ERVIN BILL- 92ND CONGRESS S.1438 H. R. 12652

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100050001-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 256
• Document Creation Date: December 16, 2016
• Document Release Date: August 1, 2005
• Sequence Number: 1
• Content Type: LIST

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ERVIN BILL - 92nd Congress
S. 1438 H. R. 12652
~aw
A Letter to DCI Helms frm Chairman Hanley, inviting DCI to testify
before H. Subcom. on Employee Benefits at hearings on question
of invasion of privacy of Federal employees (see Tab E)
B S. 1438, introduced 1 April 1971; S. Rpt. 92-554
C Letter to Rommel, OMB, frm Maury dtd 12 April 1971 re Hanley
letter to DCI
D Excerpt frm Journal of 16 April re Maury's conversation w/Rommel
explaining our concern about proposed legislation to ensure privacy
of Federal employees
E Letter to Hanley frm Helms dtd 16 April enclosing copies of
pertinent correspondence relating to Ervin bill and offering to
meet w/Hanley
F Letter to Helms frm Hanley dtd 23 April acknowledging 16 April letter
G Letter to Rommel frm Maury dtd 27 April 1971 enclosing proposed
letter to Ervin (see Tab I, letter dtd 21 May for final copy)
H 11 May statement by Ervin before Hanley Subcom. on S. 1438
I Letter to Ervin frm Helms dtd 21 May 1971 requesting complete
exemption from S. 1438
J Handout prepared for Hanley Subcom. breakfast at CIA on 9 June 1971
Analysis of Selected Sections of Invasion of Privacy Bills
Two-page explanation of S. 1438
Effect of Certain Provisions of S. 1438
K H. R. 11150, introduced 7 Oct 1971
Letter to Chairman Dulski, Post Office & Civil Service Com. , dtd
21 Oct 1971 frm Chairman Hebert, H. Armed Services, re H. R. 11150
L Events concerning S. 1438 as of 2 Dec 1971
M Letter to Mahon, Chairman, H. Appropriations Com. , frm Chairman
Dulski dtd 23 February 1972 re H. R. 11150
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H. R. 12652 reported w/amends. 1 August 1971; H. Rpt, 92-144
Hearing, "Civil Rights Commission" dtd 7 Aug 1972
Paper entitled "Amendments to H. R. 12652 (Senate Version) for
CIA and NSA Exemptions"
0 Letter to Celler, H. Judiciary Committee, frm Chairman Hampton,
Civil Service Commission, dtd 10 August 1972 re H. R. 12652 and S. 1438
P Memo for the Record dtd 23 August 1972, Sub: Conversation with
Mr. David Carper, House of Representatives Legislative Counsel's
Office; re H. R. 12652
Q Letter to Chairman Celler frm DCI Helms dtd 6 September 1972
re H. R. 12652
R Ervin Bill Handout:
Chronology & Status of the Bill
One-Page Summary of Effect on CIA
More Detailed Analysis
Hampton Letter to Celler
Legislation (H. R. 12652)
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 ES M. HANLEY, N.Y., CHAIRMAN
NK J. BRASCO, N.Y.
ERIS K. UDALL, ARIZ.
_RLES H. WILSON, CALIF.
!HARD C. WHITE, TEX.
.WRENCE J. HOGAN, MD.
WOOD HILLIS, IND.
_TER E. POWELL, OHIO
.OFFICIO:
LDDEUS J. DULSKI, N.Y.
BERT J. CORBETT, PA.
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SUBCOMMITTEE ON EMPLOYEE BENEFITS
OF THE
COMMITTEE ON POST OFFICE AND CIVIL SERVICE
207 CANNON HOUSE OFFICE BUILDING
a tjingtofl, O.C. 20515
April 1, 1971
Honorable Richard Helms
Director of Central Intelligence
Washington, D. C. 20505
Dear Mr. Helms:
On March 30, the Subcommittee on Employee Benefits voted
to conduct hearings on the question of the invasion of privacy
of Federal employees. Hearings will center around bills now
pending before the subcommittee and which will be introduced in
the near future. The bills currently pending are similar in
many respects to Senator Ervin's bill which passed the Senate
last year. The pertinent bills will be sent to you in the near
future.
I would like to invite you to testify before the subcom-
mittee on this most important matter. We tentatively plan to
begin hearings within two or three weeks after the Easter recess.
However, the hearing schedule is flexible depending on the avail-
ability of witnesses.
If you could have a member of your staff contact Mr. Richard
Barton of the subcommittee staff on 180-6295 concerning a mutually
agreeable date, I would be most appreciative. In view of the past
history of this legislation, I am sure that the Central Intelligence
Agency can contribute materially to our deliberations.
Sincerely yours,
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Appro it 2 ease
c??
92D CONGRE$
1st Session
CIA-RUal Te 18 1o,101E AO1-8
REPORT
No. 92-554
PROTECTING PRIVACY AND THE RIGHTS OF
FEDERAL EMPLOYEES
Mr. ERViN, from the Committee on the Judiciary,
submitted the following
REPORT
The Subcommittee on Constitutional Rights to which was referred
the bill S. 1438 to protect civilian employees of the executive branch
of the U.S. Government in the enjoyment of their constitutional rights
and to prevent unwarranted governmental invasions of their privacy,
having considered the same, reports favorably thereon without amend-
ments and recommends that the bill do pass.
S. 1438 is identical to S. 782 as unanimously reported by the com-
mittee and unanimously approved by the Senate in the last Congress.
The report on S. 782 is therefore reprinted below as approved by the
committee.
The purpose of the bill is to prohibit indiscriminate executive
branch requirements that employees and, in certain instances, appli-
cants for Government employment disclose their race, religion, or na-
tional origin; attend Government-sponsored meetings and lectures or
participate in outside activities unrelate j to their employment; report
on their outside activities or undertakings unrelated to their work;
submit to -questioning about their religion, personal relationships or
sexual attitudes through interviews, psychological tests, or polygraphs ;
support political candidates or attend political meetings. The bill
would make it illegal to coerce an employee to buy bonds or make
charitable contributions. It prohibits officials from requiring him to
disclose his own personal assets, liabilities, or expenditures, or those
of any member of his family unless, in the case of certain specified
employees, such items would tend to show a conflict of interest. It
ould provide a right to have a counsel or other person present, if the
would'
employee wishes, at an interview which may lead to disciplinary pro-
65-010
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ceedings. It, would accord the right to a. civil actiort in a Federal court
for violation or threatened violation of the act, and t would establish
a Board on Employees' Rights to receive and condur hearings on com-
plaints of violation of the act and to determine and administer reme-
dies and penalties.
The. subcommittee has found a threefold need for this legislation.
The first is the immediate need to establish a staticory basis for the
preservation of certain rights and liberties of the who work for
governmentnow and those who will work for it in th. future. The bill,
therefore, not only remedies problems of today but 3coks to the futures,
i it recognition of the almost certain enlargement of the scope of
Federal activity and the continuing rise in the nun,; er of Americans
employed by their Federal Government or serving it in some capacity.
Second, the bill meets the Federal Government` need to attract
the best qualified employees and to retain them. As i he former Chair-
man of the Civil Service Commission, Robert. Ramsl;?:,ck, testified :
Today. the Federal Government affects the;. I ves of every
human being in the United States. Therefore, v e need better
people today, better qualified people, more dedi sated people,
in Federal service. than we ever needed before. A id we cannot
get them if you are going to deal with them o} the basis of
suspicion, and delve into their private lives, beer ise if there is
anything the average American cherishes, it is his right of
freedom of action, and his right to privacy. S,, I think this
bill is hitting at an evil that has grown ul maybe not
intended, but which is hurting the ability of the Federal
Government to acquire the type of personnel i hat we must
have in the career service.
Third is the growing need for the beneficial infiut ace which such a
statute would provide in view of the present impact o ' Federal policies,
regulations and practices on those of State and low' government and
of private business and industry. An example of tl ;,, interest demon-
strated by governmental and private employers is C,e following com-
ment. by Allan J. Graham, secretary of the Civil ,-vice Commission
of the. city of New York :
It. is my opinion, based on over 25 years of foi roar Govern-
ment service, including some years in a fairly high mana-
gerial capacity, that your bill, if enacted into law, will be a
major step to stem the tide of "Big Brotherisru " which con-
stitutes a very real threat to our American way o f life.
In my present position as secretary of the civil Service
Commission of the city of New York, I have "t tken steps to
propose the inclusion of several of the concept; of your bill
into the rules and regulations of the city civil service com-
mission.
Passage of the bill will signify congressional rE?cognition of the
threats to individual privacy posed by au advanced 1 :-sclrnology and by
increasingly more complex organizations. Illustrajti ~.g these trends is
the greatly expanded use of computers -and governtasm-ntal and private
development of vast, systems for the efficient gatlleri g of information
and for data stora,?e -and retrieval. While Governm t eniows the bene-
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fit of these developments, there is at. the same time -an urgent need for
defining the areas of individual liberty and privacy which should be
exempt from the unwarranted intrusions facilitated by scientific
techniques.
As Prof. Charles Reich of Yale Law.School has stated, this bill
"would ben significant step forward in defining the right of privacy
today."
"One of 'the ' most important tasks which faces the Congress 'and
State legislatures in the next decade is the p rotection of the citizen
against invasion of privacy," states Prof. Stanley Anderson of the
University of California, Santa Barbara. "No citizens;" in -his -opinion,
"are in more immediate danger of incursion into private affairs than
Government employees. When enacted the bill will provide a bulwark
of protection against such incursions."
The bill is based on several premises which the subcommittee
investigation has proved valid for purposes of enacting this legislation.
The first is that civil servants do not surrender the basic rights and
liberties -which are their due as citizens under the 'Constitution of the
United States by their 'action in accepting Government employment.
Chief among these constitutional protections is the first amendment,
which protects the employee to privacy in his thoughts, beliefs sand
attitudes; to silence in his action and participation or his inaction and
nonparticipation in community life and civic affairs. This principle is
the essence of constitutional liberty in a, free society.
The constitutional focus of the bill was emphasized by Senator
Ervin in the following terms when he introduced S. 1035 on February
21, 1967:
If this bill is to have any meaning for those it affects, or
serve as a precedent for those who seek guidance in these
matters, its purpose must be phrased in constitutional terms.
Otherwise its goals will be lost.
We must have as our point of reference the constitutional
principles which guide every official act of our Federal Gov-
ernment. I believe that the Constitution, 'as it was drafted
and as it has been implemented, embodies a, view of the citi-
zen as possessed of an inherent dignity and as enjoying cer-
tain basic liberties. Many current practices of Government
affecting employees are unconstitutional ; they violate not
only the letter but the very spirit of the ;Constitution.
I introduced this bill originally because I believe than, to
the extent it has permitted or authorized unwarranted inva-
sion of employee privacy and unreasonable restrictions on
their liberty, the Federal Government has neglected its
constitutional duty where its own employees are concerned,
and it has failed in its role as the model employer for the
Nation.
Second, although it is a question of some dispute, I hold
that Congress has a duty under the Constitution not only to
consider the constitutionality of the laws it enacts, but to
assure as far as possible that those in the executive branch
responsible for adininistering the laws adhere to constitu-
tional standards in their programs, policies, and administra-
tive techniques.
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The committee believes that it is time for Congress to forsake its
reluctance to tell the executive branch how to tivat its employees.
When so many American citizens are subject to in fair treatment, to
being unreasonably coerced or required without warrant to surrender
their liberty, their privacy, or their freedom to ajo or not to act, to
reveal or not to reveal information about themselves and their private
thoughts and actions, then Congress has a duty to call a statutory halt
to such practices. It has a duty to remind the. execntive branch that
even though it might have to expend a little more time and effort to
obtain some favored policy goal, the techniques 'a ad tools must be
reasonable and fair.
Each section of the bill is based on evidence from. many hundreds
of cases and complaints showing that generally in the Federal service,
as in any similar organizational situation, a re.que t. from a superior
is equivalent to a command. This evidence refutes, i lie argument that
an employee's response. to a superior's request fo for information or
action is a voluntary response, and that an emplr,;,ee "consents" to
an invasion of his privacy or the curtailment of his l iberty. Where his
employment opportunities are at stake, where there is present the
economic coercion to submit to questionable practices which are con-
trarv to our constitutional values, then the presice of consent or
voluntarism may be open to serious doubt. For V Js reason the bill
makes it illegal for officials to "request" as well as to "require" an
employee to submit to certain inquiries or practices or to take certain
actions.
Each section of the bill reflects a balancing of the interests invol ved :
The interest of the Government in attracting the best qualified indi-
viduals to its service; and its interest in pursuing laudable goals such
as protecting the national security, promoting equal employment
opportunities, assuring mental health, or conductin successful bond-
selling campaigns. There is, however, also the interest, of the individual
in protection of his rights and liberties as a private citzen. When he
becomes an employee of his Government, he has a right to expect that
the policies and practices applicable to him will reth et the best values
of his society.
The balance of interests achieved assures him V -is is right. While it
places no absolute prohibition on Government inquiries, the bill does
assure that restrictions on his rights and liberties as 'a Government
employee are reasonable ones.
As Senator Bible stated:
There is a line between what is Federal business and what
is personal business, and Congress must draw `hat line. The
right of privacy must be spelled out.
The weight of evidence, as Senator Fong has said: "paints to the
fact that the invasions of privacy under threats and coercion and
economic intimidation are rampant in our Federal vil service system
today. The degree of privacy in the lives of our chi I servants is small
enough as it is, and it is still shrinking with furthc- advances in tech-
nical know-how. That these citizens are being feerced by economic
coercion to surrender this precious liberty in order ,:co obtain and hold
jobs is an invasion of privacy which should distu ?Is every American.
I, therefore, strongly believe that congressional action to protect our
civil servants is long overdue."
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b
The' national -president of the National Association of...Internal
Revenue :Employees,' Vincent Connery, told.the subcommittee of this
proposal in the 89th Congress
Senate bill 3779 is soundly conceived and perfectly timed.
It appears on the legislative scene during a season of public
employee unrest, and. t dent agencie regard-
inri esnplovee matters.
L ronnniittec, amendment provides that the 4Itornev Gene,,-al shall
tt: Eal i oflirers or rrersons who acted pursuant t'~ ,an order, regulation,
or {ltrective, or who. in his opinion, did not wil_ n11v violate the pro-
tiisions of the .act.
Section o establishes an independent. Board o t Employees' Rights,
to provide employees with an alternative meat! of obtaining adrnin-
istrative relief from violations of the act, she, -t of recourse to the
judicial system.
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Section 5(a) provides for a Board composed of three members,
appointed by the President with the consent of the Senate. No member
shall be an employee of the U.S. Government: and no more than two
members may be of the same political porty. The President shall
designate one member as Chairman.
Section 5(b) defines the term of office for members of the Board,
providing that one member of the initial Board shall serve for 5 years,
one for 3 years, and one for 1 year from the date of enactment; any
member appointed to fill a vacancy in one of these terms shall be ap-
pointed for the remainder of the term. Thereafter, each member shall
be appointed for 5 years.
Section 5(e) establishes the compensation for Board members at
$75 for each day spent working in the work of the Board, plus actual
travel expenses and per diem in lieu of subsistence expenses when away
from their usual places of residence.
Section 5 (d) provides that two members of the Board shall constitute
a quorum for the transaction of business.
Section 5 (e) provides that the Board may appoint and fix the com-
pensation of necessary employees, and make such expenditures neces-
sar to carry out the functions of the Board.
Section 5 (f) authorizes the Board to make necessary rules and reg-
ulations to carry out its functions.
Section 5(g) provides that the Board shall have the authority and
duty to receive and investigate written complaints from or on behalf
of any person claiming to be affected or aggrieved by any violation
or threatened violation of this act, and to conduct a hearing on each
such complaint. Moreover, within 10 days after the receipt of such a
complaint, the Board must furnish notice of time, place, and nature
of the hearing to all interested.partiesj and within 30 days after con-
cluding the hearing, it must render its final decision regarding any
complaint.
Section 5 (h) provides that officers or representatives of any employee
organization in any degree concerned with employment of the cate-
gory in which the violation or threat occurs, shall be given an oppor-
tunity to participate in the hearing through submission of written
data, views, or arguments. In the discretion of the Board they are
to be afforded an opportunity for oral presentation. This section fur-
ther provides that Government employees called upon by any party
or by any Federal employee Organization to participate in any phase
of any administrative or judicial proceeding under this section shall be
free to do so without incurring travel cost or loss in leave or pay. They
shall be free from restraint, coercion, interference, intimidation, or
reprisal in or because of their participation. Any periods of time spent
by Government employees during such proceedings shall be held to be
Federal employment for all purposes.
Section 5 (i) applies to the Board hearings the provisions of the
Administrative Procedure Act relating to notice and conduct of hear-
ings insofar as consistent with the purpose of this section.
Section 5 (j) requires the Board, if it determines after a hearing that
this act has not been violated, to state such determination and notify
all interested parties of the findings. This determination shall consti-
tute a final decision of the Board for purposes of judicial review.
Section 5(k) specifies the action to be taken by the Board if, after
a hearing, it determines that any violation of this act has been com-
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mitted or threatened. In such case, the Board sl ,ail immediately issue
and cause to be served on the offending officer -r employee an order
requiring him to cease and desist from the unh wful practice or act.
The Board is to endeavor to eliminate the unlas wful act or practice
by informal methods of conference, conciliation, and persuasion.
Within its discretion, the Board may, in the c:ctse of a first offense,
issue an official reprimand against the offendin - officer or employee,
or order the employee suspended from his posit.:,n without pay for a
period not exceeding 15 days. In the case of a ,second or subsequent
offense, the Board may order the offending ofliieer or employee sus-
pended without pay for a period not exceeding a>) days, or may order
his removal from office.
Officers appointed by the President. by and -vith the advice and
consent of the Senate, are specifically excluded from the application
of these disciplinary measures; but the section provides that, in the
case, of a violation of this act by such indivicutals, the Board may
transmit a report concerning such violation to t'i e President and the
Congress.
Section 5 (1) provides for Board action when anN officer of the Armed
Forces of the United States or any person acting ;finder his authority
violates the act. In such event, the Board shall (7. 4 submit a report to
the. President, the Congress, and to the Secretary of the military de-
partment concerned, (2) endeavor to eliminate a oy unlawful act or
practice through informal methods of conference', conciliation, and
persuasion, and (3) refer its determination and the record in the case
to any person authorized to convene general ourrts-martial under
section 822 (article 22) of title 10, United Statv-4 Code. When this
determination and report is received, the person th-,ignated shall im-
mediately dispose of the matter under the provi ions of chapter 47
of title 10) of the United States Code.
Section 5(m) provides that when any party disagrees with an order
or final determination of the Board, he may institute a civil action
for judicial review in the Federal district court for t he district wherein
the violation or threatened violation occurred, or it the District Court
for the. District of Columbia.
The court has jurisdiction to (1) affirm, modif_, or set aside any
determination or order made by the Board, or (2) require the Board
to make any determination or order which it is a athorized to make
under section 5(k) but which it has refused to me ke. In considering
the, record as a whole, the court is to set aside any finding, conclusion,
determination, or order of the Board unsupport=ed by substantial
evidence.
The type of review envisioned here is similar to that. obtained tinder
the.\ilministrative Procedure Act in such cases but this section affords
a somewhat enlarged scope for consideration of the case than is now
generally accorded on appeal of employee cases. The court here has
'More discretion for action on its own initiative. "Fr) the extent that
they are consistent with this section, the provisions' or judicial review
in title 5 of the United States Code would apply.
Section 5(n) provides for congressional review o directing the
Board to submit to the Senate and to the Rouse of Ic.nresentatives an
annual report which must include, a statement conmr rning the nature
of all complaints filed with it, the determinations a of orders resulting
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from hearings, and the names of all officers or employees against whom
any penalties have been imposed under this section.
Section 5(o) provides an appropriation of $100,000 for the Board
on Employee Rights.
SECTION 6
Section 6 provides that nothing in the act shall be construed to
prohibit an officer of, the Central Intelligence Agency or of the
National Security Agency, under specific conditions, from requesting
an applicant or employee to submit a personal financial statement of
the type defined in subsection 1 (i) and (j) or to take any polygraph
or psychological test designed to elicit the personal information pro-
tected under subsection 1(e) or 1(f) .
In these agencies, such information may be acquired from the em-
ployee or applicant by such methods only if the Director of the agency
or his designee makes a personal finding with regard to each individ-
ual that such test or information is required to protect the, national
security.
