Senate Hearings and the Quest for Bipartisanship
Senate Hearings on S. 933 began in the Dirksen Senate Office Building on Tuesday morning, May 9, 1989. Ranking minority member Senator Hatch set the stage for the hearings in his opening statement. “I support a comprehensive civil rights bill for persons with disabilities,” Hatch declared unambiguously. But he also stated he had “serious concerns.” Hatch challenged the extension of public accommodations provisions beyond those establishments covered under the Civil Rights Act of 1964. He promoted an exemption for small businesses. He also opposed provisions for remedies that included monetary and punitive damages. Moreover, Hatch stated that his reservations concerning S.933 might compel him to introduce his own bill, or support a different bill, presumably one introduced by Senator Dole.27
Traditionally the administration offers the lead testimony on major bills, but by May 9 the Bush administration had still not developed a formal position.28 In fact, the White House had to cancel a May 1 Rose Garden press conference with Senate leadership, which had been designed to promote the ADA.29 Consequently, Congressman Coelho was the lead witness. He was selected to open the deliberations not only because he was the sponsor of the identical ADA bill introduced in the House; he also poignantly symbolized the ADA. In his senior year of college, Coelho learned he had epilepsy—reputed by some to be demonic possession. As a result, he was barred from the Catholic priesthood and his familial relationships were severely strained. “I was suicidal and I was down,” Coelho said of his experience with discrimination.30 But Bob Hope took him into his own home and encouraged him to pursue his ministry through public service.
Congressman Coelho met with considerable success after following Hope’s advice and beginning a government career. Elected to Congress in 1978, he became Chairman of the Democratic Congressional Campaign committee in 1981. Five years later, he was elected Majority Whip.‡‡ He also became a national leader in disability issues, which included service as Director of the Epilepsy Foundation of America (EFA). Coelho therefore spoke not only with the authority bestowed upon him from the Democratic leadership, but also as an example of the potential of persons with disabilities. “Tony was sort of the epitome of what a person with a disability can do,” said Dornatt of his staff, “and what they can achieve given a fair shake and given a chance."31 Coelho echoed this theme in his remarks at the Senate hearing: “We can be productive, if you will give us that right, give us that opportunity. That is all we ask for, nothing more, but definitely nothing less."32
In addition to speaking about his personal experiences, Congressman Coelho addressed Senator Hatch’s remarks and stressed the need for bipartisanship: “We very much want you on board and very much need your support,” he entreated. “We would prefer that you not introduce your own bill,” he added, urging Hatch to work toward a common bill instead.33 Hatch replied by pledging his best efforts to develop consensus. “I would love nothing better” than to cosponsor this bill, Hatch said. “But in its present form, I cannot."34 Only minutes into the first hearing, it was clear that considerable work lay ahead to achieve bipartisanship and shepherd the ADA through Congress. The prospect of a competing bill made cooperation much more critical. The hearings were an opportunity to find a solution.
As in 1988, persons with disabilities presented powerful testimony about the need for the ADA by describing their personal experiences. “There is not one disabled American alive today who has not experienced some form of discrimination,” I. King Jordan said.35 The most vivid imagery came from Justin Dart. In addition to his carefully crafted and eloquent words, Dart brought visual aids. He presented the committee with a box of discrimination diaries and letters that he and others had gathered from around the country. Yet, Dart acknowledged, no document could truly demonstrate the impact of discrimination. As a supplement, Dart thus brought an extra wheelchair. “I submit to you this brand new empty wheelchair,” he said to the committee chairman forcefully. “On January 24, 1988, last year, my younger brother, Peter, was faced with the necessity to use, [and] be identified with, this public invitation to discrimination.” But his brother claimed: “I would rather be dead.” Four days later, said Dart, he committed suicide.36
Others described specific examples of discrimination. Mary DeSapid described being fired by her employer because of her cancer treatment.37 Amy Dimsdale, a wheelchair-user trained in journalism at the University of Texas at Arlington, described her experiences of being overlooked by potential employers. “I have submitted over 300 resumes and more than 100 applications. I have indicated my willingness to be flexible, work at home, relocate, and use my own special equipment—all to no avail. I need virtually no special accommodations to work, as long as I can get in the building."38 Lisa Carl, whose cerebral palsy impeded her speech and required use of a wheelchair, spoke about a time when she went to see a movie at a theater around the corner from her house. But Lisa was told she could not enter. Later the theater explained to Lisa’s mother: “I basically don’t have to let her in here, and I don’t want her in here."39 Betty Corey, who took into her home a girl born with AIDS, described having to contact twenty-six different funeral directors before she could find one who would bury the six-year-old without adding surcharges for handling a person with AIDS. Yet, in none of these situations had a law been broken: there was no protection such as that provided for minorities and women.
