The convergence of the necessity and the desirability of compromise "makes an ethical enterprise out of politics, which is the institutionalized art of compromise . . . and that invests the legislative process with the accolade of moral midwifery."
A deficiency exists in the area of case studies that apply conflict resolution theory to the legislative process. The research in this article furnishes information that may help to fill the void. Taking a conflict resolution perspective, it examines the negotiation processes employed by Congress and other players during consideration of the Civil Rights Acts of 1990 and 1991. The study proposes two conflict resolution models for use in legislative negotiations and compares them to the data gathered from the recent civil rights negotiations. The analysis examines which of the models' elements were and were not used in the negotiations, why they were or weren't employed, and with what impact.
Section I of this report describes the civil rights debate, furnishing the reader with background on the substantive issues that were involved. In section II, the research methodology is discussed, and proposed conflict resolution models for use in legislative negotiations are presented. The third section is a narrative of the civil rights negotiations, both the substance and procedure of the talks. Section IV analyzes the research data that was gathered. The final section of the report presents conclusions which may be drawn from the research and suggests areas where similar research efforts might be focused in the future.
The 1990-91 civil rights debate had its genesis in five United States Supreme Court decisions handed down in 1989. The Court's opinions altered prior interpretations of federalemployment law contained in Title VII of the Civil Rights Act of 1964 [hereinafter Title VII] and in the Reconstruction Era Statute, 42 U.S.C. § 1981. The reinterpretations affected the burden of proof requirements in cases involving "disparate impact" discrimination and "mixed motive" discrimination under Title VII. The decisions held that section 1981, which guarantees all persons "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens," applies only to the making and enforcing of contracts. Discriminatory conduct related to employment terms, conditions or benefits of an employment contract is not covered. The Court's rulings opened up court ordered consent decrees resolving job discrimination suits to later lawsuit challenges. And, they resulted in a practical reduction in the statute of limitations for challenges to discriminatory seniority plans. The latter change was a result of the Court's determination that the statute of limitations begins to run when the plan is adopted rather than when the plan results in harm to a plaintiff.
The Court's decisions evoked a variety of concerns and bred moral, procedural and political disputes. For some groups, especially the civil rights community, the 1989 decisions were seen as having negatively affected the ability of victims of discrimination to obtain remedies for intentional and disparate impact discrimination. To these groups, the decisions represented a step backward in the fight against employment discrimination. For others, the debate raised alternative concerns of how "equal opportunity" was defined and whether affirmative action was an appropriate means by which to achieve that equality.
The changes implicated by the five cases were addressed first in the Civil Rights Act of 1990, H.R. 4000 and S. 2104, introduced in February 1990. These proposals were later amended with provisions responsive to additional cases. In addition, various versions of the legislation contained items that did not stem directly from the Court's recent decisions. Examples of these include the proposals to allow for jury trials in Title VII cases and to expand remedies available to victims of intentional sex or religious discrimination.
The 1990 bills were adopted, in amended form, by both the House of Representatives and the United States Senate. However, the legislation was vetoed by President Bush, and the Senate failed in its attempt to override the veto. In 1991, efforts to enact the civil rights legislation were ultimately successful. The House adopted a bill, H.R. 1, on June 5,1991. A significantly different bill, S. 1745, was passed by the Senate on October 30, 1991. The House acquiesced to the Senate version November 7, 1991, and President Bush signed it into law on November 21, 1991. A chronology of the legislative action on the civil rights bills is contained in Appendix A.
During negotiations and debate on the civil rights legislation, there was clear agreement that discrimination in the work place is wrong. However, there was substantial disagreement over what foundations are required for anti-discrimination policies that will be fair to all workers. Some of the foundational issues raised included whether the laws should provide 1) for equal employment opportunity or for equal results; 2) for stronger protections against unintentional discrimination of employees or for greater recognition of employer considerations; 3) for corrections of current wrongs or of past wrongs; and 4) for equal parity of remedies available to all victims of discrimination or for limitations on those available to women and religious minorities. Although these issues were prominent in the discussions, they were not often raised to the level of negotiable issues. More often, the dialogue on the foundational questions was presented as support for positions on the technical items in debate or as political posturing.
The technical items, specific elements of the legislation, were numerous and covered various aspects of the employment discrimination laws. Research for this project focused on the two most contentious issues, the damages provisions and the burden of proof requirements for disparate impact discrimination cases. The first issue involved disagreement over what remedies are appropriate in Title VII employment discrimination cases. Conflict arose over the lack of parity between the remedies available to women and religious minorities under Title VII, and the redress granted to race and ethnic minorities under 42 U.S.C. § 1981.
The key difference between these two statutes was that Title VII provided only for equitable relief: back pay, reinstatement in a job, or an injunction against continued discriminatory action. Section 1981, on the other hand, allows for both equitable remedies and for legal relief, in the form of compensatory damages for medical bills, pain and suffering and/or punitive damages. Persons filing a lawsuit for discrimination based on race or national origin may be able to state a claim under both Title VII and § 1981. However, victims of sex or religious discrimination may file a claim only under Title VII. Legislative proposals to expand the Title VII remedies to allow compensatory and punitive damages were included in the civil rights bills. Some versions of the legislation included "caps," limiting the maximum dollar amounts that plaintiffs could recover in compensatory and punitive damages. Other versions provided full parity with the § 1981 remedies, allowing both compensatory and punitive damages in intentional discrimination cases, but without legislative ceilings on the maximum amounts. As enacted, the Civil Rights Act of 1991 includes the expanded remedies but with the "caps."
The second highly contentious issue in the civil rights legislation involved the burden of proof requirements for disparate impact discrimination cases. The wellspring for this technical issue was the Supreme Court's decision in Wards Cove Packing Co. v. Atonio [hereinafter Wards Cove]. This decision altered the historical burden of proof requirements for both plaintiffs and defendants. It was this issue about which the conservatives first began to raise their "quota bill" charge, ushering in some of the most vehement political dialogues on the civil rights legislation.
The intense conflict over the burden of proof requirements was a reflection of the importance of proof standards to plaintiff's in convincing a court that discrimination has occurred and to defendants in defeating a discrimination claim. Burden of proof standards first require that plaintiffs establish a prima facie case showing that an employer has used an unlawful employment practice. Under § 703 of Title VII, it is an unlawful employment practice for employers to consider race, color, religion, sex, or national origin when making employment-related decisions. Title VII was first held to apply to disparate impact discrimination, as well as to intentional discrimination, in the 1971 case of Griggs v. Duke Power Co. [hereinafter Griggs]. To establish a prima facie case of unintentional discrimination under the Griggs standard, a plaintiff was required to present evidence of a "substantially dissimilar effect" resulting from the employment practice. Once the employee laid that foundation, the burden of proof shifted to the employer who could rebut the discrimination claim by presenting an affirmative defense of "business necessity." If the employer could show "that any given [employment] requirement . . . [had] a manifest relationship to the employment in question," a finding of non- liability was in order even if discriminatory impact had been proven.
With the decision in Wards Cove, there was a reallocation of the proof burden and a reformation of the related business necessity defense for the employer. Under Wards Cove the plaintiff's burden of proof was made more onerous. The plaintiff had to show disparate impact through evidence of a statistical imbalance in the composition of the employer's work force compared to the qualified labor pool. Further, the employee had to isolate and identify "the specific employment practices that [were] allegedly responsible for [the] observed statistical disparities."
The more demanding proof standards for the plaintiff were coupled with a relaxed burden for the employer. The Wards Cove decision, allowed employers to rebut discrimination claims by offering a business justification for the use of the challenged employment practice. But the employer was not required to prove his defense. Rather, it was accepted unless the plaintiff could disprove its legitimacy. Further, the justification did not have to have a "manifest relationship" to the job at issue as it did per the Griggs standard. Under Wards Cove, an acceptable business justification included one which showed that a "challenged practice serve[d], in a significant way, the legitimate employment goals of the employer." Thus, a wider range of justifications qualified as business necessity justifications.
The civil rights community believed the Wards Cove changes would seriously hinder discrimination victims in successfully bringing actions under Title VII. In response, they recommended amending Title VII to codify the pre-Wards Cove burden of proof and business necessity standards. The Civil Rights Act of 1991, as enacted, incorporates this recommendation. As amended, Title VII plaintiffs claiming disparate impact discrimination still will be required to show that the alleged disparate impact resulted from a challenged employment practice or group of practices. However, a group of employment practices may be analyzed as one employment practice if the plaintiff can demonstrate that they are not capable of separation for analysis. Additionally, the Act shifts back to the employer the burden of proving its business necessity defense. It also adopts the pre-Wards Cove definitions for this defense.
A number and variety of resources were employed for this project. The primary device used to gather data on the negotiations and debate of the civil rights legislation was interviews with participants in that process. Information also was drawn from legislative documents, such as committee reports and the Congressional Record, and newspaper and magazine articles. Academic publications were surveyed for materials relevant to the application of ADR techniques to the legislative process.