SECTION 7
Section 7 requires, in effect, that employees of the Central Intelli-
gence Agency and the National Security Agency exhaust their admin-
istrative remedies before invoking the provisions of section 4 (the
Board on Employee Rights) or section 5 (the Federal court action).
An employee, his representative, or any organization acting in his be-
half, must first submit a written complaint to the agency and afford
it 120 days to prevent the threatened violation or to redress the actual
violation. A proviso states that nothing in the act affects any existing
legal authority of the Central Intelligence Agency under 50 U.S.C.
403 (c) or of the National Security Agency under 50 U.S.C. 833 to
terminate employment.
SECTION 8
Section 8 provides that nothing in the act shall be construed to
affect in any way authority of the directors of the Central Intelligence
Agency or the National Security Agency to protect or withhold in-
formation pursuant to statute or Executive order. In cases involving
his employees, the personal certification by the Director of the agency
that disclosure of any information is inconsistent with the provision
of any statute or Executive order is to be conclusive and no such in-
formation shall be admissable in evidence in any civil action under
section 4 or in any proceeding or civil action under section 5. Nor may
such information be receivable in the record of any interrogation of an
employee under section 1(k) .
Section 9 provides that the Federal Bureau of Investigation shall be
excluded from the provisions of this act.
SECTION 10
Section 10 provides that nothing contained in sections 4 or 5 shall be
construed to prevent the establishment of department and agency
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grievance procedures to enforce this act. P :rich.
tuted official intimidation of citizens to and beliefs. So in addition to simple prohibitions
conform their thinking on public issues Even the soundest professional supporters
to those of the administration. of such techniques have emphasized the need on unconstitutional actions of Govern-
for voluntary, enthusiastic participation by ment, my bill also establishes certain en-
I found nothing in the Constitution the individual. From the reports received by forcement machinery which includes a
which authorized officials of the em- the Subcommittee, it appears that there is right to counsel in certain cases, a board
ployee's department to require attend- not even a gesture toward voluntarism in on employee rights where an applicant
ante at such brain-washing sessions held the government programs. Rather, employees or employee may obtain a hearing and
under the auspices of the Government, have been ordered to leave their homes and action on complaints arising under this
families at some hardship and live for a pe-
Nor were they authorized under the Con- riod in seclusion with fellow employees and act; and it affords access to the Federal
stitution to take note of attendance at supervisors, while being subject to psycho- District Court in cases arising under this
such Government-sponsored or Govern- logical encounter sessions. People who pro- act.
ment-endorsed meetings and lectures, test have been given the option of refusing This bill to protect employee privacy
Here again, there is no sign that things to disobey an order or of requesting an ex- has had widespread public and editorial
have changed very much in the Federal emption on psychiatric or emotional grounds. support throughout the Nation as well as
Service. For example, our subcommittee An Agriculture employee writes: support from employee unions and or-
has received many employee complaints During our two and a half day session on ganizations. In fact, with few exceptions,
about the sensitivity-sessions they are Civil Rights, we were subjected to hearing the only people who seem against it are
required to attend to change their "cul- lectures, speeches, stories, songs or what those whose power would be limited by
tural attitudes and behavior" on racial have you which in many instances were full it.
issues, equal rights for women and the of foul language even to the point of being Despite the widespread public and con-
role of minority groups. I am told this is vulgar (morally crude, offensive, earthy, pro- gressional support, one would have
being done under the equal employment fane) and obscene (disgusting to the senses, thought that with this bill I sought to
order issued by President Johnson to repulsive). introduce the bubonic plague into the
promote civil rights in Government. In Other employees of that Department Federal service rather than the rule of
these out-of-town meetings run by psy- wrote about being required to watch films law. Officials in the previous administra-
chologists and other behavioral scien- and to listen to tape recordings of tion fought this simple proposal with ev-
tists, people are subjected to emotionally speeches by Dick Gregory and other civil ery resource at its command. They con-
charged situations deliberately staged to rights activists stressing how whites were jured up incredible legal ghosts in an
manipulate and provoke human emo- hated and what these people were going attempt to influence the uninformed or
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S 6654 CONGRESSIONAL x i -
S. 1035. employees. PORT TO TIIE 56TH LEGISLATIVE ASSEMBLY
My sponsorship of ins legislation does ' The Civil Service Commission was IMIIEMBERS OF THE HOUSE TASK FORCE ON
the handmaiden not imply a belief that there should be created to be tle handmac en of the ?k WELFARE
i
r-
a law on everything the executive branch Chief Executive and to pursue his man- Representative Anthony Meeker, Cha
should not do to its employees. There are dates in the general management of the man.
many things done in the name of worthy Federal service. Its staff have an unbe- Representativo Gcbr?ge r. Cole.
purposes which are foolish, tyrannical, ' lievable burden to carry to assure the re- R.epresentativo Leigh Johnson.
repressive, or self-defeating. But they do sponsible and efficient operation of the Representative Richard Mof;ruder.
not necessarily violate the Constitution. Federal service. Too often, any constitu- Representativo Gordon Macpherson.
Charles McKeeni Administrative Assistant.
Nor can Congress legislate against all tional rights employees possess have been Margo Blue, secretary to time Connni ttce.
manner of fools and their follies. administered and implemented by the Interns: Gail Jcifrics, John Houser, Alien
It can and should legislate to protect Commission, and the energy and zeal be- Shibuya, Rush Ycates.
the freedom of the mind which is guar-' hind them has come from. the good will INTRODUCTION
anteed all citizens under the first amend- and goad faith of Commission members Welfare programs were instituted in the
ment whether they work for Government dependent on staffing, time and re- - United States its an emergency measure in
or not. sources. The impetus for their enforce- the 1930's to aid these who were "III-housed,
slve
ay
f
Individuals should know that they
have a legal remedy when economic co-
ercion is used to compel them to speak,
think, or act against their will in favor
of Government causes, or about personal
matters which are none of the business
of Government.
The need for such a remedy is under-
lined by the directives I have seen re-
cently prohibiting employees from con-
tacting personnel offices and supervisors
who could take action on problems.
It is underlined by the written and ver-
bal "gag rules" ordering employees not to
tell Congress about their problems and,
in some cases, even not to contact Mem-
m
ment often stems from political pressure ill-clothed, and iii fed as a resift, o
with help from the courts. unemployment and a decaying economy. We live in a government of laws, not of day, nearly 40 years after its inception, pub-
men. The constitutional rights of citizens lie assistauca has strayed far frCinl its orig-
even those who work for the Federal inal purpose. It has become a mammoth,
uncoordinated bill callcracy providing per-
Government, should depend on laws, not manent irlcomo rather than cml eiiicncf in-
Executive orders; on the application of tolls for people in need.
due process of law, not on the grace of the In 1970.3 there were 72,413 applications for
Civil Service Commission. public astslstance in Oregon compared with
This is not a new idea, but one which 4.3,543 ttyo years earlier. In 1970, welfare as-
may have new urgency with the new em- sistanco~4vas given to 50,331, or 69.47 percent
ployee problems. I think it? bears explora- of those applying compared with 26,543, or
61.04 peeceot, in 1968. In two years the iutni-
ti0ri. her acCepicd for public welfare in Oro, on
But I do not see the establishment of nearly loublea.
such a body or any other new laws as In io Aid-to-Dependent-Children cats-
alternatives to the passage of the em- gory, ,he increase was even more dramatics.
1
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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D. C. 20505
OFFICE OF THE DIRECTOR
21 May 1971
The Honorable Sam J. Ervin, Jr.
Chairman, Subcommittee on
Constitutional Rights
Committee on the Judiciary
United States Senate
Washington, D. C. 20510
My dear Mr. Chairman:
I have noted that on 1 April 1971 you introduced S. 1438, a bill
"to protect the civilian employees of the executive branch of the United
States Government in the enjoyment of their constitutional rights and to
prevent unwarranted governmental invasions of their privacy. "
When an identical bill, S. 782, was under consideration in the last
Congress, you were good enough to meet with Larry Houston and Jack
Maury, of my staff, to hear our explanation of some of the problems which
the bill might create for us. You also gave me an opportunity to appear
before your Subcommittee for the same purpose. I much appreciate your
courtesy on these occasions, and I am grateful for the efforts of your
Subcommittee staff to work out some changes in the original version of
S. 782 designed to solve our problems.
Despite these changes our recent examination of this legislation
has served only to confirm our judgment that it still falls considerably
short of meeting the Agency's basic requirements. I am therefore
convinced of the necessity for a complete exemption for this Agency,
and I trust you will favorably consider my request for such an exemptions
Larry Houston and Jack Maury are of course available at your convenience
if you think further discussions would be useful.
Sincerely;
Richard Helms
Director
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ROUTING AND RECORD SHEET
^ SECRET
FROM:
EXTENSION
NO.
Legislative Counsel
II
DATE
17 May 1971 STAT
TO: (Officer designation, room number, and
DATE
building)
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
1' Ex/Dir
$1
MAYi977
Director
i
As you will see from the
2.
attached excerpt from the 11 May
Congressional Record, Senator
hi
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l
l
i
i
i
i
rv
n
gorous
y p
ng
s
s v
ugg
3
familiar line. Since he refers to
certain amendments designed to
4.
accommodate the Agency, it
may be useful to remind him in
writing that these amendments
5.
fall considerably short of
meeting our requirements.
6
Otherwise, when the bill comes
up in the Senate and we renew
OLC 7D43
our request for a complete
7.
exemption, he may accuse us
of backtracking on an earlie,$TAT
unde r st
8.
9.
c John M. Maury
Legislative Counsel
10.
11.
12.
13.
14.
15.
FORM 61 O uSEDITO OU5 ^ SECRET
SEERNAL
^ CONFIDENTIAL El I
ONLY E:1 UNCLASSIFIED
U
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 nn-~
08/03 :CIA-RDP81-Oiasn8~9AW4 %~~vVV`~1~ 7 -8 SECRET
ROUTING AND RECORD SHEET
SUBJECT: (optional)
FROM:
EXTENSION
NO.
DATE ~y~ STA
#* y 1T1
TO: (Officer designation, room number, and
buildin
)
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
g
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
E x / Di r
The iawsbid age by
2.
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FORM USE PREVIOUS INTERNAL UNCLASSIFIED
3-62 610 EDITIONS F-1 SECRET ^ CONFIDENTIAL ^ USE ONLY
,*41NCLAS$-,fri4d For
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CONGRESSIONAL RECORD - SE nr a err
w -price policy along the lines set
fort countless times by the Joint E00-
nom, Committee is an ominous failure
of poll responsibility by the admin-
steel industry compete if it falls
in productivity?
What makes it worse is the possi
that the steel industry will trv to
dustry has already tried to justify the
present increase on the basis of past
wage rises.
Mr. President, unless President Nixon
immediately adopts stronger policies, and
specifically an effective wage price pro-
gram, this country will suffer an inten-
sification of inflation even with the 6-
percent unemployment that will prevail
for most or all of this year.
I ask unanimous consent that the New
York Times editorial be printed in the
RECORD.
There being no objection, the editorial
was ordered to be printed in the RECORD,
as follows:
CONFUSION IN STEEL
to ponder the fact
stry has traditionally
wonder
ng into
gram for curbing the wage-price spiral as
never been more dismayingly evident tha in
its approach to the steel industry. Even ow,
with the dollar in acute trouble in . orid
money markets and with the wholesa price
nounced a 12 per cent increase n structural
steel prices, President Nixon ode plain his
extreme displeasure and hint that he might
retaliate by letting more eign steel into
Now United States St fl has taken the lead
in a price rise averagi 6.25 per cent on the
types of steel used to ake automobiles, ap-
pliances and other c sumer goods. This time
the White House ys it is "disappointed"
but emphasizes t t it doesn't plan to seek a.
sion of the nd that began with higher
prices for c struction steel. A spokesman
ho ing aloof from pattern-setting negotia-
t' ns in the can industry, the President's
in which they warned that extension of j&
can settlement to steel would under ne
that industry's ability to compete with or-
eign steelmakers and sharply cut job o por-
_ i
In a news conference last weeke d the
President underscored this warning y de-
claring that America's share of w ld steel
production had dropped from 50 g cent to
20 per cent in the last two decade and that
the industry would lose its abil ty to com-
pete if the forthcoming labor a&feement did
The very next day reports -came out of
Washington that some of 1e President's
closest advisers were resigne to a steel set-
tlement as high as the on11in the can in-
e can settlement
e crisp summary
Union leaders, already under intense rank-
and-file pressure, are pound to take the new
trouble for
workers in
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ed%Kational opportunity has long bee
We e all aware that the woo of a
Senatemge is hard
ti hard, exhausti and
somee dious. But we mus of for-
get that it sa one of the nest op-
portunities f0 student to fain a prac-
tical and intim unders ding of re-
presentative Gov me All of us at
some time or anoth' ' ve pleaded with
group of young peo a to be more real-
istic or pragmatic e demands they
place upon Congre,s. I h e often wished
that I could sh 1Fe with th young peo-
ple-both me .and women firsthand
understandiX of Congress d its in-
tricacies./)pointing a at page is
I bel' ve we should adopt this olu-
tion d expand the privilege of rv-
STATEMENT BY SENATOR ERVIN
BEFORE HOUSE SUBCOMMITTEE
ON EMPLOYEE PRIVACY AND
S. 1438
Mr. ERVIN. Mr. President, today I
testified before the House Subcommittee
on Employee Benefits which is haldin
NEED TO APPOINT hearings on employee privacy legislation
-4 i5
FEMALE PAGES SUCK as S. 1438. Which I fntrnthi
-v oulluie. lne pill was passed by over-
13AYH. Mr. President, I wish to whelming votes of the Senate in the last
i5 my whalph Pa.rt.pa e?n. 4. f__ ~u
r+?,'cwy aauu eu-srauUtlonai rights of
ilar iss last year, during the debate employees and applicants for employ-
the Pr osed equal rights a.mAna_ mPnt. in +hn ----- .a_._ ti___ ,
Senate will pay rious attention to the growth of the Federal Government sand
-
need to insure a ual rights and oppor- the unprecedented extension of its pow-
tunities for bath en and women. ers, its attitudes toward its employees
Today, the quest n of equal rights for will affect the li an, men and women is sin before us. The Americans than ever before is our his-
resolution should no require prolonged tory.
debate. We are not ing asked to d Th
e- ere are some outrageous invasions
termine constitutions law. To me the of individual privacy and violations of
issue is simple: Adml ion of female rights which take place today. Many of
pages would reinforce t desire of this them are sanctioned by Government and
Chamber to be as repoes tative as pos- powerful private economic interests.
sible-to discard old myt when they The individual, even a Member of Con-
have been proven false an discrimina- gress, has few enough chances to chal-
tory.
During a time of citizen c. tern over lenge or halt many of these. I believe
g
the broad questions of civil, my privacy bill offers every Member of halt
a
human rights this body must c t
gal, and Congress an inue to some of the privacy invasions.cFifty-one
demonstrate goad faith in su it of Members of the Senate have cosponsored
these rights. And there i n
s o goo `reason the bill as S. 1438 this year. In the last
not to do so by admitting femal ages. Congress, the Senate passed it by unan-
Of course, some are concerne that imous consent. In the 90th Congress, the
page duties are physically too stre uous Senate passed it with a 79-to-4 vote,
or that the hours are irregular. ile and, counting absentees, with the total
these concerns are sincerely voiced, ey approval of 90 Members.
are not decisive. For the fart ;~ +,,.,+ - - -
performing tasks which are physical, "y ~.eulucraLS anti republicans of all
more demanding than those of aersuasions. In policy statements dur-
Clear precedent has already been estgab_ ca "rig last ofb both othen majo ajor political campaign, ar-
lished by this body. par-
well as a w11,5 w(,uvlonai rlgnts of Federal
job opportunity-and equal employees and guarantees against un-
 -s irranled invasions of their personal
!;rivacy. The Democratic candidate
-isely Promised legislation based on the
3 u i,t s of the Senate Constitutional
'lip his Subcommittee and other congres-
sinlial committees.
Platforms of both major parties
;,-knowledged the privacy problem. In
Os i'iai,torm, the Republican Party
"i'he increasing government intrusion
:t :i lie privacy of its employees and of
q.>tizens in general is intolerable. All such
;'ltxoping. meddling and pressure by the fed-
rid q ernmeit on it;; employees and other
,'itizens will be stopped and such employ-
es, whether or not union members, will be
providea a prompt and fair method of settl-
ing their grievances.
I` sine is running out for fulfillment of
these campaign promises. I would like
to see this administration remove the
blinders it inherited, and give this em-
in.,".. t~riva.r.zr bill toop prior-ti, on its list
of "must-have" law..
I fl, st introduced a similar bill in 1966
when it became apparent that executive
branch politics were working to deprive
people who worked for government of
basic rights which belonged to them
under the first amendment to the Con-
stitution.
They were being compelled to reveal
things about themselves which under the
merit system, the Government had no
business asking. They were told to fill in
computer-punched cards with their race,
and national origin, added to their names
and social security numbers.
On pain of losing their jobs, employees
were told at all grade levels to respond to
broad inquiries about the way they han-
dled their personal and family finances,
and how their relatives spent their own
money.
tan pain of not gettin aob or a pro-
motion, or a cl ranee were elag
su > coed too ex en.sive questions abou
their reli ious be fiefs and practices, such
as whether they believed in God, or the
second coming of Christ, or how often
they read the Bible.
They were submitted to questions
about personal family, relationships. such
as whether or not they loved their
mother or hated their father, and
whether or not they enjoyed "sweet and
peaceful family relationships."
They were solicited for responses to
questions about their sexual attitudes
and conduct, such as whether or not
they "petted," how often they had inter-
course and with whom, whether or not
they took birth control pills, whether
they dreamed about sex matters, and
many other intimate details which were
lone of the business of Government to
demand from its employees and appli-
.ants.
I snow of nothing in the Constitution
tvnich authorizes Federal officials to use
economic sanctions to make such in-
giiiiies of citizens, regardless of the
stated purpose. Such inquiries cropped
up time and time again with different
usiifications from officials. National
security, emotional stability, mental
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CONGRESSIONAL RECORD -SENATE May 11, 1971,
health, ethical and moral conduct were
among the reasons given. I believe a
study of the reasons for the first amend-
ment and fifth amendment and of the
Supreme Court decisions on them will
demonstrate that such questions are un-
authorized for the purpose and that they
have no substantial relevance to the pur-
pose of Government. "et such out-
rageous inquiries were and are put to
e o uestionnaires Interviews, an
f~I e- he 'tor machines.
We found that the Government was
pursuing some other inquiries and in-
vestigations which were none of its busi-
ness. In the interest of furthering ad-
ministration equal employment goals, its
beautification program and other social,
political, and economic plans, employees
were told in regulations, and verbally, to
go out and use their own time to lobby for
open housing legislation and municipal
ordinances on civil rights, to work in
gliettos, paint fences, buy grass seed,
support the Urban League and the
NAACP, and to engage in many other
suggested community activities.
They were then told to report back to
their supervisors what they had done.
When one large group of employees
asked what would happen if they did not
do such things, they were told they would
be considered uncooperative and that
their personnel files would reflect their
attitudes.
Under our Constitution, it seemed to
me that a man can certainly decide for
himself whether he wants to be polit-
ically or socially active in his community.
If he wants to be silent and do nothing
at all, that is his business. There is noth-
ing in the Constitution saying that just
because he works for Government he
should have to report to his supervisor
that he prefers to go fishing on Saturday
instead of demonstrating for a Govern-
ment-supported cause.
Yet, apparently, this is the word passed
from the White House by its civil rights
Executive order to the Civil Service Com-
mission and down to the department and
agency officials all over the country.
Apparently, too, things have not
changed all that much. The Subcom-
mittee on Constitutional Rights received
complaints that some employees were
"urged" to take part in Veterans Day
activities to show their support for the
administration.
A recent press release issued by the
Civil Service Commission-and I have it
here-states that "a new program to fa-
cilitate voluntary service by Federal em-
ployees has been launched by the Civil
Service Commission Chairman in support
of the President's program to strengthen
voluntary activity in the United States."
It further stated:
Based on experience in a model developed
in the Washington area by the civil Serv-
ice Commission, Chairman Hampton has
urged Federal Executive Boards and Federal
Executive Associations throughout the coun-
try to develop similar methods for matching
the volunteer needs in the community with
the skills of Federal employees willing to
volunteer their services.'He suggested that
appropriate Federal officials in local com-
munities contact local Health and Welfare
Councils and explore with them the needs
for voluz: -ser service and trren get the word to
Federal , mployees in the area about the
services needed. He further suggested the
establia3:=aent of a separate office manned by
voluntei -, which would list the volunteer
opening ! a.nd match them against the Fed-
eral eni;,: cyees who indicated a willingness
to serve
The e,i erimental project in the Washing-
ton area has been highly successful. In a
period r, :3 months, approximately 300 Fed-
eral en ?oyees accepted volunteer assign-
ments f ,tn 109 different voluntary agencies.
