Creating a Workable ADA: The Senate and the White House
On November 8, 1988, George Bush defeated Michael Dukakis in the election for President of the United States. Bush’s strong statements in support of the disability community, and particularly civil rights legislation for people with disabilities, had swayed many disabled voters, including many Democrats. In fact, a poll of voter intentions on the eve of the election, conducted by Louis Harris and Associates, suggested that the wide margin of persons with disabilities supporting Bush was a deciding factor in the election.1 Although many persons with disabilities had campaigned for Dukakis and were disappointed by the outcome, Bush’s election clearly offered an opportunity to the disability community. His attentiveness to disability issues signaled a change in the political climate and made passage of the ADA seem more promising. Moreover, two days before his inauguration, Bush avowed his intent to follow through on his pledges and push the ADA toward passage. “I said during the campaign that disabled people have been excluded for far too long from the mainstream of American life,” Bush noted. “One step that I have discussed will be action on the Americans with Disabilities Act in order, in simple fairness, to provide the disabled with the same rights afforded others, afforded other minorities."2
In another respect, however, the election of 1988 was damaging to the ADA cause. Senator Lowell P. Weicker, Jr. (R-CT), a long-time supporter of persons with disabilities and the Senate sponsor of the ADA in 1988, lost his bid for reelection to Joseph Lieberman. As one senate staff member said, Weicker was “one of the fivehundred- pound gorillas” in Congress.3 His leadership in the area of disability was consistent and strong. Now someone else had to fill the void he left. The chief cosponsor of the 1988 ADA was Senator Tom Harkin (D-IA), who had worked closely with Weicker, the National Council on the Handicapped (NCD), and the disability community in the development of the ADA. Weicker and Harkin had even discussed whether Harkin’s position as Chairman of the Subcommittee on the Handicapped placed him in the best position to be the original sponsor in 1988. Harkin also had a personal understanding of the need for the ADA because of his brother, who was deaf. It was therefore natural for Harkin to assume Senate leadership. But it was not a foregone conclusion.
Sponsorship of the ADA was a risky endeavor for the first-term senator. He was up for reelection in 1990, and no Democratic senator from Iowa had ever won a second term. As a relative newcomer to disability policy, Senator Harkin would have to begin his relationship with the disability community by making compromises with respect to provisions in the ADA—potentially alienating the people he was trying to help. Moreover, failure to pass the bill rapidly might lead some people to compare the leadership skills of Senators Harkin and Weicker. By sponsoring the ADA, Harkin would also become a target for the opposition, which included employers, transit operators, owners of public accommodations, railroads, telecommunications providers, and state and local governments. Finally, the prospects for successfully expanding civil rights protections to incorporate an additional “class” of people, while improved with the change in administration, remained uncertain at best.
Sponsoring the ADA and risking failure could potentially jeopardize Senator Harkin’s political career. Although Robert Silverstein, Staff Director and Chief Counsel for the Subcommittee on the Handicapped, cautioned him about the pitfalls, Harkin accepted the challenge. “I didn’t get elected to get re-elected,” he told Silverstein. “My brother is deaf. I understand discrimination. I understand what it means and what this country can look like in thirty years. We are doing this legislation."4
1. Louis Genevie, Voting Intentions During the 1988 Election: A Comparison of Disabled and Non-disabled Voters (New York: Louis Harris and Associates, Inc., [no date]).
