Moving to the House Floor
The ADA proceeded rapidly to the House floor after the Judiciary Committee completed its work. On May 14 and 15, 1990, the four committees submitted their reports, which included four different drafts of the ADA. It was then the task of the Rules Committee to produce a bill that synthesized the four versions. A bipartisan staff working group collaborated to sort out the different texts. The only conflict was between the transportation committees over whether new rail vehicles had to be accessible. Otherwise, it was a matter, albeit a challenging one, of piecing everything together. The staff working group crafted a new bill, H.R. 4807, which they substituted for the text of H.R. 2273. On May 16, the Rules Committee submitted its own report that included the new version of H.R. 2273 and a resolution, H. Res. 394. This resolution provided that, at any subsequent time, the Speaker of the House could take up H.R. 2273, the Americans with Disabilities Act, for consideration on the House floor.
Floor deliberations are somewhat of a free-for-all in the Senate: a senator may introduce virtually any amendment, even one that is not germane to the bill, and also filibuster—dominating the floor for unlimited time. The House, by contrast, conducts its floor proceedings according to rules established by the Rules Committee. In the case of the ADA, H. Res. 394 submitted a modified closed rule, meaning that general debate would be restricted and that only specific amendments would be allowed for consideration. The resolution provided that at any time after adoption of the resolution the Speaker of the House could resolve the House into the Committee of the Whole House on the State of the Union for consideration of the ADA and the proposed amendments.††† There would be two hours of general debate: 30 minutes for each committee, split equally between majority and minority members. Eight amendments were approved for consideration.
On May 17, only one day after the Rules Committee presented its resolution, the House met to consider passage of the ADA. The first order of business was to accept the closed rule. Minority congressmen protested. Congressman Robert S. Walker (R-PA) called it a “totalitarian rule” and said the committee used “a process which is both undemocratic and . . . sad."83 Congressman Bill McCollum (R-FL) said the rule was “an abomination” and “ridiculous” and suggested that the lack of House activity that session provided plenty of time for free debate.84 Congressman Lynn Martin (R-IL) complained that only 8 of the 45 amendments proposed to the Rules Committee were accepted, and noted that a proposal to have an open rule was defeated on a strict party line vote.85 Congressman Newt Gingrich (R-GA) said the ADA was an “extraordinarily important bill” and that consideration of every amendment submitted to the Rules Committee was therefore appropriate.86 Congressmen in the majority, however, generally supported the rule and argued that allowing open debate would undermine all the agreements made in the committees and defeat the basic purpose of committee deliberations. As is customary, the House passed the rule on virtually a straight, party-line vote.87
Immediately following the vote, the House resolved itself into the Committee of the Whole. Congressman Hoyer took the lead for ADA supporters throughout the deliberations and frequently entered debate to clarify various aspects of the ADA. The general debate provided members an opportunity to make basic statements about the virtues and problems of the bill, review the history of committee deliberations, and note key accomplishments. Hoyer drew special attention to how the ADA was “truly the product of thousands and thousands and thousands of people."88 Similarly, Congressman Owens thanked “all of the members of the community of people with disabilities, who 43 million strong raised their voices across the Nation, and it was their push, their sense of empowerment, that has brought us to where we are."89 Hoyer also emphasized how much business interests were taken into consideration: “We have worked closely with them, and adopted numerous amendments, to ensure that American business can work with the ADA."90
Others, however, thought more work needed to be done. Congressman Bartlett was Congressman Hoyer’s counterpart in coordinating the efforts to amend the ADA. Congressman McCollum said the issue was not whether to bestow civil rights, but how to “minimize costs to the employers while still doing that."91 Back and forth across the aisle, Democrats emphasized the bill’s balance and the need to reject “weakening” amendments, and Republicans stressed the potential pitfalls of the bill and the need to fine tune it with further amendments.
The House considered four of the seven amendments on May 17. Two were non-controversial. Congressman John J. LaFalce (D-NY), based on the Small Business Committee hearing he chaired, proposed postponing the time at which civil actions could be brought against a covered entity. Republicans and Democrats united in unanimous support.92 The House also approved, by voice vote, Congressman James V. Hansen’s (R-UT) amendment to allow wheelchair use in wilderness areas.
Congressman Jim Olin’s (D-VA) amendment, to impose a 10 percent salary cap on the amount of accommodations an employer had to provide an employee, was more contentious. The NFIB strongly endorsed the amendment, and Congressman McCollum called it “the small business amendment in this legislation.” He suggested that a vote against it would be a vote against small business—a position no member was eager to take.93 The bill would have put a finite dollar cap on accommodations. But, according to ADA supporters, there were two main problems. First, as Congresswoman Patricia Schroeder (D-CO) said: “It is great for Donald Drumpf. It is lousy for the person who is cleaning up after Donald Drumpf."94 The amendment would mean that persons with similar disabilities would not be given individualized treatment—a central premise of the ADA. Rather, they would be grouped according to income level.
