Legal Research on Congressional Record S6920-S6921

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s 6920

bringing the balanced budget ap-
proach this far. Ever since he has been
here. he has spoken of fiscal restraint
and has backed up his words with his
actions.

There are very few people in the his-
tory of the Senate who will deserve
more credit than Senator THURMOND
or Senator Hana? F. Bran. JR.. for the
work that they have done in this par-
ticular area

. imam.-.“ .lnathat- regard. I am pleased to

report to the Senate and to the public
that today we added the 60th cospon-
sor to the balanced budget amend-
ment. I am very grateful to the 60
Senators who have agreed to cospon-
sor this amendment.

' I am also grateful that this has been .

a genuine bipartisan effort. led by
Senators DsConcnn. Hanan, Bonn,
MELCHER. and others on the Democrat-
ic side of the aisle. I wish to see this
amendment brought to fruition. I wish
to see it passed. I think we will pass it.

I believe that. for the first time in
history, not only will we bring this
amendment to the floor but we will be
in excellent position to pass it on the
floor of the Senate.

I believe if we pass it here the pres-
sure will be on the House of Repre-
sentatives to bring it to fruition over
there as well; I believe we will be able

to pass it in the House of Representa- _

tives as well.

Mr. President. back to the matter at
hand. On Tuesday, the Senator from
Massachusetts. my friend and col-
league. stated in the Rsoonn that the
proposed compromise in section 2
“speaks for itself." He then went on to
say. making clear in the process that
the amendment does anything but
"speak for itself." that Judges should
confine themselves in their Judicial in-

terpretations to “listening to those

who were the principal sponsors of the
proposal.” 4 - ~

Indeed. the distinguished Senator
from ‘Massachusetts directs the court
to consider primarily the statements
of himself. Senator Marinas. and Sen-
ator Dots.

At the risk of improperly injecting
the other 97 Members of this body in
the legislative process; where is it writ-

.ten in the Scriptures that museum.
“summation is restricted to the’state;

ments
posal? .
Let me- also suggesvthat since the

of the formal sponsors of a pro-

so-called meennedy-Dole pro-
: sepossl was-'a compromise that there
9' -~—::—'—-nsust have been two'sides involved. If
‘ - there hadnotbcen aneed foracom-

,:. promise'then I can assure the courts

‘ that this would not

=>_in_the_.l_udicisry.Committee. It is fine

 

to listen to one side's interpretation of
I. compromise. but let us not forget
that there were two sides involved.

Let me also suggest that there were
14 supporters of the compromise in
committee and 1'! supporters of the
legislation con this compro-
mise. I can appreciate why the Sena
tor from Massachusetts would prefer

,asasubstantivechange.-. --

have taken place,

CONGRESSIONAL RECORD — SENATE

that the courts would pay his state-
ments more heed than other state-
ments. I can also appreciate why he
would prefer that the court would re~
strict itself to needing the interpreta-
tions of Senators who share his own
interpretation. The fact. however. that
I can appreciate the Senator's interest
in doing this has nothing to do with
the question of whether this is the ap-
propriate process for Judicial interpre
tation'. I think It is not." ' ‘

Let me reemphasize a few basic
points of legislative history. since my
distinguished colleague has demon-
strated such a keen interest in guiding
our judiciary to a proper interpreta-

- tion of this statute. Further citations

to these points are contained in my
“additional views” at pages 104 and
105 of the report. I would emphasize
for the Rscoan that they are not “-1111
nority views” as much as the Senator
from Massachusetts might prefer that
they were.

