates on both sides of the aisle, especially in the Senate, where Senators Harkin, Kennedy, Orrin G. Hatch (R-UT), Dave Durenberger (R-MN), and Robert Dole (R-KS) were deeply committed to the ADA. Moreover, Republicans and Democrats found common ground: they agreed “that it was a bad idea to pay people not to work, to stay home."³¹ Nevertheless, an ideological fault line emerged between the interests of the business and disability communities. Republicans tended to vote in favor of easing the demands imposed on business. This became evident during the Senate floor deliberations. For example, Senator Hatch’s amendment to include a tax credit for businesses (the only vote to be recorded) split along party lines. Whereas 71 percent of Republicans supported the amendment, 64 percent of Democrats opposed it.³² In the House, the division was even more clear. For example, whereas 85 percent of Democratic committee members were cosponsors of the ADA, only 10 percent of Republican committee members were.³³ In the committees, members tended to split along party lines regarding amendments that most viewed as helping businesses.³⁴

It is important, however, not to lose sight of the enormous area of agreement on the ADA, which was established in the course of negotiations. Although Republicans and Democrats had their differences, it is a testament to their talents and commitment to a laudable objective that they were largely able to put aside partisanship to find common ground.  

* “Covered entity,” as defined in § 101(2) of the final version of the ADA, means “an employer, employment agency, labor organization, or joint labormanagement committee.” For the purpose of this work, however, “covered entities” is defined more broadly to mean any entity covered by any portion of the ADA. This would include, for example, employers, operators of public transit, owners of places of public accommodation, and communications providers.

14. Melissa Schulman, interview, December 6, 1996.

15. Dornatt, interview, December 4, 1996.

16. Neas, interview, January 21, 1994.

17. Arlene Mayerson, interview, October 13, 1993.

18. Neas, interview, December 10, 1993.

19. Schulman, interview, December 6, 1996.

20. Schulman, interview, July 9, 1993.

21. Ibid.

22. Mayerson, interview, October 13, 1993.

23. Mayerson, interview, October 28, 1993.

24. Paul Marchand, interview, October 26, 1993.

25. Dick Thornburgh to the Editor of The New York Times, September 19, 1989, in possession of Virginia Thornburgh. See also Thornburgh, “Toward Independence for the Disabled,” Wall Street Journal, October 3, 1989, p. A13, in which Thornburgh similarly criticizes the Journal for misrepresenting the ADA.

26. Richard Thornburgh, statement, Hearings Before the Committee on the Judiciary and the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 101st Cong., 1st Sess., (October 12, 1989), Serial No. 58, in Leg. Hist., pp. 2014, 2020.

27. Schulman, interview, July 9, 1993.

28. Neas, interview, January 21, 1994.

29. For example, Elizabeth Boggs, Co-chair of the Task Force on the Rights and Empowerment of Persons with Disabilities, stated: “In a remarkable demonstration of bipartisan support for the bill, dozens of potentially weakening amendments were rejected in committee or on the floor by Congressmen who became folk heroes in the disability rights movement.” From ADA to Empowerment: The Report of the Task Force on the Rights and Empowerment of Persons with Disabilities (October 12, 1990), p. 13.

30. Senate: 91 of 97 (93.8%) voted yes. Senate Democrats: 54 of 54 (100%) voted yes. Senate Republicans: 37 of 43 (86.0%) voted yes. 3 Senators did not vote. House: 377 of 405 (93.1%) voted yes. House Democrats: 233 of 238 (97.9%) voted yes. House Republicans: 144 of 167 (86.2%) voted yes. 27 Congressmen did not vote.

31. Jim Weisman, interview, November 16, 1993.

32. Senate: 48 of 92 (52.2%) voted yes. Republicans: 30 of 42 (71.4%) voted yes. Democrats: 32 of 50 (64.0%) voted no. Eight Senators did not vote.

33. Democrats: 93 of 110 (84.5%) were cosponsors. Republicans: 7 of 67 (10.4%) were cosponsors. This includes members on the Rules Committee. These results are tabulated according to total number of seats on the committees, not according to the actual number of members. Representatives sitting on more than one of these committees are thus counted twice.

34. Schulman, interview, July 9, 1993.