Drafting and Introduction of the Original ADA Bill - Part 14

Negotiations and Tumult over Acceptable Elements of the Bill

After forestalling a potential “showdown” in my meeting with CCDD Rights Task Force representatives toward the end of October, I was eager to begin negotiations to nail down compromise language averting concerns and firming up disability community support for the ADA proposal. I met informally with Senate staff members, CCDD representatives, and other disability rights advocates. To the extent that I imagined smooth sailing in ironing out the details and quickly reaching a consensus approach, I was soon disabused of that illusion. The days that followed were a blur of meetings; proposals and counter-proposals; arguments over large and tiny differences in legislative phrasing; and debates over philosophical issues, political strategy, and wording choices. I accumulated several folders full of chunks and fragments of alternative legislative provisions and suggestions – some handwritten on the margins of drafts of the proposed bill, some in typewritten form, and some scribbled on whatever scraps of paper happened to be around. There were suggestions for additions and deletions, and many for substitute language. I tried to take note of proposed changes that made sense and incorporate them into legislative language for further consideration; my underlying goal was to keep control of the legislative drafting as much as possible. Accordingly, a sizeable portion of the piles of papers from that period was comprised of my drafts and redrafts of assorted provisions that might be incorporated into the bill. At times, the heap of written bits and pieces reminded me of the jumble of phrases, ideas, and themes jotted down sporadically on random scraps of paper by some songwriters and other writers with the expectation that they may become part of a future line or refrain.

Negotiations and drafting efforts were hectic. With a quarterly meeting of the National Council coming up on November 16-18, pressure was on to have a revised draft of the bill ready by that time for consideration by the Council. Meetings, usually on Capitol Hill, occurred several times a week. Revisions were being recommended almost daily, and I was hard pressed to keep up with putting them in proper form. By October 29, 1987, I had in hand a draft that included the principal changes that I had discussed with the CCDD representatives. Lex was scrupulous about keeping Mrs. Parrino apprised of progress in the negotiations, about which she had reservations, and Lex directed me to share with her the October 29^th draft. I attached a handwritten note to her reading as follows:

Dear Sandy,
Enclosed is a redraft of the Council’s bill incorporating the proposed changes. I hope this gives you a more concrete idea of the suggestions. Terry {Muilenburg] and Bobby [Silverstein] have both looked at it and agree that it covers the concepts.
I hope to get a chance for a detailed discussion with you as to your reaction.
All the best,
Bob

As we arrived at tentative accord on changes, the revisions were passed on to the Legislative Counsel Office, which would produce an updated version. In the week before the Council meeting, the Office of Leg. Counsel delivered versions on three consecutive days – November 10^th, 11^th, and 12^th reflecting daily modifications. The upshot of all this activity was that the November 12^th draft was a rendering of the bill that incorporated suggested changes that I believed I could live with and present to the Council at the November meeting. With that version in hand, I wrote a memorandum to Council members about discussing possible changes to the bill at the meeting four days later. I enclosed the October 15 Council’s draft ADA bill (that had been discussed at the two previous Council meetings), and the November 12 Legislative Counsel’s Office version that included proposed revisions that I described as “changes recommended by Senatorial staff, disability rights attorneys, and representatives of (primarily) Washington-based consumer and service provider organizations.” As “the most significant difference between the two versions,” I identified the following:

the earlier draft included coverage of the Federal Government, Federal contractors, and Federal grantees, in addition to public accommodations, housing, transportation, employment, and activities of state and local governments, while the later draft takes what I call the “doughnut approach” and covers the latter types of discrimination but does not address areas discrimination already encompassed by Sections 501, 504, and 504 of the Rehabilitation Act.

I hastened to add that “[t]here are a number of other changes, but many of these represent what I believe are very useful and prudent clarifications and elaborations that are consistent with the intent of the earlier draft.”

