Conference Proceedings and Final Passage
On May 24, 1990, just two days after the House passed the ADA, the House requested a conference with the Senate to resolve all points of disagreement. The Speaker appointed 22 conferees representing each of the committees and key participants in the ADA’s passage.2 Two weeks later, on June 6, the Senate met to consider the House’s substitute amendment for the Senate bill, S. 933. Senator Tom Harkin (D-IA) asked for unanimous consent that the Senate object to the House version of the ADA, rather than approve it, and request a conference to settle differences.
Senator Jesse Helms (R-NC), however, introduced a motion to instruct the Senate conferees to support the Chapman amendment passed in the House. Reminiscent of the House floor debate, Senator Helms argued that the reason the Chapman amendment was necessary was that it represented “a matter of staying in business.” Although Helms acknowledged that there was currently no known evidence that AIDS could be transmitted through food or drink or casual contact, he said the livelihood of restaurants was dependent largely on “public perception.” If, said Helms, “the public is led to perceive that there will be a health risk to those coming into the restaurant and eating the food, rightly or wrongly, that business could be destroyed.” Helms cited examples of restaurants that closed because people found out their employees had AIDS. He also listed many organizations that supported the amendment, chief among them the National Restaurant Association (NRA). The National Federation of Independent Business (NFIB), in order to apply pressure on representatives, staked the claim that the amendment was “a key small business vote.” Moreover, Helms argued that the Chapman amendment struck “a sensitive balance” by requiring that employers transfer persons with AIDS to comparable jobs of equal pay.3
Senator Harkin disagreed. The amendment “strikes right to the heart and soul of the Americans with Disabilities Act,” he said. It violated the act’s central thesis: “that persons with disabilities ought to be judged on the basis of their abilities; they should not be judged nor discriminated against based on unfounded fear, prejudice, ignorance, or mythologies.” The Chapman amendment, said Harkin, was asking Congress “to codify fear.” Harkin noted that Secretary of Health and Human Services (HHS) Louis Sullivan wrote a letter to House Speaker Thomas S. Foley (D-WA) saying that policy based on misconceptions about, and fear of, HIV would “only complicate and confuse disease control efforts without adding any protection to the public health.” William Roper, who had left the White House to become Director of the Centers for Disease Control (CDC), wrote that there was no reason for a person with HIV or AIDS to be prohibited from handling food, unless he or she had another infection for which any worker would be restricted from food service.4 Harkin requested that these and two dozen other letters opposing the amendment be printed in the Congressional Record. Many senators joined Harkin in opposing the Chapman amendment as well.
Majority Leader George J. Mitchell (D-ME) attempted to counter Senator Helms by introducing a motion to table, and thereby suspend, Helms’s motion. Mitchell’s motion came to an immediate vote, but only 40 senators supported it. Democrats counted for 33 of the affirmative votes, but more than a third of the Democrats joined Republicans to oppose the motion.5 Since the vote on Mitchell’s motion illustrated Senate opinion on the Chapman amendment, the Senate then agreed to Helms’s motion by a voice vote and appointed conferees.6
House and Senate conferees and their staffs reviewed 81 points of dispute. Throughout the House deliberations, Robert Silverstein and others from the Senate side had worked closely with House members and staff to ensure that the Senate agreed with the changes the House made. Consequently, House and Senate staff were able to develop prompt agreements on 79 of the 81 disputed issues. In each case (and with amendments in a few cases), the Senate conferees conceded the House position.