For the theoretical research, articles that were directly on- point were not found. However, a limited number of resources were located that describe and critique the negotiation processes used by federal, state and local government administrative offices and agencies. These include John S. Murray's textbook section describing ADR techniques used in resolving regulatory disputes; articles on the use of "negotiated rule-making" by some federal agencies; and a wealth of material on procedural aspects of legislative bodies.
Selected writings by Martin Benjamin and T.V. Smith, on the ethics of compromise have been a prime resource for the question of moral compromise. The theories of these writers suggest an opening for alternative dispute resolution processes to be used in confronting moral conflict within the legislative process.
The Congressional Record and committee reports, as well as articles primarily from the Washington Post, the New York Times, and the Congressional Quarterly, were studied to prepare for the interviews. These provided helpful background on the 1990 and 1991 debates, key issues, players, and a sense of the public's reaction to this legislative issue. The documents also contained a limited amount of information on the negotiation process. Where possible, this material was verified through the interviews.
The terms "opponents" and "proponents" do not fairly represent the views on the civil rights legislation. Few members of Congress who voted for the legislation supported every item in it. Likewise, those voting against the original versions of the civil rights legislation may have been holding out for modifications in the legislation rather than for its absolute defeat. In recognition of these distinctions, the participants are categorized in this report according to the philosophical positions of "activists," "moderates," and "conservatives." The "activists" group encompasses the civil rights community and members of Congress aligned with activists' concerns. This group includes, but is not limited exclusively to, liberal Democrats and members of civil rights organizations such as the Leadership Conference on Civil Rights. The "moderates" consist of members of Congress who may or may not have voted for the original legislation, but who advocated modifications in the degrees and kinds of protections found in the original legislative text. Within this category are philosophically moderate Republicans and Democrats, including many southern Democrats, and organizations, like the Business Roundtable (BRT), which represent large business interests. The "conservative" classification includes the small business Fair Employment Coalition, the White House, and members of Congress who were vocal in their opposition to the activists' proposal, aggressively challenging it as a quota bill.
Interviews of the participants took place, by and large, in Washington, D.C., at the interviewees' offices. A portion of the interviews were conducted over the telephone.
Players involved in the civil rights debate come from four circles --- Capitol Hill, the Administration (the White House and the Department of Justice), the civil rights community and the business community (both large and small businesses). In determining who from these groups would be interviewed, several factors were considered. For the Capitol Hill group, the main focus was on congressional offices connected with the committees having jurisdiction over the civil rights bill. Within the Administration, the Justice Department staff were selected. Initially, they were more involved in the day-to-day negotiations than the White House staff. Among the non-Hill, non-government groups, the interview requests were directed at the most active of the civil rights groups and at representatives from both the large and small business communities.
On the Hill, the Senate committee with jurisdiction for civil rights is the Labor and Human Resources Committee, chaired by Senator Edward Kennedy [D-MA]. In the House, the committees of jurisdiction are the Education and Labor Committee and the Judiciary Committee. In 1990, Education and Labor was chaired by Representative Gus Hawkins [D-CA]. In 1991, the chairman is Representative William Ford, [D-MI]. The Judiciary Committee chairman is Representative Jack Brooks [D-TX]. There are a total of 89 members of Congress on these three committees, 9 Democrats and 7 Republicans on the Senate Labor Committee; 25 Democrats and 14 Republicans on Education and Labor; and 21 Democrats and 13 Republicans on the House Judiciary Committee. [See Appendix B]. Not every committee member was approached for an interview. One factor considered was whether the member had been actively involved in the civil rights negotiations and/or debate. A determination of who had participated was made through a review of committee hearing reports and Congressional Records.
A second factor in choosing Hill interviewees was the member's affiliation with one of the subgroups involved in the civil rights legislation. These subgroups consisted of core Democrats, core Republicans, southern Democrats, moderate Republicans, female members of Congress, and minority members of Congress. The final interviewee list contained at least one person from each of these groups. [See Appendix B, note L].
Eight senators and 16 members of the House of Representatives were sent letters requesting interviews. Six of the senators served on the Labor Committee; two --- Hank Brown [R-CO] and John Danforth [R-MO] --- did not. Of the 16 representatives contacted, seven served on the House Judiciary Committee, eight on Education and Labor, and one --- Cardiss Collins [D-IL] --- on neither committee of jurisdiction.
The noncommittee Members of Congress were added to the final interview list for the following reasons. Senator Brown recently won a seat in the Senate after serving ten years in the House of Representatives. He was questioned some about his impressions of the civil rights bill negotiations. However, the predominant questions put to him focused on House and Senate procedures, with special attention to the differences between the two chambers. Senator Danforth, notwithstanding his non-committee status, became a key player in the civil rights negotiations. During 1990, he attempted to broker an agreement between opposing sides. In 1991, he was the dominant force in the development and enactment of the "compromise" civil rights package, S. 1745. Over half, 16, of the 24 members of Congress [hereinafter Member] who were sent letters requesting interviews agreed to answer questions, either directly or through their staff. Ultimately, five Members personally participated in the questioning. Three additional representatives initially agreed to interviews. However, unanticipated Floor or committee demands resulted in their cancelling the appointments. Those interviewed were Senator Nancy Kassebaum [R-KS], Senator Hank Brown [R-CO], House Judiciary Committee member Tom Campbell [R- CA], and Education and Labor Committee members Harris Fawell [R- IL] and Matthew Martinez [D-CA]. The cancelled appointments had been with Judiciary Committee members, Don Edwards [D-CA, chair of Judiciary Subcommittee on Civil and Constitutional Rights] and Bill McCollum [R-FL] and with Education and Labor Committee member Charles Hayes [D-IL].
Where Members were not able to meet with the interviewer, or declined to be interviewed, meetings were requested with their staff assigned to the civil rights issue. It is important to note that congressional staff, particularly committee staff, play significant roles and often wield a good deal of power in the congressional process. Information gathered from interviews of staff frequently contained much of the "nuts and bolts" of the civil rights negotiations. The staff who were interviewed either were active participants in the negotiations or attended meetings with or on behalf of their Member.
Finally, one additional Hill interview was obtained. This was with one of the counsels to House Republican Leader, Robert Michel [R-IL]. At the end of 1990, Mr. Michel appointed a task force to develop a Republican alternative to the activists' civil rights legislation. During the interview, Mr. Michel's counsel described the task force's negotiations and some of the House Republican Leadership's concerns and strategy.
Interviewees from outside groups, those not connected with the elective offices, were selected based on their involvement in the negotiations. The individuals either were suggested by other persons that had been interviewed and/or were described in news articles as active participants in the debate.
From the business community, an AT&T representative and the attorney who served as legal counsel for the Business Roundtable during its meetings with the civil rights community agreed to interviews. They discussed the large-business perspective on the civil rights negotiations. Attempts to reach a representative from the Fair Employment Coalition, which lobbies on behalf of small business interests, were unsuccessful. According to other interviewees, the Coalition was involved in some of the Michel task force meetings and talked some with Senator Danforth's office about his package.
Numerous civil rights groups were involved in the civil rights discussions, some only within the civil rights groups and others during meetings with Congress and with the Business Roundtable. Major players from the civil rights community included the American Civil Liberties Union (ACLU), the Women's Legal Defense Fund, and the National Women's Law Center. The women's groups were particularly active in the debate on expanding Title VII remedies. Representatives from each of these organizations were interviewed.
The overarching question in this research was whether conflict resolution theory can be applied in legislative negotiations involving moral issues. In collecting data, both from the interviews and from the literature reviews, a bifurcated approach was taken. One part of the inquiry looked at what negotiation techniques have been used in resolving legislative conflicts. Another aspect of the research involved whether other dispute resolution methods might be effective and appropriate for this arena.
Questions asked during the interviews sought information concerning three elements of the civil rights negotiations and debate. One element was the negotiations themselves: who participated, the topics of the meetings, and the negotiability of the issues. A second aspect involved the influence of outside factors, such as public support, timing, intra-group pressures, and long-term political risks, on the talks. The final element was the ADR techniques actually employed during the negotiations. Techniques of interest included issue framing, team strategy development, sidebar negotiations, positional bargaining, interest-based bargaining, consideration of all interests, role defining for participants, meetings with all sides present to separate out and analyze issues and to set agendas, and use of bottom-line strategies or Best Alternatives To a Negotiated Agreement (BATNAs).
How the civil rights issue was framed was of particular interest. Implicit in this question was how legislators' viewed the moral facets of the civil rights bills, and how they approach compromises on moral questions. Questions focused on the impetus for the legislation, on whether the issue was framed as a moral or political issue during discussions and debate, and on the differences in how the various sides approached the issue. In addition, a few of the interviewees were questioned directly about how they --- or for staff, how their employers --- handle compromises on moral issues.