Second, as Congressman Bartlett stated forcefully, the amendment “would in fact be harmful both to those who are disabled and to the employers themselves.” By setting a dollar cap, persons with disabilities might insist on 10 percent of their income as a mandatory level of accommodation, when much less might be needed. “The Olin amendment attempts to set a ceiling,” said Bartlett, “but in fact it sets a floor."95 Members on both sides argued that they had the White House’s support. Congressman Fish, on one hand, said the Bush administration had tried to negotiate a similar amendment at the committee level but concluded that the principle was unacceptable. Congressman Olin, on the other hand, said he had called the White House during the course of deliberations and was told the administration “very much favors” the amendment.96 Bartlett put an end to the discussion by declaring that the White House had no position. The final vote was close. The 32 members who did not vote could have passed the amendment, which failed 187 to 213. As with each of the contested amendments, votes split along party lines. Whereas 71 percent of Democrats voted no, 74 percent of Republicans voted yes.97
The most controversial amendment to reach the floor was the Chapman amendment, which would enable employers to remove persons with contagious diseases, such as AIDS, from food handling positions. The issue of AIDS was not new. It had always been covered by the ADA. From the beginning, many organizations supported the bill precisely because it offered protection to persons with HIV and AIDS. Moreover, the provisions in the ADA that protected persons with AIDS essentially replicated what had already been settled in the Fair Housing Amendments Act. Nevertheless, the Chapman amendment posed a significant challenge to members, most of whom would have preferred the issue did not exist. By this time, in May, 1990, it appeared the ADA would pass; few wanted to stand in its way. But members also feared that being forced to vote on an “AIDS” amendment during an election year could be damaging: a perfect ten-second sound bite. Moreover, the Chapman amendment was precisely the kind of issue that could kill the ADA. It seemed to represent more than just concerns about contagious diseases: it looked like a way to stop the ADA in its tracks.98
Congressman Jim Chapman (D-TX) led the debate in favor of his amendment. By having a Democrat such as Chapman lead the charge, supporters of the amendment might counter the perception that it was a Republican amendment and enlist the support of more Democrats. For similar reasons, the lead floor opponent of the amendment was Republican Congressman Fish. Arguments in support of the amendment rested on the claim that customers who knew that food handlers at a given establishment had AIDS would discontinue taking their business there. “The reality is that many Americans would refuse to patronize any food establishment if an employee were known to have a communicable disease,” said Chapman. He also argued that the “hospitality” industry was the best employer of persons with disabilities and that it would be foolish to harm that source of employment.99 Congressman Douglas, who introduced the same amendment in the Judiciary Committee, supported it “because perception is reality."100 Significantly, Chapman, Douglas and others admitted that there was no known evidence that AIDS could be transmitted through food handling. The amendment was needed not to stop the spread of AIDS, they said, but to protect businesses from fears and prejudice.
For ADA supporters, as Congressman Ted Weiss (D-NY) said, “The Chapman amendment flies in the face of the very purpose of the ADA” by institutionalizing irrational discrimination.101 Congressman Jim McDermott (D-WA), who was also a physician, said he would support the amendment if it protected public health. “But the amendment is not about the reality of contagious disease,” he explained. “It is about the fear of contagious disease.” The amendment established public policy in contradistinction to known facts “in deliberate deference to the fears and prejudice of others.” This, he said, was “bad medicine, bad science, bad public policy."102 Congressmen Don Edwards (D-CA) and Steny Hoyer likened the amendment to arguments used against the Civil Rights Act: that “white customers would not eat in restaurants where black Americans were served,” as Edwards put it.103 Hoyer simply called it “the Jim Crow amendment of 1990."104
Largely due to the efforts of Congressman Hoyer, the Bush administration entered the Chapman debate by issuing formal statements on the medical facts of AIDS and food handling. Louis W. Sullivan, Secretary of Health and Human Services (HHS), and Dr. William L. Roper, Director of the Centers for Disease Control (CDC), wrote letters on the issue. They flatly repudiated the notion that persons diagnosed with HIV or AIDS posed a health risk in the context of food handling.
Congressman Fish brought the floor debate to a close by pleading: “We should not make exceptions to the principle in ADA that employment decisions should not be based on myth or stereotype. Mr. Chairman, the Congress must not enshrine ignorance and prejudice in the law."105 Congressman Chapman, however, prevailed. In a strikingly close vote—199 to 187—the House supported the exclusion of persons with contagious and communicable diseases from food handling. The 46 members who abstained from voting easily could have swayed the tally. Although it was not as pronounced as in some of the other amendments, this issue also tended to split on party lines. Whereas 80 percent of Republicans supported the measure, 67 percent Democrats opposed it.106
The Chapman amendment was the last of the day. The disability community, which made a commitment to staying united no matter what the cost, had encountered a significant defeat. Persons with HIV and AIDS, they believed, were equally entitled to civil rights protections. They also feared that allowing one group to fall prey to prejudice might establish a trend. Would persons with mental illness, for whom exclusions had also been proposed, be next? Where would it stop? More than anything else, it seemed inconceivable to embrace a nondiscrimination law that patently enshrined discrimination based on irrational fear.