Point No. l. The proposed compro-
mise does represent a change in lan-
guage from the House provision. a sig-
nificant change in the view of many
Senators. This change was neccssitat-
ed by an effective deadlock in the Ju-
diciary Committee on the House lan3
guage. Although I do not personally
view it this we. . the new language was
designed by its sponsor as a compro-
mise and was clearly and unmistake-
ably supported'by a number of mem-
bers of the committee in the same
vein. The compromise. most pointedly.
is not merely a change in word formu-
las stating the same proposition. It
was marketed as a substantive change
in committee. ~and supported by a
number of members of the committee»
2. The change in language
in section 2 clearly emerged as a result
of concerns that the House language-
would promote the‘ concept of propor-
tional representation by rsce.- This
concerh was a central theme of Senate-
debate despite a disclaimer in this

--regard in the House provision. and it

was‘a central theme of Senate debate A
despite language in the House report
precluding proportional representa-
tion as either a right or remedy under
the amended-section 2. Despite this‘.

language; the concern about propor-
tional represen

tion dominated the
Senate debate. d. necessitated. the
proposed Senate mpromhe. There is ,
no other way to interpret-the new lair-l,“
guage other thanto recognise thatit:
attempts to strengthen even these pro.
“3333:“: ”Indeed.‘ ”that: 1"“
-, o. . . aspect o
the. proposed language that is the;-
most clear is-that'relating'to the pro:—
hibition upon proportional representa-
tion. This is. by far. the clearest part
of a legislative provision that is gener-
ally confusing and contradictory.
Whatever my own concerns about the
success of the effort. there can be
little doubt that it was the clear intent:
of a significant number of supporters
of the new language to absolutely and

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June 1?; 1.98;

unequivocally preclude proportions
representation. Virtually everyone. 01
either side of this issue. alleged opposi
tion to proportional representation.
Most pointedly. there is absolute):
no indication that they chose to adopt
the somewhat dubious definitions oi
proportional representation adopted
by individual Members of this body.
Point No. 4. The author of the com-
promise stated expressly that propor-
tional representation was not pre-
cluded as a remedy in such language
because it was'unnecessary and that it
was a well established legal prinicple
that remedies must be commensurate
with the violation established.
This» concept is reiterated in the
committee report.
. Point No. 5. The committee rtis
explicit in its rejection of the ws of
the Subcommittee on the Constitution
with respect to the subcommittee’s—
and my own—interpretation of the op-
erations of the results test. I sincerely
hope that my own predictions about
the results test are totally wrong.
Point No. 6. The committee report
could not be more explicit in its adop-
tion of the standard of the Supreme
Court in White against Regester. It is
this test that has repeatedly been of.
fered in definition of the results stand-
ard by proponents ,of the test during
subcommittee hearings and by con-
gressional proponents of the standard.
There are significant differences with
respect to this standard as evidenced
by the Supreme Court's decision in
City of Mobile. Indeed. there is ab»
lutely no indication that White is not
currently the law of the land never
having been over-ruled by the Court in
City at Mobile or in any other deck
sion. Instead of expressly adopting
some gmerally undisputed legal stand.
ard. the committee has chosen to en-
shflneinthelawtheWhitecssere-
plete with its apparent inclarities and
ambiguities In other words. the come
mitteee has chosen to adopt
with a history—1811mm that has al-
ready been suffused with some meanp -
ing by the Court—rather than venture
with that was capable of
standing on its own and being inter-

preted de novo. 'ro the-extent-thatr

they hm explicitly anchored this lan-

mm to White—and that point is far
clearer in the committee debates on 3
this lane than even in the committee --
. are obliged to recognise
thisandtoappreciatethatCongresav-»
for better or worst—chose to incorpo- .
rate themselawofWhiMofiis‘i
case law—in rendering meaning to the» "
new mm language, Given; the: ._
committee's decision to define the new
test in terms of White. the committee
report ironically is reduced substanr
tially in importance. .
Point No. 7. Despite the results lana .
guage. many proponents of the new
test continue to speak in terms of)
equal access to the electoral ’ '
As the author of the compromise re-
marked during consideration of the

  
   
     
 
   