Frequently, the interviewees raised the issue of whether a moral process was used in the negotiations and debate of the civil rights bill, without prompting by the interviewer. While describing the procedures used to develop and to move this legislation through Congress, many of the interviewees referred to aspects of the negotiations and debates with which they had concerns. Strong-arm tactics and the influence of political strategies were the two features most often raised. Whether these and other process-related activities meet the definition of a "moral process" will be discussed in the analysis.
In general if participants did not comment first, they were queried on three points. These were 1) the role the interviewee played, 2) the process used in 1990 compared to what was done in 1991, and 3) future action anticipated for the civil rights legislation. Because of the multi-stage negotiation process operating during the civil rights legislative efforts, a standard list of questions was not used. Generic questions were asked where possible. However, with interviewees participating in different aspects and levels of the negotiations, activity- specific questions also were posed.
Questioning varied when the negotiation stage in which the party was involved was unique in some manner, where specific knowledge was limited to particular sources, or where the participant played a specific role in the negotiations. For example, those involved in the Business Roundtable/civil rights community talks were questioned about the strategy for those meetings, holding them away from Capitol Hill, without either explicit or implicit approval from the elected officials.
The deliberative process traditionally utilized by Congress is adversarial in nature. However, scholars in the area have suggested that "because the legislative process is naturally flexible and informal, it should be receptive to innovation [through the application of ADR techniques]."
The first model used in this research is drawn from the federal negotiated rulemaking process, which applies recognized ADR techniques to the promulgation of certain regulations. Theoretically, the "negotiated rulemaking model" has carry-over benefits for legislative negotiations because of the shared public-policy characteristics of rulemaking and legislating. The second model is a hypothetical "moral dialogue model." It assumes that open and direct discussion is required to resolve conflicts over issues with underlying moral questions, such as equal employment laws. The moral dialogue model requires exchanges to be framed using moral dialogue and to occur in an ethical process. Data gathered on the civil rights negotiations is analyzed against these two models in Section IV.
The federal Negotiated Rulemaking Act of 1990, (Pub. L. 101-648) [hereinafter reg-neg] was enacted November 29, 1990. It applies alternative dispute resolution [ADR] procedures in the agencies' efforts to resolve disputes in the development of regulations. "In negotiated rulemaking, representatives of all affected parties, including the agency, come together in an effort to draft a proposed rule that takes into account the needs of the various interests, as well as the requirements of the underlying statute."
Key aspects of the reg-neg process are as follows. It may be used only for certain definable issues. It allows for the appointment of a "convener" to assist the agency in determining who would be interested in serving on the reg-neg committee. The maximum number of members for most reg-neg committees is limited to 25. Equal authority is granted to all committee members, including the federal agency. Finally, reg- neg provides for a facilitator to chair the meetings and to assist in the discussions in an impartial manner.
As outlined in the statute, reg-neg may be used only for certain rulemakings. The requirements are that interests are identifiable; potential exists to create a committee that will have balanced representation of those interests; a reasonable likelihood exists that the committee will reach a consensus within a defined period of time; and, use of the committee will not unnecessarily delay the rulemaking process. The reg-neg committee's life terminates with the promulgation of the final rule under consideration, or upon the termination date contained in the committee's charter, whichever occurs first. Earlier termination dates also may be established by the agency after consulting with the committee, or the committee, itself, may set an earlier termination date.
The appropriateness of this Act as a model for conflict resolution in the legislative branch lies in the reg-neg's orientation toward public policy formulation. It has been successfully used in a number of instances. The Environmental Protection Agency has been the most active of the federal agencies in conducting regulatory negotiations. Examples of its successes include agreement on regulatory language for emergency pesticide exemptions and woodburning stove standards. In addition, consensus was reached "on all or most of the issues" in negotiations on nonconformance penalties, hazardous waste facility permit modifications and asbestos in schools.
Although the negotiated rulemaking mechanism complements the legislative process, there are some obvious reasons a similar process might not be fully applicable in the legislative arena. For example, the reg-neg process involves single, well-defined problems. In contrast, there generally are a large number of separate and undefined issues facing legislatures. The reg-neg process assigns equal negotiating power and veto power to each party on the negotiating committee. On the other hand, legislatures operate with one political party controlling one or both legislative chambers, setting the legislative agendas, controlling consideration of amendments, and determining the general rules of procedure for the chamber(s). Reg-neg requires a consensus of the committee for action. The legislature has a majority vote rule that may encourage hold-outs or obstructionism rather than compromise. The reg-neg process involves a new group of players for each problem. In comparison, legislators have long-term personal relationships and an historical basis of dealings. Reg-neg involves a neutral facilitator, whereas legislatures' are controlled by partisan committee chairmen and party leadership.
The analysis in Section IV shows that these differences were apparent in the central stages of the civil rights legislative negotiations. It suggests that critical structural differences between the legislative branch and federal agencies precludes the use of reg-neg for general congressional negotiations. However, some aspects of reg-neg may be useful at the sub-negotiation level.
Compromise within the public policy arena is characterized in the following statement from T.V. Smith:
[I]n politics, where rules are for all, rules can be made only by give-and-take; and even through that method the amount of one's higher ideals that can be made to inform a statute is ordinarily very low indeed. . . . Lucky is the society whose laws represent a level of ideals higher than the lowest common denominator of individual consciences.
Resolving legislative issues without having to settle for "the lowest common denominator of individual consciences" should be the norm rather than the exception. To achieve this goal, a process is needed that not only recognizes the divergence of interests associated with the issues before Congress, but also assures full, open, direct dialogue on them. Suggested here is a theoretical model incorporating the concepts of moral dialogue and integrity-preserving compromise as a means to encouraging such debate.
This model is more a set of values that should surround legislative deliberation than a system of conflict resolution. It defines "reasonable compromises" as agreements which reflect sound judgment and preserve the elements of personal and community integrity and mutual respect. Its underlyingpremise is that the public policy process, particularly for issues involving moral overtones, must 1) incorporate the moral issue in the dialogue on the policy conflict, and 2) utilize a process that ensures a moral debate.
Moral dialogue is defined as the "language of responsibilities and obligations . . . [where solutions to problems] rest on a reciprocity of fairness, reasonableness and compromise." Political discourse refers to discussions or debate unrelated to the merits of the issue, such as concerns about future elections, short- and long-term risks for the political parties, and basic power concerns of individuals and of the parties.
Application of these distinctions to the civil rights debate is a subjective exercise. Bright lines generally do not exist between debate that was solely focused on the merits and that which was a pretext for political ends. It is arguable that in the legislative arena the two are inseparable; that when merits are debated, the political realities are always within, or never far from, the participants' minds.
Determining whether the negotiations, themselves, fulfilled the second requirement of the model --- a moral process --- is somewhat less subjective. A moral process may be defined as one that meets the following three criteria. First, the process must allow for full and good faith discussions of the concerns and interests of all appropriate parties. Second, discussions must be approached by all parties with the intention of reaching a reasonable compromise, of not obstructing the talks or using them as a soapbox for achieving other ends. And third, negotiations must be focused toward developing mutually satisfying options and end results.
The rationale behind this model is that where the dialogue addresses the moral concerns up front, areas of conflict will be recognized and honestly discussed, and misdirection will be less likely to occur. Thus long, arduous debates on irrelevant points may be avoided and energies applied to finding mutually satisfactory solutions. Further, with exchanges that are focused in moral terms, it is more likely that mutual respect and established relationships will be preserved, and that agreement will be reached without participants compromising personal or community integrity.
The possibility of integrity-preserving compromise is necessary for good faith negotiations to occur. Participants must believe that they can resolve disagreements on competing moral positions without sacrificing their integrity, or they will see little reason to come to the bargaining table. Professor Benjamin suggests integrity-preserving compromise on moral issues is possible because each person has two integrity value sets. One set is internal, involving deeply cherished values and principles. The other set is external, emphasizing social roles and expectations. Individuals generally have mixed motives or concerns underlying their value sets. It is these mixed motives which may actually facilitate integrity-preserving compromises in situations where the internal and external values conflict. People normally are not driven by a single dominant end, "a single most important goal . . . to which all other legitimate goals are subordinate." It is here that compromise is possible.
The analysis in Section IV acknowledges that certain pre- conditions are necessary for the successful application of the moral dialogue model in the legislative process. It suggests that it is possible to achieve moral compromise on legislative issues where moral questions are met head-on, and where there are good faith negotiations and fair dealing. But, where moralism is overtaken by political goals, fair dealing in a moral sense ceases to exist, and the moral dialogue model is rendered ineffective.
Negotiations on the civil rights legislation generally focused on specific technical elements of the proposed anti-discrimination amendments. Moral and foundational issues, such as what is meant by "equal opportunity" and whether anti-discrimination law should correct for historical disadvantage, often were summarily discussed as if they were settled issues. Where openly expressed, disagreement on the foundational issues was raised most often as a basis for dialogue on the technical questions. In a few rare instances, such as on the question of parity of damages, the conflict was framed in moral terms and the foundational issues elevated to the level of negotiable items in their own right.