I underscored that the changes in the language were to be discussed in detail in the Monday November 16 afternoon session of the Council meeting. I informed the members that Chairperson Parrino had requested staff to prepare “a side-by-side type of presentation of the two versions of the bill, along with an explanation of the any changes” for the meeting, but added that we were sending out the two versions ahead of time so that members would have the opportunity to read them before the meeting. I closed the memo with a declaration that “[w]e look forward to a full discussion of the bill, its changes, and status at the Council meeting.”

Somehow, with a lot of assistance from Dr. Farbman, we managed to assemble the “Side-by-Side” in time for the meeting. Side-by-Side comparisons are used fairly often on Capitol Hill, particularly for contrasting differing versions of bills passed by the Senate and House, and they have systemized the process. But at the Council, we had never created such a document, and at that time it had to be done in literal “cut-and-paste” style with scissors and adhesive. So we cut up the two drafts, and matched up the corresponding provisions (the Council’s October 15 draft on the left and the November 12 version on the right). In the middle we left a column for “explanation” where I wrote concise descriptions of the ways in which they differed. The side-by-side document turned out to take 53 pages of 8½-by-13 paper (landscape layout), and proved to be very helpful in walking the Council through the changes.

As if compiling all of the proposed changes to the Council’s version of the legislation and brainstorming rationales for or against them, and constructing the Side-by-Side were not enough, in those last few days before the meeting we also needed to complete work on a substantial Briefing Book to be distributed for the ADA discussion. Again with Andi’s considerable help, I managed to finish it in time, and it proved to be a pivotal collection of documents both at the meeting and after. It was comprised of seven documents: (1) pertinent recommendations from Toward Independence proposing enactment of an ADA; (2) a one-page summary of the ADA proposal; (3) the November 12 draft version of the bill; (4) a section-by-section summary of the draft bill; (5) a list of “talking points”; (6) a 12-page list of sample questions and answers about the ADA; and (7) the Toward Independence Appendix paper on Equal Opportunity Laws providing a rationale for and key elements of an ADA. The summary, talking points, and Qs-and-As were particularly significant additions to the body of ADA advocacy documents, and the full content of the Briefing Books were valuable reference sources for the Council and others.

As part of my final preparation for the Council meeting, I reviewed the Side-by-Side, counted the proposed modifications, and found there were 39 of them. They ranged from minor cosmetic alterations to some more substantial ones.

The members of the Council had suggested some of the proposed changes. After having further thoughts or insights on my own, noticing mistakes or typos, or being enlightened by the comments, suggestions, and criticisms we had received, I had initiated some of the proposed revisions myself. Very significant ones derived from my tête-à-tête with the Rights Task Force of the Legal Committee of CCDD representatives in September: (1) removing the federal government, recipients of federal financial assistance, and federal contractors from coverage of the bill; (2) removing requirement of additional regulations applicable to federal contractors and recipients of federal financial assistance; (3) including a provision limiting the effect of the bill on Section 504 and its regulations; (4) removing provision stating that Section 504 regulations would remain in effect until superseded, and that new regulations could not provide lesser coverage; (5) adding a provision specifying that regulations in Title V of the Rehabilitation Act (Sections 504, 503, and 501) shall remain in full force and effect; (6) adding a provision clarifying that special programs for people with particular disabilities are permitted; (7) inserting language from Section 504 regulations on preemployment inquiries, physicals, and confidentiality; and (8) tracking language from Title VII of the Civil Rights Act, and expressly cross-referencing Title VII provisions.

Among the most noteworthy of other alterations to be considered by the Council were:

• Defining “on the basis of handicap”;
• Expanding the definition of “reasonable accommodation”;
• Deleting coverage of insurance;
• Covering indirect or unintentional acts having the result of discriminating;
• Prohibiting discrimination because a friend or family member has a disability; and
• Placing the burden of proof on agencies or service providers rather than on complainants.