'7 '“ . “We are talking about access

' E.
fi’i’j ' No. 8. Proponents of the re-
" "-“ including the author of the
. have consistently empha—
least during Senate hearings.
House hearings—that the re
5‘. ‘mt represented something sig-
.. .tly different than the effects
" currently applicable to section 5.
‘ ~ L9.11; response to a ques-
g ' a far as whether. a community
'm at-large system could be found
' :"1 ‘lation of the new test if another
,‘ "' unity possessing Identical char-
- gas. except for the ‘at-large
r found not to be in violation.
1.. *“flrtbor of the compromise indicat-
.. "It was not my intent that
t: ' . happem" The clear implication of
I” " statement is that the existence of
~at-large system will not by itself
‘rP-«orm a lawful system of govern-
.... into an unlawful system of gov-
“Intent.
- ~ . ut No. 10. While the House
-, clearly rejected the idea of re-
mveness of public officials as a

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in determining the existence of
,. ... . tion under its test. the pro-

—: amendment avoids highly sub-
- factors such as responsiveness
‘eiected officials to the minority
unity. the committee report ex-
_ r recognizes its untility. The
-thor of the proposed compromise
‘ . during committee consideration
the fact of unresponsive elected
was a fact to be considered by
. . Unlike the House test. it is
(Lg-leer that there is not the hostility to
'. consideration of subjective factors

“1'5 ' theSenate. '
., Point No. 11. In response to

 

   
  

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8 ques-

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. compromise amendment upon
it”. tive districting. see subcommit-
1 “ye report at footnote 235. the author
2.01 the amendment expressly indicated
' _ Wment with the contention
.1 _ neighborhoods characterized by
4’ large numbers of racial minorites were
:‘ somehow exempt or immune. from
;,normal efforts to secure partisan or
=— ideological advantage through so-
~ called gerrymandering. The implica-

: tion of this statement would seem to

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comm""‘ " iiiiitim to“ maximize the. influ-‘
ence of minorities. but‘ simply. to treat

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4 “class" of citizens that are singled out
‘ for protection under subsection (a) of

Voting Rights Act. as a codification of
7: the 15th amendment. has always pro-
' vided guarantees in the area of voting
to all individual citizens not "protect-
ed classes." Even to the extent that
, ’_ - the amended section 2 intends to sepai

rate itself from the 15th amendment.
it fails to providefor explicitly "pro-_‘
tected groups". It is altogether unclear

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i:

“than; ,

‘ concerning the impact of the pro-_

‘ brunt there is no obligation upon.

them fairly. That B; an important ims.

.. -_Point-No. 12. The aniendinent refers »
. . . legumes. beinz extended to I;
w “class of citizens protected by subsec- ‘
i tion (a)". So far'as I know, there is no ..

'the“"amendment.‘ Section -.2...°1,_ the»

CONGRESSIONAL RECORD - SENATE

what this clause in the disclaimer is in.
tended to mean. except that citizens of
the United States have the right to
participate in the electoral process and
elect candidates of their choice. This is
doubtlessly true and doubtlessly a rea-
sonable policy.

It is because I truly do not believe
that the proposed language in section
2 tracks the intent of many of its pro-
ponents, despite their sincerity. and
because I do not believe a results test
in any form can track such intent.
that I oppose the test.

In conclusion. Mr. President, I be-
lieve that these are important andrel-
evant factors that will have to be eval-
uated by a court interpreting this pro-
vision. not simply the after-the-fact
statements of the three Senators in~
voked by my colleague from Massa-
chusetts. ’ ’

There are 100 Senators involved in

this process. not simply 3. I would

remind my friend from Massachusetts.
As majority floor manager. subcom-
mittee chairman. and a supporter of
the Voting Rights Act. I do believe
that my own comments might be de~
serving of at least a bit of considers.
tion. as well. I believe every Senator
feels that way. Neither the Senator
from Massachusetts nor any other
Member of this body can appropriate-
ly create a totally selectiVe legislative
history.

Mr. HATCH. Mr. President, I yield
the floor. ' ~-

Mr. BRADLEY addressed the Chair.

The PRESIDING OFFICER. ‘The'

Senator from New Jersey.