The conflict underlying the negotiations and the legislative debate was apparent from the beginning. "Sponsors argue[d] that the legislation [was] needed to protect workers from jobdiscrimination, while the administration and the business community insist[ed] that the protections the bill would give workers would invite frivolous lawsuits and lead employers to hire by quota to protect themselves from litigation."
But, public statements from all sides indicated agreement on the government's moral obligation to combat employment discrimination, suggesting an opportunity for good faithnegotiations. In his opening remarks at the 1990 Senate Labor Committee hearings, Chairman Edward Kennedy [D-MA] set the stage. He described the United States Supreme Court's actions as"open[ing] significant gaps in the laws that prohibit racism, sexism, and other flagrant and other types of ingrained bias in our society."
Ethical concerns were also raised during House and Senate Floor consideration of the legislation. One House Member framed the issue as follows. "Discrimination in America today is unthinkable. It is offensive. It should be a relic of history. . . . When a person is denied employment and denied promotion, denied advancement because of color or gender or situation of disability, that is an offense to everything that this country stands for."
Even within his veto message on the 1990 Civil Rights Act, President Bush cast the issue in a moral framework. He stated, "Discrimination, whether on the basis of race, national origin, sex, religion, or disability, is worse than wrong. It is a fundamental evil that tears at the fabric of our society, and one that all Americans should and must oppose."
However, for over a year and a half, this solid agreement on the moral need to protect civil rights in the work place failed to be translated into agreement on the type and extent of protections to provide. It is arguable the negotiations were hindered by the unresolved differences in the underlying foundational questions. It also is arguable that initially, the issue was not "ripe" for compromise because of its political value.
As described in Section I on the substantive debate, one of the most contentious issues in this legislation resulted from the 1989 Supreme Court decision on Wards Cove. That decision reinterpreted the employer's "business necessity" defense and made the plaintiff's burden of proof requirements more onerous in disparate impact discrimination cases.
Activists proposed redefining the burden of proof and business necessity standards to return the disparate impact case requirements to the Griggs standards. But, conservatives, in particular, argued that the activists' modifications went beyond returning the anti-discrimination laws to the Griggs standard. They insisted that the proposed language would result in "quota" hiring by employers to avoid the flood of lawsuits that would be generated by such changes.
Early in the Senate Labor Committee's consideration of the 1990 bill, Senator Orrin Hatch [R-UT] raised the quota charge. He stated that the Wards Cove sections of the activists' bill "so dramatically change Title VII that the only way to avoid being sued is to hire solely by numbers, to use quotas for hiring and promotion." Senator Hatch put forth his quota concerns again when the legislation was taken up on the Senate Floor later in 1990. This time, he advanced the foundational question of equal opportunity verse equal result saying,
So some people in our society think that is a good thing --- to hire by quotas, and to be forced to hire by quotas because of the long-term problems in civil rights through the years. But to most people in this society, they know that this means you are placed in groups above individuals. They know that you are providing for equal results rather than equal opportunity.
Other participants also raised the key foundational question of whether the anti-discrimination laws should be purely "color blind" or whether policies should correct for past discriminatory practices that continue to impact women and minorities. Comments on the issue were offered during House committee hearings by "moderate" Representative Steve Gunderson [R-WI] and by "activist" Representative Matthew Martinez [D-CA]. Mr. Gunderson said, I share your commitment to full civil rights for all people. . . . To me, real civil rights means, number one, prohibiting discrimination in the work place or elsewhere because of one's race, color, creed or sex. Real civil rights means rewarding individuals in a fair, honest assessment based on merit, competence, skill or performance. Real civil rights means providing opportunities or rewards for an individual's actual initiative. Real civil rights means providing every citizen the equal and full protection under the law. (emphasis added)Mr. Martinez responded as follows: I grew up as part of a minority group in an area that faced grave discrimination over the years. I saw that whenever an elected body sought to do something for the minorities, to give them equal opportunity and availability of rights [the] same as everyone else, these rights were acceptable in legislation as long as it didn't interfere with those of the majority. . . . We have seen response to legislation introduced, from the other side, saying `we'll do everything as long as we don't do anything to disturb the status quo.' (emphasis added) Senator Nancy Kassebaum succinctly framed the debate when she said,[I]t isn't a question of [the Supreme Court's opinions] just having weakened civil rights law and [the legislation] going back to the law prior to those cases. [It is] a question of broadening the agenda and how much more do you broaden it . . . [until you] get into a situation where it's not just a case of equitableness but potentially a guarantee?
Some suggest the discourse on the foundational questions of how discrimination is to be eliminated was misplaced. They argue that if the legislative question had been whether to continue or to abolish the use of affirmative action, then it would have been appropriate to raise foundational questions such as providing absolute equality. However, because affirmative action was not in dispute, these debates resulted in confusion and misdirection. As framed by Senator John Danforth [R-MO], the problem inherent in the Wards Cove decision was simply "whether an employer can set up a qualification [business necessity justification] for employment that has nothing to do with the ability to do the job."
But, Senator Danforth's concise definition of what was at stake, obviously was not adopted by all the players. And, for almost two years with the insistence that the legislativeproposals would cause employers to "hire by the numbers" to avoid lawsuits, negotiations failed to produce a compromise.
A result of, and feeding the fire of, the quota claims was constituent opinion. Interviewees reported that there was little grass-roots support for the civil rights legislation being expressed by "the folks back home." To the contrary, opinion polls highlighted the public's concerns over quota hirings. In response to a May 1991 NBC News and Wall Street Journal poll, "most whites and blacks said the [civil rights] bill would not affect their interests" in their job or in the job of someone in their household. But, the issue of quotas generated significant opposition. In one question, participants were asked, "Do you believe that because of past discrimination against black people, qualified blacks should receive preference over equally qualified whites in such matters as getting into college or getting jobs, or not?" Seventy-two percent of white respondents answered "no." Black respondents were split, "48 percent yes and 42 percent no."
When Members of Congress agree with constituent views on the impact of proposed legislation and see those concerns as being significant, they either will amend the pending bill or table it. If the legislators believe that the public is misinformed, they may attempt to re-educate the public or table the legislation until a time when emotions are not as volatile. With the civil rights legislation, the activists believed the "quota charge" was inaccurate and continually worked to dispel the "quota myth" and to gain enactment of their legislative proposal.
In addition to the disagreement over whether the legislation would result in quotas, the debate also encompassed the motives behind the "quota charge." Frequent suggestions were made that "the other side's" alleged moral debate was actually a pretext for achieving political ends. During House Floor debate in June 1991, House Majority Leader Richard Gephardt [D-MO] said, "All we offer is equal justice. We say no to guarantees. We say no to quotas. . . . So why the fuss? Why the assertion from the highest levels of Government that this bill is somehow a quota bill? I think the answer lies in power politics and protecting privilege."
Rep. Eleanor Holmes Norton [D-DC] articulated her concerns in a Wall Street Journal column stating, [T]he quota issue is also dangerous. In the hands of the president, who has marketed the quota scare, it poisons the racial atmosphere already polluted by racial incidents and self-segregation on campuses and by the mutual suspicion between blacks and whites that is the legacy of retrenchment, resistance and resentment on racial issues that began in the 1980s.
Return charges of political motivations were made by conservatives. Rep. Harris Fawell [R-IL] expressed such a view to the interviewer. He stated, "The consistent debate on the Floor was always saying this great civil rights movement and all that it had accomplished, as though you were against civil rights because you were for the President's bill and against this monstrosity they had wheeled in on us."
Senator Robert Dole [R-KS] lobbed a political motivation volley in the following statement he made on the Senate Floor. [I]t is pretty clear who has been playing politics --- raw, cynical politics --- on civil rights. It is not President Bush, who, last year, walked the extra mile in an effort to reach a compromise with the Democrats in Congress and who, this year, has proposed his own fair and responsible civil rights package. The real cynics in this debate are my colleagues on the other side of the aisle who have resorted to ad hominem attacks on the President as a way to divert attention from the real issue at stake --- quotas in hiring, quotas in promotions, quotas throughout the American work force.
As can be seen, numerous moral and political statements were made on the foundational anti-discrimination questions during debates over the quota charge. For the most part, these were offered as general conceptual arguments or to make political points. There was little, if any, negotiation directed at finding a legislative agreement to these conflicts. But with the damages issue, there was debate and negotiation on some of the foundational concepts.
The issue of remedies was debated both in terms of the foundational issue of parity and in terms of the specific technical elements of what remedies were available and how those remedies might be expanded. Opposition to expanding the remedies came from individuals and groups who often agreed that allowing "legal" remedies for race minorities but not for gender and religious minorities was inequitable.