Although staff swiftly resolved most differences, Silverstein described the time between House passage and final approval of the ADA as “the month from hell."7 This was because staff and members were at a complete impasse on two issues: the Chapman amendment and congressional coverage by the ADA. Although House and Senate sponsors hoped to get the ADA to the president’s desk before July 4, the conflicts could not be resolved that quickly.8
House and Senate conferees met on June 25, 1990, with Senator Edward M. Kennedy (D-MA) presiding. Congressman Hoyer was the leading conferee and key negotiator for the House; Senator Harkin joined Senator Kennedy as the leading conferees for the Senate. Congressional coverage was the easier of the two disputed areas, for which there were two separate issues. The first concerned who had the power to enforce the application of the ADA to Congress. The original Senate provision had been introduced late in the floor debate on September 7, 1989, as a single sentence of intent, rather than a detailed proposal. Largely at the insistence of Congressman Hoyer, the House had endorsed the Senate’s proposal.9 The House had also clarified the section by specifying that administrative authority would be exercised by the House of Representatives. At the Conference, however, Senate conferees bristled at the thought of “the other” chamber having executive power over the Senate. Conferees thus agreed to have the Senate be responsible for exercising administrative authority over itself. The second point of discussion was whether individuals alleging discrimination by either the House or Senate would have a private right to action—the ability to sue a senator or representative in district court. Conferees decided that persons with disabilities should have the same remedial options available with respect to Congress as they did with other entities covered by the ADA. The conference thus upheld private right to action.
Debate over the Chapman amendment was much more contentious, and conferees devoted hours to discussing it. The arguments for and against the amendment, by this time, were clear. The difficulty for the conferees was that, on one hand, a majority of members in the House voted for the amendment. And in the Senate, a majority of senators indirectly voiced their support for the amendment. Going against the majority opinion of both Houses might endanger the bill. On the other hand, inclusion of the Chapman amendment threatened to kill the bill. The disability community took a firm and united stand that they would withdraw their support from the bill if the amendment stayed in. There simply could not be a viable ADA if the disability community, which the law was designed to assist, opposed it. Moreover, the disability community’s chief congressional supporters stood with the disability community.
Senate and House conferees, independently, had to approve decisions for each area of dispute. As it became increasingly clear that the Chapman amendment not only contradicted basic premises of the ADA but also might mean the end of the ADA, some conferees opted to save the bill by rejecting the Chapman amendment, in spite of their sympathy to it. For House conferees, it was a close vote. Among the 22 House conferees, opponents of the amendment won by only two votes, 12 to 10. Senate conferees also voted to reject the Chapman amendment.
On the following day, June 26, the conferees prepared and presented a conference report that listed each point of disagreement and how it had been resolved. It might seem that the ADA was finally secure now that delegations from the House and the Senate agreed, in entirety, about a version of the ADA. But conferees had taken the bold action of ruling against their colleagues and the conference report still had to be passed by both chambers.
Although the general public remained largely unaware of the conflict that was brewing, since there was virtually no press coverage in the six weeks between House approval and final passage, the disability community and the business community were lobbying aggressively. Some members of the disability community thought it was best to accept the Chapman amendment in order to save the rest of the ADA. The vast majority of advocates, however, insisted that the disability community stick together. Consequently, they worked closely with AIDS organizations to oppose the Chapman amendment. On one occasion, around the Fourth of July weekend, the Human Rights Campaign Fund, a lobbying group for the gay and lesbian community, organized a public relations coup. As the disability community had done throughout congressional deliberations, they prepared position papers to present to members. To distribute their information this time, however, they used brown lunch-bags marked: “The National Restaurant Association is Out to Lunch on the Chapman Amendment.” And at a press conference announcing the “Out-to-Lunch” campaign, Wright said the disability community would pull out its support of the ADA if the Chapman amendment was part of the bill.
