Former SAC member, Montana; former Women's Right Consultant, USCCR, RMRO; presently, legislative chair, Colorado Women's Pol. Caucus; NWPC Steering Committee Representative.

THE U.S. COMMISSION ON CIVIL RIGHTS, A COMMENTARY ON A NATIONAL
ADVISORY COMMITTEE

(By Patricia Blau Reuss)

The purpose of this paper is to investigate the role of the U.S. Commission on Civil Rights in the present administration, in light of its twenty-year-old mandate as an independent advisory agency, its ability to carry out government policy, its recent "shedding" of the 51 State Advisory Committees (now streamlined into 10 Regional Advisory Committees) as a result of a "zero-based review" of all advisory committees, and its upcoming candidacy for "sunset" review before the 1978 Congress.*

In the budding stages of national awareness of civil inequalities existing in the nation, especially in the South, the U.S. Congress, with policy direction from President Eisenhower, set about to find a means of expressing the government's concerns over this problem. As a form of policy implementation, the broad-issue advisory commission was chosen. T. B. Smith reflects upon the choice of this type of committee: The policy role of this type of committee varies greatly. The reports tend to become public documents and thus they are part of the political process of open discussion and criticism.

Governments utilize the broad issue advisory committee to recommend policy in controversial or new areas in part because the government may really not know what to do, (certainly the case in 1957), "and in part to avoid the appearance at a later date of doing the unpopular... the advisory committee also is an excellent delaying tactic for a government that wants to postpone action on a problem or to leave a commission report in a controversial or urgent policy area for a future government or office-holder." 1

The committee would have a role as a neutral and objective group of the "wise" who would deal with controversial issues in a highly political context, operate in the open public arena, and their submissions, counter-submissions, research studies, and data would be scrutinized not only by the commission members, but by the media and interested parties. The commission would be supported by an administrative and research staff and there would be a constant process of research, investigation, and presentation of submissions and evidence, often in a judicial atmosphere, but without the legal clout.2

Many people questioned the efficacy of a commission that sounded and acted judicial but had no adjudicative powers, but others voiced the sentiment that questions must be asked, and from an agency outside the usual political arena. "Parties and pressure groups are not enough in themselves to channel the interests, ideologies, and stresses originating in the social system into the political system," sums up the majority view of the Commission's supporters back in those formative days.

3

That there have been (and will continue to be) problems with advisory committees, especially the broad-issue ones like the USCCR would be, no one would possibly deny. "These have run the gamut from lethargy and disinterest on the one hand to active and undisguised obstructionism on the other. (The most frequent criticism is probably that the committee is unused.) Committees are seen as enormous wasters of time, as impeders of action, as being congenitally unable to give useful advice, and as burdens upon the agency's already overpressed administrative resource. Many have violated their public interest mandate; service on them has been turned to private advantage." 4

But the attempt to enact a good-will policy in the name of civil rights caused the Congress to overlook the problems and deficiencies inherent in advisory com

*This is a subject of special concern for the author, who is a women's rights consultant to the Rocky Mountain Regional Office of the Commission, is a past member of the Montana State Advisory Committee, and has been nominated to the Rocky Mountain Regional Advisory Committee of the USCCR.

1 Smith. Thomas B., "Advisory Committees in the Public Policy Process" in the "International Review of Administrative Sciences," vol. XLIII, 1977, No. 2, page 153.

Smith, "Advisory Committees...", pp. 160-161.

3 Brown, David S.. "The Management of Advisory Committees," in "The Public Administration Review," Vol. XXXII, July/August, 1972, No. 4, page 334. Brown, "The Management of Advisory Committees," page 339.

mittees and to stress the positive aspects of an investigatory and fact-finding commission. "Advisory committees can indeed perform an impressive list of funetions. They can help to provide a bridge between the agency and its clientele and the public. They also have an interpretative role to perform that of explaining the agency or government to the public and vice-versa. They can innovate-they are a generator of new ideas. They can provide a 'listening post' and also an arena for 'trial balloons.' They can educate. They can develop support. They have uses of an internal administrative nature. They can even advise. Their greatest virtue, from the point of view of the citizen and the legislator, is that so many see them as a means of breaking through the cold and unresponsive barriers which the bureaucracy has created about itself.” 5

In that spirit, Sections 101-106 of the Civil Rights Act of 1957, as amended, calls for the creation in the Executive branch of the Government of a Commission on Civil Rights: composed of six members, appointed by the President, with the advice and consent of the Senate. Not more than three of the members shall at any one time be of the same political party, ensuring the bipartisan nature of the agency."