These i re in urban service centers, com-
muniti' ehools, hospitals, and platygrounds
and inc' ded, among other things, tutoring,
teachins arts and drama, community action,
service .,j handicapped, sports and recrea-
tion, &,, services to children. the Federal
emplot* a came from 60 different Federal
agencie
Expa ling this idea to other communities
will giv, he charitable agencies much needed
volunts, , manpower, Chairman Hampton
said. F~ - feral Executive Boards are located
in 25 t,rge metropolitan areas. . . Exten-
sion of be Washington model to other com-
muniti- was carried out in cooperation
with ti;., Office of Voluntary Action, the staff
arm dt >he Cabinet Committee on Volun-
tary A ion established by President Nixon
last 145t r.
It Is =o soon to tell how this new Com-
missict. program will work out, but it
seems hey would have learned the les-
sons of the past, They have also failed to
recogsrle the truth I learned in the in-
fantr;.- rom World War I: that a request
from superior is equivalent ?to a com-
mand
Ont -:xample of the implementation of
such program came to my attention
throe Mr. Griner of the American Fed-
erati,Gl:_ of Government Employees. De-
fense r rupply Agency employee: at Rough
and ready Island in California were
given "Community Relations Question-
naire which asked whether the employee
is a . i i ember of service groups, such as
Kiwa r is, Rotary, and others; whether he
is a giber of educational, civil, or simi-
lar anmunity committees, such as
chair:=:ers of commerce, and others;
whet ~?r he is a member of professional
assoc Aions or organizations and which
ones; and whether he has membership
in for l PTA's and churches. I concluded
from this that the agency had some
"Rap.} ii and Ready" policies.
TYi: questionnaire states at the bottom
that t, is "required to be returned to
your upervisor not later than the close
of bt-,,mess December 3, 1970."
I teat a letter inquiring about any de-
partil entail directives authorizing such
queg?.?:znnaires and received a reply from
the . j aff director of civilian personnel
tellir the subcommittee that "the par-
ticip 7 ion of Defense Supply Agency em-
ployee=s, as individuals, in community ac-
tivit.7r is recognized as an important fac-
tor it sustaining mutual acceptance, re-
spewc , cooperation and an appreciation
by Vii.' agency personnel and community
aft et txd by their operations." He said
that _he questionnaire resulted from a
"well intentioned but imperfectly com-
mur r ated desire by the public affairs of-
flea to gage the approximate extent
of C::nmunity activities based upon fn-
forn:lion voluntarily provided by em-.
plop He further stated:
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May 11, 1971 CONGRESSIONAL RECORD -SENATE
The ,questionnaire was distributed with
verbal instructions that its completion was
'voluntary on the part of the employee,
whereas the questionnaire itself stated it
was required to be turned in.
It seems that in a recent communica-
tion to the Secretary of Defense, Gen-
eral Hedlund had identified as a manage-
ment challenge "learning to recognize
and understand growing individualism
and activism in today's society as these
relate to personnel management." The
General's word had become an order.
When he heard these complaints, this
personnel officer attempted to perform his
duty. He issued a directive telling super-
visors to be careful about their expres-
sion of interest in non-work matters and
to encourage their staffs always "to be
concerned with preventing such mis-
understandings by limiting employee in-
quiries, written or oral, to matters clear-
ly connected with the employee's work."
It is hard for me to see how personnel
officers and supervisors can follow this
rule of reason when their political su-
periors have made it clear they are to
do just the opposite. There is no way to
avoid such wholesale inquiries into the
employee's private life as long as the
Government makes clear its desire that
he go out and support programs and
policies which it endorses.
We also found that employees were or-
dered to attend meetings called or spon-
sored by their agencies or supervisors
in order to guide their thinking on so-
ciological and political issues which had
nothing to do with their jobs.
With one complaint of such attempted
indoctrination of employees at a Federal
installation, a civil servant enclosed a
memorandum taken from a bulletin
board stating the time, place, and date
of a lecture by a sociology professor on
the subject of the importance of racial
integration. Attendance was to be volun-
tary but the notice stated that a record
would be made of those attending or not
attending.
To my mind, such programs consti-
tuted official intimidation of citizens to
conform their thinking on public issues
to those of the administration.
I found nothing in the Constitution
which authorized officials of the em-
ployee's department to require attend-
ance at such brain-washing sessions held
under the auspices of the Government.
Nor were they authorized under the Con-
stitution to take note of attendance at
such Government-sponsored or Govern-
ment-endorsed meetings and lectures.
Here again, there is no sign that things
have changed very much in the Federal
Service. For example, our subcommittee
has received many employee complaints
about the sensitivity-sessions they are
required to attend to change their "cul-
tural attitudes and behavior" on racial
issues, equal rights for women and the
role of minority groups. I am told this is
being done under the equal employment
order issued by ? President Johnson to
promote civil rights in Government. In
these out-of-town meetings run by psy-
chologists and other behavioral scien-
tists, people are subjected to emotionally
charged situations deliberately staged to
manipulate and provoke human emo-
tions in sensitive-matters of the intellect
and personality.
The reports received from employees
and other Members of Congress about the
way HEW programs were operating were
so disturbing that I asked Secretary
Richar' "ou to investigate the matter and
suspend ,. '?ssions pending his report.
I also askect in to answer some simple
questions so I and other Members could
advise employees of their rights, since
these people could get no answers from
their supervisors.
That was on March 19, and to date,
the subcommittee has received no reply
from the Department.
In relaying these complaints, I also
informed the Secretary:
It has become clear from the complaints
by responsible employees, from reports by
acknowledgeable experts in the fields of
labor-management relations and from psy-
chiatrists, psychologists and specialists in
human relations, as well as from my own
studies of this matter, that this program
goes far beyond the needs of personnel train-
ing in any department or agency of govern-
ment.
On the basis of my own investigation, I am
convinced that the scope of this program and
the techniques used in some of the sessions
amount to economic coercion of the indi-
vidual to submit to official attempts to con-
trol his thoughts and emotions in ways com-
pletely uncalled for in the employment rela-
tionship. However useful such techniques
may be for treating psychiatric problems in
private practice on a voluntary basis, it is
not the business of government to inflict
them on its employees.
The Subcommittee study has amply dem-,
onstrated the need for more governmental
recognition of the constitutional rights
which employees possess as citizens. No 'one,
therefore, can fault a management training
program to teach better understanding of
management duties and to develop the ability
to deal with the human relations aspect of
a job. However, there are well-established
methods of instilling and teaching the prin-
ciples and personnel techniques involved in
such duties. It is tyranny over the mind of
the grossest sort to subject employees to a
probe of their psyches, to provoke or even
require disclosure of their intimate attitudes
and beliefs.
Even the soundest professional supporters
of such techniques have emphasized the need
for voluntary, enthusiastic participation by
the individual. From the reports received by
the Subcommittee, it appears that there is
not even a gesture toward voluntarism in
the government programs. Rather, employees
have been ordered to leave their homes and
families at some hardship and live for a pe-
riod in seclusion with fellow employees and
supervisors, while being subject to psycho-
logical encounter sessions. People who pro-
test have been given the option of refusing
to disobey an order or of requesting an ex-
emption on psychiatric or emotional grounds.
An Agriculture employee writes:
During our two and a half day session on
Civil Rights, we were subjected to hearing
lectures, speeches, stories, songs or what
have you which in many instances were full
of foul language even to the point of being
vulgar (morally crude, offensive, earthy, pro-
fane) and obscene (disgusting to the senses,
repulsive).
Other employees of that Department
wrote about being required to watch films
and to listen to tape recordings of
speeches by Dick Gregory and other civil
rights activists stressing how whites were
hated and what these people were going
S 6653
to do about it. Clearly, such sessions in-
trude on First Amendment freedoms, and
just as clearly, as these letters demon-
strate, they are counterproductive for the
administration's purposes.
The subcommittee has received nu-
merous complaints from employees of
other departments describing encounter
sessions.
There are many other ways Govern-
ment attempts to intimidate the private
thoughts and behavior of people who
work for it.
One of the most serious, however, is
the economic coercion of those citizens to
invest their money in U.S. savings bonds,
or to donate to charitable causes. Con-
gress has received many reports of black-
listing, reprisals, threats of loss of secu-
rity clearances, and other official ad-
verse actions because employees wanted
to make their own decisions about how
they donated or invested their earnings.
It is a long, unpleasant, and often un-
productive route for employees to appeal
such actions or for Congress to investi-
gate them. The many. cases received by
the subcommittee proved the need for a
plain statement in the law that such co-
ercion of a person's freedom of thought
and action is prohibited.
ENFORCEMENT MACHINERY
On the basis of complaints on these
and many other privacy invasions, it was
clear to me and the cosponsors of this
proposal that the law fails fully to pro-
tect the rights of the citizen who work
for Government. It is sometimes impos-
sible for him to challenge unconstitu-
tional governmental programs or uncon-
stitutional demands on him for informa-
tion. He is without the legal statutory
right to have counsel or someone else
with him if he wishes in sessions which
may result in disciplinary actions. He is
denied or inhibited from pursuing any
administrative remedies. He is refused
access to the courts under laws and judi-
cial decisions which would leave such
programs to the discretion of the execu-
tive branch.
So in addition to simple prohibitions
on unconstitutional actions of Govern-
ment, my bill also establishes certain en-
forcement machinery which includes a
right to counsel in certain cases, a board
on employee rights where an applicant
or employee may obtain a hearing and
action on complaints arising under this
act; and it affords access to the Federal
District Court in cases arising under this
act.
This bill to protect employee privacy
has had widespread public and editorial
support throughout the Nation as well as
support from employee unions and or-
ganizations. In fact, with few exceptions,
the only people who seem against it are
those whose power would be limited by
it.
Despite the widespread public and con-
gressional support, one would have
thought that with this bill I sought to
introduce the bubonic plague into the
Federal service rather than the rule of
law. Officials in the previous administra-
tion fought this simple proposal with ev-
ery resource at its command. They con-
jured up incredible legal ghosts in an
attempt to influence the uninformed or
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CONGRESSIONAL RECORD - SENATE May 11, 1971
tirnidate the -fault of heart. However
Much they vowed to alter administrative
-_acllinery or to change governmental
;;.bout the purpose of this bill. To hear
:orne describe it. all of the ills which be-
-t the Federal service will be cured by
pa srige of the bill. Others have seized
oi uicai executive in the Federal Gov-
rnnient will have :notice of the constitu-
on.. i limits of his power in certain spec-
at d matters. It leaves untouched the
, a;t investigatory apparatus of the Gov-
e rnn ent. it leaves untouched the many
oioiict-of-interest laws. the ethical con-
seuct. codes and all the other laws under
:)tieing the 5 years we have worked
e i;:h the bill in the Constitutional Rights
ub ommittee, it has been subjected to
arciul refinement; and amendment to
ieet; any legitimate objections. These are
;;teal in the Judiciary Committee report
bers of Congress without reporting it to ploys.- privacy legislation before the
their supervisors. ions' :.ind
Nor can employee unions and orga - . re ore urge the immediate enac -
zation completely protect against such ment .?f that legislation, unencumbered,
complaints. although within their limited undil, ed, and in the form passed by the
resources, they have been increasingly Send- in the last Congress and as re-
active in protecting privacy. In thiscon- flecte. in S. 1438 of this Congress.
nection I am reminded of the union con =
against going to the press or to Congress PACKWOOD. Mr. President,
with their grievances. Furthermore, not w reform has been listed as this
all employees and applicants are mem- a stration's No. I legislative goal,,,
bers of unions nor should they be re- Alt ^uaghwe here in the Senaie clisagr*
quired to join to assure their first amc9i ourselves on the shape c:f ref onus
amendment right to privacy.. that i:re needed, I think we too are
Nor does the remedy rest with the unan a 4':ous in recognizing that ,orne type
Civil Service Commission. Their attitude of vi l'6are reform is despe: ately `and
toward privacy is revealed by their re- urges.ifit; needed.
sponse to my inquiry about piped-in Be,.,,r zany constructive proposak.can
music. After receiving complaints about be pt: fc*tth, we first must examil ie the
this subject, I asked the Commission natu. arhi source of the problems, both
what grievance channels were available from ? he ~ioint of view of the *elfare
to employees who resented having to reciparat, ilae taxpayer, and the Welfare
work by piped-in music, some of it rau- admi' ,.stratbr. Additionally, wet must
cous hillbilly or jazz. Without ex- caref fly consider the varying needs and
pressing any opinion on the matter, I stare rds fibm one State or ,area to
asked whether any rules existed where- anot;. ?r. New' ork's needs and ]Solutions
by an agency could involve its employees will of be i ntical to OrerOri's. and
in the decision about whether to use it, Calif -nia's>li probably differ from
and in the choice of music. The Commis- Mair . It seeks to me that geograph-
sion sent me a long letter arguing that ical a.: -d econon'tic diversity mtjst be kept
the Supreme Court has held there is no close!,; in mind as we begin to examine
constitutional right to be free of music the e .'cif es of the various Aivelf'are re-
on buses and that people had to get used form kroposals before us. I
to the sounds of daily living, whether
they are in the city or the country.
Cangxt5s i,_ A 1-87Undreamed of privacy invasions are
u-i the version .gassed by the Senate being made possible or furthered by great
last year and which I have reintroduced, computer systems, by the new technology
the Federal Bureau of Investigation is with all its sophisticated devices and in-
.xenlpted and there are certain carefully struments. Some of these raise constitu-
i =*: it exceptions for the two security tional issues. Some do not,
gericies, the Central Intelligence Agency The time has come, I believe, for Con-
and the National Security Agency. These gress to consider establishing a tribunal
.:xceptioiis in S. 782 of last year were in independent of the Civil Service Com-
add Lion to those contained in the bill mission,tohearandjudgethemanycom-
,bich first passed the Senate in 1967 as plaints of violation of privacy rights of
S. 4"-42't, - employees.
, t;cl s"'Ei p o -this legislation does The Civil Service Commission was
. oc _rnply a belief that there should be created to be the handmaiden of the
law on everything the executive branch Chief Executive and to pursue his man-
hould not do to its employees. There are dates in the general management of the
tier v things done in the name of worthy Federal service. Its staff have an unbe-
ur ores which are foolish. tyrannical, lievable burden to carry to assure the re-
s ss e of self-defeating. But they do sponsible and efficient operation of the
acs _st rely violate the Constitution. Federal service. Too often, any constitu-
cau Congress legislate against all tionalrights employees possess have been
reedom of the mind which is guar- hind them has come from the good will
cclall citizens under the first amend- and good faith of Commission members
ernlnent causes, or about personal
rs watch are none of the business
) nt ibiting employees from con-
personnel offices and supervisers
for such a remedy is under-
-ould take action on problems.
undernned ty the written and ver-
"gag rules" ordering employees not to
Congress about their problems and,
sources. The impetus for their enforce-
ment often stems from political pressure
with help from the courts.
We live in a government of laws. not of
men. The constitutional rights of citizens
even those who work for the Federal
Government, should depend on .laws, not
Executive orders: on the application of
due process of law, not on the grace of the
Civil Service Commission.
This is not a new idea, but one which
may have new urgency with the new em-
ployee problems. I think it bears explora-
tion.
But I do not see the establishment of
such a body or any other new laws as
alternatives to the passage of the em-
Tb i
has r,
on a
very!
In yi,-
I asi
force
I eo
cons;
was r
as ft
iIous
PvR7
Re,
man.
pe,
non
Rel
RRl
Cr
!fare in 0
ioughtful
eport be pri;
it to
mend
=ration.
dered to be prin
ows:
that the task
n the RECORD.
'Asse FOriCE o;r rLFAne~ 1971 Re-
'o THE 56TH L t'I " ATIVF AESFMSLY
'sentatlve G
ge F.
le.
sentative
gh Joh
on.
sentative
chi:srd
r..1er.
,sentative
orlon
Pherson,
es McKee
Adriinistr
t1*e As . stani.
Wilt Slue, 'reta y to tee Committee.
SIR 'us; Gail ffrle;, John ouser Allen
TRODI (`rIOTr
tie e ms w e inst deli is the
Un Mapt es an a nesg~ne measure in
the I s to those sho we" -ill-housed,
it?-cam d, a in fed" as a real of massive
unpin v r vma and a ds?aying elonornr. To-
da-a, r rrly 4d years after its Inc tion. pub-
lic ..tang has stra> ed far frc xi its orig-
inal 12 :rpo . It has bneome a (pammoth,
unto 'in< d bueazr,^ acy pro 1ng per-
trrailt;, ii ine rathei than enz, 7 muy in-
ccnie pie in need.
Try 7D here were 72.443 app ,ca`iions for
paobli tanee in Oregon con-_pa_d with
43,54 years earlier. In 1970, wel re as-
sistar, , /sas given to 50,331, or 61.47 pngrcent
of tS' japplying compared who 2e,54, or
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 uEN"WO 31li_.tV@8K@9
Office of Legislative Counsel
Washington, D. C. 20505
Telephone: Code 143-6121)
7 ~rtay119 71
Mr. Victor Zafra
Room 464 Executive Office Building
Office of Management and Budget
Per our conversation, an early
reaction would be appreciated since we
are concerned that something might
pop in the Senate.
George L. Cary, Jr.
Deputy Legislative Counsel
FORM 1533 OBSOLETE
6-68 PREVIOUS
EDITIONS
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 Ap
IF T P TTO
(X 01
UNCLASSIFIED
OFFICIAL ROUTING SLIP
TO
NAME AND ADDRESS
DATE
INITIALS
Executive' Director
101
2
The Director
3
4
5
6
ACTION
DIRECT REPLY
PREPARE REPLY
APPROVAL
DISPATCH
RECOMMENDATION
COMMENT
FILE
RETURN
CONCURRENCE
INFORMATION
SIGNATURE
Remarks :
In view of the pulling and hauling with
Senator Ervin over his bill last year, I
believe we should ,T`n.ake the record clear
that we still. des' e a full exemption and
recommend yo sign the attached letter.
It has been'c ared with OMB.
4 ~ ?'~f F
John M. Maury
z- ` Legislative Counsel
FOLD HERE TO RETURN TO SENDER
FROM: NAME. ADDRESS AND PHONE NO.
DATE
UNCLASSIFIED CONFIDENTIAL
SECRET
FORM NO. n~]7 Use previous editions
1-67 LJ I
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The purposes clause of the National Security Act of 1947 (P. L. 80-253)
states that: "In enacting this legislation, it is the intent of Congress to provide
a comprehensive program for the future security of the United States;... ".
The Act then goes on to establish the Central Intelligence Agency and the
position of the Director of Central Intelligence and in Section 102(c)(3) specifically
charges the DCI with responsibility"... for protecting intelligence sources and
methods from unauthorized disc.losure... ".
The CIA Act of 1949 (P. L. 81-110) grants the DCI authority to protect
such sources and methods by exempting the Agency "... from the provisions...
of any. . . law which require[s] the publication or disclosure of the organization,
functions, names, official titles, salaries, or numbers of personnel employed
by the Agency... ".
S. 782 raises a serious question of statutory interpretation concerning
possible conflict between S. 782 and the authorities and responsibilities now
reposed in the Director by the provisions of law referred to above.
S. 782 specifically authorizes adversary procedures which pose a
serious paradox--the Agency must either remain silent in the face of unfounded
allegations (with the alleged offending officer taking the consequences of the
sanctions embodied in the bill), or it must divulge information which it is
obligated by statute to protect, and disclosure of which might damage the
national intelligence effort.
A detailed analysis and explanation of the adverse impact of the bill
on the fundamental security interests of the Agency is attached. In sum
they make clear that enactment of the bill without a full exemption for CIA
and other members of the intelligence community such as NSA would be a
most serious obstacle to the effective protection of intelligence sources and
methods. Without a complete exemption, S. 782 would seriously weaken the
Agency's efforts to prevent penetration by a hostile intelligence service, to
ensure that its. employees are suitable in all respects for employment in this
sensitive Agency, and in general make it much more difficult for the Director
of Central Intelligence to discharge his responsibilities under existing law.