A powerful demonstration of the disability community’s unity occurred later that day in a meeting at the White House. At either end of a table in the Roosevelt Room sat Pat Wright and Boyden Gray. Around the table were other members of White House staff and leaders of the disability community, including representatives from NCIL and UCPA. Gray emphasized that the disability community had secured much if not most of its aims for the ADA and that compromise was a normal part of the legislative process. Wright, however, knowing that President Bush badly wanted to see the legislation passed, reaffirmed the message that the ADA coalition would withdraw its support of the ADA if the Chapman amendment was part of the bill. Around the table, other disability advocates weighed in, one-by-one, describing the Chapman amendment as a horrendous violation of the principles of the ADA. Accordingly, they urged the White House to intervene on their behalf and pass the ADA without the Chapman amendment.10
The session reached a climax when Bob Williams, who sat next to Gray, offered his words. Williams was sitting in a wheelchair that he used because of cerebral palsy. To speak more clearly he used a lap board covered with letters and symbols, which enabled him to point and spell out sentences one letter at a time. Someone standing by spoke each letter or word. Williams echoed the sentiments of the others in the room. But he personalized the issue with his own experiences. Williams said the Chapman amendment struck a personal chord because it concerned restaurants. Among Williams’s earliest childhood memories were experiences of being turned away from restaurants because of his cerebral palsy. Restaurant operators always insisted that they would be happy to serve him and his parents and understood that he posed no threat. But they said Williams’s presence bothered other people and thus interfered with business. Williams concluded his remarks with an eloquent and powerful statement of the disability community’s understanding of the Chapman amendment: “I-t a-i-n’-t c-i-v-i-l. A-n-d i-t a-i-n’-t r-i-g-h-t.” About midway through this declaration, the rest of the disability advocates anticipated the subsequent letters and thus began saying each letter in unison.11
The unity of the disability community on behalf of persons HIV/AIDS moved Tim McFeely to tears. It was “incredibly moving,” he said. McFeely was the Executive Director of the Human Rights Campaign Fund and the only person in attendance representing the AIDS community. ADA advocates had made a commitment more than a year before that they would stand together: one for all and all for one. And while they agreed that they could be flexible with time lines, they committed to being steadfast on principles. The words spoken that day demonstrated to McFeely that the commitments made by people with disabilities were deep and abiding.12
In addition, the disability community illustrated its opposition to the Chapman amendment by developing technical analyses of the food handling issue. For example, Robert Burgdorf, the original author of the ADA, wrote a House staff member on the constitutionality of the Chapman amendment. The thrust of the amendment, Burgdorf explained, was directed primarily at individuals who did not pose a threat to society. Excepting a group of persons as a class, however, according to the Constitution, had to be based on “legitimate” government interests. Burgdorf concluded: “It is blatantly irrational for Congress to rely upon . . . prejudicial attitudes, ignorance, myths, fears, misapprehensions, and reflex reactions about contagiousness, . . . as the basis for an exception from the ADA’s nondiscrimination mandate.” Singling out persons who did not pose a threat to society, he said, “has no rational relation to any legitimate governmental objective” and violated “ the underlying principles, premises, and requirements of the very piece of legislation it is attached to."13
The business community was similarly active in demonstrating its support of the Chapman amendment. To counter the efforts of disability organizations, dozens of business organizations sent letters to members of Congress urging support of the Chapman amendment. Chief among them was the NRA. Its Senior Director of Government Affairs, Mark Gorman, had wrote repeated letters urging members of Congress to hold the line on the Chapman amendment and not allow it to get stripped in conference or on the floor of either house.14
The Senate was the first to take up the conference report, amidst lobbying from the disability and business communities, on July 11, 1990. Before the Senate floor deliberations began, two conflicting amendments to the conference report were circulating. One was authored by Senator Helms. He had originally planned to introduce an amendment that would send the report back to conference and insist that the conferees put the language of the Chapman amendment into the report. That very day, however, Senator Hatch developed a rival amendment that caused Helms to redraft his own amendment.
Senator Hatch’s amendment represented an important shift in his position on the food handling issue. In the conference meeting, Hatch had argued forcefully that the Chapman amendment should be retained in the bill. He disagreed with those who thought the issue should be dropped, suggesting that they did not realize “how electric” the issue was. He also doubted whether the House of Representatives or the White House would accept the ADA without some attention to the issue Congressman Chapman had raised.15 However, after the conference meeting Silverstein pursued Hatch to discuss the amendment. Silverstein and Hatch had worked together on disability policy for many years, and both agreed that the disability policy should not, generally, encourage business decisions to be made on unfounded fears. Silverstein, however, emphasized to Hatch that it was dangerous to use a different standard for a single constituency of the disability community—persons with contagious or communicable diseases. Supporting the Chapman amendment, said Silverstein, would potentially undo years of Hatch and Silverstein’s work in trying to unite the disability community and develop holistic policy. By allowing prejudice to prevail in one area, it would create an internal chasm within the disability community. This meeting had a crucial impact on Hatch: he called it “the key to my own evolution on the Chapman amendment."16
This discussion also prepared the senator for an encounter with disability advocates the morning of the July 11 floor deliberations. That morning Wright went looking for Senator Hatch. She figured the best place to find him was in the hallway between the Senate chamber and the Majority Leader’s office. But that area was restricted to members of Congress, their staff, and their guests. Accordingly, Wright brought Michael Iskowitz, who was Senator Kennedy’s chief staff member regarding AIDS, to gain access to the area. Also with her was Chai Feldblum, who was prepared to translate an agreement into proper legal form. After waiting for some time, the advocates found Senator Hatch. They urged the senator not to allow fear and prejudice to prevail. Rather, they argued, let available medical evidence be the deciding factor. They also made an impassioned plea that the bill was on its way to dying unless Senator Hatch helped resolve the conflict—only he had the stature to shoulder a compromise.17
Senator Hatch’s views had been changing since the conference meeting; now he agreed with the disability advocates that the Chapman amendment, as written, should not be part of the ADA. Yet he still thought the issue needed to be taken seriously and resolved in a way that could win broad support. Accordingly, he searched for, and found, a compromise. Science would be the linchpin. On an annual basis, proposed Hatch, the Secretary of HHS would prepare a list of those communicable and contagious diseases that were knowingly able to be transmitted through food handling. Then, restaurant operators would be able to insist that anyone with a disease on that list could be removed from food handling positions. The ADA, moreover, would not preempt any local laws concerning food handling.