2. Quoted by Senator Tom Harkin, statement, Senate Hrgs. (June 22, 1989), p. 193.
3. Carolyn Osolinik, interview, November 25, 1996.
4. Quotation attributed to Senator Harkin by Robert Silverstein. Robert Silverstein, interview, August 30, 1993.
Master Strategy and the Retooling of the ADA
Senator Harkin took the lead in preparing the ADA for reintroduction. Success depended on developing a solid strategy for maneuvering the bill through the treacherous terrain of Congress. It also required attaining the complete backing of the disability community.5 Harkin’s first step was to establish an effective relationship with Senator Edward M. Kennedy (D-MA) and Carolyn Osolinik and Michael Iskowitz from Kennedy’s committee staff. This was important because a bill successfully voted out of Harkin’s Subcommittee on the Handicapped would have to clear Kennedy’s Committee on Labor and Human Resources. Coordination of all legislative activities with Kennedy could improve the possibility of a smooth and quick transition to the Senate floor. The disability community was also courting the support of Kennedy. They hoped his stature as a “heavy hitter” senator with seniority could match the standing of Senator Weicker and augment the efforts of Harkin.6 Kennedy brought the experience of decades of civil rights leadership. Osolinik, whom Pat Wright described as “one of few people who really saw disability as a civil rights issue,” directed civil rights issues in Kennedy’s office. Moreover, Kennedy had personal experiences with disability through his son who lost a leg to cancer and a sister with a developmental disability. Kennedy’s support, however, depended on making significant changes to the ADA.7
Senators Harkin and Kennedy concluded that the bill introduced in 1988 was too ambitious and stood little chance for passage. Therefore, they decided to rewrite the ADA. In accordance with the objectives of the disability community, the senators’ primary goal was to achieve the best possible civil rights coverage for persons with disabilities. Toward this end, they and their staffs, in consultation with leaders from the disability community, developed a four-pronged legislative strategy.
First, Senators Kennedy and Harkin made a commitment to achieving bipartisanship. They believed that the ultimate goal of legislation must not simply be to pass a bill, but rather to make an enforceable law. For the bill to be taken seriously, it needed to be widely supported by the business community as well as the disability community, Republicans and Democrats, the Senate and the House, and the Bush administration. Second, Senators Harkin and Kennedy wanted to craft a bill that could withstand the strict scrutiny of Congress. Rather than introduce a bill with aggressive provisions and rely on subsequent negotiations, which ran the risk of permanently labeling the bill “extreme,” they hoped to hold extensive discussions and reach important compromises before they even introduced the bill.
The third and fourth strategic commitments followed logically: modesty and parity. The original ADA applied rigorous and rigid standards of accessibility that would be implemented immediately. Senators Kennedy and Harkin instead promoted accessibility at some point in time, and varied provisions according to specific circumstances. While the bill’s complete effect would not be apparent immediately following its enactment, the American landscape would be transformed for subsequent generations. Finally, in crafting the actual language of the bill, Silverstein and Osolinik worked with the disability community to build the ADA securely on the foundation of earlier legislation—especially on the Civil Rights Act, Section 504 of the Rehabilitation Act, and the Fair Housing Amendments Act. Proponents could therefore argue that the bill was an application of tested principles, not a new creation.
With this strategy in place, Osolinik and Silverstein began 1989 by reviewing the bill line by line. Redrafting the ADA was not, however, a solitary endeavor. After developing their own preliminary ideas about what provisions should constitute a new bill, Silverstein and Osolinik turned to others to identify interests in and reservations about the bill, including the disability community, all “covered entities,”* the Bush administration, and members of Congress and their staffs. The principal House contacts were Congressman Tony Coelho (D-CA) and Rochelle Dornatt from his staff. Especially helpful from the business community was Nancy Reed Fulco of the U.S. Chamber of Commerce. Osolinik and Silverstein worked most closely, however, with a group of representatives from the disability community. In addition to the general guidance provided by Pat Wright, Ralph Neas, Liz Savage, and Paul Marchand, Silverstein and Osolinik received technical expertise from attorneys Arlene Mayerson, Chai Feldblum, Robert Burgdorf, Jim Weisman, and others according to specialties. By retooling the bill in close cooperation with this group, Osolinik and Silverstein hoped to earn the backing of the disability community. Then they could present a united front as the bill went through Congress.
From January to March, 1989, Silverstein and Osolinik produced scores of different drafts of the ADA. By March 15 they completed a draft (S. 933), which they circulated privately to representatives of the disability community, the Bush administration, and several members of Congress. The bill duplicated the findings and purpose of the original bill (S. 2345) crafted by NCD. It also covered the same main areas, with the exception of housing (which had been addressed by the Fair Housing Amendments Act). S. 933 even incorporated some language of S. 2345 verbatim. But there were marked distinctions.