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Section-By-Section Analysis of Certain Provisions
of "Invasion of Privacy" Bills (H. R 7969, H. R. 7199*, S. 1438)
Section 1 (b). Prohibits taking notice of attendance or lack of attendance
at any assemblage, discussion, or lecture held or called by any officer of the
Executive Branch, or by any outside parties or organizations to advise, instruct
or indoctrinate any civilian employee in respect to any matter or subject other
than the performance of official duties.
The purpose of this section is to protect employees from compulsion to
attend meetings, discussions, and lectures on political, social, and economic
subjects unrelated to his duties.
The language is so broad that it can be interpreted to prohibit a
department or agency from taking notice of the attendance of an employee
at meetings of subversive organizations or meetings designed to under-
mine the Government of the United States. Many departments and agencies,
and particularly those dealing with security matters, would find such a
prohibition intolerable.
Section 1 (d). Makes it unlawful to require an employee to make any
report of his activities or undertakings not related to the performance of
official duties unless there is reason to believe that the employee is engaged
in outside activities or employment in conflict with his official duties.
The purpose of this section is to guarantee the freedom of an employee
to participate in any endeavor or activity in his private life as a citizen, free
of compulsion to report to supervisors his action or inaction, his involvement
or his noninvolvement. It is to assure that he is free of intimidation or
inhibition as a result of the employment.
This section is of primary importance to those agencies concerned with
security' matters which, could be seriously compromised by employee activities
and relationships not directly connected with his employment. Security agencies
must request their employees to report contacts with foreign officials not only
to give the employer notice of the relationship but also to protect the employee
in his personal security should the foreign official be a member of an intelligence
service. Similarily, the security agencies must request employees. to submit
publications and speeches for clearance in advance to insure that there is no
inadvertent disclosure of intelligence information.
* See page 6
W~ ? 1qa: i n{ ,1
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Section 1'(e). Makes it unlawful to require or request any applicant or
employee to submit to any interrogation or examination designed to elicit from
him information concerning his personal relationship with any person connected
with him by blood or marriage, or concerning his religious beliefs or practices,
or concerning his attitude or conduct with respect to sexual matters. The
section also prohibits the use of psychological testing to inquire into these same
areas. These questions may be asked only on the determination by a physician
that they are necessary to enable him to determine whether or not an employee
is suffering from mental illness. An employee may be informed of a specific
charge of sexual misconduct and afforded an opportunity to refute the charge.
A partial exemption from this subsection is provided for CIA and the
NSA in section 6. These agencies may use psychological testing in the pro-
scribed areas on the basis of a personal finding by the Directors or their
designees in each individual case that the information is necessary to protect
the national security.
Psychological testing in these areas is part of the total screening
process which has been established to weed out applicants with undesirable
traits. It is of primary concern to security agencies. The exemption provided
by section 6 affords some relief, but it will still be necessary to make personal
findings in each individual case. This implies that psychological screening is
an exception rather than the necessary procedure in every case.
Section 1'(f). Prohibits the use of a polygraph test designed to elicit
from an applicant or employee information concerning his personal relationship
with any person connected with him by blood or marriage, or concerning his
religious beliefs or practices or concerning his attitude or conduct with respect
to sexual matters.
The purpose is not to prohibit the use of the polygraph but to prohibit
its use to elicit information considered to be of a personal nature.
A partial exemption from this subsection is provided for CIA and NSA in
section 6. The polygraph may be used in the proscribed areas on the basis of a
personal finding by the Directors or their designees in each individual case that
the test is necessary to protect the national security. As with the psychological
testing, polygraph testing is of primary concern to the security agencies who
have found it to be not only an invaluable supplement to field investigations
but uniquely effective in detecting certain types of security vulnerabilities.
It is particluarly useful in uncovering undesirable characteristics which do
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not appear in field investigations. The requirement for individual findings in
each case to obtain relief from this subsection implies that polygraph screening
is an exception rather than a necessary procedure.
Section 1 (i). Makes it illegal to request any employee to disclose any
items of his property, income, or other assets, sources of income, or liabilities.
The first proviso excepts those employees who have authority to make final
determination with respect to claims which require expenditure of monies of
the United States. The second proviso excepts reports as may be necessary or
appropriate for the determination of liabilities for taxes, tariffs, custom duties,
or other obligations imposed by law.
A partial exemption for the NSA and the CIA has been granted in
section 6. Financial disclosure may be requested of an employee or applicant
on the basis of a personal finding by the Directors or their designees in each
individual case that the information is necessary to protect the national security.
The broad language used could prohibit requesting certain information from
employees for such things as credit union loans, health insurance reimbursements,
and other programs designed for the welfare of the employee, which are not
directly related to national security and thus not covered by the partial exemption
granted CIA and NSA.
Section 1 (j). Makes it illegal to request financial disclosure from those
employees excepted undeir the first proviso of subsection (i) other than specific
items tending to indicate a conflict of interest.
Full financial disclosure assists both the employee and the Government
in making what at best is a difficult decision as to conflict of interest. In the
absence of full disclosure, it appears that this burden is placed entirely upon
the employee.
Section 1 (k). Makes it illegal to require an employee who is under
investigation for misconduct to submit to interrogation which could lead to
disciplinary action without the presence of counsel or other person of his choice
if he so requests. In the case of NSA and CIA, counsel must be either another
employee of, or approved by, the agency involved.
This right inures to the employee at the inception of the investigation
and does not require that the employee be accused formally of any wrongdoing
before he may request presence of counsel or friend.
ry g 4$~'N~L^. rn ~1A~?~/ I
U .VY!A4. ?r ?5t
41 t+. L' L Y 4%L
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This section is understood to be of concern to all departments and
agencies and could lead to a serious deterioration of employee discipline.
If a supervisor asks an employee for an explanation of consistent tardiness
the employee is entitled to counsel at this stage. The section is of even
more concern to the security agencies which may find it necessary to
interrogate an employee regarding activities related to security matters.
Section 1 (1). Makes it illegal to discharge, discipline, demote, deny
promotion, relocate, reassign, or otherwise discriminate against an employee
by reason of his refusal or failure to submit or comply with any requirement
made unlawful by this act.
The purpose of this section is to prohibit discrimination against any
employee because he refuses to comply with an illegal order as defined by
this act or takes advantage of a legal right embodied in the act.
This section, combined, with section 4, could seriously undermine the
authority of any executive agency to conduct its business. For example, any
employee being transferred to a post to which he objects could block the
transfer with a suit alleging a violation of this act until such time as the case
is brought to trial and it is proven that the transfer is for the benefit of the
Government and is not a disciplinary action.
Section 4. Permits any employee or applicant who alleges that an
officer of the Executive Branch has violated or threatened to violate provisions
of the act to bring a civil action in the district courts.
The potential of this section when combined with section 1 (1) is most
serious. With the written consent of any person affected or aggrieved by a
violation or threatened violation, any employee organization may bring action on
behalf of such person, or may intervene in such action. This would appear to
establish a basis for jurisdictional conflicts between competing unions. Further,
this section and section 5 establish two new forums for an employee who is
terminated for cause to contest the termination on the issue of a violation of
this act.
Since the court action authorized by the bill is against the offending
supervisor rather than the department or agency, the practical result is
litigation between one employee and another. This in turn could expose super-
visors to continued harassment by disgruntled employees with the result of a
serious breakdown in discipline and reluctance of qualified employees to accept
supervisory responsibility.
pn A~ ~1
41'}T R~','~!t~eT iI
61b"it 4
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With respect to applicants, this section has most serious implications.
All departments and agencies would be subject to harassment by any applicant
who is not hired for the position he feels qualified to fill. For example,
subversives acting on their own or on instruction from foreign agents could
file suits for the sole purpose of harassment based on allegations of improper
questioning during recruitment interviews.
Section 5. Establishes an independent. Board on Employees' Rights to
provide applicants or employees with an alternative means of obtaining
administrative relief from violations of the act short of recourse of the
judicial system. It creates the same potential for harassment as section 4.
If the charged employee loses his case before the Board, he can still take it
to the courts.
Section 6. Permits the CIA and the NSA to request employees or
applicants to take a polygraph test or psychological testing designed to elicit
information concerning his personal relationship to any person connected with
him by blood or marriage, or concerning his religious beliefs or practices, or
concerning his attitude or conduct with respect to sexual matters, or to provide
a personal financial statement if the Directors, or their designees, make a
personal finding with regard to each individual case that the test or information
is required to protect the national security. In view of previous comments in
connection with subsection 1(e) (psychological testing) and with subsection 1(f)
(polygraph) this section implies that these screening aids will be used as an
exception rather than the necessary procedure in every case.
Section 7. Requires an employee of CIA or NSA to give his employing
agency 120 days to prevent threatened violation of the act, or redress an
actual violation of the act, before proceeding before either the United States
district court or the Board on Employees' Rights. This requirement for notice
does not apply to CIA or NSA applicants who, along with all other Executive
Branch employees and applicants, have a right to bring an action before the Board
or the district court and disregard existing administrative remedies or grievance
procedures.
The section reaffirms the existing statutory authority of the Director of
Central Intelligence and the Director of the National Security Agency to terminate
the employment of any employee. However, the potential for statutory conflict
still exists should the Director terminate an employee for cause under existing
statutory authority and a district court order reinstatement on a finding of a
violation of the act.
r.r ra:C imi'i ~ GYLYb.
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 This was prepared as a hand-
out for the Hanley Subcommittee
breakfast meeting at CIA on
9 June 1971.
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Analysis ofS4electedySections Invasion of Privacy'
Bills (H. R. 7969, H. R. 7199',-, S. 1438)
Section 1 (b). Prohibits taking notice of attendance or lack of attendance
at any assemblage, discussion, or lecture held by any officer of the Executive
Branch, or by any outside parties of organizations to advise, instruct or
indoctrinate any civilian employee in respect to any matter other than the
performance of official duties.
Effect:
The language is so broad that i' could prohibit an agency
noting the attendance of an employee at meetings or gatherings
of subversive and radical groups designed to undermine the
Government of the United States.
Section 1 (d). Prohibits requiring an employee to report his unofficial
outside activities unless reason to believe a conflict with official duties.
Effect:
This section is of primary importance to security agencies
which for security reasons are concerned with outside activities
of employees. Contacts with foreign officials are to be reported as
a matter of information to protect the employee should the official
be a member of an intelligence service. Similarily, security
agencies must review publications and speeches of employees in
advance to insure that there is no inadvertent disclosure of classified
.information.
Section 1 (e). Prohibits requiring or requesting any applicant or
employee to submit to interrogation concerning: his personal relationship with
any person related to him by blood or marriage, his religious beliefs or
practices, or his attitude or conduct with respect to sexual matters. Prohibits
the use of psychological testing into these same areas. These questions may
be asked only by a physician to determine if an employee is suffering from
mental illness. An employee may be informed of a specific charge of sexual
misconduct and afforded an opportunity to refute the charge. Section 6 provides
CIA and NSA the use of psychological testing in the proscribed areas on the
basis of a personal finding by the Directors or their designees'in each case
that the information is necessary to protect the national security.
Effect:
Psychological testing in these areas is an important part of
the total screening process to weed out applicants with undesirable
traits. The exemption provided by Section 6 does not recognize
that psychological screening is an integral part of the processing
in every case.
*See page 4.
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 Approved For Release 2005/08/03: CJA-RDP81,9081ARQ00100050001-8
Section 1 (f). Prohibits the use of a polygraph test designed to elicit
from an applicant or employee information as stated in Section 1 (e) above..
Section 6 provides CIA and NSA use of the polygraph in these proscribed areas
on the same basis as above.
Effect:
As with psychological testing, polygraph testing is of
primary concern to security agencies who have found it to be an
invaluable supplement to field investigations but uniquely effective
in detecting certain latent types of security vulnerabilities. The
exemption provided by Section 6 does not recognize that polygraph
testing is an integral part of processing in every case.
Section 1 (i). Prohibits requesting any employee to disclose his total
financial worth or liabilities. Excepted are employees who make final
determinations with respect to claims requiring expenditure of federal funds.
Also excepted are reports for determining liabilities or obligations imposed
by law. CIA and NSA under Section 6, may inquire into the financial matters
of an employee or applicant after a finding by the Directors or their designees
in each case that the information is necessary to protect the national security.
Effect:
The broad language could prohibit inquiring into such
matters as credit union loans, health insurance reimbursements,
and other programs designed for the welfare of the employee,
not directly related to national security and not covered by the
exemption granted CIA and NSA.
Section 1 (j). Prohibits requesting financial disclosure from those
employees excepted under the first proviso of subsection (i) above other than
specific items tending to indicate a conflict of interest.
Effect:
Full financial disclosure assists the employee and the
Government in making a difficult decision as to conflict of
interest. Without full disclosure, this burden apparently is
placed entirely upon the employee.
Section 1 (k). Prohibits requiring an employee, under investigation for
misconduct, to submit to interrogation which could lead to disciplinary action
without the presence of counsel or other person of his choice if he so requests.
In the case of CIA and NSA, counsel must be either another employee of, or
approved by, the agency involved. This right inures to the employee when
first questioned and does not require that the employee be accused of any
wrongdoing before he may request presence of counsel or friend.
it 4,v , . t..:.i A r
~..: i. . IWS l,.l 6..
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 Approved For Release 2005/08/03: CIA,RDP81,0081,8RO90100050001-8
Effect:
This section is of concern to all agencies and could
lead to a serious deterioration of employee discipline. If a
supervisor asks an employee for an explanation of consistent
tardiness the employee is then entitled to counsel. This is
of even more concern to the security agencies which may have
to question an employee regarding activities related to
security matters.
Section 1 (1). Makes it illegal to discharge, discipline, demote, deny
promotion, relocate, reassign, or otherwise discriminate against an employee
by reason of his refusal or failure to submit or comply with any requirement
made unlawful by this act.
Effect:
This section, combined with Section 4 below, could
seriously undermine the authority of any agency to conduct its
business. For example, any employee being transferred could
block the transfer with a suit alleging a violation of this act until
such time as the case is brought to trial and it is proven that the
transfer is for the benefit of the Government and is not a
disciplinary action.
Section 4. Permits any employee or applicant who alleges that an
officer of the Executive Branch has violated or threatened to violate provisions
of the act to bring a civil action in the district courts.
Effect:
This section with section 1 (1) is most serious. With the
written consent of any person aggrieved, any employee organiza-
tion may intervene in such action. This could establish a basis for
jurisdictional conflicts between competing unions. Further, this
section and Section 5 establish two new forums for an employee
to contest his termination. Since court action is against the
offending supervisor rather than the department or agency; the
practical result is litigation between employees. This can expose
supervisors to continued harassment by disgruntled employees
resulting in a serious breakdown in discipline and reluctance
of qualified employees to accept supervisory responsibility. With
respect to applicants, this section has most serious implications.
Any applicant who is not hired for the position he feels qualified to
fill can initiate a suit. Further, subversives or radical groups
could file suits for the sole purpose of harassment.
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 Approved For Release 2005/08/03 : CIA-RDP81-00818R000100050001-8
Section 5. Establishes an independent Board on Employees' Rights
to provide applicants or employees with an alternative means of obtaining
administrative relief from violations of the act.
Effect:
Creates the same potential for harassment as Section 4.
If one loses his case before the Board, he can still take it to the
courts.
Section 7. Requires an employee of CIA or NSA to give his employing
agency 120 days to prevent threatened violation of the act, or redress an
actual violation of the act, before proceeding before a court of the Board on
Employees' Rights, Reaffirms statutory authority of Directors of CIA and NSA
to terminate an employee.
Effect:
The requirement for notice does not apply to CIA or NSA
applicants who have a right to bring immediate action. The potential
for statutory conflict still exists should the Directors terminate an
employee for cause and a court order reinstatement on a finding of
a violation of the act.
Section 8. Recognizes the statutory authority of the Directors of CIA
and NSA to protect or withhold certa_. .ation in the national interest.
Effect:
Information which the Directors determine must withhold
may actually provide the only basis for refuting unfounded allegations.
Since the sanctions in the bill are against the alleged offending
employee, not the Directors, the net effect of withholding information
is to make the charged employee bear the consequences, which can
include loss of pay and termination. However, to disclose such
information with its consequential damage to the national intelligence
effort is even less acceptable.
*Note: H. R. 7199 is similar, except provisions of Section 7 above are
omitted and FBI is granted partial, not full exemption.
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 Approved For Release 2005/08/03 : CIA-RDP81-00818R000100050001-8
The purposes clause of the National Security Act of 1947 (P. L. 80-253)
states that: "In enacting this legislation, it is the intent of Congress to provide
a comprehensive program for the future security of the United States;...
The Act then goes on to establish the Central Intelligence Agency and the
position of the Director of Central Intelligence and in Section 102(c)(3) specifically
charges the DCI with responsibility"... for protecting intelligence sources and
methods from unauthorized disclosure...
The CIA Act of 1949 (P. L. 81-110) grants the DCI authority to protect
such sources and'methods by exempting the Agency "... from the provisions...
of any... law which require[s] the publication or disclosure of the organization,
functions, names, official titles, salaries, or numbers of personnel employed
by the Agency...
S. 1438 raises a serious question of statutory interpretation concerning
possible conflict between S. 1438 and the authorities and responsibilities now
reposed in the Director by the provisions of law referred to above.
S. 1438 specifically authorizes adversary procedures which pose a
serious paradox--the Agency must either remain silent in the face of unfounded
allegations (with the alleged. offending officer taking the consequences of the
sanctions embodied in the bill), or it must divulge information which it is
obligated by statute to protect, and disclosure of which might damage the
national intelligence effort.
A detailed analysis and explanation of the adverse impact of the bill
on the fundamental security interests of the Agency is attached. In sum
they make clear that enactment of the bill without a full exemption for CIA
and other members of the intelligence community such as NSA would be a
most serious obstacle to the effective protection of intelligence sources and
methods. Without a complete exemption, S. 1438 would seriously weaken the
Agency's efforts to prevent penetration by a hostile intelligence service, to
ensure that its. employees are suitable in all respects for employment in this
sensitive Agency, and in general make it much more difficult for the Director
of Central Intelligence to discharge his responsibilities under existing law.
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The purposes clause of the National Security Act of 1947 (P. L. 80-253)
states that: "In enacting this legislation, it is the intent of Congress to provide
a comprehensive program for the future security of the United States;. . . ".
The Act then goes on to establish the Central Intelligence Agency and the
position of the Director of Central Intelligence and in Section 102(c)(3) specifically
charges the DCI with responsibility"... for protecting intelligence sources and
methods from unauthorized disc.losure... ".
The CIA Act of 1949 (P. L. 81-110) grants the DCI authority to protect
such sources and methods by exempting the Agency "... from the provisions...
of any... law which require[s] the publication or disclosure of the organization,
functions, names, official titles, salaries, or numbers of personnel employed
by the Agency... ".
S. 782 raises a serious question of statutory interpretation concerning
possible conflict between S. 782 and the authorities and responsibilities now
reposed in the Director by the provisions of law referred to above.
S. 782 specifically authorizes adversary procedures which pose a
serious paradox--the Agency must either remain silent in the face of unfounded
allegations (with the alleged offending officer taking the consequences of the
sanctions embodied in the bill), or it must divulge information which it is
obligated by statute to protect, and disclosure of which might damage the
national intelligence effort.
A detailed analysis and explanation of the adverse impact of the bill
on the fundamental security interests of 'the Agency is attached. In sum
they make clear that enactment of the bill without a full exemption for CIA
and other members of the intelligence community such as NSA would be a
most serious obstacle to the effective protection of intelligence sources and
methods. Without a complete exemption, S. 782 would seriously weaken the
Agency's efforts to prevent ;penetration by a hostile intelligence service, to
ensure that its. employees are suitable in all respects for employment in this
sensitive Agency, and in general make it much more difficult for the Director
of Central Intelligence to discharge his responsibilities under existing law.
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 Approved For R ease ?1,00Q5/08/03 : IA-RDP81-0081, 8R000100050001-8
Et ec o certain rovI.sions of a. .L40
Section 1 (b). Prohibits taking notice of attendance or lack of attendance
at any assemblage, discussion, or lecture held by any officer of the Executive
Branch, or by any outside parties of organizations to advise, instruct or
indoctrinate any civilian employee in respect to any matter other than the
performance of official duties.
Effect:
The language is so broad that it could prohibit an agency from
noting the attendance of an employee at meetings or gatherings
of subversive and radical groups seeking to undermine the
Government of the United States.
Section 1 (d). Prohibits requiring an employee to report his unofficial outside
activities unless there is reason to believe they conflict with official duties.