Senator Hatch called on Nancy Taylor from his staff, who was nine-months pregnant, to craft the language. Hatch, Taylor, Wright, Feldblum, and Iskowitz then worked together to scrawl the agreement on a piece of paper, and prepared to introduce it to the Senate as an alternative to the Helms amendment. It was a major breakthrough. “That could have been the end of the ADA,” said Wright.18 Helms, predictably, was irate. Feldblum recalled passing Helms in the hall later that morning: he was walking briskly with an unidentified sheet of paper, red with anger.19
Later that day in the Senate chamber, after several senators tried unsuccessfully for two hours to reach a consensus on food handling and the Hatch-Helms proposals, Majority Leader Mitchell concluded that the conflict could only be settled in open floor debate. Senator Hatch worked with Senator Harkin to manage the deliberations. They expected the Senate to approve the vast majority of the conference report. Besides the Chapman amendment, only the issue of congressional coverage was contested, concerning which Senator Wendell H. Ford (D-KY) intended to recommit the ADA to conference. According to Harkin and Hatch’s strategy, Hatch would introduce his “perfecting amendment” after Ford submitted his motion regarding congressional coverage. Following debate on the Hatch amendment, the Senate would lay the amendment aside and allow Senator Helms to introduce his own “perfecting amendment.” After consideration of the Helms amendment, the Senate would proceed to vote in order: first on the Helms amendment, then on the Hatch amendment, and finally on the Ford motion. No other motions or amendments would be allowed.
Senator Hatch had come up with “another miracle.” —Senator Dave Durenberger
As an early application of the ADA, Majority Leader Mitchell asked unanimous consent to have the Senate floor debate translated into sign language, which had never been done before. As planned, the issue of congressional coverage came up first. The night before, on July 10, the Senate had passed legislation concerning application of all civil rights laws to the Senate, and rejected private right to action: only administrative remedies, through internal review, were allowed. Senators were thus concerned about the ADA being inconsistent with other civil rights laws. Accordingly, Senator Ford introduced his motion to send the ADA back to conference and instruct the conferees to exclude private right to action for the Senate. Although Senators Charles E. Grassley (R-IA) and Tom Harkin objected that people should have a private right to action to remedy Senate violations of the ADA, they agreed to let the motion stand.
Senator Hatch then introduced his amendment to Senator Ford’s motion, and senators rehashed the arguments for and against the Chapman amendment yet another time. Hatch emphasized that his amendment “places a premium on science” as the basis for decision-making. “I think if we would rely more on science and a little less on fears and misperception we would be better off as a society, as a nation,” explained Hatch, “and there would be less prejudice."20 Senator Dave Durenberger (R-MN) said Hatch had come up with “another miracle”; he hailed the ability of Hatch to fulfill the role of intermediary.21 Senator Helms, however, said the Hatch proposal would gut the Chapman amendment and “render it totally nugatory."22 Because public health experts such as HHS Secretary Sullivan and CDC Director Roper affirmed that AIDS could not be transmitted through food handling, restaurant operators would not be allowed to discriminate against them.