The new bill, S. 933, demonstrated the commitment to modesty and flexibility in standards by tailoring definitions, provisions, and enforcement to four main titles— Employment, Public Services, Public Accommodations, and Telecommunications.† The dedication to legal precedent was also clear. S. 933, for example, incorporated more than five times as many references to earlier statutes. There was also a difference in tone. Whereas the original bill, S. 2345, emphasized discriminatory practices that should not be tolerated—for example, providing unequal services— S. 933 spelled out positive, proactive steps that must be taken to meet nondiscriminatory standards. Several major revisions are worth noting.
One of the most contested aspects of the ADA was the definition of disability. People asked: Who would be protected by the ADA? It was a difficult question because one cannot readily identify disability with the same precision that one can identify, for example, race and gender. It would also be impractical to name, in a statute, each and every type of disability. This would be cumbersome, if not impossible, and require constant adjustment for future, unknown impairments. The challenge, therefore, was to find a definition that was at once inclusive enough to cover diverse disabilities, but not so universal that anyone could claim protection by the ADA. Under the original bill, S. 2345, a disability was defined as “a physical or mental impairment, perceived impairment, or a record of impairment."8 This definition was similar to the three-pronged definition implemented under Section 504, except that it did not limit the first prong to impairments that “substantially limit” major life activities. This meant that anyone with “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss” or “any mental or psychological disorder” was covered.9 Osolinik and Silverstein instead used the Section 504 standard and restricted the first prong to “a physical or mental impairment that substantially limits one or more of the major life activities”—such as seeing, walking, self-care, and learning.10 This meant that a physical impairment such as an infected finger would not constitute a disability.
The most controversial issue in the redrafting stage was the cost and burden imposed upon covered entities.11 Legislative endeavors of the 1980s successfully established that, in the area of disability civil rights, equal treatment was not enough. The goal had to be equal opportunity.12 That required modifying policies, providing services, and breaking down barriers: “reasonable accommodations”.13 In other words, it was not enough simply to leave the door open, the door also had to be widened. And this meant that civil rights for persons with disabilities could cost money. But at what point does providing “equal opportunity” become an “unreasonable” burden?
Under S. 2345, the only defensible limits to providing accommodations were actions that “would fundamentally alter the essential nature, or threaten the existence of, the program, activity, business, or facility in question."14 Although Burgdorf wrote the provision to assure that compliance would not mean shutting down a business, it came to be known pejoratively as the “bankruptcy” provision: interpreted to mean that a business would have to go to the brink of bankruptcy before it could defend against charges of discrimination.15 S. 933, on the other hand, followed Section 504 in using “undue hardship” as the standard for determining whether employment accommodations were “reasonable.” Undue hardship meant “an action that is unduly costly, extensive, substantial, disruptive, or that will fundamentally alter the nature of the program."16 It was not a fixed concept, but rather varied on a case-by-case basis, according to such factors as the size of the business, the type of operation, and the nature and cost of the accommodation.
Concern for cost shaped the new approach to barrier removal. S. 2345 required the retrofitting of all public transportation vehicles and facilities to make them accessible. S. 933, on the other hand, varied its demands according to whether vehicles and facilities were newly constructed or already in operation. The general principle was that all new vehicles and transportation facilities would have to be “readily accessible to and usable by individuals with disabilities”.17 For used vehicles, transportation operators had to make “good faith efforts” to find accessible vehicles. If a company remanufactured a vehicle to extend its life for at least five years, it had to be made readily accessible to “the maximum extent feasible.” With regard to existing facilities, S. 933 required only that certain “key stations” had to be retrofitted for accessibility.
The approach in S. 933 to barrier removal in public accommodations paralleled the transportation provisions. The original bill, S. 2345, required that nearly every place of public accommodation had to remove all barriers within five years. This provision earned S. 2345 the nickname of the “flat earth” bill. Drafters of S. 933, however, dispensed with the idea of wholesale retrofitting. Instead they required that all new construction be accessible. Nevertheless, they did not want to leave existing structures untouched. Consequently, drafters created a new legal term. S. 933 required that businesses make changes to existing structures where accessibility was “readily achievable,” which was eventually defined to mean “easily accomplishable and able to be carried out without much difficulty or expense."18 The goal was to create a mind-set of accessibility, to encourage people to look for creative ways to make the world more accessible. “Readily achievable” modifications might include installing grab bars, ramping a few steps, lowering telephones, adding raised letter and braille markings on elevator controls, and adding flashing alarm lights.