Disability advocates used numerous arguments to justify the ADA. Many emphasized the loss of human dignity experienced from discrimination. Dimsdale, for example, said she felt “useless, powerless, and demeaned” by her inability to get a job.40 Discrimination “destroys healthy self-concepts, and it slowly erodes the human spirit,” said Jordan.41 Others argued that discrimination against the disabled violated one of America’s central tenets: individualism. Dart explained that he addressed the committee as “a fiscal conservative, an active Republican, and, above all, an advocate for the principles of individual responsibility, individual productivity, and individual rights which have made America great.” Social barriers to persons with disabilities, he asserted, undermined an individual’s opportunity to participate in American society fully and equally.42 Others argued that it was more costly to keep persons with disabilities dependent on government assistance than it was to spend the small amount needed to break down barriers and enable people to support themselves. Senator Harkin, for example, hypothesized that the cost to institutionalize one of his constituents with a developmental disability would cost nearly five million dollars over 65 years.43
Another argument on behalf of the ADA was simply that it was nothing new, nothing radical. “These standards are not new, they are not confusing, and they are workable,” Arlene Mayerson of the Disability rights Education and Defense Fund (DREDF) declared in reference to the ADA’s foundation in Section 504.44 “We tried very hard to avoid any kind of new language,” Senator Harkin explained.45 Although transportation was the most controversial aspect of the ADA, many defended it as the linchpin to the entire bill. “The freedom to go to college does not exist without the means to get to the college,” testified Michael McIntyre, Executive Director of Queens Independent Living Center. “The freedom to work does not exist without the ability to get to work. The freedom to organize politically does not exist without people being able to get together in one place. The freedom to date, to go to the movies, to go to the library, to go shopping, to go to a ball game, [to go] anyplace that makes life meaningful, is predicated on the ability to travel."46 ADA supporters also emphasized the need to develop solid enforcement provisions to make the bill have a practical effect. “The whole trick is to make it more expensive to break the law than it is to keep the law,” testified Neil Hartigan, the Attorney General of Illinois. “It won’t work without damages."47
Although testimony also came from those proposing changes to the bill, virtually every witness pledged support of the overall ADA concept. The Chamber of Commerce, for example, testified that the chamber “shares the goal of the sponsors of this act,” and pledged to cooperate “in trying to achieve a workable piece of legislation that we can fully support."48 Similarly, the National Federation of Independent Business (NFIB) endorsed “the right of every American to have the opportunity to realize his or her full potential."49 These sentiments were manifested in the name of the business community’s coalition: the Disability Rights Working Group.
The two dominant reservations about the ADA were cost and litigation. Cost was an issue because the ADA, unlike other civil rights legislation, required businesses and employers to spend money on accommodations and modifications. The second main concern was that, as Lawrence Lorber testified, the “litigation potential of this bill is enormous.” This fear built on the perception that phrases such as “reasonable accommodation,” “undue hardship,” “readily achievable,” “essential function,” and “less effective” were inadequately defined, compelling courts to decide the meaning of the ADA.50 It also stemmed from the belief that the remedies available under the ADA would invite frivolous law suits. Specific concerns included objections to the public accommodations provisions. William Ball, representing the Association of Christian Schools International, argued that religious organizations and religious schools should be exempt from the public accommodations provisions. The ADA, he argued, would be too costly, might force schools to hire drug/alcohol abusers or homosexuals, and threatened the constitutional separation of church and state.51 The small business community also argued for an exemption from public accommodations provisions, because of the associated costs and because small business owners were exempt from other civil rights laws.