But, opponents argued against expanding Title VII remedies because of a concern that such action would set a precedent for broadening remedies in other areas of labor law. Specifically mentioned were the Occupational Safety and Health Act (OSHA) and National Labor Relations Act. Their contention was that such a trend would encourage further litigation rather than corrections for the causes of the employee's problems. "Including punitive and compensatory damages would upset the delicate balance which has characterized every employment law statute passed by Congress to the detriment of employees, employers, and society. No one will benefit from the years of litigation which will result." The business community expressed such concerns as well. Testimony during House committee hearings argued that expanded remedies could subject employers to "untold hidden liability." Further, it was suggested that additional remedies would fundamentally alter Title VII, which had been enacted with the goal of achieving relatively quick relief for victims of discrimination through a process of conciliation and settlement. The expansion of Title VII to include compensatory and punitive damages would encourage litigation, rather than conciliation, "inundating" courts with employment suits.
But for activists, the parity question was not easily dismissed by charges that the expanded remedies would merely result in a lawyer's bonanza. For this group, there was the moral concern that all discrimination victims be treated equally. There also were practical concerns about the lack of damages. In committee testimony, one activist noted that under current law "discrimination victims cannot recover for medical bills, emotional trauma, and lost opportunities, even if they are directly caused by the discrimination." The result is that plaintiffs are discouraged from filing legitimate discrimination complaints, and there is little "meaningful incentive [for employers] to comply with the law."
The damages issue was actively discussed during all stages of the negotiations. The Business Roundtable and the civil rights community saw this issue as key to any agreement they might reach. For the business representatives, there was an internal compact that they would not agree to "converting the equal employment laws, the labor laws into tort laws." The civil rights groups, on the other hand, placed the expansion of the Title VII remedies as a priority on their list. However, they disagreed among themselves over whether the inclusion of caps on the damages would be fatal to any agreement.
In 1991, the House Democrats also experienced internal conflict over the damages issue and whether their bill would include a cap on the amount of damages that could be collected. As introduced, H.R. 1 did not include caps. But amendments to the legislation limited the damages amounts in an attempt to allay concerns about "untold hidden liability" for employers. The effect of including limits on the damages amounts was to garner votes of some of the moderate Democrats, but at the same time to lose support of some of the activists. In response to the proposed caps, the Women's Congressional Caucus and the Black Congressional Caucus put forth their own legislative package in 1991 that was devoid of the damages cap. Their proposal was not adopted. Rather, the House passed the amended version of H.R. 1, which expanded the Title VII remedies but with a ceiling on the amount of damages that could be awarded.
The civil rights negotiation process occurred outside of and within the halls of Congress. It involved discussions at both the intragroup and intergroup levels of the subgroups of activists, conservatives, and moderates. For the civil rights community, intragroup discussions began shortly after the 1989 Supreme Court decisions were issued. The community's analysis of the impact of the rulings, possible legislative corrections, and strategies for passage of a civil rights bill was coordinated by the Leadership Conference on Civil Rights.
Within Congress, there were formal and informal negotiations and discussions. Formal negotiations were conducted by the committees of jurisdiction through the hearing process and Floor debates. Informal dialogue took place at various levels within, without, and among the factions of Congress, the civil rights community, and business representatives. At the start of the legislative process, committee staffs met to discuss the framework of the bill that would be introduced. These meetings involved House and Senate Democrat and Republican committee staffs and representatives of the civil rights community. The meetings focused on what the bill should contain. Options discussed ranged from using the legislation as an opportunity to revamp Title VII, to merely restoring the law that existed prior to the 1989 Supreme Court decisions. Ultimately, the staff members agreed to recommend a bill that restored prior law, but that also included expanded remedies for victims of gender and religious discrimination. This proposal was introduced in February 1990, as H.R. 4000 and S. 2104.
During the early stages of the activists' efforts, they viewed their proposal as "sort of apple pie civil rights" and assumed there would be few problems in overturning Ward's Cove and returning to the Griggs rule. "Most were unwilling to yield significant ground because they were confident that Bush wouldn't risk the political cost of a veto." But, the activists "misperceived the nature of the opposition . . . [and had an] unrealistic assessment of their political strength." The hoped for quick resolution to the Supreme Court's actions turned into a two-year struggle.
Additionally, rather than a consensus on what was to be done, there was conflict, both internal and external, for all the participating groups. The civil rights community found it difficult to reach and maintain a united front on the bill because of the different priorities its members had for the various issues. For example, within the women's groups, damages was a top priority. For the African American groups, key was overturning Ward's Cove.
The business community encountered similar internal problems. The Roundtable companies, the big companies . . . care[d] a lot more about Ward's Cove. They're the ones who are sued on disparate impact. Then you have the small businesses who care[d] less about that. Most of them are too small. But [they] care[d] very much about damages. Then you have the middle-sized businesses who are probably in the worst shape of all. They can get sued under either theory and they don't have the big staffs to deal with it.
The civil rights community and the Business Roundtable representatives met in a series of meetings in late 1990 and early 1991. These discussions were unusual in that they were held away from Capitol Hill without either explicit or implicit approval of the elected officials. The talks were aimed at, "achieving a better understanding of what the civil rights representatives wanted to achieve and what [the Roundtable] felt was reasonable and whether there was any potential for overlap."
The two groups originally attempted to keep their meetings confidential in an effort to eliminate political and media pressures. But, the fact of the meetings became public and resistance to the talks was expressed. Eventually, the meetings were suspended. Reports in the press indicated that the White House had put pressure on the Business Roundtable representatives to call off the talks. Representatives from the Roundtable stated that there also had been indications from some Hill Democrats that any agreement the groups might reach would not be received by them with open arms. Although these meetings did not produce an agreement between the Roundtable and the Civil Rights representatives, they nevertheless played a significant role in the overall negotiations on the civil rights legislation. Portions of the compromise options discussed by the two groups were incorporated in H.R. 1, adopted by the House in 1991.
On the Hill, the negotiation process saw divisions between and within the Republican and Democrat ranks. In 1990, the Democrats suffered a particularly divisive confrontation within their ranks. A senior Democrat from New York, John LaFalce, attempted to offer a compromise civil rights package. It was supported initially by southern Democrat Members of the House. Mr. LaFalce met with Republicans as well as the Democrats to inform them of what was in his compromise package. But, he presented his proposal as a "take-it or leave-it proposition." He told the Republicans that if they wanted to support his compromise as it was that was fine, but he had no intention of modifying it for them or for any other group. The Republicans agreed to work with Mr. LaFalce in offering his compromise, but he ran into strong opposition from the activists. Ultimately, he withdrew his name as a sponsor of the proposal, and the Republicans offered it as a substitute to the activists' bill during the 1990 House Floor consideration.
Efforts by the activists to dissuade Representative LaFalce from offering the compromise were described as heavy-handed, strong-arm politics. There were indications that Mr. LaFalce was threatened by the Democratic Leadership with punitive action if he pursued his compromise. In an exchange with Judiciary Committee Chairman Jack Brooks during House Floor debate, Representative Henry Hyde [R-IL] commented on the Leadership's tactics toward Mr. LaFalce and other Democrats who had indicated support for the compromise. He said, You cannot take my chairmanship away, because I have not got one; you cannot take my committee away, you cannot get me in a room and intimidate me, you cannot even deny me bathroom privileges. So I will watch how they vote, and then we will do a study as to how many shoulders are dislocated from your activity.
One moderate Republican House member, who voted for the activists' bill as well as the LaFalce proposal, commented on Mr. LaFalce's experience. He suggested that the Democrat Leadership's reaction reflected their concern that if the compromise package was adopted by the House, "they would lose the credit for passage of the civil rights bill." Representative Campbell stated that he believed the LaFalce package "was a good bill, a good civil rights bill." Thus, he didn't believe the activists' opposition stemmed from the compromise being viewed as a "civil rights sell-out."
The House Democrats experienced dissension in other areas as well. As noted earlier, there was internal disagreement on whether to include caps on the expanded Title VII damages. The result of these problems was that "[m]uch time and energy went into trying to keep Democrats together behind the bill. There was little opportunity for generating support of a veto- proof majority for either the 1990 or 1991 House bills.
The conflict encountered by the House democrats also was reflected in their inability to gain any ground between the 1990 and the 1991 votes, in spite of the compromises which had been made. In 1990, the activists' bill passed the House with 272 votes. The 1991 package received 273 votes, which included the vote of House Speaker Tom Foley [D-WA], who had not voted in 1990. This vote tally resulted even though the Democrats picked up ten new House seats in the 1990 election. The difference was that twelve fewer Republicans voted for the activists' bill in 1991 than had voted for it in 1990.
House Republicans also experienced divisions in their ranks. There were Members who were "uncomfortable about having to vote `no' on a civil rights bill . . . [and about] using the quota argument." House Republican Leader Robert Michel responded to the conflict within his ranks by appointing a civil rights task force in 1991. The goal of the task force was to draft an alternative proposal to the activists' bill that could be supported by House Republicans and possibly by the WhiteHouse.
