Building Support for S. 933
Before publicly circulating the final draft of the bill, Silverstein and Osolinik submitted it to a group of individuals in the disability community for their approval. On one occasion, the two staff members were grilled for hours by persons with disabilities who objected to the apparent weakening of the bill. Osolinik tried to explain that the bill could not be passed without the proposed changes. Silverstein emphasized that the new bill remained true to the original principles.20 Some in the disability community, however, were outraged. “Lots of people felt let down,” said Bonnie O’Day about the reactions at the spring, 1989, conference of the National Council on Independent Living (NCIL).21 Yet most agreed that it was dangerous to include provisions that might endanger the entire bill. Ultimately, the disability community lent its support, persuaded that it was the best that could be achieved politically. This was crucial, for a competing Republican bill might polarize the debate and kill the ADA; unity behind S. 933 made it difficult for an alternative proposal to gain a foothold.
After the disability community backed S.933, the next task for ADA supporters was to enlist the cosponsorship of members of Congress and the endorsement of President Bush. As in 1988, Liz Savage coordinated a cosponsorship drive in conjunction with House and Senate sponsors. This time the drive was even more aggressive, and it continued throughout the entire ADA deliberations. At the same time, Justin Dart, Marilyn Golden, and others throughout the disability community continued to mobilize the national grass roots network. Persons with disabilities began writing letters urging their representatives to support the ADA.
On the Senate side, ADA advocates were especially interested in enlisting the support of Senators Orrin G. Hatch (R-UT) and Robert Dole (R-KS). Hatch’s support was extremely important because he was the ranking Republican on the Labor and Human Resources Committee, and the rest of the committee Republicans generally followed his lead in disability policy. In December, 1988, Senator Harkin began meeting with Hatch personally, in addition to consultations between their staffs. Harkin had hoped that Hatch’s long and solid record of supporting persons with disabilities would lead to his endorsement of the bill as chief cosponsor. As with Senators Kennedy and Harkin, Hatch had personal experience with disability through his brother, who lost the use of his legs from polio. Hatch, however, had serious reservations about the bill. For example, he proposed more limited remedies and the exemption of religious groups from the public accommodations provisions. He also wanted to coordinate his position with the White House. As a result, he declined Harkin’s invitation to be the lead cosponsor.
Instead, Senator Hatch directed his chief counsel, Mark Disler, to draft an alternative bill.22 Disler had worked for Bradford Reynolds in the attorney general’s office during the Reagan administration. During the battles over President Reagan’s Task Force on Regulatory Relief, Disler had formed good working relationships with Kemp and Wright and become much more knowledgeable about disability, which helped smooth working with Senator Hatch’s staff. The bill Disler crafted was similar to S. 2345 in that it was short and focused on general principles of nondiscrimination. Rather than propose strong, detailed requirements as in S. 933, it gave executive agencies the responsibility and authority to create nondiscrimination standards.
Senator Hatch’s actions were, nonetheless, ultimately designed to aid in the ADA’s passage. A quick endorsement of the Harkin bill might have alienated other Republicans, whose support was necessary for effective implementation. Senator Dave Durenberger (R-MN), whose advocacy for people with disabilities stretched back to his tenure as chief of staff for the Governor of Minnesota in the 1960s, explained that Hatch “in effect had to stay off of the original bill in order to leverage Republican support for the final product.” By drafting his own bill, Hatch paved the way for achieving a broader base of consensus and helped prevent filibustering on the Senate floor.23
Senator Dole’s support was also crucial because, as Minority Leader, he had the power to wield considerable influence over the progress of the ADA through Senate committees and on the Senate floor. For example, he could discourage his party from requesting that the ADA be referred to multiple committees, which could delay or even kill the bill. He could also help prevent damaging amendments from being introduced on the floor. Similar to Senator Hatch, Dole had a solid record on disability issues. He knew disability first-hand from the paralysis he incurred in World War II. On each anniversary of his injury, April 14, he gave a speech about disability on the Senate floor. In fact, he devoted his first official speech in the Senate, on April 14, 1969, to the needs of the disability community. “It is a minority group whose existence affects every person in our society and the very fiber of our Nation,” said Dole. He noted that people with disabilities faced significant problems with employment, income, health care, education, rehabilitation, transportation, and access to public accommodations. Accordingly, he urged Congress to promote collaboration between the public and private sectors to improve opportunities for persons with disabilities. He asserted his commitment to make wise use of financial resources, but he wanted to do what was necessary to achieve for people with disabilities “the independence, security, and dignity” to which they are “entitled."24 Subsequently, in 1984, Dole established the Dole Foundation, which he dedicated to improving the employment prospects of persons with disabilities.
Nevertheless, Senator Dole had reservations about the ADA. In part, he was ambivalent because he had talked with Senator Charles E. Grassley (R-IA), Senator Harkin’s fellow senator from Iowa about introducing his own bill. Dole, however, received a flood of phone calls from the disability community urging him to cosponsor Harkin’s bill and abstain from introducing a competing bill.25 Crucial in shaping Dole’s position on the ADA and encouraging him to support it was one of his staff members, Maureen West. Paul Hearne, Executive Director of NCD and a longtime associate of Dole, assisted West in educating the senator about the ADA. Dole refrained from introducing his own bill. But he also continued to withhold his support of S. 933, even though he was one of fourteen original cosponsors of S. 2345.