Effect:
This section is of primary importance to security agencies
which for security reasons are concerned with outside activities
of employees. Contacts with foreign officials should be reported as
a matter of information to protect the employee should the official
be a member of an intelligence service. Similarily, security
agencies must review publications and speeches of employees in
advance to insure that there is no inadvertent disclosure of classified
info rmation.
Section 1 (e). Prohibits requiring or requesting any applicant or
employee to submit to interrogation concerning: his personal relationship with
any person related to him by blood or marriage, his religious beliefs or
practices, or his attitude or conduct with respect to sexual matters. Prohibits
the use of psychological testing into these same areas. These questions may
be asked only by a physician to determine if an employee is suffering from
mental illness. An employee may be informed of a specific charge of sexual
misconduct and afforded an opportunity to refute the charge. Section 6 provides
CIA and NSA the use of psychological testing in the proscribed areas on the
basis of a personal finding by the Directors or their designees in each case
that the information is necessary to protect the national security.
Effect:
Psychological testing in these areas is an important part of
the total screening process to weed out applicants with undesirable
traits. The exemption provided by Section 6 does not recognize
that psychological screening is an integral part of the processing
in every case.
.v i to w~ 17
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 Approved For Release 2005/08/03 : CIA-RDP81-00818R000100050001-8
Section 1 (f). Prohibits the use of a polygraph test designed to elicit
from an applicant or employee information as stated in Section 1 (e) above.
Section 6 provides CIA and NSA use of the polygraph in these proscribed areas
on the same basis as above.
Effect:
As with psychological testing, polygraph testing is of
primary concern to security agencies who have found it to be an
invaluable supplement to field investigations but uniquely effective
in detecting certain latent types of security vulnerabilities. The
exemption provided by Section 6 does not recognize that polygraph
testing is an integral part of processing in every case.
Section 1 (i), Prohibits requesting any employee to disclose his total
financial worth or liabilities. Excepted are employees who make final
determinations with respect to claims requiring expenditure of federal funds,
Also excepted are reports for determining liabilities or obligations imposed
by law. CIA and NSA under Section 6, may inquire into the financial matters
of an employee or applicant after a finding by the Directors or their designees
in each case that the information is necessary to protect the national security.
Effect:
The broad language could prohibit inquiring into such
matters as credit union loans, health insurance reimbursements,
and other programs designed for the welfare of the employee,
not directly related to national security and not covered by the
exemption granted CIA and NSA.
Section J. (j). Prohibits requesting financial disclosure from those
employees excepted under the first proviso of subsection (i) above other than
specific items tending to indicate a conflict of interest.
Effect:
Full financial disclosure assists the employee and the
Government in making a difficult decision as to conflict of
interest. Without full disclosure, this burden apparently is
placed entirely upon the employee.
Section 1 (k). Prohibits requiring an employee, under investigation for
misconduct, to submit to interrogation which could lead to disciplinary action
without the presence of counsel or other person of his choice if he so requests.
In the case of CIA and NSA, counsel must be either another employee of, or
approved by, the agency involved. This right inures to the employee when
first questioned and does not require that the employee be accused of any
wrongdoing before he may request presence of counsel or friend.
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 This section is of concern to all agencies and could
lead to a serious deterioration of employee discipline. If a
supervisor asks an employee for an explanation of consistent
tardiness the employee is then entitled to counsel. This is
of even more concern to the security agencies which may have
to question an employee regarding activities related to
security matters.
Section 1 (1). Makes it illegal to discharge, discipline, demote, deny
promotion, relocate, reassign, or otherwise discriminate against an employee
by reason of his refusal or failure to submit or comply with any requirement
made unlawful by this act.
This section, combined with Section 4 below, could
seriously undermine the authority of any agency to conduct its
business. For example, any employee being transferred could
block the transfer with a suit alleging a violation of this act until
such time as the case is brought to trial and it is proven that the
transfer is for the benefit of the Government and is not a
disciplinary action.
Section 4. Permits any employee or applicant who alleges that an
officer of the Executive Branch has violated or threatened to violate provisions
of the act to bring a civil action in the district courts.
Effect:
This section with section 1 (1) is most serious. With the
written consent of any person aggrieved, any y employee organiza-
tion may intervene in such action. This could establish a basis for
jurisdictional conflicts between competing unions. Further, this
section and Section 5 establish two new forums for an employee
to contest his termination. Since court action is against the
offending supervisor rather than the department or agency; the
practical result is litigation between employees. This can expose
supervisors to continued harassment by disgruntled employees
resulting in a serious breakdown in discipline and reluctance
of. qualified employees to accept supervisory responsibility. With
respect to applicants, this section has most serious implications.
Any applicant who is not hired for the position he feels qualified to
fill can initiate. a suit. Further, subversives or radical groups
could file suits for the sole purpose of harassment.
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L Y
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 Approved For Release 2005/08/03 : CIA-RDP81-00818R000100050001-8
Section 5. Establishes an independent Board on Employees' Rights
to provide applicants or employees with an alternative means of obtaining
administrative relief from violations of the act.
Creates the same potential for harassment as Section 4.
If one loses his case before the Board, he can still take it to the
courts.
Section 7. Requires an employee of CIA or NSA to give his employing
agency 120 days to prevent threatened violation of the act, or redress an
actual violation of the act, before proceeding before a court of the Board on
Employees' Rights. Reaffirms statutory authority of Directors of CIA and NSA
to terminate an employee.
Effect:
The requirement for notice does not apply to CIA or NSA
applicants who have a right to bring immediate action. The potential
for statutory conflict still exists should the Directors terminate an
employee for cause and a court order reinstatement on a finding of
a violation of the act.
Section 8. Recognizes the statutory authority of the Directors of CIA
and NSA to protect or withhold certain information in the national interest.
Information which the Directors determine must withhold
may actually provide the only basis for refuting unfounded allegations.
Since the sanctions in the bill are against the alleged offending
employee, not the Directors, the net effect of withholding information
is to make the charged employee bear the consequences, which can
include loss of pay and termination. However, to disclose such
information with its consequential damage to the national intelligence
effort is even less acceptable.
*Note: H. R. 7199 is similar, except provisions of Section 7 above are
omitted and FBI is granted partial, not full exemption.
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 Approved For Release 2005/08/03 : CIA-RDP81-00818R000100050001-8
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92D CONGRESS
1ST SESSION
H. R. 11150
IN THE HOUSE OF REPRESENTATIVES
OcToBEltt 7,1071
Mr. IIANLEY (for himself, Mr. Ni.%sco,M1-.1TDA1J., Mr. CHARLES IT. WILSON, Mr.
GALIFIANAKIS, Mr. i\'[ATSUNAG.i, and Mr. Murtrrl.v of New York) introduced
the following bill; which was referred to the Committee on Post Office, and
Civil Service
A BILL
To amend title 5, United States Code, to protect civilian em-
ployees of the executive branch of the United States Gov-
ernment in the enjoyment of their constitutional rights, to
prevent unwarranted governmental invasions of their pri-
vacy, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tines of the United States of America in Congress assembled,
3 That (a) chapter 71 of title 5, United States Code, is
4 amended by adding at the end thereof the following new
5. subchapter III:
6 "SUBCHAPTER III-EMPLOYEE RIGHTS
7 "? 7171. Policy
8 "It is the policy of the United States, as an employer,
9 to assure that those officials of Executive agencies charged
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1 with administrative or supervisory responsibility recognize
2 and protect the personal and individual rights, entitlements,
3 and benefits of employees of, and applcants for employment
4 in, Executive agencies.
5 "? 7172. Definition
6 "For the purpose of this subchapter, `official of an
7 Executive agency' means.-
" (1) an officer of an Executive agency;
" (2) an 'officer' of any of the `uniformed services'
as such terms are defined under. section 101 of title
11 37; and
12 " (3) an 'individual acting or purporting to act
under the authority of an officer referred to in para-
graph (1) or (2) of this section.,
"? 7173. Employee rights
" (a) An official of an Executive'agency may not-
(1) require or request, or" attempt to require
or request, an employee of an Executive ' agency or an
applicant for employment in an Executive agency to
disclose his race, religion, or nationh l origin, or the race,
religion, or national origin of any of his forebears. This.
paragraph does not prohibit inquiry concerning-
" (A) the citizenship of a, i employee or appli-
cant;
" (B) the national origin of an employee or
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2
3
7
8
9
10
11
12
15
16
17
18
19
24
25
3
applicant when that inquiry is, considered necessary
or advisable to determine suitability for assign-
ment to activities or undertakings related to the
national security of the United States or to law
enforcement. or to activities or undertakings of any
nature outside the United States;
" (C) the race, religion, or national origin of an
employee or applicant when that matter is in issue
in an allegation or complaint of discrimination; or
" (D) the race, religion, or national origin of an
employee or applicant when (i) that matter is di-
rectly related to or an integral part of scientific re-
search or program evaluation, (ii) appropriate safe-
guards have been instituted to preserve both the
voluntary participation and the anonymity of the
employee or applicant, and (iii) the inquiry has
been approved by the Civil Service Commission.
This paragraph does not prohibit an inquiry made to
satisfy the requirements of law providing preference for
Indians in connection with functions or services affect-
ing Indians;
" (2) coerce, require, or request, or attempt to
coerce, require, or request, an employee of an Executive
agency to attend or participate in a formal or informal
meeting, assemblage, or other group activity held to
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 Approved For Release 2005/08/03 : CIA-RDP81-00818R000100050001-8
present, advocate, develop, explain, or, otherwise cover
in any way, by lecture, discussion, discourse, instruction,
visual presentation, or otherwise, any matter or subject
other than-
" (A) the performance of official duties to
which that employee is or may be assigned in the
7 Executive agency; or
8 " (B) the development of skills, knowledge, or
`> abilities that qualify him for the performance of
10 those official duties;
" (3) coerce, require, or request, or attempt to
coerce, require, or request, an employee of an Executive
agency to-
14 " (A) participate in any way in an activity or
15 undertaking unless it is related to the performance
16 of official duties to which the employee is or may
17 be assigned in the Executive agency or related to
18 the development of skills, knowledge, or abilities
19 that qualify him for the performance of those official
20 duties ; or
21 " (B) make any report co:lcernig any activity
22 or undertaking of the employee not involving his
23 official duties, except-
24 " (i) when there is reason to believe that
the activity or undertaking conflicts with, or
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5
1 adversely affects the performance of, his official
2 duties; or
3 " (ii) as authorized to the contrary under
4 paragraph (6) of this subsection..
5 This paragraph does not prohibit the use of appropriate
6 publicity to inform employees of requests for assistance
7 from public service programs or organizations;
8 " (4) require or request, or attempt to require or
9 request, an employee of an Executive agency or an ai-
10 plicant for employment in an Executive agency to submit
11 to an interrogation or examination or to take a polygraph
12 or psychological test designed to elicit from the employee
13 or applicant information concerning his personal relation-
14 ship with any individual related to him by blood or mar
15 riage, his religious beliefs or practices,. or his attitude or
16 conduct with respect to sexual matters. This paragraph
17 does not prohibit-
1.8 " (A) a physician from eliciting this inforrna-
19 tion or authorizing these tests in the diagnosis or
20 treatment of an employee or applicant in individual
21 cases and not pursuant to general practice or regiu-
22 lation governing the examination of employees or
23 applicants, when the physician considers the infor-
24 mation necessary to enable him to determine
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h
1 whether or not the employee or applicant is suffei-
2 ing from mental illness ;
3 " (B) an official of an Executive agency from
4 advising an employee or applicant of a specific
5 charge of sexual misconduct 'r lade against the em-
6 ployee or applicant and givitc(r him a full oppor-
7 tunity to refute the charge; or
8 " (C) an official of an E, ecutive agency from
9 eliciting, from an employee or applicant, in individ-
10 ual cases and not pursuant to general practice or
11 regulation, information concerning the personal re-
12 la.tionship of the employee or applicant with any
113 individual related Ito him by blood or marriage, when
14 that official considers the information necessary in
15 the interest of national securit- ;
16
( ) coerce or 1 equn e, of a ctWiry t to coerce or
require, an employee of an Executive agency to invest
his earnings in bonds or other obligations or securities
issued by the United States or by u a Executive agency,
or to make donations to any institution or cause of any
kind. This paragraph does not pr ii1ibit an official of an
Executive agency from calling me-(? ings and taking any
action appropriate to inform an employee of the op-
portunity-
" (A) voluntarily to invst his earnings in
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7
1 bonds or other obligations or securities issued by
2 the United States or by an Executive agency; or
3 " (B) voluntarily to make donations to any
.4 institution or. cause;
" (6) require or request, or attempt to require or
6 ; request, an employee of an Executive agency (other
7 ~ than a Presidential .appointee) to disclose his property or
8 the property of any member of his family,or household.
9 This paragraph does not prohibit-
10. " (A.) the Department of the Treasury or any
11 other Executive agency from requiring an employee
1.2 to make such reports as may be necessary or appro-
13
priate for the determination of his liability for taxes,'
14 tariffs, customs duties, or similar obligations to the
15 United 'States ; or
16 " (B) an- oflicial of an . Executive agency from
17 requiring an employee who participates (other than'
18 . in a clerical capacity) in any determination with re-
19 spect to--
20 " (i) a Government contract or grant;
21 " (ii) the regulation of non-Federal enter-
22 prise ;
23 " (iii,) the tax or other liability of any per-
24 son to the United States; or
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.1 " (iv) a claim that requires expenditure of
money of the United Sttes;
from disclosing specific items of the property of
4 that employee, or specific items of the property of
_, any member of his family or household, which
r; may tend to indicate a conflic, of interest with re-
7 spect to the performance of any of the official duties
8 to which the employee is or may be assigned.
9 As used in this paragraph, `property' includes items
of property, income, and other assets, and the source
thereof, liabilities, and personal auud domestic expendi-
tures;
13) " (7) prohibit or restrict, or attempt to prohibit
14 or restrict, the exercise by an employee of an Executive
15 agency of the right of reasonable communication with
16 any official of his agency; or
17 " (8) remove, suspend or furlough from duty with-
18 out pay, demote, reduce in rank, seniority, status, pay,
19 or performance or efficiency rating, deny promotion to,
20 relocate, reassign, discipline, or di criminate in regard
21 to any employment right, entitlement, or benefit or any
22 term or condition of employment 01, an employee of an
23 Executive agency, or threaten to= commit any of those
24 acts, by reason of-
" (A) the refusal or failure of the employee
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12
9
to submit to or comply with any requirement, re-
quest, or action prohibited by this subsection; or
" (B) the exercise by the employee of any
right, entitlement, benefit, or other protection
granted or secured by this section and section 7175
of this title.
" (b) The provisions of subsection (a) of this section do
not apply to-
" (1) the Central Intelligence Agency;
" (2) the National Security Agency;
" (3) the Federal Bureau of Investigation; or
" (4) any other Executive agency, or part thereof,
as the President, in the interest of national security,
may recommend to the Congress.
The exemption recommended by the President and trans-
mitted to the Congress under paragraph (4) of this sub-
section shall become effective at the end of the first period
of 30 calendar days of continuous session of the Congress
after the date on which the recommendation is transmitted
20 unless, between the date of transmittal and the end of the
21 30-day period, either the committee of the House of Repre-
22 sentatives or the committee of the Senate to which the recom-
23 mendation has been referred adopts a, resolution which specifi-
24 cally disapproves the exemption so recommended and trans.
II.R. 11150 2
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1 rriitted. The continuity of a session is broken only by in ad-
2 journment of the Congress sine die. The days on which
3 either House is not in session because of in adjournment of
4 more than 3 days to a day certain are excluded in the cornipii-
5 tation of the 30-day period.
6 " (c) (1) An employee of, or an ap>licant for employ-
7 inent in, an Executive agency who claim,'. to be aggrieved by
8 a violation or threatened violation of sul.'section (a) of this
9 section is entitled to file a grievance with the agency con-
10 cerned not later than 15 days after the date of the violation
11 or threatened violation.
"(2) If-
" (A) the decision on the grievance by the, Execu-
tive agency is adverse to the empll yee or applicant; or
" (B) after 60 days from the ti ate the grievance is
filed the Executive agency has not issued a decision on
the grievance ;
the employee or applicant is entitled to file a complaint with
the Board on Employee Rights not later than 15 (lays after
the adverse decision or the expiration c>f the 60-day period,
as the case may be.
7174. Board on Employee Rights
(a) There is hereby established ti Boax on li]mployee
Rights composed of three members ap Pointed by the Presi-
dent, by and with the advice and consent of the Senate, one
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1 ,of whom shall be a representative of a lab'or, organization,
14
15
16
17
22
23
or association of supervisors, representing employees. Not
more than two members of the Board may be adherents of the
same political party and none of the members of the, Board
may hold another office or position in the Government of the
United States. The President shall from time .to time. Edesig-
nate one of the members as chairman.
" (b) The term of office of each member of the Board
is 6 years. A member appointed to fill a vacancy occurring
before the end of the term of office of his predecessor servfs
for the remainder of that term. When the term of office of a
member ends, he may continue to serve until his successor
is appointed and has qualified. The President .may., remove
a member only for inefficiency, neglect of duty, or mal:.
feasance in office.
" (c) Two members of the Board constitute a quorum
for the transaction of business.
" (d) The Board may appoint and fix the pay of such
officers, attorneys, and employees, and make such expendi-
tures, as may be necessary to carry out its functions.
" (e) The Board shall prescribe rules and regulations
necessary and proper to carry out its functions under this
subchapter. To the extent consistent with efficient and. eco-
nomical administration and the attainment and achievement
of justice in the consideration and disposition of matters be-
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1 fore the Board, the rules and regulations shall provide for the
2 use of depositions of witnesses. The rules and regulations
3 shall also prescribe the maximum attorney's remuneration
4 which may be awarded tinder section 71.76 (c) of this title
5 for services performed in connection wit?i any matter before
6 the Board, or the court, or both, under t his subchapter. The
7 Board may require, by subpena or other wise, the attendance
8 and testimony of witnesses, and the production of such
9 books, records, correspondence, memcu anda, papers, and
10 documents, as it considers necessary.
11 " (f) (1) The Board shall receive and investigate written
12 complaints, filed under section 7173 (e) of this title, from
or on behalf of an employee or applicant claiming to be
14 aggrieved by a violation or threatened violation of section
15 7173 (a) of this title. On receipt of such a complaint, the
16 Board forthwith shall transmit a copy thereof to the head
17 of the Executive agency concerned.
18 " (2) If the Board determines, wi hin 10 days after
19 its receipt of the complaint, that the facts alleged in the
20 complaint do not constitute a violation or threatened viola-
21 tion of section 7173 (a) of this title v ith respect to the
22 employee or applicant, it may dismiss the complaint without
23 a hearing. If the Board dismisses the Complaint, it shall
24 notify all interested parties of the dismis4 a1.
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1 " (3) If the Board does not dismiss the complaint with-
2 in 10 days after its receipt thereof, it shall-
3 " (A) conduct a hearing on the complaint within
4 30 days after its receipt of the complaint; and
" (B) furnish notice of the time, place, and nature
6 of the hearing thereon to all interested parties.
7 If a hearing on the complaint is to be conducted-
8 " (i) the Executive agency concerned shall file an
9 answer to the complaint and participate as a party in
1.0 the hearing; and
11 " (ii) any official of that agency, who is alleged,
12 in the complaint or during the course of the hearing,
13 to have committed a violation or threatened viola-
14 tion of section 7173 (a) of this title, is entitled, in his
15 individual capacity, to file an answer to the allegation
16 and participate as a party in the hearing.
17 " (4) The Board shall render its final decision with re-
18 spect to any complaint within 30 days after the conclusion
19 of its hearing thereon.
" (g) With the written consent of the employee or ap-
plicant concerned, filed with the Board, an officer or repre-
sentative of not more than one labor organization,. or asso-
23 ciation of supervisors, representing employees shall be given
an opportunity to participate in each hearing conducted un-
I1.11. 11150 3
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der this section, through submission of written data,, views, or
2 arguments, and, in the? discretion of the Board, with oppor-
trinity for oral presentation.
4 " (h) Insofar as consistent with the purposes of this see-
5 Lion, the provisions of subchapter II of chapter 5 of this
G title apply to the rulemaking, hearirg, and adjudication
7 functions of the Board under this section.
8 " (i) If, after hearing, the Board &termines that a. vio-
9 lation of section 7173 (a) of this title has not occurred or is
10 not threatened, the Board shall state its determination and
11 notify ll interested parties of the determination. Each such
12 determination, including a dismissal 1).v the Board of the
13 complaint without a hearing, constitute ~ a final decision of
14 the Board for purposes of judicial review,-.