The Michel task force provided Republican members with a civil rights bill for which they could vote. These efforts were as much a response to philosophical differences with the activists as a reaction to what was viewed by House Republicans as the unwillingness of the activists to negotiate. The latter concern was expressed during an exchange on the House Floor between Representative Steve Gunderson [R-WI] and Education and Labor Committee Chairman William Ford [D-MI]. Mr. Gunderson questioned the Chairman's unwillingness to negotiate on the bill.
Chairman Ford countered that he had been willing to work with his committee members. However, other reports indicated that as a new committee chairman, Mr. Ford was somewhat reluctant to negotiate with Republicans because the "outside civil rights groups had not had sufficient time to build up a trust relationship with him."
The Michel task force negotiations were successful for the Republicans in two respects. First, they produced a civil rights package that was acceptable to rank and file Republicans. Second, this package influenced the final House vote on the activists' 1991 bill. By having an alternative civil rights bill for which they could vote, House Republicans were not compelled to vote for the activists' bill just to be able to vote for civil rights. And as noted earlier, twelve fewer Republicans voted for H.R. 1 in 1991 than had voted for H.R. 4000 the year before. Another phase of the negotiations where conflict arose was the 1990 House and Senate conference committee meetings. Because of the differences between the 1990 bills passed by the House and Senate, H.R. 4000 and S. 2104 respectively, a House and Senate conference committee was appointed to negotiate a compromise version. The first conference committee agreement was rejected by the House and a second conference begun. During the intervening time period, Governor John Sununu, White House Chief of Staff, and Senator Kennedy proceeded with separate negotiations. Disagreement surfaced among the Democrats over Senator Kennedy's decision to negotiate with the White House during the conference committee process. Education and Labor Committee Chairman Gus Hawkins [D-CA] reportedly, "did not feel that that was the right approach . . . [because] there was no commitment [from the President] to the legislation. If anything there was an explicit commitment to support and sustain the Supreme Court decisions."
Additionally, Mr. Hawkins believed there had been indications that the activists "had political strength and support in Congress for overturning [the court's] decisions." As a result, he "felt that the process of negotiating among Members of Congress was the right way to go." The Kennedy-Sununu talks failed to produce an acceptable compromise.
Negotiations among congressional members of the conference committee were only slightly more successful. Senator Orrin Hatch attempted to broker an agreement, which he reportedly said he would support on the Senate Floor, if all sides found it acceptable. An agreement was crafted and used as the conference committee agreement that was sent to both Houses for final passage. But, the Hatch package did not satisfy all parties, in particular the White House, and thus was not supported by Hatch and other conservatives. The President vetoed the conference agreement, and the Senate fell one vote short of generating the necessary two-thirds majority to override the veto.
Conflict also surrounded the activists' 1990 Senate bill, S. 2104. It had both Democrat and moderate Republican cosponsors, but the Republicans' support was circumscribed by concerns they had over some of the bill's provisions. The Republicans had had "little or nothing to do with the original form of the bill as it was [introduced]." They had agreed to sponsor the bill because it was understood that amendments would be negotiated during the legislative process. However, that process didn't take place.
All that happened was the bill was put in and the whole package . . . was attacked as a quota bill. . . . There never was this sort of give and take process that goes on because the forces that were aligned against the bill, principally the business community and the Administration, were able to simply stand there and say `No I won't do it. It will cause quotas.' . . . What was anticipated as being a very large scale negotiation between the forces that presumably wanted the new civil rights bill and those that did not never developed.
As a result of being caught in 1990, supporting a bill with which they lacked full agreement and no way to fix it, these Senate Republicans took an independent approach in 1991. They developed a "moderate Republican" proposal, referred to as the Danforth package.
In developing the Danforth bill,[The moderates] were interested in finding a Republican response . . . a moderate Republican approach that tried to balance both business and civil rights perspectives. . . . [The senators] wanted to remove the civil rights issue from partisan politics . . . [and to] show that there were at least some Republicans who were out in front trying to pass a bill, a strong bill.
The negotiation process used by the Danforth group was guided by their goal of providing a proposal that would be viewed as "the moderate's best effort at a compromise." They met with representatives from all interested groups in putting together their original package of three bills, the S. 1200 series. After receiving lists of specific concerns from the activist and conservative camps, they modified their proposal and introduced a second package of bills, the S. 1400 series. Although the Danforth people discussed the lists of concerns with the activists and conservatives, they did not attempt to broker a deal. Rather, "[Senator] Danforth, when he started this process, always had the intention of introducing something, listening to concerns, not negotiating, and introducing something else." Senator Danforth's team continued to work this issue over the summer and fall of 1991. In September and October, a number of factors came together which helped turn the tide of opposition. The volatile Clarence Thomas Supreme Court nomination hearings and the Louisiana governor election campaign of former Ku Klux Klansman David Duke were two outside events which were influential. Events related to the civil rights bill which may have been significant included the active role played by Senate Minority Leader Bob Dole [R-KS], in trying to broker a compromise. Finally, a group of Senate republicans, who had supported the President on the 1990 veto override vote, reportedly advised him that they could not be counted on if a veto fight occurred in 1991. Without the support of these senators, the President could not prevail in a veto override vote. The latter factor was rejected by Administration staff as a misrepresentation of the senators' actions. He characterized the senators' talks with the White House not as a threat to "jump ship," but rather as an effort to encourage the President to pursue an acceptable compromise.
The confluence of the above events resulted in the contentious issues of the Wards Cove changes and the expansion of Title VII remedies for intentional discrimination suddenly being viewed as negotiable issues. In response, the Danforth team, along with Senator Dole, conducted a series of meetings with the White House and with the Kennedy contingent to find an acceptable compromise. The three groups did not meet all together, but rather with the Danforth/Dole representatives first talking to one group and then to the other. The proposed compromise first offered during the final negotiation stage was a mix of the Danforth S. 1400 package and a compromise proposal developed by Senator Dole. To resolve the sticking point of the Wards Cove "business necessity" employer's defense, a "business necessity/job related" definition was taken from the Americans With Disabilities Act (ADA) of 1990. It was believed that the President could not argue with this language, as he had supported it only a year earlier with enactment of the ADA. Additionally, the language appeared to produce the result being sought --- requiring employment decisions to be made based on the job qualifications actually needed to perform the task at hand.
The other hotly debated issue --- expanding the Title VII remedies to include compensatory and punitive damages --- was resolved with a promise. The compromise package contained the expanded remedies, but with caps on the upper limits of the punitive and non-economic (for pain and suffering) damages that could be awarded. To garner support for passage of the entire compromise from the senators who opposed the caps, the Senate leadership conceded to schedule for consideration at some future date legislation to repeal the caps.
Once the Senate passed the compromise bill, S. 1745, it was sent to the House for consideration. House members had not been included in the Danforth--White House--Kennedy talks. And, they were told that S. 1745 was a take-it-or-leave-it proposition. The compromise agreement was so tenuous that any modifications could undermine it. The House voted to support the package, and the bill was sent to the President for his signature.
Negotiation is undertaken to resolve disagreements or to plan transactions. It involves reasoned argument in either an adversarial or problem-solving setting. Legislatures generally follow the adversarial orientation, which "usually is grounded upon the assumption that there is a limited resource" which the negotiators must decide how to divide. Typically an adversarial negotiator begins by determining a bargaining position and then employing techniques "designed to uncover as much as possible about the other side's situation and simultaneously mislead the other side as to [one's] ownsituation."
This research focused on the question of whether the nature of the legislative process dictates the use of adversarial bargaining, or whether other orientations are being used or may be used. Two models have been proposed for analysis purposes. The first, the federal negotiated rulemaking model, utilizes a problem-solving orientation that incorporates interest-based bargaining techniques. The second is a hypothetical moral dialogue model. It focuses on the need for exchanges on moral issues, like civil rights, to occur in a framework of moral dialogue and in a moral process.
Information gathered on the current civil rights negotiations shows that Congress initially took an adversarial approach in the general negotiations of the quota and remedies issues. This resulted in the foundational questions being short-changed during the discussions. These issues were treated more as by-products of resolutions to the specific technical elements of the proposed bills than as separately negotiable items. It has been argued that attention given to the foundational issues such as equal opportunity versus equal results was misdirected, because the question at hand for this legislation was not affirmative action. This argument may or may not be borne out by the fact that the legislation, as originally introduced, established bargaining positions only for the specific technical elements. Although an adversarial approach was taken in the general negotiations, at the sub-negotiation levels some problem-solving techniques were used. Interest-based tactics of identifying issues and mutually beneficial compromises were applied during internal negotiations of the various groups of activists, moderates, and conservatives, and during the Business Roundtable and civil rights community talks.
As discussed in the Methodology section above, the reg-neg process uses ADR for policy making purposes rather than for traditional conflict resolution. For this reason, it was anticipated that reg-neg might serve as a basis for a similar negotiation approach in the legislative arena. This theory does not hold up under closer examination. Three critical differences prevent reg-neg's application to congressional deliberations. These include first, the position of elected officials in relation to other interested negotiating parties; second, the political structure of the legislative body; and third, the legislative majority vote rule.