S. 933 also required that where structural changes were not readily achievable, covered entities had to make their services available through alternative methods: for example, coming to the doorway of a Laundromat to pick up laundry when a person could not get inside. Moreover, the bill required the provision of “auxiliary aids and services” to persons with disabilities: for example, reading a menu to persons with visual impairments so that they could fully enjoy the benefits of places of public accommodation.
The version of the ADA crafted by Senators Harkin and Kennedy did not only limit initial provisions. In one significant area they significantly expanded the scope of the original bill. Under S. 2345, only those public accommodations covered under the Civil Rights Act of 1964 had to be accessible. This principally meant places of lodging, eating, and entertainment. Service establishments such as doctors’ offices, retail stores, and private clubs, were not included. S. 933, by contrast, defined within its scope virtually every privately-operated establishment that was used by the general public and affected commerce. This included places of lodging, office buildings, parks, recreation facilities, theaters, retail stores, medical facilities, and restaurants. Although this apparently broke the commitment to parity with the Civil Rights Act, advocates argued that it was consistent in spirit: just as the Civil Rights Act addressed the universe where race discrimination was an issue, the ADA covered the broader universe where disability discrimination was relevant.
The new draft of the ADA also took steps to define the original ADA’s prohibition of discrimination in “broadcasts, communications, or telecommunications.” S. 933 required that communications providers implement telecommunication relay services. A relay service enabled an individual using a Telecommunication Device for the Deaf (TDD)—a machine that transmits typed data over telephone lines—to communicate with someone without such a device, through an operator who would translate text to voice, and voice to text.
Another significant change from S. 2345 concerned legal actions available to remedy discrimination. S. 2345 included both administrative and civil remedies.‡ It granted administrative agencies the authority to order “all appropriate remedial relief"19 and gave individuals the right to sue in a district court for both injunctive relief and monetary damages, including punitive damages.§ Drafters of S. 933, however, viewed these remedial provisions as extreme and politically impossible. Therefore they introduced remedies tailored to each title. Only administrative remedies were available for the public accommodations and telecommunications provisions. Private right to action was granted for employment and public services provisions. For employment discrimination, S. 933 also allowed for punitive damages.
*“Covered entity,” as defined in § 101(2) of the final version of the ADA, means “an employer, employment agency, labor organization, or joint labor management committee.” For the purpose of this work, however, “covered entities” is defined more broadly to mean any entity covered by any portion of the ADA. This would include, for example, employers, operators of public transit, owners of places of public accommodation, and communications providers.
† The bill introduced on May 9 had two more titles in addition to the four main titles. Title I, later deleted in the course of negotiations, included general provisions that applied to most covered entities. Title VI (which became Title V after the deletion of Title I) contained miscellaneous provisions.
‡ Administrative remedies refer to actions taken by the government to enforce regulations. Civil remedies refer to private claims filed in a district court, which can include monetary compensation.
§ Injunctive relief refers to putting an end to the discrimination, which could include reinstatement to a job or an order to remove a physical barrier. Monetary damages can include back pay or any other expenses incurred as a result of the discrimination. Punitive damages are a penalty for discrimination, that can include awards for “pain and suffering” that surpass any actual financial loss.
5. The following discussion on Congressional strategy development is based on Robert Silverstein, interviews, August 30, 1993 and October 31, 1996; Carolyn Osolinik, interview, November 25, 1996; and Chai Feldblum, interview, January 13, 1997.
6. Osolinik, interview, November 25, 1996.
7. Pat Wright, telephone conversation with author, April 30, 1997.
8. ADA of 1988, § 3(1).
9. Ibid., § 3(2).
10. ADA of 1989, § 3(2).
11. Silverstein, interview, October 31, 1996.
12. Arlene Mayerson, interview, October 13, 1993.
13. ADA of 1989, § 202(b)(1).
14. ADA of 1988, § 7(a)(1).
15. Robert Burgdorf, interview, February 19, 1997.
16. ADA of 1989, § 202(b)(1).
17. Ibid., § 303(b)(1), § 303(e).
18. ADA of 1989 (October 16, 1989), § 301(5)(A).
19. ADA of 1988, § 9(a)(2).
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.