The duties of the Commission, as amended, are to:

Investigate complaints alleged that citizens are being deprived of their right to vote because of race, color, religion, sex, or national origin; or, in the case of Federal elections, by fraudulent practices.

Study legal developments constituting a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, or national origin, or in the administration of justice.

Appraise the laws and policies of the Federal Government with respect to denials of equal protection of the laws under the Constitution because of race, color, religion, sex, or national origin, or in the administration of justice. Serve as a national clearinghouse for civil rights information. Submit reports of its activities, findings, and recommendations to the President and Congress.

The Commission is not an enforcement agency and has no power to apply specific remedies in individual cases. Complaints about denials of rights are usually referred to the appropriate Federal agencies for action."

By 1961, an Advisory Committee to the Commission had been established in each of the 50 States and the District of Columbia, pursuant to section 105 (c) of the Civil Rights Act of 1957. "The Advisory Committees are made up of responsible persons who serve without compensation. Their functions under their mandate from the Commission are to: advise the Commission of all relevant information concerning their respective state on matters within the jurisdiction of the Commission; advise the Commission on matters of mutual concern in the preparation of reports of the Commission to the President and Congress; receive reports, suggestions, and recommendations from individuals, public and private organizations and public officials upon matters pertinent to inquiries conducted by the State Advisory Committees; initiate and forward advice and recommendations to the Commission upon matters in which the Commission shall request the assistance of the State Advisory Committee; and attend, as observers, any open hearing or conference which the Commission may hoid within the State." &

For the first part of its twenty year existence, the Commission placed itself on the "cutting edge" of the Civil Rights movement. Its reports, hearings, and investigations were admired and quoted, and led to the end of much of the voting discrimination which it had been formed to investigate. From its inception, the USCCR realized the critical need for involving knowledgeable citizens in the Commission's fact-finding work and that an accurate accounting of civil rights depends in large part upon an intimate knowledge of local conditions. The State Advisory Committees were touted as just such a linking tool for the Commission. For 16 years or longer, they have been the local eyes and ears for the Commission (some more perceptive than others).

Smith, "Advisory Committees...", page 161.

U.S. Commission on Civil Rights, "Statute, Rules, and Regulations," (U.S. Govt. Printing Office.; 1973), page 1.

U.S.C.C.R., "Statute, Rules and Regulations," page 6.

8 Fifty-one State Advisory Committees. "The Unfinished Business Twenty Years Later...", a report to the USCCR, (WDC, U.S. Govt. Printing Office, Sept. 1977) Introduction.

Fifty-one State Advisory Committees, "The Unfinished Business...", page 1.

In September, 1977, the fifty-one State Advisory Committees of the Commission submitted a report to the Commission, entitled, "The Unfinished Business Twenty Years Later..." During the spring and summer of 1977, while the report was being compiled, describing the problems, developments and unfinished civil rights business in the 51 states, events were occurring which would make that title foreboding. Not only was their business unfinished, but the State Advisory Committees were through.

The U.S. Commission Civil Rights, once the forerunner in advocacy for women and minorities, was pulling in its claws. As a letter, dated August 22, 1977, went out to the 861 individuals who comprised the membership of the Advisory Committees, informing them of a new and effective government reorganization that didn't include them, a realization hit many of these people that this Commission, which had promised 20 years ago to be the conscience of the nation, was retrenching. The letter read, in part:

"Since February, staff of the OMB has been corresponding and meeting with the Chairman and staff of the USCCR concerning the President's effort to reduce the number of Federal advisory committees in order to increase the effectiveness of government through reorganization The President made

clear to us... that he totally supports our work and his administration is committed to the goal of achieving full civil rights for all.