To counter Senator Hatch’s amendment, Senator Helms modified his original amendment and introduced one with language virtually identical to the Hatch amendment. The main difference was that instead of the HHS Secretary posting a list of diseases that are transmitted through food handling, as the Hatch amendment specified, the Secretary would post a list of diseases that may be transmitted through food handling. Thus, anyone who had a disease that might possibly be transmitted through food handling, even if there was no evidence to prove it, could be barred from food handling positions.
When the time came to vote, the Senate decisively rejected the Helms amendment, 61 to 39, with 78 percent of Democrats opposing the amendment and 60 percent of Republicans supporting it.23 The Senate then immediately voted on the Hatch amendment and approved it 99 to 1: Senator Helms stood alone in opposition. Subsequently, after a clarifying colloquy between Senators Hatch and Dole, the Senate approved the Ford motion, as amended, by a voice vote.
The following day, on July 12, conferees met to review the Senate proposals. They accepted the Senate instructions concerning both food handling and congressional coverage and submitted their report that same day. Later that afternoon, the House of Representatives met to consider the second version of the conference report. Once again, they first had to accept a rule structuring debate. But this time there was little dispute: 86 percent of members voted in favor of the closed rule.24 Afterward, Congressman Hoyer congratulated the House for its bipartisan collaboration. The deliberative process, he said, had “perfected” the ADA and made it “an excellent piece of legislation.” All House members, he said, should be “proud to say” that they had played a part in the Congress that “extended to” Americans with disabilities “the welcome sign . . . to come into our society, . . . to have the ability to work and support themselves and their families, . . . to ride on our transportation systems, . . . to come into our stores, and our banks, and our doctors’ offices, and fully avail themselves of the opportunities of American society."25
The only real issue left for House consideration was the Chapman amendment. Many members argued that the Hatch amendment did not adequately fulfill the purpose of the Chapman amendment: persons with AIDS would still be able to hold food handling positions. Accordingly, Congressman William E. Dannemeyer (R-CA) submitted a motion to recommit the conference report back to conference yet again, with instructions that House conferees insist that the Chapman amendment be accepted. This time, however, there were not enough votes in the House. The vote split along party lines, with 77 percent of Democrats opposing the amendment and 75 percent of Republicans supporting it. But, overall, 55 percent of the House voted to reject adding the language of the Chapman amendment.26 The House immediately voted on the entire bill that evening, and members passed the ADA, for the final time, with near unanimity. More than 90 percent of the members voted in favor of the ADA.27
Although many in the disability community hoped that the Senate could take its final vote that night, the Senate waited until the following day, July 13. It was an emotional occasion. Similar to Congressman Hoyer, Senator Harkin praised his fellow senators for the spirit of bipartisan collaboration that produced a bill with a broad base of support. And he was especially complimentary of the disability community. “It may be raining outside,” he said, “but this is truly a day of sunshine for all Americans with disabilities."28 Harkin wanted to communicate directly with his brother, who taught Harkin, “at a very early age, that people with disabilities could do anything that they set their minds to do and that people should be judged on the basis of their abilities . . . not on the basis of their disabilities.” Accordingly, Harkin signed to his brother that this was the proudest day of his sixteen-year career in Congress—the ADA opened doors to all Americans with disabilities and promoted an end to fear, ignorance, and prejudice.29
The floor deliberations brought Senator Hatch to tears. He remarked how “senseless discrimination, intended or not,” had “subjected persons with disabilities to isolation and robbed America of the minds, the spirit, and the dedication we need to remain a competitive force in a worldwide economy."30 Hatch also extended his appreciation to scores of people who contributed to the ADA’s passage. Many more senators followed in proclaiming the virtues of the ADA and crediting various contributors.
When the Senate finally voted on the conference report, it passed the ADA with margins almost identical to those in the House: 93 percent of the senators voted in the affirmative. The ADA had made it through Congress. The final step in making the ADA public law was a signature from the President of the United States, George Bush.