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.
White House Testimony
During the next five weeks, executive agencies reviewed the bill to make recommendations for an administration position. Unlike Congress, which follows a fairly organized if messy deliberative process to reconcile the views of two legislative bodies, party leaders, congressional committees, and individual members, developing an administration position involves an organic process of synthesizing input from senior officials and staff in both the Executive Office of the President and among Cabinet agencies and non-Cabinet agencies. A final administration position is often determined as much the force of personality, influence, and respect of key officials as according to specific position in a decision-making structure.
The key to the ADA in the White House was Chief Counsel C. Boyden Gray, who had previously served as Bush’s counsel for eight years during the Reagan administration. They became close friends and shared similar family backgrounds: their fathers were golf partners. Their relationship gave Gray considerable influence. “Boyden is the most powerful counsel to a president we’ve had in a long, long time,” said Gray’s immediate predecessor during the Reagan administration, A.B. Culvahouse. Gray was selective in the issues which he engaged. But “on the issues Boyden has chosen,” said Culvahouse, “he is awfully damned influential."56 And, based on his friendship with Evan Kemp and following his experience with President Reagan’s Task Force on Regulatory Relief, Gray took a keen interest in the ADA.57
White House action on the ADA was framed by President Bush’s declarations in support of disability rights legislation. This was a relatively unique interest for Bush, as he was best known and respected for his expertise on, and passion for, foreign policy. The question, said Dr. William Roper, who worked for Porter on the Domestic Policy Council, was precisely how Bush’s commitments would be translated into specific policy. There were discussions about the extent to which the administration would abide by the campaign promise. But Bush was steadfast in his commitment to getting a solid act passed. “He wanted it done in a way that was good for the American people,” said Roper: “this was not going to be a shell promise."58
Others inside the White House were much less enamored with the ADA, and had substantive reservations. Civil rights was a charged issue in the Bush administration. Kemp explained that the White House would not entertain any concept of “quotas” with regard to the ADA. Officials within the Bush administration emphasized that people with disabilities needed to be qualified for any given job, that the original ADA definition needed to be limited, and that there needed to be a sensible limit to the responsibility of providing reasonable accommodations. If these fundamental issues were settled, said Kemp, the White House could move forward with shaping the details.59 As White House consultant Robert Funk explained, Funk, Gray, and others reminded skeptics of Bush’s promise.60 In addition to Gray, Attorney General Richard Thornburgh was a crucial advocate of the ADA and Bush’s aspirations. So was Kemp, who functioned as a vital link between the disability community and the White House.
The Department of Justice (DOJ) organized the various recommendations made by executive agencies, and Attorney General Thornburgh became the point person to represent the administration. Thornburgh, as many others, had personal experience with disability. His son, Peter, had acquired a learning disability from an automobile accident. As parents, Thornburgh and his wife Ginny had moved from caring for the special needs of their own son to working for others with similar conditions. In Pennsylvania, Mrs. Thornburgh had served as county chairperson of the ARC and was a member of President Reagan’s Committee on Mental Retardation. Her work influenced her husband, who used his authority as Governor of Pennsylvania to assist persons with disabilities.61
At the Senate hearing on June 22, 1989, it was clear that those in support of the ADA within the White House prevailed in shaping the administration’s position, which was presented by Attorney General Thornburgh. “We at the Department of Justice,” Thornburgh said, “wholeheartedly share [the ADA’s] goals and commit ourselves, along with the president and the rest of his administration, to a bipartisan effort to enact comprehensive legislation attacking discrimination in employment, public services, transportation, public accommodations, and telecommunications.” He explained that granting civil rights to disabled persons would help the American economy by promoting employment instead of dependence. Moreover, Thornburgh declared the administration’s support of every basic principle, as well as to the overall principle of linking the bill to the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. He also identified areas of concern: drug-abusers should not be covered by the definition of disability; measures should be taken to ameliorate the burden on small businesses; the extension of public accommodations beyond the Civil Rights Act should be carefully analyzed; attempts should be made to minimize litigation; the Secretary of Transportation should be able to grant exemptions to transit systems; and “the most cost-effective and efficient system” of telecommunications should be pursued. Most significantly, however, Thornburgh pledged to begin working, both at the staff and principal levels,§§ to work toward bipartisan consensus on the ADA.62
Although there were pronounced differences between ADA sponsors and the Bush administration, Senator Harkin responded to Attorney General Thornburgh by emphasizing all the areas of agreement. Accordingly, a Washington Post headline declared: “Thornburgh Endorses Civil Rights Protection for the Disabled."63 This statement masked deep divisions, but it effectively identified the ADA’s advances and potential.