"We have received (a) letter from OMB recommending the creation of 10 Regional Advisory Committees in place of the 51 State Advisory Committees. The Commission has decided to implement this recommendation." 10

Civil rights leaders across the nation who thought that their activities, input and advice were essential to Commission decisions found out how extraneous to the process they really were. While they were busy writing a 20th. Anniversary report to the Commission, the Commission was making decisions and striking bargains that were designed to enhance the Commission's position with the Carter administration, but which were to lose them the support and admiration of the majority of the state advisory committee members. The letter continued:

"We are hopeful that these changes will increase the Commission's effectiveness and we are confident that opportunities for new initiatives and involvement will result...

"All State Advisory Committees will be terminated within the next six months and the new Regional Advisory Committees will be chartered We desire to continue to regard you as a valuable resource person to whom we can turn from time to time.

"11

The Commission was performing "maintenance" functions demonstrating what Leslie This has described as "... satisfaction with the status quo and the predictable channeling of staff energy to 'nest-feathering,' ensuring creature comforts, and blind, unthinking acceptance of 'what is'..." 12 The Commission was divesting itself of appendages whose usefulness was in doubt and whose threat was always in the wings. By its actions, the Commission was openly admitting its retirement from active, nation-wide alertedness on the part of civil rights. Lowi highlights this metamorphosis from liberal cause celebre-ism to conservative, privileged protectivism.

...

"Even when the purpose of the programs is the uplifting of the underprivileged, the administrative arrangement tends toward creation of new privilege instead Old established groups doing good works might naturally look fearfully upon the emergence of competing, perhaps hostile, groups." (The SACS were emerging, with the potential of being competing, often critical, and hostile, especially after their demise) "Conservatism becomes necessary as a matter of survival." 13

What had triggered this wave of conservatism on the Commission's part? The answer lies partly in the new administration's reorganization policies. Carter's campaign promises had included a vow to reduce government agencies and produce efficiency, and he was zealously pursuing the means to fulfill this aspect of

his proposals. Why reorganizaiton? "Reorganization has become almost a religion in Washington ... (it) it deemed synonymous with reform, with progress. Periodic reorganizations are prescribed if for no other purpose than to purify the bureaucratic blood and to prevent stagnation. Opposition to reorganization is evil. . . For the true believer, reorganization can produce miracles: eliminate waste and save billions of dollars . . . The myth persists that we can resolve deepseated and intractable issues of substance by reorganization . . . The devils to be exorcised are overlapping and duplication, and confused or broken lines of authority and responsibility."

True to his promises, on February 25, 1977, President Carter announced a "government wide, zero-based review of all advisory committees." On March 20, 1977, in a message to Congress, he assigned the duty of reducing the total number of advisory committees to the Office of Management and Budget . . . his “arm for reorganization." On May 25, 1977, faced with only a 26 percent reduction, Carter told OMB it wasn't enough and asked them to intensify their review and return with additional recommendations on the need for the committees left remaining.15

OMB got busy. They called for a great deal more information than they had ever required from advisory committees in the past. The U.S. Commission on Civil Rights came under close scrutiny, especially its State Advisory Committees, which happened to be up for yearly authorization anyway. USCCR Chairman, Arthur Flemming, relates the events:

"When they opened up the dialogue with us, they said that they wanted it understood that their objective was to do everything possible to strengthen the role of the Commission on Civil Rights. They also said that they recognized the important role that field operations represented by our regional offices and advisory committees had played, and could play and should continue to play ... They did, however, ask us to consider the possibility of establishing 10 regional advisory committees . . . I discussed that with them informally and said that I would take it up with my colleagues on the Commission. I might say that they underlined for us the seriousness of this particular operation." 10

This was the Commission's "critical instance," when there was no standard operating procedure to guide them and which left them susceptible to acting inappropriately." The gameboard was set up and action was called for immediately. It would seem that this was the time for the Commission to call in their advisory committees for support and advice and to gather the tools of politicking and bargaining which would be necessary to ride out the storm or reorganization with limited change. But, the advice of the advisory committees was deemed inadvisable.