2. From the Committee on Education and Labor: Augustus F. Hawkins, Major R. Owens, Matthew G. Martinez, Steve Bartlett, and Harris W. Fawell. From the Committee on Energy and Commerce: John D. Dingell, Edward J. Markey, Thomas A. Luken, Norman F. Lent, and Bob Whittaker (for telecommunications issues, Matthew J. Rinaldo replaced Whittaker). For the Committee on Public Works and Transportation: Glenn M. Anderson, Robert A. Roe, Norman Y. Mineta, John Paul Hammerschmidt, Bud Shuster. From the Committee on the Judiciary: Jack Brooks, Don Edwards, Robert W. Kastenmeir, Hamilton Fish, Jr., F. James Sensenbrenner, Jr. Additional conferees: Steny H. Hoyer, and Jim Chapman (for discussion relating to his amendment).
3. Senator Jesse Helms, statement, Cong. Rec., v. 136 (June 6, 1990), p. S7436–37.
4. Senator Tom Harkin, statement, ibid., p. S7437–39.
5. Senate: 53 of 93 (57.0%) voted no. Democrats: 33 of 40 (64.7%) voted yes. Republicans: 35 of 42 (83.3%) voted no.
6. Senate conferees: Edward M. Kennedy, Tom Harkin, Howard M. Metzenbaum, Paul Simon, Orrin G. Hatch, Dave Durenberger, James M. Jeffords. The following served as additional conferees for issues under the jurisdiction of the Committee on Commerce, Science, and Transportation: Ernest F. Hollings, Daniel K. Inouye, and John C. Danforth.
7. Robert Silverstein, interview, August 30, 1993.
8. On May 24, amidst a discussion of planning a signing ceremony, Virginia Thornburgh reported to White House staff that sponsors hoped to have the act to the President before the Fourth of July. Ginny Thornburgh to The Honorable Sig Rogich, May 24, 1990, in possession of Virginia Thornburgh.
9. Melissa Schulman to Jonathan M. Young, May 13, 1997, in possession of author.
10. Wright, telephone conversation with author, April 30, 1997; Tim McFeely, telephone conversation with author, May 2, 1997.
11. Ibid.
12. Ibid.
13. Robert Burgdorf to Bob Tate, June 20, 1989, in possession of Chai Feldblum.
14. See, for example, Mark Gorman to the Senate, May 23, 1990, printed in 136 Cong. Rec. (June 6, 1990), p. S7437; Gorman to the Senate, June 26, 1990, ibid., p. S9537; and Gorman to the Senate, July 11, 1990, ibid., p. S9536.
15. Orrin G. Hatch to Jonathan M. Young, February 24, 1997, in possession of author.
16. Orrin G. Hatch to Robert Silverstein, July 20, 1990, in possession of Robert Silverstein.
17. Wright, telephone conversation with author, April 30, 1997
18. Ibid.
19. Chai Feldblum, interview, March 14, 1997.
20. Senator Orrin Hatch, statement, Cong. Rec., v. 136 (July 11, 1990), p. S9533.
21. Senator Dave Durenberger, statement, ibid., p. S9534.
22. Senator Jesse Helms, statement, ibid., p. S9535.
23. Senate: 61 of 100 (61%) voted no. Democrats: 43 of 55 (78.2%) voted no. Republicans: 27 of 45 (60.0%) voted yes.
24. House: 355 of 413 (86.0%) voted yes. Democrats: 243 of 245 (99.2%) voted yes. Republicans: 112 of 168 (66.7%) voted yes. 19 members did not vote.
25. Congressman Steny Hoyer, statement, Cong. Rec., v. 136 (July 12, 1990), p. H4615.
26. House: 224 of 404 (55.4%) voted no. Democrats: 183 of 239 (76.6%) voted no. Republicans: 124 of 165 (75.2%) voted yes. 28 members did not vote.
27. House: 377 of 405 (93.1%) voted yes. Democrats: 233 of 238 (97.9%) voted yes. Republicans: 144 of 167 (86.2%) voted yes. 27 members did not vote.
28. Senator Tom Harkin, statement, Cong. Rec., v. 136 (July 13, 1990), p. S9684.
29. Senator Tom Harkin, statement, ibid., p. S9689.
30. Senator Orrin Hatch, statement, ibid., p. S9685.
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