15 " 7175. Judicial review
7 " (a) An employee, or appiicam for employment, ag-
grieved by a final det,erinination or order of the Board on
9 Employee Rights may file, within e40 days after the date
10 of that determination or order, in tli~- district court of the
11 United States for the judicial district in which the alleged
12 violation or threatened violation of sc tiara 7173 (a) of this
13 title occurred or in which his official d,Hty station was located
14 at the time of the alleged violation or threatened violation-
15 " (1) a petition for a, review 4 the determination or
16 order; or
17 " (2) a complaint for a trial de novo on the viola.-
18 tion or threatened violation of s,~-.tiou 7173 (a) of this
19 tittle, which was the subject of the determination or order
20 of the Board.
21 r1ihe petition or complaint shall name as defendant both the
22 Executive agency concerned and they Board on Employee
23 Rights. An official, or former official, of an Executive
24 agency-
" (A) with respect to whom, in connection with the
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petition for review, there is involved an alleged viola-
tion or threatened violation by him of section 7173 (a)
of this title ;
" (B) with respect to whom the complaint for a
trial de novo, or the trial pursuant to the complaint, in-
volves an alleged violation or threatened violation by
him of section 7173 (a) of this title; or
" (C) aggrieved by a final determination or order
of the Board, or part or application thereof, in connec-
tion with such alleged violation or threatened violation;
is entitled, in his individual capacity, to file an answer with
12 respect to such violation or threatened violation and partici-
pate as a party in the proceedings.
" (b) If, after the expiration of 30 days after the date
of a final determination or order of the Board, a petition or
complaint with respect to such determination or order has
not been filed under subsection (a) of this section, an official
or former official of an Executive agency aggrieved by that
determination or order, or part or application thereof, may
file, within 30 days after the expiration of such 30-day
period, in the district court of the United States for the judi-
cial district in which the alleged violation or threatened vio-
lation of section 7173 (a) of this title occurred or in which
his official duty station was located at the time of the alleged
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violation or threatened violation, a )etition for review of
the determination or order, or part or application thereof.
" (c) A petition for review or ,omplaint for trial de
novo filed under subsection (a) or (1=) of this section shall
name as defendant both the Executive agency concerned and
the Board, and a copy thereof shall he served on the Execu-
tive agency concerned and the Board.
" (d) When a copy of a petition' i or review is served on
the Board, a certified copy of the record on which the final
determination or order of the Board s based shall be filed
with the court. On filing of a petitioni with the court, and
in its consideration of the petition, the court shall have
jurisdiction to-
" (1) issue such restrainiri; order, interlocutory
injunction, permanent injunction, or mandatory injunc-
tion, as may be necessary and appropriate with respect
to any determination or order, or part or application
thereof, made by the Board whic'i is under review;
"(2) affirm, modify, or set, aside any such deter-
mination or order, or part or application thereof;
" (3) require the Board to m tke any determination
or order which it is authorized to make under section
71.74 (j) of this title, but which ' i has failed or refused
to make; and
" (4) remand the matter to the Board for appropri-
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1 ate action by the Board and the Executive agency
2 concerned in accordance with the decision of the court.
3 The reviewing court shall set aside any finding, conclusion,
4 determination, or order of the Board as to which a com-
5 plaint is made that is unsupported by substantial evidence
6 on the record considered as a whole.
7 " (e) On the filing of a complaint for a trial de novo,
junction, permanent injunction, or mandatory injunction,
or enter such other judgment or decree, as may be neces-
sary or appropriate to prevent the threatened violation
or to afford the plaintiff and others similarly situated
complete relief against the consequences of any violation.
court shall decide all questions of law in any action
under this subsection. The court, upon application by either
the court shall have jurisdiction to--
" (1) try and determine the action, irrespective of
the existence or amount of pecuniary injury done or
threatened; and
" (2) issue such restraining order, interlocutory in-
party, shall order a trial by jury of the issues in any action
under this subsection.
" (f) With the written consent, filed with the court, of
an employee, applicant for employment, official of an Execu-
tive agency, or former official of an Exceptive agency ag-
grieved by a final determination or order of the Board, who
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1 is entitled to file a petition for review, a complaint for a
2 trial de novo, or answer, or to participate as a party in any
proceeding, under this section, not more than one labor
4. organization, or association of supervisors, representing em-
l3
15
ployees may intervene in connection with the review or the
trial de novo.
"? 7176. General provisions
" (a) An individual called on to pay?ticipate in any phase
of an administrative or judicial proceeding under this sub-
chapter shall be free from restraint, coercion, interference,
intimidation, or reprisal in the course of, or because of, his
participation.
(b) An employee or an official of -in Executive agency
who is a party to the action, sumrnoHled, or assigned by
his agency to appear, including an appearance to give his
deposition, before the Board on Employee Rights, or before
the appropriate court, in connection with any matter before
the Board or the court under this subch-k,pter, shall not incur
a loss of or reduction in any right, entitlement, or benefit as
an employee or official of that agency. A period of such
absence within his regularly scheduled tour of duty is service
performed by the employee or official w -hile on official busi-
ness. Travel by the employee or official during a period of
such absence, whether or not performed within his regularly
scheduled. tour of duty, is travel on official business.
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'' (
On written application certifying his expenses and
2 charges filed with the Board. on Employee Rights by an
3. attorney representing as party to the action who has appeared
4 before the .Board, or the appropriate court, in connection
5 with any matter before the, Board, or the court, or both, un-
6 der this subchapter, which has been determined by the Board
7 or the court, in favor. of the party represented. by the at-
.8 torney, the Board may allow, at the conclusion of the rep-
9 resentation and in accordance with the regulations prescribed
10 under section 7174 (e) of this title, such remuneration to the
11 attorney as it considers reasonable and proper and shall cer-
12 tify to the Executive agency concerned the amount of the
13 attorney's remuneration granted by it. The agency shall pay
14 the certified amount, of such remuneration, in accordance
15 with the following provisions :
16 " (1) 'the agency shall charge against such certi-
17 fled amount of remuneration all sums previously paid
18 to the attorney by the party represented;
19 " (2) if the sums previously paid to the attorney
20 by that party for such representation equal or exceed
21 the certified amount of the attorney's remuneration, the
22 agency shall reimburse that party in that certified
23 amount; and .
24 " (3) if the sums previously paid to the attorney
25 by that party for such representation are less than that
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1 certified amount, the agency shall reimburse that party
2 in the amount paid by that party and shall pay to the
3 attorney an amount equal to the difference between the
4 certified amount of the attorney's remuneration and the
5 aggregate of the sums previously paid by that party to
6 the attorney.".
7 (b) The analysis of chapter 71 of title 5, United States
8 Code, is amended by adding the following at the end thereof:
"SUBCHAPTER III-EMPLOYEE RIGHTS
"See.
"7171. Policy.
"7172. Definition.
"7173. Employee rights.
"7174. Board on Employee Rights.
"7175. Judicial review.
"7176. General provisions.".
9 (c) Section 5316 of title 5, United States Code, is
10 amended by adding at the end thereof :
11 "(131) Members of the Board on Employee
12 Rights (3) .".
13 SEC. 2. Subchapter III of chapter -41 of title 5, United
14 States Code, as added by this Act, shall apply only with re-
1'.) spect to acts, violations, threatened violations, grievances,
16 and other similar matters covered by such subchapter which
17 arise or occur on or after such date following the date of
18 enactment of this Act as the Board on Employee Rights,
19 established by the amendments made by the first section
20 of this Act, shall prescribe but in no event later than the
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1 one hundred and eightieth day following such date of enact-
2 ment.
3 SFc. 3. Notwithstanding section 7174 of title 5, United
4 States Code, as added by the first section of this Act, the
5 terms of office of the three members first appointed to the
6 Board on Employee Rights shall end, as designated by the
7 President, one at the end of 2 years, one at the end of 4
8 years, and one at the end of 6 years.
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 COMMITTEE ON ARMED SERVICES
alaol) Igto1I, ;D.c. 20515
NINETY-SECOND CONGRESS
P. EDWARD HLBERT. CHAIRMAN
October 21, 1971
CIIAIRI.E.S S. GUD9ER, CALIF.
ALEXANDER PIR HIE, N.Y.
DURWARD O. HALL, MO.
DONALD D. CLANCY, OHIO
ROBERT T. STAFFORD, VT.
CARLETON J. KING, N.Y.
WILLIAM L. DICKINSON. ALA.
CHARLES W. WHALEN. JR., OHIO
JOHN E. HUNT, N.J.
G. WILLIAM WHITEHUR.T, VA.
FLOYD D. SPENCE, S.C.
O. W. (BILL) YOUNG, FLA.
STAFF
JOHN A. BLANDFORD, CHIEF Cou"Sm
FRANK M. SLATINSHEK, ASSISTANY CHIEF COUNEO.
ONETA i. BTOOK.TI W Lumn Immix
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JAMI:5? A. DYRNE, PA.
SAMUEL S. STRATTON, N.Y.
OTIS G. PIKE, N.Y.
RICHARD H. ICHORD, MO.
LUCIEN N. NEDZI, MICH.
ALTON LENNON, N.C.
WILLIAM J. RANDALL. MO.
G. ELLIOTT HAGAN, GA.
CHARLES H. WILSON. CALIF.
ROBERT L. LEGGETT, CALIF.
FLOYD V. HICKS, WASH.
SPEEDY O. LONG, LA.
RICHARD C. WHITE. TEX.
DILL NICHOLS, ALA.
JACK DRINKLEY, GA.
ROBERT Ff. MOLLOHAN, W. VA.
W. C. (DAN) DANIEL, VA.
Honorable Thaddeus J. Dulski
Chairman
Post Office and Civil Service Committee
House of Representatives
Washington, D. C.
I understand that your Committee now has under consideration
H. R. 11150, a bill "To protect civilian employees of the execu-
tive branch'of the United States Government in the enjoyment of
their constitutional rights, to prevent unwarranted governmental
invasions of their privacy, and for other purposes,"
I was gratified to learn that certain Federal agencies under
the jurisdiction of the Committee on Armed Services including the
Central Intelligence Agency and the National Security Agency are
among the sensitive Federal agencies which have been specifically
exempted from application of the provisions of the bill. This
action, as recommended by your Subcomittee, is sound. I there-
fore trust that this particular provision in the bill will remain
unchanged.
As you know, the administration of the Central Intelligence
Agency is governed by the Nationall. Security Act of 191+7 and the
Central Intelligence Agency Act of 191+9. This legislation imposes
on the Director of Central Intelligence responsibility ". . . for
protecting intelligence sources and methods from unauthorized dis-
closure. . i" and provides that "In the interests of the security
of the foreign intelligence activities of the United States . .
the Agency shall be exempted from the provisions . . of any
law which require(s); the publication or disclosure of the organi-
zation, functions, rnames, official titles, salaries, or numbers of
personnel employed bar the Agency . ...".
m.&. 3[)oue of Reprewltatibez
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October 21, 1971
The reasons for imposing this responsibility on the Director of
Central Intelligence, and for granting him this exemption, I believe
are evident. It is a well-established fact that ever-alert hostile
intelligence services assign the highest priority to identifying and
exploiting personal vulnerabilities of our own intelligence officers.
This is not only because of their access to the most sensitive kinds
of information, but also because their work frequently takes them to
lonely and hostile areas where they are exposed to a variety of
pressures and provocations.
There are two main defenses against these hazards. First, it is
essential that intelligence personnel receive the most thorough screen-
ing and assessment to ensure the selection of the right man for the job.
Second, since good sc 'ity depends largely on the loyalty and morale of
its employees, the Ag':~cy's personnel policies r'wt be carried out with
the utmost regard for the personal dignity and privacy of the individual.
I am convinced that the Agency management fully appreciates this, realizing
that it could not carry out its vital mission, or preserve the security of
its sensitive activities, if the fairness and reasonableness of its per-
sonnel policies did not have the confidence of its employees. Neverthe-
less, the authority of the Director over the Agency's personnel policies,
to be commensurate with his responsibilities, must be undiluted.
.The considerations relating to the Central Intelligence Agency apply
with equal force and effect to the National Security Agency as well as
certain other agencies within the Department of Defense.
I would appreciate very much if the views I have expressed in this
letter are made available to the members of your Committee at the time
they consider the Subcommittee's recommendation on H. R. 11150.
With beat wishes, I remaift
Sincerely,,
F. Edw. Hebert
Chairman
PEH;fsk
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S. 1438 - Ervin Bill
2DEC 1971
Background
1. S. 1438, the so-called invasion of privacy bill, was reintroduced
in the 92nd Congress by Senator Ervin. The bill was identical to the version
of the Ervin bill approved by the Senate in the 91st Congress with only partial
exemptions for.CIA and NSA and a complete exemption for FBI. On 21 May
1971 the Director wrote to Senator Ervin to request a complete exemption
for CIA. The Agency's position was cleared with OMB. A copy of the
Director's letter to Senator Ervin was also sent to Senator Eastland, the
Chairman of the Judiciary Committee.
Senate Action
2. The full Senate Judiciary Committee has approved S. 1438 as
introduced. This action was. taken in Executive Session and the Committee
report on the bill to the Senate has not been printed as of this date.
3. . In the interest of verifying the facts in anticipation of the
possibility of further Agency action in the Senate, contact was made this
date with Senator Ervin's Constitutional Rights Subcommittee and we were
informed by the staff member responsible for the bill (Marcia MacNaughton)
a. S. 1438 has been ordered reported out by the full Judiciary
Committee and the reported out version of the bill will be available
shortly.
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b. The report on the bill has not yet been printed but will be
available shortly.
c. The substantive comments in the report will be identical
to those appearing in last year's report (S. Report 91-873) which
on page three makes reference to the Director's testimony before
the Subcommittee on 22 July 1969 and concludes "On the basis of
this testimony and after a number of meetings of subcommittee
members with officials of the Central Intelligence Agency, the
National Security Agency, and the Federal Bureau of Investigation,
the language contained in the committee amendments was drafted
and meets with the approval of the Directors of those agencies.
(underscoring supplied)
d. The report will not make reference to the Director's
position concerning the need for a complete exemption as expressed
in his letter to Senator Ervin of 21 May 1971. (On reflection
MacNaughton realized the conflict between the Director's letter and
the statement in the draft report quoted in (c) above and she said
she would make an appropriate deletion.)
4. MacNaughton sees us as bearing principal responsibility for
the need for legislation such as this, appears to sincerely believe that they
have been accommodating to our interests and, believes that the bill as is
will be favorably acted upon by the Senate and that our problem will be
dealt with in conference.
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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D. C. 20505
OFFICE OF TILE DIRECTOR
21 May 1971
The Honorable Sam J.. Ervin, Jr.
Chairman, Subcommittee on
Constitutional Rights
Committee on the Judiciary
United States Senate
Washington, D. C. 20510
My dear Mr. Chairman:
I have noted that on 1 April 1971 you introduced S. 1438, a bill
"to protect the civilian employees, of the executive branch of the United
States Government in the enjoyment of their constitutional rights and to
prevent unwarranted governmental invasions of their privacy. "
When an identical bill, S. 782, was under consideration in the last
Congress, you were, good enough to meet with Larry Houston and Jack
Maury, of my staff, to hear our explanation of some of the problems which
the bill might create for us. You also gave me an opportunity to appear
before your Subcommittee for the same purpose. I much appreciate your
courtesy on these occasions, and I am grateful for the efforts of your
? Subcommittee staff to work out some changes in the original version of
S. 782 designed to solve our problems.
Despite these changes our recent examination of this legislation
has served only to confirm our judgment that it still falls considerably
short of meeting the Agency's basic requirements. I am therefore
convinced of the necessity for a complete exemption for this Agency,
and I trust you will favorably consider my request for such an exemptions
Larry Houston and Jack Maury are of course available at your convenience
if you think further discussions would be useful.
Sincerely;
Richard Helms
Director
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DAVID N. HENDERSON. N.C.
MORRIS K. UDALL, ARIZ.
DOMINICK V. DANIELS, N.J.
ROBERT N. C. NIX, PA.
JAMES M. HANLEY, N.Y.
CHARLES H. WILSON, CALIF.
JEROME R. WALDIE, CALIF.
RICHARD C. WHITE, TEX.
WILLIAM D. FORD, MICH.
LEE H. HAMILTON, IND.
FRANK J. BRASCO, N.Y.
GRAHAM PURCELL, TEX.
TOM BEVILL, ALA.
BILL CHAPPELL, JR., FLA.
H. R. GROSS, IOWA
EDWARD J. DERWINSKI, ILL.
ALBERT W. JOHNSON, PA.
WILLIAM L. SCOTT, VA.
JAMES A. MCCLURE, IDAHO
LAWRENCE J. HOGAN, MD.
JOHN H. ROUSSELOT, CALIF.
ELWOOD HILLIS, IND.
WALTER E. POWELL, OHIO
C. W. BILL YOUNG, FLA.
WILLIAM O. MILLS, MD.
13-6. 3000e of Reprr~tntatibeZ
COMMITTEE ON POST OFFICE AND CIVIL SERVICE
207 CANNON HOUSE OFFICE BUILDING
asbington, ;M.(C. 20515
February 23, 1972
Honorable George H. Mahon
Chairman, Committee on Appropriations
U.S. House of Representatives
Washington, D. C. 20515
Dear Mr. Chairman:
I have your letter of February 17, expressing concern
about the imposition on the security agencies of H.E. 11150
regarding the; protection of Federal employees' rights to
privacy.
As you point out, the provisions of the bill at the
present time grant full exemption for Central Intelligence
Agency and other sensitive agencies.
I support the exemption of our security agencies from
the bill and will oppose any amendments should they be
offered which would subject the security agencies to any
provisions of the legislation.
I will advise the members of the Committee of your
position in the event the need arises during our markup
session on the bill.
kind regards
Sincerely yours,
THADDEUS J. DULSKI
Chairman
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HEARING
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-SECOND CONGRESS
0
U.S. GOVERNMENT PRINTING OFFICE
80-4010 WASHINGTON : 1972
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COMMITTEE ON THE JUDICIARY
JAMES O. EASTLAND, Mississippi, Chairman
JOHN L. McCLELLAN, Arkansas
SAM J. ERVIN, JR., North Carolina
PHILIP A. HART, Michigan
EDWARD M. KENNEDY, Massachusetts
BIRCH E. BAYH, Indiana
QUENTIN BURDICK, North Dakota
ROBERT C. BYRD, West Virginia
JOHN V. TUNNEY, California
ROMAN L. HRUSKA, Nebraska
HIRAM L. FONG,Jiawaii
HUGH SCOTT, Pennsylvania
STROM THURMOND. South Carolina
MARLOW W. COOK, Kentucky
CHARLES McC. M!THIAS, Ja., Marylana
EDWARD J. GURNEY, Florida
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
SAM J. ERVIN, JR., North Carolina, Chairs can
JOHN L. MCCLELLAN, Arkansas ROMAN L. HRUSE-l, Nebraska
EDWARD M. KENNEDY, Massachusetts HIRAM L. FONG, flawati
South Carolina
BIRCH E. BAYH, Indiana
ROBERT C. BYRD, West Virginia HUGH SCOTT, Pennsylvania
JOHN V. TUNNEY, California
LAWRENCE M. BASKIR, Chile} Counsel and Staff iirector
LEwIs B. SNIDER, Assistant Counsel
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CONTENTS
chairman, Subcommittee on Constitutional Rights---------------------
1, 8
TESTIMONY
Hesburgh, Rev. Theodore M., C.S.C., Chairman, U.S. Commission on civil
Rights ; accompanied by Mrs. Frankie M. Freeman, Commissioner, Robert
Rankin, Commissioner, John Powell, General Counsel, and John A.