Although the Chapman amendment was the first major defeat for the disability community in congressional floor deliberations, three more threatening amendments were left for consideration on May 22, 1990. Two concerned transportation. The Lipinski amendment was a repeat of the amendment passed by the Public Works and Transportation Committee and overruled by the Rules Committee: it rejected the requirement that all new rail vehicles had to be accessible. William O. Lipinski (D-IL) argued that his amendment provided better accessibility and did not weaken the ADA: it would guarantee space according to demand. But most members and spectators viewed it as undermining one of the basic premises of the ADA: that all new buildings and vehicles will be accessible, that society will not consciously build obstacles to persons with disabilities. Moreover, they pointed out that the Lipinski amendment would mean that spaces accessible for wheelchairs would be confined to one car, providing a sort of “cattle car” effect. The White House chose not to take a stand on the issue. The amendment failed decisively, with 75 percent of members voting against it.107
The second transportation amendment came from Congressman Shuster. With the Rules Committee having supported the principle of all new transit buses being lift-equipped, Shuster proposed an alternative. He suggested that the Secretary of Transportation should be allowed to waive the requirements of accessible vehicles for urban areas of less than 200,000, or in non-urban areas, provided that the community designed an alternative based on input from persons with disabilities. Shuster was concerned that the lift mandate would be implemented at the expense of paratransit. But Congressman Mineta’s argument, that “local option simply does not work as a national policy,” prevailed.108 Democrats tended to side with Mineta, and Republicans with Shuster. But, overall, the disability community won with a favorable margin: 64 percent of the House opposed the amendment.109
The final amendment taken up by the House was a revisit of the Sensenbrenner amendment: restricting remedies to those currently stated in the Civil Rights Act of 1964. The basic argument on behalf of the amendment was that the potential to add punitive damages through the Civil Rights Act of 1990 represented a violation of the negotiated agreement with the White House. Congressman Bartlett, speaking in favor of the amendment, said it “simply codifies” what the Education and Labor Committee reported in principle.110 Although representatives of the disability community felt all along that the principle was parity, representatives of the administration and many Republicans felt that the compromise was a fixed reference to the Civil Rights Act, and that they therefore had been double-crossed. Congressman Sensenbrenner also expressed the widespread fear that the ADA would lead to excessive litigation and that the availability of punitive damages would do nothing but encourage adversarial law suits. The Bush administration expressly supported this amendment.
Opponents, however, thought that this amendment, like the Chapman amendment, struck at the very essence of the ADA. The philosophical basis of the ADA was the Civil Rights Act of 1964—that persons with disabilities should share the same civil rights protections as those possessed by other disadvantaged groups. To provide persons with disabilities with a different standard of remedies was discriminatory, they said. Congressman Dan Glickman (D-KS) conceded that there might be legitimate reasons for excluding punitive damages from civil rights laws, but said it was “unfair to lock the disabled into a lesser set of remedies."111 As Congresswoman Schroeder said: “you have lesser rights if you have lesser remedies."112 Congressman Bruce A. Morrison (D-CT) argued that it was an “abomination” to “plant the seeds of . . . discriminatory treatment before the courts, discriminatory treatment before the law,” in a bill expressly designed to prohibit discrimination.113
The voting results for this amendment were the most strictly partisan of all the amendments. Overall, the House rejected the amendment by a narrow margin of 54 percent. Democrats, however, opposed the amendment with an 81 percent majority, while Republicans supported the amendment with an 86 percent majority.114 After the vote on the Sensenbrenner amendment, the House Committee on the Whole reported the bill back to the full House for a final vote. Although no member requested a second vote on any of the amendments, Congressman Tom DeLay (R-TX) exercised his right to offer a motion to recommit the bill back to the Rules Committee for consideration. He proposed the committee consider two further amendments: one giving employers more latitude in evaluating drug and alcohol history in employment decisions, and another applying the entirety of the ADA to the executive and judicial branches. But the House rejected the motion with a 66 percent majority. As with the other votes, this decision split largely on party lines: 96 percent of Democrats opposed the amendment; 78 percent of Republicans supported it.115 After the DeLay motion was defeated, the House turned immediately to a recorded vote on the ADA. Both parties passed the bill overwhelmingly. Of the 423 members voting, 403 (95 percent) supported the ADA.116 The ADA was now destined for passage, but still more challenges lay ahead.