Careful preparations by Senators Harkin and Kennedy, their staffs, and the disability community paid off in the course of the hearings. Harkin, presiding over the deliberations, was especially deft in handling one of the most controversial issues: mandatory lifts for intercity buses (called “over-the-road” buses because their passengers ride above luggage compartments). In a dialogue with Charles Webb of the American Bus Association (ABA), Harkin creatively used Webb’s testimony to defend the ADA. Webb testified that a bus lift cost $35,000, required annual maintenance of $2,000, and resulted in a 38 percent loss in luggage space and a loss of 11 or 12 seats. Harkin, however, asked Webb whether a technologically-advanced lift that cost less than $8,000, required little or no maintenance, and resulted in no loss of package space and only one seat, would be acceptable. “Absolutely,” Webb replied. “Well, now, I am glad to hear you say that,” said Harkin with pride, “because I have a letter here from the Regional Transportation District of Denver, Colorado,” which has secured a contract for a lift with exactly those specifications. To the applause of those assembled, Senator Harkin went on to explain that competition and technology would only drive the price further down when lifts were ordered by the thousands.52
In addition to their compelling testimony, the Senate hearings were significant for the dialogue concerning bipartisanship and the Bush administration, which was carried out between Senators Kennedy and Harkin, on the one hand, and Senators Dole and Hatch, on the other. On May 10, under relentless pressure from the disability community, Dole made an appearance before the Senate committee to make a statement. On the previous Friday, May 5, he had met with President Bush’s chief counsel C. Boyden Gray, Chief of Staff John Sununu, head of the Domestic Policy Council Roger Porter, and others in the White House, to discuss how they could cooperate in working out a bipartisan bill. Dole had also spoken with President Bush on May 9. Before the committee, Dole now asserted that he and the administration hoped to see, before year’s end, “a bipartisan piece of legislation passed by Congress, signed by the president, and embraced by, hopefully, the business community and certainly by the disability community.” He was “somewhat cautious,” however, because he wanted a bill that all affected parties could defend. He feared the potential for litigation and promoted a gradual phase-in to protect small businesses. Nevertheless, he wanted to be a “positive force” rather than “an obstructionist,” and urged that the administration needed more time to formulate its position on the bill.53
The disability community, however, was growing impatient. NCIL held its annual conference in Washington, D.C., from May 12 to May 14. At the conference, Bonnie O’Day, Chairperson of the NCIL Civil Rights Subcommittee, met with Pat Wright and Liz Savage, whereupon they talked about organizing NCIL conferees to hold a rally at the White House to demand swift action on the ADA. In short order, O’Day and others from NCIL began planning a march for Sunday, May 14—Mother’s Day. Committees formed to make signs and work out such details as getting a police permit. They planned to march from NCIL’s reception on Capitol Hill to the White House. Several hundred people, including local ADA supporters, joined the march. They left in the evening amidst pouring rain, carrying candles. People using wheelchairs covered themselves with garbage bags, a symbol of their second-class citizen status.