The first difference rejects the use of the reg-neg technique of pulling together representatives of affected parties and giving them equal negotiating status. An equal status requirement is counter to our representative government where citizens elect public officials to make policy decisions. According to Professor Murray, the problem is that there is "inherent conflict between elected representatives and private interests. Legislators are selected by general election to represent all the residents of a jurisdiction to determine the policy, norms, and direction of the community. They are responsible for the results, and the public holds themaccountable at the next election." (emphasis added)
Usurpation of lawmaking responsibilities may have been a consideration leading to the Business Roundtable and civil rights community breaking off their talks. Those groups had taken on what appeared to be a legislative role, but they were operating outside of the legislative arena. Reg-Neg and the congressional subcommittee processes are similar to the extent that each has members who represent interested parties in the negotiations. Congressional subcommittees dedicate time and energy toward developing legislative proposals to recommend to their full committees. The full committees then may pass the recommendations onto the full House or Senate. But there is not "equal status" among subcommittee members, as there is in the reg-neg setting. And, it is questionable whether all interested parties are fully represented in all congressional subcommittee deliberations. Through the subcommittee seniority system greater deference is given to members who have served the longest on the committee. Further, the majority party on the subcommittee selects the issues to be considered and sets the agenda. It also controls the adoption and amendment process through party unity. The minority party may work to develop a consensus on less controversial issues. But where its philosophies significantly differ from the majority party's, the minority party often is relegated to a position of either adopting a proposal of its own, which is almost certain to fail, and/or playing an obstructionist role.
The second critical difference between reg-neg and the legislative setting arises with reg-neg's use of neutral facilitators. Although a facilitator is an enticing idea for keeping legislative discussion focused on an issue's merits rather than going off on politically motivated side-trips, it is hard to imagine how the concept might work in Congress. Problems would arise in appointing a truly neutral facilitator and in the potential this role would have for usurping some of the authority of the committee chairman and of the other elected officials. The third significant difference between the reg-neg and legislative processes is that the former seeks consensus on solutions and the latter utilizes a majority vote system. In Congress where only a majority of the vote is needed for adoption of a proposal, it may be unnecessary to consider all interests or to seek compromises which provide mutual benefits for all participants in the negotiations. The legislative system approaches more of a consensus orientation when a two-thirds majority is needed to override a presidential veto. But even here, there is one-third of the body which theoretically can be ignored.
One aspect of the reg-neg process which might benefit the legislative process is that of having all sides represented at a single meeting to define issues and discuss areas of agreement and disagreement. Committee hearings currently perform the function of allowing positions to be aired. However, the dialogue during the hearing process is only between committee members who attend the hearings and the testifying witnesses. There is no opportunity for a give-and-take exchange among all the interested parties. If such an exchange occurs at all, it is between the committee members where the political agenda may have a strong influence.
Although the reg-neg model does not work for general congressional negotiations, its interest-based bargaining orientation may be applicable for sub-negotiations. In fact, aspects of interest-based negotiations were used in the civil rights discussions during the Business Roundtable/civil rights community meetings and during the Michel task force meetings. The civil rights community initiated the talks with the Business Roundtable. The meetings were intended to give each group a better understanding of what the other wanted to achieve, what they felt was reasonable and, whether there was any potential for overlap . . . It was more a matter of a give and take of `what it [was] we [could] come up with that would reflect both concerns.' And, that worked very well. There were times in the process when hard line thinking popped up, but with the conviction that the objectives of each group could be met with some reasonable middle ground solution. There was always a willingness to look at ways to describe things that would reflect both concerns.
Aspects of interest-based techniques were used by the House Republican Michel task force as well. The task force first determined who the relevant interested parties for developing a Republican alternative included --- House Republicans represented by their members on the committees of jurisdiction, the Administration, and representatives from the business community. These parties then worked together to select the issues to be addressed in their bill and to negotiate an agreement on the final package.
The moral dialogue model proposes full and direct discussion of issues, with dialogue framed in moral terms and concepts. The rationale behind the model is that full consideration of moral and ethical issues is more conducive to the development of mutually satisfactory compromises than is avoidance of such emotionally charged discussions. Certainly, legislative bodies are not novices to highly emotional deliberations. But, their debates do not always facilitate satisfactory resolutions of conflicting positions. The moral dialogue model was proposed with this situation in mind. However, the research suggests that certain pre-conditions are necessary for the model to be effective. These conditions include the need for identification and discussion of all issues and for good faith intentions to negotiate mutually beneficial compromises. The latter condition will be addressed in Section C. Moral Process, which follows this discussion.
In the civil rights negotiations, the moral dialogue approach would have raised the foundational questions to the level of separate negotiable issues. Without it, there was a failure to address most of the foundational questions up-front, which may have prolonged the negotiations for an acceptable compromise. Four possible explanations exist for why these issues were not individually debated. First is that the players misjudged the need to negotiate. Second is that the foundational questions were seen as "non-negotiable" items. Third is that participants believed some or all of the foundational issues were irrelevant to the substance in the legislative proposals. And, fourth is that the civil rights issues were not "ripe" for negotiation until late in the game.
It is unclear whether the first explanation involves a strategical decision to avoid direct negotiations on the foundational questions or merely a miscalculation. The activists' original assessment was that President Bush would not veto a civil rights bill. As such, it was not necessary to discuss the philosophical basis for the legislation, but only the technical amendments it proposed. Emotional discussions of the foundational elements of the proposed legislation, such as the need to correct for both past and current discrimination and parity in damages, could be avoided.
A second possible factor for the lack of negotiation on the foundational questions is that they may have been perceived as non-negotiable items. The disagreement over whether race should ever be used as a factor in employment decisions appears to fall into this category for some of the activists and conservatives. Activists argue that preferential hiring helps workers who are disadvantaged because of historical discrimination and is needed to "shake-up" this discrimination status quo. Conservatives counter that race should never be used to advantage or disadvantage anyone. For these groups, these positions may be non-negotiable, and all the moral dialogue that might be offered will not change their stance. Issues also may be non- negotiable for reasons not related to the participants in the discussions. The issue of allowing jury trials in cases involving compensatory and punitive damages raises a constitutional question. With the decision being dictated by the courts, the question becomes whether or not to even allow for damages in employment discrimination cases. Once this is decided, the resolution of the jury trial question falls in line. Applying Benjamin's integrity-preserving compromise theory to the question of negotiability demonstrates how an agreement might be achieved even for issues that involve "non-negotiable" philosophical differences on moral foundational questions. Benjamin suggests that where compromising on a foundational issue may go against a negotiator's internal value system, the action still might be acceptable if it is in line with his/her external value system. This may occur in the public policy arena where responsibilities to one's community and the decision at hand potentially have a higher priority than do internal values. Some Members of Congress appear to accept Benjamin'sintegrity-preserving compromise theory. They are able to reconcile having to make personally difficult value choices when the compromise is in response to the need for externallyacceptable resolutions to societal problems. The view is that, "an agreement that is better on the whole . . . than it is bad, is overall a step forward for society . . . [that agreement is] an essential step in trying to make democracy work."
Further, there is evidence that such choices can be made without necessarily harming relationships and mutual respect. If the issue is one of "truly strong moral undertones, the Members will respect differences [of opinion]."
Of course, legislators do not have to agree to compromises on moral issues they view as non-negotiable. They may maintain their opposition. However, because of the legislature's majority vote process, opposing an action doesn't necessarily prevent a resolution, as it would in settings where consensus is necessary. Further, a non-cooperative position can result in the legislators giving up their ability to influence the process.
Another option for members of Congress is to offer an alternative legislative proposal that they support. This resolves the internal value system conflict and still fulfills the need to respond to the external values. The House substitute civil rights bills offered by the Michel task force, and by the Congressional Black Caucus and Women's Caucus are examples of this approach.
The third explanation of the lack of direct negotiations on the foundational questions is that they were non-issues. As mentioned earlier, some participants in the negotiations have suggested that the foundational questions do not relate to the legislative proposals in the 1991 civil rights legislation. But, that view is not universal. These foundational questions were raised when amendments disallowing the use of affirmative action were offered to two other bills. Senator Jesse Helms [R- SC] proposed the amendment to the Violent Crime Control Act of 1991 in June, 1991, and to the Labor/Health and Human Services appropriation bill in September, 1991. During the debate, there was a significant amount of discussion on the foundational issues of whether preferential hiring may be appropriate in some circumstances and on the intent of the original Civil Rights Act of 1964. However, the arguments frequently suggested that the appropriate legislative vehicle for Senator Helm's amendment and this debate was the pending civil rights legislation.
The final possible reason for direct negotiations being avoided on the foundational issues is that they were not "ripe" for compromise. "Issues have to be known and ripe for decision. Negotiating is tough work, and people tend to put off decisions they do not have to make. So the issues need to be crystallized."