Mr. BRADLEY. Mr. President. I will
notspeakatlengthbutlthinkl
should Just make a few comments
before suggestinthe amence _.0L,,!
quorum. '

Mr. President, this issue. in my view.
is one of the most fundamental ones
that the US. Senate will deal with. It.
concernsourcivilrights.ourmostim—
portant civil right. the right to vote,
the need to enforce the 15th amend-
ment of our Constitution .

This is a process that was intensified

in the'early 1960's, in 1964. with the”

passage of the Civil Rights Act. a pas-
sage that I witnessed as a 19-year-old
intern in that corner of the.U8.
. Senate.

derstand why 2'1 voted

rs
against the Civil Rights of 1964.
whilelwascomfortedtha 73dld.
posedrby a voteyof'*'ls- to lib-The
tension of the Voting Rights Act.

ham been extended in 1970 and 1975 .

as well. the vote on cloture was 86 to 8.,

those who would oppose the enforce-
ment of our Constitution and the civil
rights for all Americans had decreased
from 2'! votes in the 0.8. Senate in
1964 to 8 votes in 1982.

Mr. President. not only has the 0.8.
Senate moved in the direction of a

‘- greater enforcement of our civil rights.

' but so has the House of Represents.

 

Anddnthat day. I did notrunm- to the procedural rightaof themi'nmu- ‘ “rig.

In 1968, the VotlngRig ts Act was
.. M 7 _- Senate'and‘the-wm ‘0': the Nation 0:12:73"
other day snow on cloture on the'er-r ‘

Soever thatperiod of nearly-myears.‘

S 6921

tives which supported this measure 20
to 1. and so has the President of the
United States who supports this meas-
ure. And yet there are those in this
body. eight Senators. who continue to
debate and discuss the issue. as they
have every right to. and who say they
will be willing. under certain circum-
stances. to cease that debate in com-
promise.

_ Mr. President, it seems to me that if
you compromise; you’ have to have a " _
certain strength that allows you to
compromise. That vote on cloture last
week. in my view. eliminates any ques-
tion of compromise. So we will pre-
serve the rights of every Member of
the US. Senate. as is critical to the
functioning'of this institution. to use
every» means that they can to talk.
talk. talk—a verbal sit-in. as the Sena-
tor from Missouri called it. But that
time will expire. whether it is this
week or next week or 6 months from
now. And when it does expire. the
Senate will work its will and it will
support this measure and this measure
will become law and the President of
the United States will sign it. Because.
Mr. President. the country has gone
toofutotumbachbecauseitisthe
will of the people of this country that
we enforce the civil rights of our citi-
zens and in particular the 15th amend-
ment, of the Constituflon.

When we do get to debating the
merits of the bill, when we get to de-
bating the bill as opposed to the
motion to proceed the bill—which 3
again a tactical method chosen by the
eight minority Members of this body
who seek to prevent the Senate from
working its will—when we get to that
point. we will express in no uncertain .
termsoursupportforthisbilLWherrr-
we get beyond the motion to proceed. i
wewillbeabletodebateinsosne~
greater depth the three or four'points
that the opposition has continued to
make over and over. and I would say if
this debate goes on further and fur
ther that we will almost be debating it"
byrote."

So, Mr. President. I will refrain min
making a longer statement until we
have reached the point where we are _

discussing thebill esopposedg, _

ity. which we all agree have to be pro-
-tectedevenif.inmyview.asone6an-

tor. andin theviewofu other-Senor »_
‘ tors. they do- thwart‘the‘will of the;

    

this imue. andrthere ire-“franklyr‘no €~—--~ warn
_ more critical issue incur Nation today. "
Isuggest—theabsenoeof'aquorum. 1‘. . .. .
The PRESIDING .omcm. '11:: . .
’~ clerk wiii'callthe'mnr~.—-~— _. hug; :__. ;._
Ehe bill clerk proceeded to can the
re . . . , . .- .
Mr. BRADLEY. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded. -
The PRESIDING OFFICER (Mr.
Damon). AWithoutV objection, it-is ms.
ordered. - -. .. : —~ )~ » '-

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