An Idea Whose Time Has Come: A Comparative Procedural History of the Civil Rights Acts of 1960, 1964, and 1991

Article excerpt

The congressional enactment of legislation involves many elements. Some are well known and well publicized: the clashes of personality, the cautious attention to public opinion and political ramifications, and the place of a bill within the larger political agenda of an administration or a legislature. Less visible, but no less influential, are the procedural mechanisms relied upon by members of Congress to transform a legislative aspiration into a binding law of the United States. A full analysis of the legislative process requires an understanding of the ways lawmakers use procedural tools to outmaneuver one another. Furthermore, procedure can be especially critical in the passage of legislation that addresses controversial issues such as race and civil rights, for legislators can escape public criticism or accountability by using procedural intricacies to mask the content of particular votes or committee recommendations. As Charles Tiefer, Deputy General Counsel to the Clerk of the House of Representatives, asserts, "Congressional procedure is the language of legislative action; its central aspects . . . have at least the meaningfulness and the importance--if not more--possessed by civil procedure as the language of the courts and international law as the language of diplomacy."(1)

Despite congressional procedure's important effects on the passage of bills, laws are frequently analyzed without any discussion of their procedural histories. Almost every published study of the Civil Rights Act of 1991(2) overlooks entirely the procedural events in the bill's evolution. Given the remarkable political events surrounding the Act's passage, perhaps it is not surprising that the few existing discussions of the bill's procedural history seem to begin and end with two names: Anita Hill and David Duke.(3) Yet such a concentrated focus on the public political events of autumn 1991 ignores the vital procedural mechanisms that directed and shaped the 102d Congress and the 1991 Civil Rights Act. This Note uses the procedural history of the 1991 Act to demonstrate the power of congressional procedure in shaping legislation.

We cannot fully understand the passage of the 1991 Act without studying its procedural history; neither can we understand that procedural history without an examination of the origins of the procedural rules that shaped it. Many of the rules under which the 102d Congress operated were the products of significant procedural reforms of the 1970's. As numerous studies of Congress and legislation in the 1960's and 1970's demonstrate, these reforms grew out of the dissatisfaction of liberal members of Congress with the disproportionate power of Congress' "conservative coalition,"(4) which had greatly obstructed the passage of measures such as the Civil Rights Acts of 1960(5) and 1964.(6) The ensuing liberal procedural reforms diminished the power of the conservative coalition by weakening the political power of its Southern Democratic members through changes in the seniority and committee leadership systems, cloture rules in the Senate, and the composition of the House Rules Committee.

This Note analyzes the procedural history of the Civil Rights Act of 1991 in comparison with the procedural histories of the 1960 and 1964 Civil Rights Acts in an effort to highlight the procedural reforms that took place within Congress in the intervening years and their impact on the passage of legislation. Because the 1991 Civil Rights Act had direct analogues in 1960 and 1964, it provides a useful test case for comparing two eras of legislative activity to see whether the procedural reforms of the 1970's made a difference in the passage of legislation. Part I of this Note recounts the procedural history of the Civil Rights Act of 1991. Part II describes, more briefly, the procedural histories of the Civil Rights Acts of 1960 and 1964. Part III focuses on specific procedural reforms of the 1970's and their impact on the 1991 civil rights legislation, through comparisons to the procedural maneuvers of 1960 and 1964. …