Disabling the GOP - Americans with Disabilities Act

National Review, June 11, 1990 by Susan Mandel

BEN THE Senate passed the Americans with Disabilities Act last fall and sent it over to the House, members on both sides of the aisle were horrified by the bill. Under the guise of civil rights for the disabled, the Senate had passed a disaster for U.S. business. It was so bad that even the Democratic House leadership recognized the problems; it sent the bill to four separate committees for surgery, and, though there were significant improvements, there was a limit to the scope of the repairs. The reason? A united front of disability-rights activists and the White House. As we go to press the bill is expected to pass the House by an overwhelming margin.

The problems the bill would cause are almost unbelievable. For one thing, it would force all employers (excluding only the Federal Government and-perhaps fittingly under this Administration-country clubs) to retrofit their premises to make them fully accessible to disabled workers and patrons. Since access would now be a civil right, moreover, the cost would not be relevant-even if that means eliminating bus service or closing down businesses that cannot afford either compliance or the legal expenses of defending themselves in court. In addition, the bill would also, for the first time, grant homosexuals the right to sue over discrimination.

Much of the reason for this mess is that the White House last summer rushed to strike a deal with Senator Edward Kennedy and the disability lobbyists. The then-White House director of policy development, Bill Roper, helped Senate Labor Committee staffer Robert Silverstein and the disability lobbyists draft the "compromise" version. Ever since then the Administration has been refusing to deviate from the disability and civil-rights lobbies' position. Republican staffers say that all amendments were referred by the Administration to Pat Wright, executive director of the Disability Rights Education Defense Fund. Miss Wright and Chai Feldblum, legislative counsel for the American Civil Liberties Union, not only helped write the bill, they called most of the shots throughout the legislative process. "Chai and Pat control the votes on the Judiciary Committee," complains Representative Chuck Douglas (R., N.H.). Miss Wright and Miss Feldblum were in the audience at committee markups making signals to members, letting them know how to vote on the various amendments. After the Judiciary Committee markup, Mr. Douglas says, several Democrats came up to him saying, You know, you were right on that [amendment]. I wish I could've voted with you."

Now, it's not unusual for Democrats to vote the way their interest groups tell them to. Nor is it that unusual for activists such as Miss Wright and Miss Feldblum to represent the Democrats during negotiations. Even having Miss Feldblum write the amendments and the House report language which spells out the terms of the bill isn't unprecedented. What is surprising is the deference shown by a Republican White House.

In at least some of the negotiations between Administration officials and Democrats, Miss Feldblum acted as technical expert to both sides. And when a group of conservative Republican congressmen went to White House Counsel C. Boyden Gray seeking Administration support for their proposed amendments, he promptly took their list over to Miss Wright and her group's attorney, Arlene Mayerson, and later showed it to Miss Feldblum as well. The lobbyists approved three of the conservatives' amendments, added three of their own, and handed Mr. Gray back a package of six amendments the White House was permitted to support.

IN MANY WAYS this was but a rerun of what had happened in the I Senate, where the White House lobbied against Republican-sponsored amendments, including one by Senator Bill Armstrong (R., Colo.) to exclude pedophiles, transvestites, compulsive gamblers, and practitioners of other types of anti-social behavior from protection under the bill. The White House opposed any change in the legislation no matter how reasonable," says one Senate staffer who was there. Senator Armstrong offered his amendment anyway, and the Senate approved it.

But the House got the message. Members weren't about to do battle over the ADA bill. Instead, they took their place in line behind Administration officials, waiting their turn to speak with Miss Wright and Miss Feldblum. During the Judiciary Committee markup, a group of Republican members wanting to cut a deal went straight to Miss Feldblum rather than to the committee chairman, Representative Jack Brooks (D., Tex.).

However much the Administration has done for the disability-rights lobbyists, they have done little to reciprocate. The major concession the White House supposedly got from Senator Kennedy and friends last summer in return for supporting the bill was that it would not permit jury trials and million-dollar damage awards, keeping the remedies the same for the disabled as they are for women and minorities. This was a critical point, inasmuch as the bill is unclear about how far establishments must go to accommodate the disabled, leaving them wide open to lawsuits. (The House Judiciary Committee rejected an amendment offered by Republican Bill McCollum that would have limited the amount employers have to spend to a percentage of the disabled employee's annual salary.)