In addition to Senators Hatch and Dole, ADA supporters were interested in enlisting the support of President Bush and his administration. President Bush had already spoken strongly on behalf of civil rights legislation for people with disabilities on multiple occasions. And Senators Harkin and Kennedy had consulted with the administration throughout the winter and spring of 1989 for input on the development of S. 933. Sometimes these conversations were held person-to-person; at other times they were mediated by members of the disability community, such as Pat Wright and Justin Dart, who had very strong White House connections. The main goal, however, was to encourage the Bush administration take a further step and endorse the version of the ADA developed by Senators Harkin and Kennedy. Faced with the demands of forming an administration and lacking adequate technical disability expertise, however, the White House did not develop a firm position on the bill. Harkin was actually ready to introduce S. 933 in March, but he delayed its introduction at the request of the administration. By April, ADA supporters decided they simply had to move forward with the bill, with or without President Bush. Accordingly, Senator Harkin scheduled the introduction of S. 933 for May 9, 1989, at which time Congressman Coelho would also introduce the companion bill, H.R. 2273. Although ADA supporters were unsuccessful in securing the cosponsorship of Hatch and Dole and the endorsement of Bush, the congressional cosponsorship drive was effective. By May 9, the bill had acquired 33 Senate cosponsors and 84 House cosponsors.
In consultation with Congressman Coelho, Senators Kennedy and Harkin developed a strategy for maneuvering the ADA through Congress. They decided to begin the ADA deliberations in the Senate. The Senate would be more manageable because of its rules for legislative deliberations. Whereas in the House a bill went to all committees with partial jurisdiction, in the Senate a bill went only to one committee, whichever had the preponderance of jurisdiction (subsequent referrals to additional committees could be requested). Moreover, Kennedy and Harkin were chairmen of the committee and subcommittee with jurisdiction. Kennedy’s Committee on Labor and Human Resources also had a comfortable Democratic majority. And the ranking Republicans of both the committee and subcommittee— Senators Orrin Hatch and Dave Durenberger—were strong supporters of disability policy.26 Furthermore, the Senate had a better working relationship with the administration. Given the importance of bringing the administration on board, it was wise to tailor strategy to its interests.
Senators Harkin and Kennedy hoped to push the ADA through the Senate as rapidly as possible with minimal alterations. They feared that lengthy deliberations would increase the chance of losing control of how the ADA was characterized in public debate. Kennedy thus proposed going to mark-up** before the Fourth of July recess and to the Senate floor before the August recess. The House would then proceed with the version passed by the Senate, which would help limit the discrepancy between House and Senate versions and smooth conference deliberations.††
Senate sponsors scheduled three hearings for May 9, 10, and 16; they devoted April to preparing for them. They hoped to prevent any surprises by getting the facts in order and crafting responses to anticipated opposition. Silverstein turned to those who knew disability the best: members of the disability community. He developed a list of about 100 questions and asked representatives of the disability community to explain, based on their experiences at the local level, how various covered entities would respond to ADA provisions. Osolinik and Silverstein then prepared thick briefing books based on the responses. They also worked with the disability community to select witnesses to testify on each aspect of the bill. Unlike the hearings of 1988, the 1989 Senate hearings would include very detailed, technical analyses of the ADA, with a balance of testimony from those who supported the legislation outright and those who promoted changes. Accordingly, the business community and other covered entities were gearing up for the hearings and working with Senate leaders to identify effective witnesses. On May 5, for example, just before the bill’s introduction, the U.S. Chamber of Commerce sponsored the first of several meetings for all business organizations to discuss their strategy for the ADA, which culminated in their testimony before Congress. Subsequently, a group of business organizations formed a coalition called the Disability Rights Working Group.
** Mark-up is the final process of committee consideration of a bill. After holding hearings and working to craft an amended bill that all committee members can support, committees go to mark-up. At mark-up, committee members generally begin by voting on all agreements reached prior to the mark-up session as one single amendment. Then, members can discuss and vote on additional amendments concerning unresolved issues. The last action of the committee at mark-up is to vote on the bill as amended by the committee. If the committee approves the bill, it is sent to the Senate (or House) floor for consideration by the entire Senate (or House). If the committee does not approve the bill, the bill basically dies: it cannot be brought up at the floor unless first approved by committee(s).
†† Both the Senate and House must independently approve a bill for it to be passed on to the president. Unless the two houses pass identical bills (a rarity for such complex bills as the ADA), the Senate and House must send representatives to a conference to fashion an agreement on all differences. Each house must then approve the bill reported out of the conference.
20. Osolinik, interview, November 25, 1996.
21. Bonnie O’Day, telephone conversation with author, May 2, 1997.
22. “S. [no number], To Establish a Clear and Comprehensive Prohibition of Discrimination on the Basis of Handicap,” in possession of Mark Disler.
23. Dave Durenberger, interview, October 26, 1996.
24. Senator Robert Dole, statement, Cong. Rec., v. 135 (April 14, 1969), p. 8816–17.
25. Maureen West, interview, November 11, 1996.
26. Committee Democrats were Brock Adams, Tom Harkin, Christopher J. Dodd, Spark Matsunaga, Howard M. Metzenbaum, Barbara A. Mikulski, Claiborne Pell, and Paul Simon. Committee Republicans were Dan Coats, Thad Cochran, Dave Durenberger, Orrin G. Hatch, James Jeffords, Nancy Landon Kassebaum, and Strom Thurmond.
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