Two factors may have made these issues not ripe for compromise in the early stages of the negotiations. One is that there was little grass-roots support expressed by voters for passage of the civil rights bill. The other is that the issues were not "crystallized". The lack of constituent support can be a death knell for a legislative proposal. Where voters aren't interested in a proposal, and no emergency demands action, legislators are likely to require a more complete match of the proposal to their beliefs before they will support it. When there is open opposition expressed, such as with the "quota charge," it becomes much more difficult to bring people to the bargaining table. The second factor in the foundational questions not being ripe for negotiation may have been that they were not crystallized. Without a clear picture of what was in dispute, issues were merged. Discussions of foundational questions occurred as part of the dialogue on specific technical issues. For example, dialogue did not focus on the breadth of the problem of employment discrimination and the related strength of the laws to combat it. Such arguments were broached only in conjunction with the proposed burden of proof standards or in relation to the suggested expansion of Title VII remedies. There was no debate over what progress has been made in eliminating discrimination since the original Civil Rights Act of 1964, or over the size of the problem remaining. There was no discussion of whether the most prevalent kind of discrimination today is intentional discrimination or disparate impact. And, there was not a discussion of whether the approach of the 1964 Civil Rights Act is still appropriate for today's problems or whether new tools are needed.
The one issue where there was some crystallization of the foundational issues was the question of parity of damages for victims of employment discrimination. The pros and cons of this issue received generous discussion. The fundamental question of whether there should be parity was key to most exchanges. Counterarguments, such as expanded damages leading to more lawsuits rather than to conciliatory efforts and quick resolution of problems, were also related to the foundational concerns. The dialogue on the foundational questions was open and direct. And, as differences were expressed, it became clear that a compromise of limited expanded damages, rather than full parity, was the most mutually satisfactory resolution.
After almost two years, the atmosphere in Washington, D. C. changed. What were previously intractable conflicts suddenly became issues "ripe" for compromise. Practical, political realities were the main impetus for the compromise. The disputes were not resolved because an agreement was reached on the moral and philosophical issues. Rather, the driving force appears to have been concerns over future elections and the danger of one party being seen as anti-civil rights and the other party as proponents of quota hiring.
It is difficult to have the moral dialogue necessary for this model when moralism is relegated a lesser role than political concerns. Whether other legislative deliberations might utilize the model is questionable. Politicians and the lawmaking process are not devoid of moral and ethical convictions. But, politics cannot be totally severed from the deliberations on any issue in the legislative process, as elected officials must be responsive to their constituents' wishes. Further, the power struggles inherent in the legislative system leave many lawmakers with one eye on their political self-interests. The nature of the process, therefore, appears to preclude a pure moral dialogue model from being used in most legislative deliberations.
A moral process is as much a concern to the moral dialogue model as is the framing of the issues in moral terms and concepts. The process requires good faith negotiations that consider all parties' interests, that promote mutual respect, and that preserve relationships. The civil rights negotiations failed in certain areas to satisfy the standards for a moral process. One key area is where foundational questions were not a part of full and good faith discussions. These exchanges may have been precluded by the use of the adversarial approach in the general deliberations. The activists were said to have taken a "litigative stance" toward the discussions. And, the conservatives, did not always attempt good faith negotiations. "[S]ome people in the Republican party saw [the quota charge] as a good political issue and didn't want any bill at all."
Because basic foundational issues were not raised first, establishing positions on the technical issues essentially put the cart before the horse for some phases of the negotiations. An example is the burden of proof debate. Before a decision could be made on what proof standards to require in disparate impact discrimination cases, agreement was needed over whether the plaintiff's interest was paramount or equal to the employers' in cases of unintentional discrimination.
The cart-before-the-horse problem might have been eliminated if the groups had made use of issue-framing. Through this technique, it would have rapidly become clear that there were two key disputes. One was over how forcefully to apply the law to unintentional, disparate impact discrimination through the burden of proof standards. The second involved concerns that expanded remedies in Title VII would begin a conversion of the labor laws into "tort laws." Revealing where the foundational differences lay would have set the stage for direct and full negotiation of the issues. Parity of damages, which was a priority for some but only a factor among competing concerns for others, may have seen a quicker resolution than occurred. It may then have pulled along with it, an agreement on the burden of proof requirements. Or, if it had been made clear that the quota charge was a symptom of an underlying dislike of the concept of penalties for unintentional discrimination, the quota charge may have been defused by direct dialogue on the underlying interest. As it played out, the quota charge was a major factor in the two-year delay of the agreement.
Disagreements over the foundational and technical aspects of the civil rights bill were coupled with political concerns and motivations. The latter concerns seriously undermined good faith negotiating. For example, the 1990 Kennedy-Sununu side-bar discussions were opposed by some as they created apprehension about the up-coming election. If an agreement had been reached, it would have put some Republican House members in the predicament of either having to stand by their original opposition to the legislation or to switch in mid-stream. The Republicans were uncertain how either action would be received by the public.
Another torpedoing of good faith negotiations resulted from the exploitation of the civil rights bill for election purposes in 1990, by Jesse Helms [R-NC] in his United States Senate reelection campaign and by Pete Wilson [R-CA] in the California governor's race. But in the end, it was political concerns which spurred final agreement. Both parties were aware of the long- term political risks from a continued fight on this issue. For the Republicans, there was the ramifications of opposing civil rights legislation. For the Democrats, it was the implications of supporting a quota bill.
Another area where the moral process broke down was with the efforts of the House Democrat Leadership, in 1990, to prevent Representative LaFalce from offering a compromise civil rights bill. The strong-arm tactics which reportedly were used on Mr. LaFalce, and on the southern Democrats supporting his efforts, are not characteristic of good faith negotiation. Nor, are such maneuvers conducive to the preservation of established relationships and mutual respect.
But, the civil rights negotiations were not completely devoid of examples of the use of a moral process. At the subgroup level, when the various groups caucused, all of their members' interests and concerns appeared to be considered. Consensus building efforts were made in the search for mutually beneficial positions. And, during the Danforth group's efforts to draft a moderate civil rights bill, a moral process was followed. The Danforth venture used the ADR techniques of ombudsmen and factfinding. Their strategy was that of "introducing something, listening to concerns, not negotiating, and introducing something else." The Danforth group played a factfinder role in seeking out information from all interested groups. It then put on the ombudsman cap and introduced the S. 1400 series package, taking the position that the legislation was the best moderate proposal the group could come up with. During the later stages of the civil rights negotiations, the Danforth strategy involved some brokering as well as factfinding and ombudsman work. Along with Senate Minority Leader Robert Dole [R-KS], the Danforth team met first with White House representatives and then with the Senate Democrats led by Senator Kennedy. Proposals for a compromise were ferried between the two groups to try to determine the perimeters of a possible agreement. The end result was acceptance by the White House of expanded Title VII damages in exchange for moderations in the activists' proposed burden of proof requirements. For the activists, their concessions to the White House were accepted in return for a final package that satisfied most of their concerns.
One final comment needs to be made on the sidebar negotiation tactic used in the Kennedy/Sununu meetings during the 1990 conference committee process. This tactic fits well within the moral process definition if the negotiating parties agree to its use. However, as discussed above, the tactic was criticized by House Education and Labor Committee Chairman Gus Hawkins as being inappropriate because it involved the White House rather than members of Congress. Senator Nancy Kassebaum expressed disapproval of the negotiations because they "left all the Republicans on the [Senate Labor] Committee out of [thediscussions]." A moral process assumes full and open debate, which suggests the inclusion of all interested parties either directly or through an approved representative process. Where side-bars are not agreed to by other negotiators, they do not meet this standard. Where they are, a sidebar strategy may be employed successfully. The Danforth/Dole meetings with the White House and Senator Kennedy's group can be characterized as successful sidebar negotiations.
Public policy has been defined as "community common sense and common conscience, extended and applied throughout the state to matters of public morals, health, safety, welfare, and the like." In other words, moral conflicts of substance and process surround a significant majority of the questions with which a legislature must contend. As a deficiency exists in case studies which apply conflict resolution theory to the public policy making process, this research proposed a study of the congressional negotiations surrounding the 1990 and 1991 civil rights legislation.
A literature review was made of theoretical and congressional writings in this area, and interviews were conducted of participants in the civil rights negotiation process. Two ADR models were proposed for analytical purposes. One was the Federal negotiated rulemaking model (reg-neg), and the other was a moral dialogue model. Information gathered from the research and analyzed against the models suggests that ADR is used in some stages of congressional negotiations. However, the general negotiations between opposing sides of issues tend to involve adversarial positional bargaining.
The research shows that use of the reg-neg model in general congressional negotiations is precluded by critical structural differences between Congress and the federal agencies. The elected positions of members of Congress, the political nature of the institution, and the majority-vote rule, all place unique constraints on congres