At the White House, Marca Bristo, President of NCIL, approached the security desk to place a call to President Bush. Although she intended only to mobilize and rally the crowd, an operator actually answered the phone and placed a call through to the Domestic Policy Office. Subsequently, Bristo told a White House representative that she and others were out in the rain, were concerned about the ADA, and wanted to see the president. In reply, the representative offered Bristo a meeting with White House staff the following morning. The next day, Bristo, Dart, and several other representatives from the disability community met with Dr. William L. Roper, of the Domestic Policy Counsel, Chief Counsel Boyden Gray, and EEOC Chairman Evan Kemp to complain about the president’s delays. Although the discussion did not result in a specific commitment, the disability representatives came away feeling as if they had gotten their message through to the administration.54
Two days later, at the final scheduled hearing on May 16, the NCIL march appeared to have had an effect. Having consulted with the White House, Senator Hatch said that it was “imperative that this committee hear testimony from the administration on this bill.” Accordingly, he requested that the committee give the administration one more chance. Hatch proposed that the committee delay mark-up for five weeks, hold one additional hearing during the week of June 19, and invite the administration to come forward. If it did not, Hatch pledged that he would not stand in the way of the bill.55 Although the administration had already possessed a draft of the bill for nearly two months, Senator Kennedy agreed to grant more time, stipulating that if it did not come forward, the committee would move on without its input.
‡‡ The Majority Whip is the third-ranking leader of the majority party in the House of Representatives, following Speaker of the House and Majority Leader, and is elected by his or her party. The Whip’s chief responsibility is to rally support behind or in opposition to legislative initiatives. Although the Majority and Minority Whips focus especially on persuading members of their own parties, they also work to get votes from the opposing party.
27. Senator Orrin Hatch, statement, Senate Hearings (May 9, 1989), p. 2.
28. Osolinik, interview, November 25, 1996.
29. Ruth Marcus, “Thornburgh Endorses Civil Rights Protection for the Disabled,” The Washington Post,” June 23, 1989, p. A8.
30. Congressman Tony Coelho, statement, Senate Hrgs. (May 9, 1989), p. 6.
31. Rochelle Dornatt, interview, December 4, 1996.
32. Congressman Tony Coelho, statement, Senate Hrgs. (May 9, 1989), pp. 6–7.
33. Congressman Tony Coelho, statement, ibid., p. 6.
34. Senator Orrin Hatch, statement, ibid., p. 8.
35. I. King Jordan, statement, ibid., p. 13.
36. Justin Dart, statement, ibid., p. 20.
37. Mary DeSapid, statement, ibid., p. 25.
38. Amy Dimsdale, statement, ibid., p. 29.
39. Lisa Carl, statement, Senate Hrgs. (May 10, 1989), p. 65.
40. Amy Dimsdale, statement, Senate Hrgs. (May 9, 1989), p. 29.
41. I. King Jordan, statement, ibid., p. 13.
42. Justin Dart, statement, ibid., p. 18.
43. Senator Tom Harkin, statement, Senate Hrgs. (June 22, 1989), p. 232–33
44. Arlene Mayerson, statement, Senate Hrgs. (May 9, 1989), p. 40.
45. Senator Tom Harkin, statement, Senate Hrgs. (May 10, 1989), p. 93.
46. Michael McIntyre, statement, Senate Hrgs. (May 16, 1989), p. 138–39.
47. Neil Hartigan, statement, Senate Hrgs. (May 10, 1989), p. 79, 81
48. Zachary Fasman, statement, Senate Hrgs. (May 9, 1989), p. 34–35.
49. Sally Douglas, statement, Senate Hrgs. (May 10, 1989), p. 94.
50. Lawrence Lorber, statement, Senate Hrgs. (May 9, 1989), p. 35, 37.
51. William Ball, statement, Senate Hrgs. (May 10, 1989), p. 73–74.
52. Charles Webb, statement, Senate Hrgs. (May 16, 1989), pp. 172–73; Senator Tom Harkin, Senate Hrgs. (May 16, 1989), pp. 172–73.
53. Senator Robert Dole, statement, May 10, 1989, Senate Hearings, p. 87, 89.
54. Bonnie O’Day, interview, February 20, 1997; Marca Bristo, interview, January 6, 1994.
55. Senator Orrin Hatch, statement, Senate Hrgs. (May 16, 1989), p. 132–33.
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