Briggs, Acting Staff Director--------------------------------------
10
Shriver, Lucille H., director, Business and Professional Women's Clubs of
the United States ; accompanied by Mrs. Judy Wiebe, Legislation Direc-
tor ----------------------------------------------------------------
30
STATEMENTS SUBMITTED FOR THE RECORD
American Civil Liberties Union, Washington, D.C. Office, Hope Eastman,
acting director-----------------------------------------------------
34
Boggs, Hon. J. Caleb, a U.S. Senator from the State of Delaware----------
36
Hart, Hon. Philip A., a U.S. Senator from the tSate of Michigan----------
28
League of Women Voters ofthe United States--------------------------
37
Scott, Hon. Hugh, a U.S. Senator from the State of Pennsylvania--------
'
38
Women
s Equity Action League, Norma Raffel, president----------------
38
PROPOSED LEGISLATION
S. 3121, a bill to extend the Commission on Civil Rights for 5 years, to ex-
pand the jurisdiction of the Commission to include discrimination be-
cause of sex, to authorize appropriations for the Commission, and for
other purposes ; introduced by Senator Philip A. Hart, 92d Congress,
second session------------------------------------------------------
2
H.R. 12652, an act to extend the life of the Commission on Civil Rights, to
expand the jurisdiction of the Commission to include discrimination be-
cause of sex, to authorize appropriations for the Commission, and for
other purposes; 92d,Congress, second session-------------------------
5
SUPPLEMENTAL MATERIAL
Subcommittee on Constitutional Rights, Judiciary Committee, U.S. Senate,
questionnaire to the Commission on Civil Rights, March 13, 1972--------
40
Commission on Civil Rights, Jonathan W. Fleming, Special Assistant to
the Staff Director, response to subcommittee inquiry, letter of May 23,
1972; with attachments---------------------------------------------
40
Estimated expenditure for specific minorities, June 22,1972 ---------
24
Duluth Business and Professional Women's Club, Margaret A. Normandy,
,chairman, letter of June 12, 1972-------------------------------------
55
Interstate Association of Commissions on the Status of Women, Joy R.
iSimonson, president, letter of June 27, 1972---------------------------
55
Leadership Conference on Civil Rights, Roy Wilkens, chairman, letter of
June 14,1972-------------------------------------------------------
56
Pennsylvania Commission on the Status of Women, Arline Lotman, execu-
tive director, letter of June 15, 1972----------------------------------
56
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CIVIL RIGHTS COMMISSION
U.S. SENATE,
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
OF THE COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:55 a.m., in room
2228, New Senate Office Building, Senator Sam J. Ervin, Jr., chair-
man, presiding.
Present : Senator Ervin.
Also present : Lawrence M. Baskir, chief counsel and staff director,
and Britt Snider, counsel.
Senator ERVIN. We will now take up the hearings on S. 3121 and
H.R. 12652.
At this time, the Subcommittee on Constitutional Rights will begin
its consideration of two almost identical bills, S. 3121 and H.R. 12652,
which extend the life of the Civil Rights Commission for 5 years, ex-
pand its jurisdiction to include matters of sex discrimination, and pro-
vide for its authorization. The bills differ only in that S. 3121 contains
an open-ended authorization provision which would effectively elim-
inate any opportunity for legislative oversight, while H.R. 12652 pro-
vides an exceedingly generous $6.5 million for the Commission in fiscal
year 1973 and $8.5 million in fiscal year 1974 and the succeeding 3
fiscal years.
The text of the bills will be printed in the hearing record.
(S. 3121 and H.R. 12652 follows:)
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92o CONGRESS
2D SESSION
S. 3121
FEBRUARY 3, 1972
Mr. HART (for himself, Mr. 11.1YJI. Mr. Bo cus, Mr. CooK, dir. DomiN IcK, Mr.
GRIFFIN, Mr. HARRIS, Air. HRUSKA, Mr. 11IIMPIiREY. \'Ir. JACKSON, Mr.
JAVITS, Mr. KENNEDY, Mr. MCGEE, Sir. MATHIAS, Mr. M# 1usKIE, Mr. NELSON.
Mr. PELL, Mr. PERCY, Mr. RANDOL.PIi, Dir. 111ieICOFF, A]['. SCIIWEIKER,. Mr.
Scui-r, Mr. STAFFORD, Mr. STEVENS, Mr. STEVENSON. Mr. TUNNEY, and
Mr. WILLIAMS) introduced the following bill; which 1, as read twice and
refer. ed to the Committee on the Judiciary
A BILL
To extend the Commission on Civil Rights for five years, to
expand the jurisdiction of the Commission to include dis-
crimination because of sex, to authorize appropriations for
the Commission, and for other purposes.
1 Be it enacted by the Senate and House of Bepreseuta-
2 lives of the .United States of America in Covgress assembled,
3 SEC. 2. Section 102 (j) of the Civil Rights Act of 1957
4 (42 U.S.C. 1975a (j) ; 71 Stat. 634), as attwnded, is further
5 amended by striking therefrom the first and -eecond sentences
6 and substituting therefor the following: "A witness attending
7 any session of the Commission shall be paid the same fees
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2
1 and mileage that are paid witnesses in the courts of the
2 United States."
3 SEC. 3. Section 103 (a) of the Civil Rights Act of 1957
4 (42 U.S.C. 1975b (a) ; 71 Stat. 635), as amended, is further
5 amended by striking therefrom "the sure of $100 per day
6 for each day spent in the work of the Commission," and
7 substituting therefor "a suni equivalent to the compensation
8 paid at level IV of the Federal Executive Salary Schedule.
9 pursuant to section 5315 of title 5, United States Code, pro-
10 rated on a daily basis for each day spent in the work of the
11 Commission."
12 SEC. 4. Paragraph (1) of subsection (a) of section 104
13 of the Civil Rights Act of 1957 (42 U.S.C. 1975c (a) ; 71
14 Stat. 635) , as amended, is further amended by inserting im-
1,5 mediately after "religion," the following : "sex," and ,para-
16' graphs (2), (3), and (4) of subsection (a) of such section
17 104 are each amended by inserting immediately after "reli-
18 gion," the following: "sex".
19 SEC. 5. Section 104 (b) of the Civil Rights Act of 1957
20 (42 U.S.C. 1975c (b) ; 71 Stat. 635), as amended, is further
21 amended by striking therefrom "January 31, 1973" and sub-
22 stituting therefor "the last day of fiscal year 1978."
23 SEC. 6. Section 105 of the Civil Rights Act of 1957 (42
.24 U.S.C. 1975d; 71 Stat. 636), as amended, is further
25 amended as follows :
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I In section 105 (a) by striking out in tho? last sentence
2 thereof "as authorized by section 15 of the Act of August 2,
3 1946 (60 Stat. 810; 5 U.S.C. 55a), but at ra'es for individ-
4 uals not in excess of $100 per diem," and su'b^atituting there-
5 for "as authorized by section 3109 of title 5. United States
6 Code, but at rates for individuals not in excel=s of the daily
7 equivalent paid for positions at the maximum r-ate for GS-15
8 of the General Schedule under section 5332 of title 5, United
9 States Code".
10 Si:c. 7. Section 106 of the Civil Rights Act of 1957 (42
11 U.S.C. 1975o; 71 Stat. 636) , as amends-d, is further
12 amended to read as follows :
13 "SEC. 106. There are hereby authorized' t,) be appropri-
14 ated, such sums as are necessary to carry out t1 w. provisions of
15 this Act."
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92D CONGRESS
2D SESSION
. R. 12652
MAY 2,1972
Read twice and referred to the Committee on the Judiciary
AN ACT
To extend the life of the Commission on Civil Rights, to expand
the jurisdiction of the Commission to include discrimination
because of sex, to authorize appropriations for the Commis-
sion, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That section 102 (j) of the Civil Rights Act of 1957 (42
4 U.S.C. 1975a (j) ; 71 Stat. 635), as amended, is further
5 amended by striking therefrom the first and second sentences
6 and substituting therefor the following : "A witness attending
7 any session of the Commission shall be paid the same fees
8 and mileage"that are paid witnesses in the courts of the
9 United States."
II
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23
24
25
2
SEC. 2. Section 103 (a) of the Civil Riglts Act of 1957
(42 U.S.C. 1975b (a) ; 71 Stat. 635), as amended, is fur-
3 ther amended by striking therefrom "the sum of $100 per
day for each day spent in the work of the Commission," and
substituting therefor "a sum equivalent to the compensation
paid at level IV of the Federal Executive 'Salary Schedule,
pursuant to section 5315 of title 5, United Si ates Code, pro-
rated on a daily basis for each day spent in
he work of the
.9 Commission,'.
10 SEC. 3. Paragraph (1) of subsection (a.) of section 104
13 immediately after "religion," the followira,z : "sex," and
14 paragraphs (2), (3), and (4) of subsectioon (a) of such
15- section 104 are each amended by inserting immediately after
16 "religion" the following : ", sex".
17 SEC. 4. Section 104 (b) of the Civil Rig'its Act of 1957
18 (42 U.S.C. 1975c (b) ; 71 Stat. 635), as amended, is fur-
19 ther amended by striking therefrom "January 31, 1973" and
20 substituting therefor "the last day of fiscal year 1978".
of the Civil Rights Act of 1957 (42 U.S.C. 1975c (a) ; 71
Stat. 635), as amended, is further amended by inserting
SEc. 5. Section 105 of the Civil Rigbi.s Act of 1957
(42 U.S.C. 1975d; 71 Stat. 636), as amended, is further
amended as follows:
In section 105 (a) by striking out in the last sentence
thereof "as authorized by section 115 of the Act of August 2,
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1 1946 (60 Stat. 810; 5 U.S.C. 55a), but at rates for indi-
2 viduals not in excess of $100 per diem," and substituting
3 therefor "as authorized by section 3109 of title 5, United
4 States Code, but at rates for individuals not in excess of the
5 daily equivalent paid for positions at the maximum rate for
6 GS-15 of the General Schedule under section 5332 of title
7 5, United States Code".
8 SRO. 6. Section A06 of the. Civil Rights Act of 1957
9 (42 U.S.C. 1975e; 71 Stat. 636), as amended, is further
10 amended to read as follows :
11 "Sc. E106. For the purposes of carrying out this Act,
12, there is authorized to be appropriated for the fiscal year
13 ending June 30, 1973, the sum of $6,500,000, and for each
14 fiscal year thereafter through June 30, 1978, the sum of
15 $8,500,000."
4
Passed the House of Representatives May 1, 1972.
Attest: W. PAT JENNINGS,
Clerk.
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Senator ERVIN. In 1957, over my opposition, the Civil Rights Com-
mission came into being. Its objectives were to assess the laws and
policies of the Federal Government in regard to denials of equal pro-
tection under the law, to report its findings and re=?ommendations to
the President within 2 years, and then disappear. Ii is now 1972, that
particular report has never been made, and the Commission is here
again asking for large sums of public money and yet..another extension.
Congress has extended the life of the Commission five times since its
inception in 1957. Its permanent staff has grown fro n 87 in 1959 to 176
in 1972. An additional 40 permanent positions have ~)een requested for
fiscal year 1973, and no one knows how many employees it will have by
1.978. Amounts appropriated for the work of the Commission have
swelled from an original appropriation of $777,000 in 1959 to almost
$4 million in fiscal year 1972. It is interesting to obit rve that when the
Commission was subject to 1- or 2-year extensions, as they were prior
to 1964, increases in appropriations and staff were kept under control.
But, as the extensions have become longer, the appropriations and staff
have risen in dramatic proportion. The whole experience illustrates
the proposition that the longer an agency stays in }xistence, and the
further it gets from congressional review, the more leeply entrenched
it becomes and the more extravagant with money. There is nothing
more permanent than a temporary Government agtcncy.
We are now being asked to extend the Commission for another 5
years which, if done, means that an agency whose demise was expected
by 1959 will live to be over 20 years old and preswi ably even longer.
I do not say that there is no problem with constitutional rights or
that it is no longer necessary to insure that such rigli? s receive the safe-
guards of the law. On the contrary, there will always be such a need.
I am saying that this should not necessitate the indr`finite existence of
the Commission at even greater sums of money.
I objected to the establishment of the Civil Rights Commission in
1.957 and I object to its extension now because it duplicates the activi-
ties of other Government agencies charged with in-v ~stigating and en-
forcing civil rights statutes and Executive orders dealing with dis-
crimination under the law. The Commission itself has no power to
resolve complaints it receives. It must refer them to :appropriate agen-
cies for enforcement. The Commission can only conduct studies and
make recommendations.
Given the limited nature of what the Commission can do and the
modest nature of its contributions, it is with some skepticism that I
view the proposal to extend further the ambit of the Commission's
jurisdiction to a special area of equal protection-that of sex discrimi-
nation.
IIere, in particular, there already exists a conside able bureaucratic
framework to investigate and put an end to governrrental and private
practices which discriminate on the basis of sex. The Equal Employ-
merit Opportunity Commission is charged under Tit le VII of the 1964
Civil Rights Act with enforcing the prohibitions against sex discrim-
ination by employers, labor unions, employment ag-nrcies, and appren-
tice programs. The Civil Service Commission enforces Executive
Order 11246 which prohibits sex discrimination it Federal employ-
ment. The Labor Department enforces the same order with regard to
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Government contracts, and enforces the provisions of the Equal Pay
Act of 1963. It also has a Women's Bureau which collects information
concerning the economic and educational status of women. HEW,
HUD, and the Office of Education are also involved with investigating
sex discrimination in the governmental programs they administer.
And, of course, the Justice Department is charged with bringing suit
to enforce the laws which these agencies are implementing.
Finally, if the equal rights amendment to the Constitution is rati-
fied by the States, any person in America may go into court to chal-
lenge sexually discriminating laws or practices as a violation of his or
her constitutional rights.
But we are told we need still more. We are told that we need to
expand the jurisdiction of the Civil Rights Commission to make more
studies, more reports, and more recommendations on the question of
sex discrimination.
I wonder myself if the Commission's present jurisdiction to investi-
gate denials of equal protection to members of racial, ethnic, and reli-
gious minorities is not broad enough to include discriminatory prac-
tices against minority women. The Commission says it has already
done some work in this area. If so, how much will be added by this
new grant of jurisdiction? In light of the mammoth costs projected
by the Commission, and the work the Commission says it has yet to
do in the areas of its present jurisdiction, perhaps there is a danger
that these new responsibilities it seeks will seriously interfere with its
performance of existing ones. When I consider the continuing plight
of American Indians, which the Commission has just recently begun
to notice, I find it hard to believe that more than 25 percent of its funds
must be directed to problems of non-minority women.
In fiscal year 1972, appropriations for the Commission totalled
$3,770,000. Out of this, the Commission investigated denials of the
rights of black Americans, Puerto Ricans, Chicanos, American In-
dians, and presumably other ethnic and religious minorities. It now
asks for $1 million in fiscal year 1973 and $2.25 million for fiscal years
1974-78 to be spent solely on sex discrimination. Based on what is
spent protecting the rights of other minority groups, these figures are
either grossly inflated or clearly disproportionata.
Looking at the total authorizations called for in H.R. 12652, the
figure of $6.5 million for fiscal year 1973 is a 62 percent increase over
the ceiling established for fiscal year 1972. The $8.5 million called for
in the succeeding 4 fiscal years represents an increase of 112 percent
over fiscal year 1972. All told, the cost of the Civil Rights Commission
for fiscal years 1973-78 would be, by the Commission's own estimates,
$40.5 million. It is rather startling that the total amount of appropria-
tions for the Commission to date, from its creation in 1957 to the
present, has been a little over $27 million. Thus, the Commission is
asking the Congress to authorize $13 million more over the next 5 years
than what has been spent for the work of the Commission for the
last 15.
This vast, uncalled-for expenditure strikes me as the most objec-
tionable provision of H.R. 12652. It cannot be justified by the inclusion
of sex discrimination in the Commission's jurisdiction by any stretch
of the imagination. On the contrary, the monetary limits within which
the Commission has worked in the past indicate the extravagant na-
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ture of the estimate. Even without the inclusion of sex discrimination
and the costs of H.R. 12652, the Commission is seeking an increase of
over $800,000 for its work in fiscal year 1973-itself a substantial
increase over its appropriation of $3,770,000 in fiscal year 1972.
All this comes at a time, I might add, when the Federal budget
deficit has reached $39 billion and predictions are that it will continue
to worsen. To be sure, some increase in costs might; be expected, but
quantum leaps having as little justification as this one are both unwise
and inconsistent with the "belt-tightening" in evidence in other Fed-
eral agencies.
I do not feel that the open-ended authorization found in S. 3121 is
any solution to the problem either. The Commission, in the first 10
years of its existence, operated under such a provisin and the result
was a mushrooming program accompanied by mushrooming costs.
Given the apparent bent of the Commission now,, [fear we may ex-
perience the same mushrooming effect in greater proportions with
even less justification if the matter of appropriations were left between
the Commission and the Office of Management and Budget.
If the Commission is to remain with us, it is y feeling that the
Congress should limit its appropriations to an amount reasonably cal-
culated to allow the Commission to perform the functions for which
it was established. We have only the past and a little commonsense
to rely on. And it seems to me that the authorizations asked for in
H.R.12652 fail on both counts.
It is a matter I hope the subcommittee and our witnesses will devote
some time to today.
Will counsel call the first witness ?
Mr. BASKIR. Mr. Chairman, our first witness this morning is Rev.
Theodore M. Hesburgh, Chairman, Civil Rights Commission.
He is accompanied by Mrs. Frankie Freeman, also a member of the
Civil Rights Commission.
Senator ERvIN. And Mr. Rankin.
Mr. POWELL. And John Powell, General Counsel of the Commission.
Senator ERvIN. I welcome you all to the subcommittee, and we will
be glad to hear you in any order which you care to present your views.
STATEMENT OF REV. THEODORE M. HESBURGH, C.S.C., CHAIR-
MAN, CIVIL RIGHTS COMMISSION, ACCOMPANIED BY MRS.
FRANKIE M. FREEMAN, COMMISSIONER; ROBERT RANKIN, COM-
MISSIONER; JOHN POWELL, GENERAL COUNSEL; AND JOHN A.
BUGGS, ACTING STAFF DIRECTOR, CIVIL RIGHTS COMMISSION
Reverend HESBURGII. Senator Ervin, Mr. Chairman, and members
of the committee and Subcommittee on Constitutional Rights, I am
Theodore M. Hesburgh, Chairman of the U.S. Commission on Civil
Rights. I wish to thank you for this opportunity to testify on S. 3121
and H.R. 12652, legislation to extend the life of;tie Commission on
Civil Rights, expand its jurisdiction to include sex discrimination and
to authorize appropriations for the Commission. With me today are
my fellow Commissioners, Mrs. Frankie M. Freeme i, of St. Louis, and
Robert Rankin, professor emeritus of political science, Duke Uni-
versity.
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We also have our acting staff director, Mr. John Buggs, and our
General Counsel, Mr. John Powell.
I share with Dr. Rankin the privilege of having served on the Com-
mission under four Presidents. This results, in part, from the recog-
nition of Congress and of every President since 1957 that the critical
domestic problems of civil rights require. approaches above political
partisanship. Above all, Congress recognized in enacting Title I of the
Civil Rights Act of 1957 that the monitor of federal civil rights policy
should neither be a creature of the executive nor of the legislative
branch, but should be equally responsible to both. Therefore, we report
to both the executive and legislative branches and we are nonpartisan.
Since the establishment of the Commission in 1957 we have seen a
proliferation of study commissions of various kinds-each responsible
for reporting on some issue of national importance. We share some of
the traits of such commissions. We, like they, were created as a sub-
stitute response to critical domestic problems. We enforce no laws. We
cannot redress individual grievances, no matter how serious. Our
power, in short, is extremely limited.
Although the Commission on Civil Rights is similar to other study
groups in many ways, we are unique in other ways.
First, the Commission on Civil Rights, as I have mentioned, reports
to both the executive and legislative branches. Most study commissions
report only to the President.
A second unique feature of the Commission on Civil Rights is the
broadness of its mandate. Other study commissions have tended to
have specific, often narrow mandates. The mandate of the Commis-
sion on Civil Rights, however, extends to the limits of the equal pro-
tection clause of the Constitution with respect to invidious distinctions
based on race, color, religion or national origin. This gives the Com-
mission considerable latitude for moving into problem areas that need
exploring. Moreover, the Commission does not have to wait for a spe-
cific request in order to move, although such requests always are wel-
come. The Commission can, and does, schedule its activities on the basis
of its experience and its knowledge of what most urgently needs atten-
tion in the field of civil rights.
A third unique feature of the Commission on Civil Rights is its
continuing existence. This continuity has enabled the Commission to
follow up on its findings and recommendations-a highly important
function about which I shall say more.
Instead of going out of existence after publishing one report, as
do many advisory and study commissions, the Commission on Civil
Rights continues to operate. The Commission has been extended five
times by Congress. This continuity of existence has enabled the Com-
mission to produce a steady stream of reports and other activities
directed toward the myriad civil rights problems facing the Nation.
We are able to persist in seeking implementation of our recommenda-
tions. For example, we first recommended an equal employment op-
portunity commission with enforcement powers in 1961. Since that
time we reiterated our basic recommendations, published supporting
studies and focused critical attention on the Federal Government's per-
formance in the equal employment field. This year, 11 years after our
initial report on employment, legislation granting enforcement powers
directly to the Equal Employment Opportunity Commission was
passed.