Attorney General Thornburgh’s testimony was crucial because it demonstrated that the Bush administration was willing to work toward consensus on a bill that President Bush could endorse. Senators Harkin and Kennedy eagerly accepted the invitation to open negotiations with the Bush administration. And, as a result of Thornburgh’s testimony, Senators Dole and Hatch laid to rest the possibilities of introducing competing bills. The ADA, sweeping in its provisions, emerged from the hearings with virtually every witness supporting the concept of the bill. Every argument against the ADA met with an effective rebuttal. The ADA was sound and it was on the move.
§§ “Principals” refer to persons of high-level offices, for example Senators, Congressmen, and top administrators. Traditionally, meetings between the House and Senate and between Congress and the administration require same-level discussions. Thus, a Senator would not open negotiations with a staff member of the administration. Staff members meet with staff members, principals meet with principals.
56. Quoted in Owen Ullmann, “Soul Brothers,” The Washingtonian, May 1992, p. 78.
57. Boyden Gray, interview, October 24, 1996.
58. William Roper, interview, December 2, 1996.
59. Evan Kemp, telephone conversation with author, May 21, 1997.
60. Robert Funk, interview, February 3, 1997.
61. Richard Thornburgh, interview, October 22, 1996.
62. Richard Thornburgh, statement, Senate Hrgs. (June 22, 1989), p. 195, 201.
63. Marcus, “Thornburgh Endorses Civil Rights Protection for the Disabled,” p. A8.
Negotiations Between the Senate and the White House
Although Senator Harkin was the Senate sponsor, Senator Kennedy—the full committee Chair and a senior Senator—took the lead in negotiating with the White House.64 Kennedy’s plan of attack was to get all parties into the same room and essentially stay there until all issues were resolved. These discussions would include the administration, the Senate, the House, and both the business and disability communities. House Republicans, however, declined to participate, for they did not want to be bound by any agreements. Moreover, the White House insisted that only representatives of Congress and the administration could join the negotiations. Kennedy and Harkin wanted disability representatives to be at the table because they had so much technical expertise, but they and all other outside constituencies were not allowed into the negotiating room. Thus, only representatives from the Senate and the Bush administration came to the table.
The first meeting took place about a week after Attorney General Thornburgh’s testimony in the anteroom of the Senate Committee on Labor and Human Resources. Roper was the lead negotiator for the administration. He worked especially closely with Robert Funk, a co-founder of DREDF and a disability advocate from the Domestic Policy Council. Osolinik and Silverstein were the leaders for the Senate. At the outset of the meeting, in light of the absence of House Republicans as participants, Osolinik insisted on two main ground rules. First, she emphasized that they needed to come up with a complete settlement: leaving any issue unresolved might undercut the agreements that were made. Second, she argued that the administration had to stand by the negotiated agreements, even if House Republicans later opposed them and looked for administration support. Roper, however, said he could not commit to these stipulations because he had not cleared them with his superior, Chief of Staff Sununu. Osolinik promptly called off the meeting and said she was ready to continue whenever the administration was willing to agree to the conditions. Such actions led Wright to claim that Osolinik was “one of the toughest negotiators I have ever seen."65
Over the Fourth of July weekend, Chief of Staff Sununu telephoned Senator Kennedy to talk about the abruptly-ended meeting. Kennedy repeated the two ground rules submitted by Osolinik, and Sununu agreed to abide by them. Accordingly they made plans to resume negotiations on July 6, 1989, and settled on the times, participants, and location. Over the next two weeks, through July 18, Senate staff and administration staff held ten negotiation sessions. From the Senate, the principal participants were the staffs of Senators Kennedy, Harkin, Hatch, Durenberger, and Dole. Staff from the office of Senator John McCain (R-AZ) joined the discussion regarding telecommunications provisions and were pivotal in shaping that portion of the bill. For the administration, participants came primarily from the White House, including Roper and Funk; the Justice Department, especially the author of the Section 504 regulations, John Wodatch; the Department of Transportation; and OMB.