The session on the afternoon of the first day of the meeting on Monday, November 16^th, at which the changes were discussed and voted on, was grueling. Relying heavily on the Side-by-Side, the members went through the 39 changes one by one. For each suggested alteration, I gave a brief description of what the change was, often with a concise statement of the rationale underlying it. For changes the Council members found complicated, abstruse, or controversial, they usually asked for my opinion. Then the members, to whatever extent they wished, asked questions, stated their positions, debated the issues, and then voted on each proposed alteration. The tenor of the meeting became testy at times, as some Council members were resentful of outside criticism of the prior version of the bill. I tried my best to explain the purpose and significance of each change. When my opinion was asked, I was supportive of most of the proposed alterations. I was acutely aware the changes I had suggested to the CCDD Rights Task Force in response to their concerns, in the hope of getting support for the Council’s ADA proposal from the Washington disability interests, were highly significant.

In the end, after considerable hand-wringing, the Council voted to approve 34 of the 39 proposed modifications, which I thought was an impressive indication of the members’ goodwill and openness to other perspectives. And yet, four of the five changes that the Council had voted down were central to the compromise I had been trying to wangle with the CCDD folks. Those changes were integral to my “doughnut approach” of ensuring that Sections 504, 503, and 501 and the regulations implementing them would not be at risk, through carving out of the bill’s coverage the things already covered under those Rehabilitation Act provisions. The rejected changes would have removed programs and activities of the U.S. government, federal contractors, and recipients of federal financial assistance from the proposed ADA; taken out a requirement for issuance of regulations covering them; added provisions mandating that nothing in the ADA would affect or change nondiscrimination protection under the Title V of the Rehabilitation Act, and that regulations under Title V would remain in full force and effect; and eliminated a provision that Section 504 regulations would “unless and until such regulations are superseded by regulations under the [ADA].” The fifth modification that was voted down would have explicitly provided that special programs for people with particular disabilities are permitted. This provision was intended to clarify that providing services or programs for people with a specific disability, e.g., cerebral palsy, deafness, or autism, would not be prohibited. Some members of the Council, however, wanted the stress to be on making generally available services and programs accessible to people with disabilities, and avoiding shunting people off to “special” activities and facilities.

Several of the changes that were approved by the Council did conform to the wishes of the CCDD Rights Task Force. Examples were the inclusion. in the statutory language of the ADA proposal, Section 504 regulatory language regarding preemployment inquiries, physicals, and confidentiality; using terminology found in Title VII of the Civil Rights Act of 1964; and removing coverage of insurance from the bill’s purview. The latter restriction of coverage was begrudgingly acceded to by the Council, after Washington insiders said (with realpolitik certainty that pragmatism trumps principle) that Senator Weicker, representing Connecticut, where many insurance companies are headquartered, could not allow the industry to be the subject of federal regulation. Discrimination in insurance, especially health insurance, was, and is, a critical concern of people with disabilities. The members of the Council held their noses and acquiesced to the deletion, but were never comfortable with it; they would continue to revisit the issue later. Certain Council members, led by Marian Koonz, were very outspoken about this issue.

A few days after the Council meeting, Senator Weicker met with several groups and decided, with the endorsement of Senator Harkin, that provisions relating to coverage of Sections 504, 503, and 501 should be dropped from the ADA proposal, along with coverage of insurance. Weicker urged the Council to accede to the Washington disability groups’ demands, but the Council balked at what it considered a challenge to its independence and a serious weakening of its ADA proposal, and felt that in approving 35 of 39 recommended modifications it had leaned over backward to be accommodating. Mrs. Parrino was particularly irked by what she perceived as disrespect toward the Council and the arduous work it had done in the spirit of securing what people with disabilities around the country had told the Council they needed. As an olive branch to Senator Harkin, however, Chairperson Parrino agreed to get a broader range of opinion from people “outside the Beltway,” by inviting disability activists and experts to the next meeting of the Council on February 7^th to 10^th, 1988, at which the Council could confirm or reverse its rejection of the changes at issue after hearing the views of these outside stakeholders.