The USCCR was used to being an organization which made its decisions and innovated its actions in a rational, polite, intellectual manner, and AT THE TOP, with advice from few . . . and as Allison points out, "the preeminent feature of organizational activity is its programmed character: the extent to which behavior in any particular case is an enactment of pre-established routines." " That routine was to set Arthur Flemming solely to the task.

18

"Each player's ability to play successfully depends upon his power... i.e., effective influence on policy outcomes a blend of at least 3 elements: Bargaining advantages (drawn from formal authority and obligations, institutional backing, constituents, expertise and status), skill and will in using bargaining advantages, and other player's perceptions of the first two ingredients." 19

Flemming and the Commission, facing Carter and OMB alone, opted out. For example, on July 8, 1977, the Commission met with the President. Each of the five Commissioners was to have a chance for a five-minute presentation.**

The President was brief and conciliatory. He did not hear all of the Commissioners nor address the reorganization issue. His game plan was based on having the edge and no one forced his hand:

"I hope that you as a Commission will keep in close touch with what my associates do in the area of implementation of civil rights laws, and if you feel at any time that they are not doing the kind of job that should be done, I will regard it is an act of personal friendship on your part if you call that to my attention immediately." 20

No mention was made of the Advisory Committees. One wonders who the Commission was saving themselves for. For Arthur Flemming, the President had wrapped the whole thing up in a "rational policy package." The fight was over before it ever began. The only bargains made were the unspoken ones that the Commission would support the President's policy to "rid the bureaucracy of unnecessary committees", while the President would support the Commission as it comes up for review in the 1978 Congress.

...

The chairs of some of the State Advisory Committees heard of the reorganization at Advisory Committee regional meetings held during July and the first of August, although this vital message came to them only incidentally, as they had come to discuss other things. The finality of the Commission's decision was unclear, and many people felt sure that the Commission would contact all of them before making a decision at least until August 22, 1977, when the Commission sent the letter to the 861 members of the State Advisory Committees, thanking them for their time and efforts, with little further explanation or regrets. On this same date, the President presented a "Scorecard of Advisory Committee Recommendations," and of 1,189 committees reviewed, 480 were reduced or eliminated (40%). The USCCR went from 51 to 10, an 80% reduction rate. The Commission was an obvious and outstanding model participant in Carter's

cut-the-unnecessary-advisory-committees program.

The cards and letters came in, in response mainly to the press coverage that intimated that the advisory committees had "outlived their usefulness." The majority of the active members of the State Advisory Committees railed against this label, pled for inclusion in the decision-making process, and asked the Commission to reconsider their decision .. but the gameboard was closed. A postscript was added to the scenario when the Commission held a meeting in Washington, D.C., entitled A Conference on Advisory Committee Transition. Two to three members of every State Advisory Committee attended (including the chair of each committee, who should have been content, for s/he had a secure post on the new Regional Advisory Committees). They met the first evening, September 18, 1977, with the Commission. Most of them came armed. Chairman Flemming spoke to them in the same patronizing and mellifluous tones that he had always used, and the group had to fight hard to keep from succumbing to his persuasive arguments. They managed to keep their anger kindled, though, and as he opened the meeting up for questions, the representatives from the SACs lined up behind the microphones. Charges were levied, positions taken. criticisms hurled. The other four Commissioners sat patiently, responding occasionally to an accusation which hit particularly close to their turf. Arthur Flemming was a marvel. He rested secure in his decision, and let them have at him. For two hours he fended off the bullets of anger and criticism "just like Wonder Woman." 22

19 Ibid, page 710.

**Commissioner Murray Saltzman attests that he stayed up all night working on his 5 minutes and then never got to say them.

20 Flemming, "verbatim Remarks

', page 7.

21 Executive Office of the President, Office of Management and Budget, "Scorecard of

Advisory Committee Recommendations," August, 1977 (as included in the packet for the USCCR conference on Advisory Committee Transition...).

22 Personal interview with a member of the USCCR staff, September 19, 1977.