††† For most minor legislative initiatives that make it to the floor of the House, as in the Senate, there is only brief consideration, there are no amendments, and members approve the bill unanimously or by a voice vote. For major legislation such as the ADA, however, members generally want to debate the bill and offer amendments. In the House, such extensive consideration usually takes place by the House resolving into the Committee of the Whole House on the State of the Union, where fewer members are required to be present to conduct business and all amendments unrelated to the legislation in question are prohibited. Final passage must take place after reporting the bill, as amended, back to the House, where the amendments approved in the Committee of the Whole must be approved either en bloc or individually. Before the final vote, members have the option of requesting that the bill be recommitted back to committee for further consideration.
83. Congressman Robert S. Walker, statement, Cong. Rec., v. 136 (May 17, 1990), p. H2412.
84. Congressman Bill McCollum, statement, ibid., p. H2414.
85. Congresswoman Lynn Martin, statement, ibid., p. H2411.
86. Congressman Newt Gingrich, statement, ibid., p. H2422.
87. Motion to vote on resolution. House: 251 of 413 (60.8%) voted yes. Democrats: 245 of 248 (98.8%) voted yes. Republicans: 159 of 165 (96.4%) voted no. 19 members did not vote. Resolution to adopt rule. House: 236 of 409 (57.7%) voted yes. Democrats: 222 of 242 (91.7%) voted yes. Republicans: 153 of 167 (91.6%) voted no. 23 members did not vote.
88. Congressman Steny Hoyer, statement, Cong. Rec., v.136 (May 17, 1990), p. H2426.
89. Congressman Major Owens, statement, ibid., p. H2431.
90. Congressman Steny Hoyer, statement, ibid., p. H2426.
91. Congressman Bill McCollum, statement, ibid., p. H2442.
92. House: 401 (100%) voted yes. Democrats: 249 (100%) voted yes. Republicans: 152 (100%) voted yes. 31 members did not vote.
93. Congressman Bill McCollum, statement, Cong. Rec., v. 136 (May 17, 1990), p. 2475.
94. Congresswoman Patricia Schroeder, statement, ibid., p. H2473.
95. Congressman Steve Bartlett, statement, ibid., p. H2472.
96. Congressman Jim Olin, statement, ibid., p. H2473.
97. House: 213 of 400 (53.3%) voted no. Democrats: 71 of 243 (70.8%) voted no. Republicans: 116 of 157 (73.9%) voted yes. 32 members did not vote.
98. Curtis Decker, interview, October 12, 1993.
99. Congressman Jim Chapman, statement, Cong. Rec., v. 136 (May 17, 1990), p. H2478.
100. Congressman Chuck Douglas, statement, ibid., p. H2481.
101. Congressman Ted Weiss, statement, ibid., p. H2482.
102. Congressman Jim McDermott, statement, ibid., p. H2480.
103. Congressman Don Edwards, statement, ibid., p. H2480.
104. Congressman Steny Hoyer, statement, ibid., p. H2482.
105. Congressman Hamilton Fish, statement, ibid., p. H2483.
106. House: 199 of 386 (51.6%) voted yes. Democrats: 157 of 236 (66.5%) voted no. Republicans: 120 of 150 (80.0%) voted yes. 46 members did not vote.
107. House: 290 of 400 (72.5%) voted no. Democrats: 213 of 237 (89.9%) voted no. Republicans: 86 of 163 (52.8%) voted yes. 32 members did not vote.
108. Congressman Norman Mineta, statement, Cong. Rec., v. 136 (May 22, 1990), p. H2609.
109. House: 266 of 414 (64.3%) voted no. Democrats: 212 of 246 (86.2%) voted no. Republicans: 114 of 168 (67.9%) voted yes. 18 members did not vote.
110. Congressman Steve Bartlett, statement, Cong. Rec., v. 136 (May 22, 1990), p. H2616.
111. Congressman Dan Glickman, statement, ibid., p. H2616.
112. Congresswoman Patricia Schroeder, statement, ibid., p. H2615.
113. Congressman Bruce A. Morrison, statement, ibid., p. H2618.
114. House: 227 of 419 (54.2%) voted no. Democrats: 203 of 251 (80.9%) voted no. Republicans: 144 of 168 (85.7%) voted yes. 13 members did not vote.
115. House: 280 of 423 (66.2%) voted no. Democrats: 243 of 253 (96.0%) voted no. Republicans: 133 of 179 (78.2%) voted yes. 9 members did not vote.
116. House: 403 of 423 (95.3%) voted yes. Democrats: 250 of 253 (98.8%) voted yes. Republicans: 153 of 170 (90.0%) voted yes. 17 of 20 (85%) “no” votes were Republicans. 9 members did not vote.
User Comments/Questions
Add Comment/Question