That left things in a state of limbo until the February meeting. Senator Weicker had indicated to the National Council that he was going to introduce its ADA bill. But he and Senator Harkin had agreed that they would not go forward with a bill unless it had the support of disability organizations (especially those with a Washington presence). Now the Council had balked at changes some organizations were demanding before they would lend their support. Possibly the Council would agree to the changes at the February 1988 meeting, but how should Weicker and his office proceed until then? Prior to the Council taking its stance at the November Council meeting, Weicker’s staff had been going on the assumption (and my expectation) that the Council would buy into the alterations I had negotiated with the CCDD Rights Task Force; accordingly, the most recent version, the Office of Legislative Counsel had developed and sent to Terry Muilenburg had incorporated the donut approach and eliminated coverage of federal agencies, contractors, and recipients of federal financial assistance. On December 2, 1987, Terry sent a memorandum to Bill Baird, an attorney at the Senate Office of Legislative Counsel, asking him to reinsert language relating to the coverage of federal agencies, federal contractors, and federal grantees that had been removed under the donut approach. Thus, Senator Weicker was continuing to follow the Council’s lead while still seeking to change its mind about these provisions.

The Council’s votes to retain provisions relating to coverage by the ADA of programs and activities regulated by Sections 504, 503, and 501 had also put me in a strange position. In Toward Independence, the Council had called upon Congress to “enact a comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and setting clear, consistent, and enforceable standards prohibiting discrimination ….” In that spirit, I had drafted the provisions relating to Sections 504, 503, and 501 with an eye toward ultimately achieving comprehensive and unified protection against disability discrimination, with broad, clear, and consistent standards. I imagined a day when a single law, the ADA, would provide across-the-board criteria and principles for analyzing and proscribing discrimination against people with disabilities, instead of a patchwork quilt of different laws and standards. When faced, however, with opposition from within the disability community articulated by CCDD Rights Task Force representatives, I formulated the “doughnut approach” to keep ADA coverage broad, while leaving 504, 503, and 501 protections undisturbed.

In an uncomplicated world, my preference would have been to put the ADA in place as a fully comprehensive measure that over time would supersede the Rehabilitation Act nondiscrimination provisions. I believe that having a single set of statutory and regulatory standards would be clearer and less complicated for people with disabilities and for entities subject to the laws and regulations, without the need for determinations such as: whether federal dollars flow into a particular program or activity, or, when ADA and Section 504 coverage overlap and their requirements, enforcement mechanisms, or time constraints diverge, which standards shall take precedence. At best, having separate enforcement jurisdiction and mechanisms for the same activities and programs alleged to have discriminated, is confusing and wastefully duplicative. I also was aware of difficulties arising from some problematic language in Sections 504, 503, and 501, and some negative case law that I did not want to taint the ADA.

With fear of the ADA undercutting and damaging current protections under Section 504, 503, and 501, becoming a major stumbling block for Washington, DC, disability advocacy interests, however, the ideal approach had to be balanced against the need for broader disability community support for the ADA. In drafting the original version of the bill, I had been aware that covering federal agencies, federal grantees, and federal contractors was not the only option; it had been possible, albeit cumbersome, to have written the bill to encompass only things not previously covered by federal law. It would have sacrificed some legislative drafting purity, but I came to feel that the trade-off would be worth it to gain the support of critical disability allies. I saw it as a choice between a unitary, across-the-board bill on the one hand, and unified support on the other, and I leaned toward the latter. At the November 1987 meeting, I had spoken in favor of the “donut” approach, but the Council had decided otherwise. Now it would come down to a review of that decision at the next meeting, in February. I knew that quite a lot, including broad disability community support, momentum for the bill, and perhaps even congressional sponsorship, was at stake.

Continue to Part 15: On the Threshold of Independence and High-Stakes Council Meeting