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

Senate Approval

After reaching a final agreement with Attorney General Thornburgh on July 31, 1989, Senators Kennedy and Harkin continued to push the ADA forward, scheduling the Labor and Human Resources committee mark-up for August 2. This gave Senate staff only a couple of days to translate every agreement into appropriate legislative language. They did not finish writing the substitute bill until about 3:00 in the morning on the day of the mark-up. The committee mark-up itself was rather uneventful—it lasted less than an hour.⁶⁸ This was mainly because the intense and detailed negotiations had settled most issues. Moreover, committee Democrats and Republicans gave deference to Senators Kennedy and Harkin, and Senators Hatch and Durenberger, all of whom supported the rewrite of S. 933. Accordingly, the committee voted unanimously, 16 to 0, to report the ADA to the Senate floor for final consideration. The Senate, the Bush administration, and the disability and business communities had truly come a long way since January to achieve unanimous, bipartisan support. It was “one of the most extraordinary legislative accomplishments I’ve ever seen,” said Neas.⁶⁹ For the disability community, it was a remarkable victory. Moreover, the compromise empowered President Bush, who had previously supported the principles of the ADA, to endorse a specific version of the bill.

The Senate closed for recess just two days after the mark-up, on August 4. But while many members and their staffs went on vacation, Senators Harkin and Kennedy continued to drive the ADA forward to keep the momentum alive. They wanted to make the ADA one of the first items of business when the Senate resumed on September 6. This meant that the committee report had to be filed by August 30 in order to give Senators and their staffs ample time to review the issues. For three weeks Democratic and Republican Senate staff worked intensively with the administration, the disability community, and the business community to develop a report that established an accurate historical record reflecting the various negotiated agreements. They completed a draft by August 22, and submitted the report to accompany the substitute version of S. 933 on August 30.

The speed with which the Labor and Human Resources Committee moved the ADA shocked many senators and staff members. When the ADA came up for a vote on September 7, just a day after the Senate reopened for the fall, some senators complained that things had happened too quickly, that they did not have enough time to review the legislation.⁷⁰ Others opposed the bill outright. Humphrey (R-NH) called it “one of the most radical pieces of legislation I have encountered."⁷¹ Senator Jesse Helms (R-NC) cynically suggested the bill should be called the “Lawyers Relief Act of 1989."⁷² For the most part, however, senators applauded the concepts of the ADA. In fact, by September 6 more than 60 senators had signed on as cosponsors.

Debate on the Senate floor lasted late into the night, totaling over fourteen hours. Although the fundamentals of the bill were never threatened, several divisive issues emerged. The first was a proposed amendment by Senator Hatch, which would provide a $5,000 tax credit to businesses for making accommodations and modifications—an alternative to a complete exemption for small businesses from the public accommodations provisions. Hatch warned that the government was a potentially “oppressive” institution and said that it was unfair to burden small businesses with the costs of implementation without placing any of the responsibility on the government.⁷³ Senator Lloyd Bentsen (D-TX), however, argued that the amendment was a “killer amendment” because all bills affecting revenue are constitutionally required to come from the House.⁷⁴ Hatch disagreed with Bentsen, as did a majority of the Senate. But since the Budget Act required a two-thirds majority for such revenue amendments, the tax credit proposal failed.⁷⁵

Near the end of the floor debate, shortly before 10:00 p.m., Senator Grassley introduced an amendment that brought Congress under the purview of the ADA. Senator Hatch had raised the issue during the committee mark-up, but Senator Kennedy had cautioned Hatch that the provision might kill the bill if introduced too early.⁷⁶ On the Senate floor, Grassley argued that it was unfair for the Senate to impose a burden on the American people without sharing it. Senator Wendell H. Ford (D-KY), however, argued that such an amendment blurred the constitutional balance of powers by giving the executive branch administrative control over Congress. Ford agreed with Senators Harkin and Kennedy that the ADA should apply to Congress. But he thought the issue should be considered more carefully in conference, not passed hastily because people were tired and wanted to go home. Despite his objections, the Senate approved the amendment (by counting the number of Senators standing in favor of and against it) with the supposition that the amendment only articulated intent: details would be worked out in the House or in conference.

A much more acrimonious debate centered on the definition of disability. Senator William L. Armstrong (R-CO) argued that the definition of disability in the ADA was too broad. He was especially concerned about the inclusion of “mental disorders” and disorders with a “moral content.” He questioned whether senators thought homosexuality, bisexuality, exhibitionism, pedophilia, voyeurism, and kleptomania should be protected by the ADA.⁷⁷ Senator Jesse Helms shared Armstrong’s concerns, especially with respect to homosexuality, and feared that employers would no longer be allowed to maintain “moral standards” in their businesses.⁷⁸ Senator Kennedy, however, argued that prohibiting discrimination against persons with HIV was crucial if the epidemic was to be controlled, because people would otherwise be less likely to reveal their illness. And Senator Pete V. Domenici (R-NM) cautioned against excluding persons with mental illness, noting the recent recognition that such legendaries as Abraham Lincoln and Winston Churchill struggled with bipolar disorder. Although Senators Kennedy and Harkin opposed unduly restricting the definition, it appeared that the bill would not go forward unless specific conditions or impairments were expressly excluded from the bill. They thus worked with Armstrong and Hatch for hours, in consultation with the disability community, to prepare a list. Senator Hatch typed the amendment himself, and the Senate approved it by a voice vote.

With these and several other smaller amendments considered and resolved, the Senate finally voted on the ADA. In a remarkable demonstration of bipartisanship, the Senate voted affirmatively by a count of 76 to 8.⁷⁹ This bipartisanship was crucial for the ADA’s success, because the bill consequently entered the House deliberations as a coalition bill with the indispensable support of President Bush. Without the negotiations that had culminated in the support of Senators Hatch and Dole and President Bush, the ADA might have been labeled as a partisan initiative. “If it had become a Democratic bill,” said Congressman Coelho, “we would have lost. . . . It had to be bipartisan."⁸⁰ The ADA had indeed achieved a broad base of support from both parties, but a difficult battle in the House of Representatives lay ahead.

68. Silverstein, telephone conversation with author, May 15, 1997.

69. Neas, telephone conversation with author, June 3, 1997.

70. For example, Senator Rudy Boschwitz, statement, Cong. Rec., v. 135 (September 7, 1989), p. S10751.

71. Senator Gordon Humphrey, statement, ibid., p. S10782.

72. Senator Jesse Helms, statement, ibid., p. S10774.

73. Senator Orrin Hatch, statement, ibid., p. S10740.

74. Senator Lloyd Bentsen, statement, ibid., p. S10738.

75. Senate: 48 of 92 (52.2%) voted yes. Democrats: 32 of 50 (64.0%) voted no. Republicans: 30 of 42 (71.4%) voted yes. 8 Senators did not vote.

76. Chris Lord, telephone conversation with author, April 25, 1997.

77. Senator William L. Armstrong, statement, Cong. Rec., v. 135 (September 7, 1989), p. S10753.

78. Senator Jesse Helms, statement, ibid., p. S10772.

79. Senate: 76 of 84 (90.5%) voted yes. Democrats: 44 of 44 (100%) voted yes. Republicans: 32 of 40 (80%) voted yes. 16 Senators did not vote.

80. Tony Coelho, interview, November 22, 1996.