Although non-governmental constituencies were not allowed in the Senate anteroom, they waited in a nearby conference room where they could be consulted during breaks. Those present in the meetings devoted several hours to each session, went through the bill line by line, and identified scores of disagreements for discussion. The staffs reached agreement on the vast majority of issues, but a few unresolvable disputes were left for the principals. These more difficult issues included the scope of remedies (namely the inclusion of compensatory and punitive damages), the scope of public accommodations (namely whether the ADA applied to more establishments than those covered by the Civil Rights Act), exemption of religious groups from the public accommodations provisions, the definition of disability, and coverage of drug and alcohol users.
On July 28, ten days after the conclusion of negotiation sessions, Senator Dole sponsored a principals meeting in his conference room. They met there because of the ample space and because the office of the Minority Leader was friendlier terrain for the administration. Those present included Senators Kennedy, Harkin, Dole, Hatch, and Durenberger, Chief Counsel Gray, Chief of Staff Sununu, Secretary of Transportation Samuel K. Skinner, Attorney General Thornburgh, head of the Domestic Policy Counsel Roger Porter, and others representing executive agencies covered by the ADA. The purpose of the meeting was to hammer out agreements on remaining issues. But at one point Sununu lost his temper and began yelling at Silverstein. Kennedy slammed his hand on the table, yelled back that he would not stand for shouting at Senate staff, and threatened to walk out.66 The discussion resumed, but no official agreements were made: the meeting was cut short.
Three days later, on July 31, Senators Kennedy and Harkin and Attorney General Thorn-burgh resolved the handful of remaining issues and closed the negotiations. The breakthrough compromise, which facilitated agreement on other issues, was essentially a swap concerning public accommodations and remedies. In the area of public accommodations, the administration had used the parity principle against ADA sponsors by arguing that the ADA should cover only those establishments covered under the Civil Rights Act. With respect to remedies, the administration wanted to exclude compensatory and punitive damages. As a compromise, Kennedy and Harkin agreed to restrict remedies to the standards of the Civil Rights Act in exchange for the administration’s consent to apply the ADA to the broad spectrum of public accommodations.
There were several other major agreements included in what Senator Kennedy termed a “fragile compromise."67 First, with respect to employment, negotiators incorporated a two-year delay of the effective date for operations with 25 or more employees, and a four-year delay for operations with 15 to 24 employees. Establishments with fewer than 15 employees were already exempted from the employment title. They also introduced stronger language to ensure that current employees who abused drugs and alcohol would not be a protected class. Second, concerning public transportation, the agreement included authority for the Secretary of Transportation to waive the requirement of bus lifts for fixed-route systems when lifts were unavailable. For private intercity bus transportation, the agreement delayed implementation of lift requirements for at least five years and mandated a study to explore how best to make intercity buses accessible. Third, regarding public accommodations, the negotiated agreement delayed implementation for 18 months, exempted religious organizations and private clubs, and specified that elevators were required only in buildings with at least three stories or more than 3,000 square feet per floor.
64. The following discussion of negotiations between the White House and Senate is based on: Osolinik, interviews; William Roper interview, December 2, 1996; Silverstein, interviews; Thornburgh, interview; and West, interview.
65. Wright, telephone conversation with the author, April 30, 1997.
66. Mary McGrory, “For the Disabled, A Capital Day,” The Washington Post, May 27, 1990, p. B1.
67. Senator Edward M. Kennedy, statement, Cong. Rec., vol. 135 (September 7, 1989), p. S10714.
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.
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