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The Commission on Civil Rights is unique amarg study commis-
sions in having the active assistance of State a&'sory committees,
which Congress authorized to be established by tie Commission in
each State and the District of Columbia. Our State committees have
been the eyes and ears of the Commission away f rom Washington.
Their reports have been valuable sources of inforrr,.aion to the Com-
mission and have had substantial effect on civil rights issues at the
State and local level. We see our State committees as a vital link in
developing and strengthening civil rights in the c{vcmunities, on the
streets, in towns and cities, and in State capitals acs?oss the land.
Our continuing existence over a period approaeli.ing 15 years has
given us considerable background and expertise in the field of civil
rights. And, as I have suggested, it has enabled us't go beyond mak-
ing recommendations into the highly important ri rater of following
up on recommendations to see how well they arc carried out. As
more laws have been enacted, our primary focus ha . shifted from the
need for more legislation to the question of effectivc implementation.
Our views, criticisms, and suggestions have been sdl ;sited by this sub-
committee and by other committees of Congress, by t're Executive, and
by those agencies of Government charged with civil rights enforce-
ment responsibilities.
Furthermore, civil rights are no longer regional ',sues. They truly
are nationwide. The day of the sectional approael i to solving civil
rights problems rapidly is coming to a close. The Commission on Civil
Rights has often expressed dismay over Federal approaches to civil
rights which tend to limit enforcement of civil ri; its principally to
one region or tend to give the appearance of ignoring the existence
of extremely serious civil rights problems nationwiie. I might point
out that our 1966 "Report on Racial Isolation in tb > Public Schools"
received a cool reception in large part because we suggested that school
segregation was not solely a Southern problem but existed in every
city in our land.
These shifts in emphasis to monitoring enforcemF-nt of civil rights
and to treating civil rights as a national, not a regal problem, have
required a commensurate expansion of staff and intensity of effort. A
voting rights study conducted in five or six States is less expensive
than a housing segregation study across the Natiorr. A study of the
extent of segregated schools in the South in 1966-6, was more simple
and far less expensive than a study of the educt;ona.l problems of
Mexican-American students or of racial isolation in he public schools
nationwide. When the Commission appraised the Federal civil rights
performance in 1961 only the Department of Justice and an extremely
limited contract compliance operation were involved. Two years ago
we undertook to assess the entire State of Federal ri: ,-it rights enforce-
ment. We reviewed over 40 departments and agenciies . Our study, "The
Federal Civil Rights Enforcement Effort" issued 'ir 1970 was one of
the largest and most impressive in our history. W,, have issued two
followup reports to that study and plan others. Under the persistent
prodding of our monitoring program, a number o Federal agencies,
including the Office of Management and Budget ha -- made important
and significant improvements in their civil. rights en forcement efforts.
Against that backdrop, Mr. Chairman, let me outline briefly some
other recent activities of the Commission.
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The most complete set of educational-data ever collected about any
American minority other than blacks is being compiled by the Com-
mission in a study of education for Mexican Americans. Three reports
already have been issued as a result of this study and three others are
planned.
In recent years the Commission has been giving increasing attention
to the long-neglected problems of American Indians, Puerto Ricans,
and other minorities. We are opening new field offices in the Midwest-
if Denver can be considered Midwest-where many American Indians
reside, and issuing new publications for the purpose of dealing with
the civil rights problems of that group.
I know of your special interest and concern about the problems of
American Indians. The Indian bill of rights authored by you and
originally reported from this Subcommittee on Constitutional Rights
is a landmark contribution in this area. As you know, our clearing-
house publication, the "American Indian Civil Rights Handbook," is
an explanation of that act. We have been surprised to find it in ex-
tremely heavy demand from American Indians and their organiza-
tions. A simplified version for those of poor literacy is being prepared.
In addition, we are exploring other means of disseminating the valu-
able information it contains to American Indians through the audio
devices, such as tape cassettes, for replay in tribal meetings and com-
munity centers and other gatherings.
Now, I would like to review briefly for you some other aspects of our
activities in this field.
In fiscal years 1969-70, the Commission conducted preliminary
research and investigations to gain an understanding of the problems
facing American Indians living both on and off reservations, to estab-
lish contact with the Indian community, and to learn directly from
Indians what problems merit the attention of the Commission. Field
trips were made by the Commission staff members to the State of
Washington, to northern and southern California, to the Navajo res-
ervation in Arizona and New Mexico, and to Sioux reservations in
North and South Dakota. Commission staff members interviewed a
number of people, Indian and non-Indian, in Washington, D.C., who
are knowledgeable about Indian affairs and problems.
As I mentioned, the Commission issued the "American Indian Civil
Rights Handbook." Other publications to be issued are handbooks on :
First, Federal Programs;
Second, the Federal Administrative Apparatus as it Pertains
to Indians; and
Third, Social Services.
The Indian project will continue to gather information pertaining
to the equal protection of the law as it relates to Indians throughout
field investigations, State advisory committee meetings, and at least
one Commission hearing. This project is projected to continue into
mid-fiscal year 1974.
We also have underway the most comprehensive examination yet
undertaken by a Federal agency of Puerto Rican problems.
During the last 21/2 years the Commission has been studying the
problem of equal access to suburban housing and jobs for blacks and
other minorities who are confined by tradition and practice to the
inner city ghettos and barios. We have held hearings in St. Louis, Bal-
80-401 0-72-3
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timore, and Washington on the growing racial and el hnic polarization
occurring in our urban areas. This polarization exacerbates many civil
rights issues and will be the source of wider and ms,re tragic divisions
unless major efforts are undertaken to guarantee that the new oppor-
tunities and amenities in the growing fringe areas of our metropolitan
centers are open to all. The Commission's work in rhis all-important
field is by no means completed. We are producing studies to document
the problems and to support major legislative recornmendations.
As members of this subcommittee know, the Coni mission does more
than produce reports and studies. I already have deseribed the value of
our State committees. In the last 21/2 years we have r lade major strides
in activating committees in every State and in integrating their work
more closely with that of the agency staff in Waship ton. For example,
our study of administration of justice in prisons, now underway, will
be based in part upon reports from at least 12 Stag committees which
have agreed to undertake work in that area. To support the activities
of our State committees we have established field staff based on six
cities : New York, Chicago, Atlanta, Los Angeles. San Antonio, and
Washington. A seventh office was opened this month in Denver and we
will be opening an eighth office in Kansas City in the coming fiscal
year-if the Commission's life is extended.
An important part of the Commission's program 5s its clearinghouse
function given to it in 1964. Under our clearinghouse program the
Commission has prepared and published informalion on civil rights
in a variety of forms for dissemination. We are continuing to develop
publications on civil rights designed to be easily ?inderstood by the
layman.
These, in outline form, are our major undertakii s at present. Vir-
tually all are long-range projects involving considerable data collec-
tion, factfinding, analysis, and, after the reports hive been published,
extensive followup.
Since the 1957 Civil Rights Act, the Nation hs;- made its greatest
strides forward for minorities in America since en* ricipation. We have
seen a major revolution in civil rights. We have comae a long way in a
short span. Yet we have much, much farther to go.
We still have segregation in America. Minorit3 group Americans
still are denied equal opportunity in virtually every facet of life. We
are moving ahead, but the pace is inadequate. The, steps we have taken
in less than a decade-historic as they have been=-are only beginning
steps.
That brings us, Mr. Chairman, to the necessity for S. 3121 and H.R.
12652.
Despite the fact that the Commission has very 1=Anited powers and a
modest staff, it has made contributions during the past 14 years that
are undeniably significant. Yet much more remains t o be done.
Perhaps there were those who voted to create the Commission in
1957 who felt that a few years of operation wou;al_ be sufficient; that
after a short time, the Commission would be able to declare the Nation's
gigantic race problems solved and shut up shop. N thing would please
us more than to be able to say to you today that a Commission on Civil
Rights is no longer necessary. We need only to read our daily news-
papers and watch our television sets to know that-.such a declaration in
this day and time is out of the question.
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The legislation before you would extend the life of the Commission
51/2 years. Instead of going out of business next January, the Commis-
sion would continue functioning until the end of fiscal 1978.
An important provision of H.R. 12652 would take the Commission
into an urgent new field and illustrate the point that civil rights is
never a fixed and static subject. The new provision is contained in sec-
tion 3, which would give the Commission jurisdiction over sex discrim-
ination, in addition to our present jurisdiction over discrimination on
account of race, color, religion, and national origin.
As the subcommittee knows, sex discrimination is a developing issue
which is getting increasing attention across the Nation. A rather lim-
ited amount of dependable material is available, outside the fields of
employment and education, on the various forms that sex discrimina-
tion can take and how it can deprive American women of full and
useful lives. There is a great need for systematic and objective docu-
mentation of basic facts about sex discrimination, just as there was an
immediate need for objective factfinding in the field of race relations
when the Commission was established 15 years ago. I am hopeful that
the Commission will be able to move forward and meet the need for ob-
jective studies of sex discrimination as soon as possible. It is our inten-
tion that this additional responsibility would not divert attention from
the work we are doing to study and report other types of
discrimination.
There are several other sections of H.R. 12652 which I will mention
only briefly. These conform the Commission's statute with those of
other agencies in certain respects.
Section 1 would permit payment of witnesses at Commission hear-
ings at the same rate paid by Federal courts.
Section 2 would increase the compensation for Commissioners from
$100 a day to the equivalent of the pay for Federal employees at Execu-
tive Level IV.
Section 5 would allow the Commission to pay consultants at the
maximum GS-1'5 level, instead of $100 a day, bringing our pay for
consultants in line with the scale paid by many other Federal agencies.
Finally, H.R. 12652, as amended by the House of Representatives,
authorizes appropriations for the Commission in the amount of
$6,500,000 for fiscal year 1973 and $8,500,000 for fiscal year 1974 and
each fiscal year thereafter.
The authorization for appropriations for fiscal year 1973 in the
amount of $6,500,000 will enable the Commission on Civil Rights to
obtain the full appropriation of $4,821,000 as requested by the Presi-
dent and passed the I3ouse. This appropriation also has been approved
by the Senate Subcommittee on Appropriations for the Departments
of 'State, Commerce, and Justice, the judiciary and related agencies.
The authorization figure also will allow the Commission to request a
supplemental appropriation of $1 million to carry out its proposed sex
discrimination program and will allow a request for an additional
$500,000 to implement an effective Asian American studies program
and for conducting investigations and studies of civil rights emergen-
cies. We have been informed that the'Office of Management and Budget
has no objection to an authorization in the amount of $6,500,000 for
fiscal year 1973.
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The increased appropriation for fiscal year 197' will enable the
Commission to reach its midpoint program goals wit] out encountering
delays due to lack of sufficient resources with which t o carry out all. of
our commitments. The major requirements of our increased request
for fiscal year 1974 are for meeting anticipated demands on Commis-
sion resources for an adequate and substantial sex discrimination pro-
gram without taking away resources for our program in the areas of
discrimination on account of race, color, religion, ar ?i national origin,
for completion of expansion of our field staff and for other major pro-
gram needs, including improved research capabilitieF.
For 10 years the Commission operated with a gene-ral authorization
for appropriations. During the last 5 years, we have ii ad authorizations
ranging from $2,650,000 upward to our present $4 million. Although
this is a $1,350,000 increase, it represents, for the most part, mandatory
salary increases and other cost increases necessary to keep the basic
operation of the Commission going at the same level as when we were
extended in 1967 and enabled a modest expansion over a period of
4 years. Our personnel strength authorized for fiscal 1968 was 153; our
authorized strength for fiscal 1972 is 176. Out of this increase the Com-
mission has established four additional field offices and increased
slightly the strength of its Washington staff. As the only agency in the
Federal Government engaged in research in the complicated field of
civil rights the commissioners feel that such an expansion has not been
commensurate. with the enormity of the problem: we face and for
which we seek solution.
A principal advantage of a significant increase in authorization for
appropriations for the Commission will be the flexibility afforded us
in planning and responded to major events in civil rights. Because of
our limited resources the Commission has not always been able to
undertake significant work in response to legitimate requests from
Members of Congress, the public and civil rights groups to study major
civil rights issues of immediate national concern. TYie hardest decision
we each face as a commissioner is to vote not to respond to such re-
quests because of our inability to undertake extensive new projects
without destroying our ongoing program.
I would like to suggest that if the Commission on Civil Rights were
afforded an authorization which gave it the capacitk to seek funds for
such projects, an important missing link in our overall strength would
be supplied. The commissioners feel the need to respond to major civil
rights developments in a timely manner. As thingsrow stand, a timely
response to major new developments often is impossible.
I should note that S. 3121 and H.R. 12652 are part of the President's
legislative program for 1972. You will recall that the President men-
tioned the Commission twice in his State of the t nion message last
January-once in calling for a 5-year extension of the Commission and
again in recommending that the Commission's jurisdiction be ex-
panded to include sex discrimination.
Much of the Commission's most important work---including the en-
forcement study, the suburban access program, the Mexican-American
project, our housing studies, and our study of political participation-
has come during the last 5 years. These endeavors would not have been
possible unless we had 5 years in which to work. IV 'ongress decides to
extend the Commission for a similar term this year, we will be able to
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continue the solid, painstaking efforts which have gone into the Com-
mission's previous undertakings.
We have much unfinished business. Last summer members of the
Commission met with our executive staff for a 3-day retreat. A large
part of our discussions were devoted to identifying the unfinished civil
rights agenda. We got rather specific and drew up a long list of things
to be done. I will not burden you with reciting it, Mr. Chairman, but I
would like your permission to submit it for the record.
Senator ERVIN. We will be glad to have that statement, and let the
record show it will be printed in the body of the record immediately
after Father Hesburgh's statement.
(The document referred to, entitled "Unfinished Commission Busi-
ness," follows:)
UNFINISHED COMMISSION BUSINESS
(Denver Program Planning Meeting, August 27-29, 1971)
Voting
1. Appraisal of the effectiveness of the Voting Rights Act as amended, espe-
cially Section 5.
2. Assurance of equitable reapportionment for minority groups, such as the
Mexican Americans in California, so that they will be able to elect their fair
share of State legislators and Congressmen.
3. Analysis of the process and effectiveness of minority group participation in
voting in those States where there are no roadblocks to participation.
4. Overall participation of minority group members in the political process,
including political parties and party conventions.
5. Vote fraud is within the Commission's jurisdiction but has been neglected
due to lack of funding.
Education
1. Completion of the Mexican American Education Study and dissemination
of its findings.
2. Examination of the unitary school system and how it is in fact operating.
3. School testing and placement procedures and their effect on over-representa-
tion of minority group children in educable mentally retarded classes.
4. Racial imbalance in the public schools.
5. The power structure of school boards and how minorities can get into
decision-making positions.
6. Scrutinize teacher training systems of the country, and the training systems
for school administrators, to identify the extent to which they prepare partici-
pants for integration.
7. Examination of the impact of Federal funding at the college level.
Housing
1. Suburban land-use control.
2. Equal access to home financing.
3. The whole issue of suburban access.
4. Possibility of offering incentives to encourage integration of housing.
5. Continual monitoring of HUD housing programs.
Employment
1. A study of union discrimination, including analysis of Philadelphia-type
plans.
2. Enforcing anti-discrimination laws, including providing cease-and-desist
powers to the Equal Employment Opportunity Commission.
3. Minority economic development, including franchising and other types of
entrepreneurship.
4. Displacement of agricultural workers by mechanization.
5. Large-scale unemployment among teenage minority youth.
6. Problems of migrant workers.
7. Examination of job training and upward mobility programs to see how well
people are trained and what kind of jobs they get after training.
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Administration of Justice
1. Police-community relations.
2. Civil rights of prison inmates.
3. The way Spanish surnamed persons not fluent in English are affected by the
probation and court system.
4. The role of the Department of Justice in civil rights en+'orcement activities.
5. The juvenile justice system and how it functions vis-s:, -vis minority group
youth.
6. Disparate treatment afforded minority people by the bail system, parole
system, probation system, and the court system.
7. Disparate treatment and punishment of people of lower income levels.
8. Military justice.
Reverend HEsBunox. Thank you, Mr. Chairman.
We face civil rights problems today different from those which ex-
isted in 1957, when the Commission was created, but every bit as
compelling.
We understand civil rights problems today differently than in 1957,
when the Commission was created. Today it is widely understood that
civil rights are concerns which affect not only the South but every
region of the country. Discrimination against citizens because of their
race, color, religion, national origin, and sex takes place everywhere in
the Nation. Because discrimination can be less than blatant, more
subtle and sophisticated, it is no less destructive to ma jority and minor-
ity Americans alike, and no less dangerous to the Nation. It was rela-
tively easy to identify the discrimination which ba?-red black people
from the ballot boxes; it is difficult and demanding t o trace the hiring
practices and screening techniques which bar minorit } Americans from
jobs, schooling, and housing. Devising solutions and remedies which
will. achieve results while balancing conflicting demands of individuals
and of groups is an exacting task which requires knowledge of facts
and persistent attention to detail. The Commission has played its part
in this national endeavor, and, if extended by Congress, will continue
to do so.
Thank you very much, Mr. Chairman.
Senator ERVIN. Thank you, Father Hesburgh.
I would correct one error in your statement, and that is this : You
stated that Congress had given enforcement powers to EEOC. An
effort was made to do that, but the House passed the bill continuing
the program by which these could be enforced in thIL! courts only. The
Senate committee reported the bill to give them self-enforcement pow-
ers, and the Senate amended the bill. So, both bills now provide for
substantial enforcement through the courts.
Reverend HESBueGn. That is correct, through the courts.
'Senator ERVIN. It has expanded to some extent the definition of those
who can make application. So, your statement is not entirely erroneous.
It is partially correct and partially incorrect.
Reverend HESBURGU. Thank you for that distinction which clarifies
the statement.
Senator ERVIN. I am, I might frankly say, oppoRed to giving en-
forcement powers to the EEOC, because then the Commission is set up
under a law which gives it power to investigate complaints, to make
complaints, then to prosecute complaints, and then to act as the judge
to pass on its own complaint. If that is not a denial of due process of
law, I do not think that any human mind is sufficiently gifted to know
what a denial of due process of law is.
Does counsel have any questions?
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Mr. BASKIR. Father Hesburgh, is the Commission's jurisdiction co-
extensive with the 14th amendment equal protection clause, or do you
have less jurisdiction than that particular clause would encompass?
Reverend HESEURGH. I would think it is reasonably coextensive. But
on the other hand, I think we have that qualifying phrase of race,
color, religion, and national origin spelled out very carefully for us in
the Commission statute. At times, we get complaints that I feel might
be complaints under the 14th amendment, but they are beyond our
legislative mandate.
Would that be correct, Mr. Powell?
Mr. POWELL. Yes.
Reverend IIESBURGH. I always check with the lawyer, as I am not a
lawyer myself.
Senator ERVIN. Please excuse me, but I have to go over to the Senate
floor for -a vote. However, it will be all right for counsel to continue
his questions in my absence, and I will be back as speedily as possible.
Mr. BASKIR. Would you say a complaint of discrimination based
solely on sex would not fall within your jurisdiction now without the
extension of jurisdiction you ask for?
Reverend HESBURGH. Yes, I would say that. We have had actually -a
number of sex discrimination complaints from women's organizations
mostly and woman's lib, and that sort of thing. We have said that we
simply cannot take them on because of our statutory restriction of
race, color, religion, and national origin.
Mr. BASKIR. Do you now do any work with respect to discrimination
involving sex if it is in relationship also to, let us say, racial or ethnic
or religious minorities?
Reverend HESBURGII. We have not specifically done that, although
we have a commissioner who is 'a woman who says that she has been
discriminated against doubly both by being a woman and by being
black. 'She keeps our nose to the grindstone whenever something touch-
ing on that would .come up.
I cannot remember specifically taking up problems of this sort.
Mrs. FREEMAN. May I speak to this?
Mr. BASKIR. Certainly.
Mrs. FREEMAN. In the 8 years I have been on the Commission, where
we have held hearings and made studies involving discrimination and
imbalances in the local administration of justice and discrimination in
the welfare programs, some of our witnesses were women. We were, of
course, afforded an opportunity by their testimony to make some de-
terminations about the unequal treatment of women. In terms of
minority women as such, we do not have jurisdiction over them in their
status as women. But in terms of national origin and race, of course,
we do include women in these studies.
Mr. BASKIR. Do you feel that the Commission has the jurisdiction
now to do studies which would include both sex and minority in the
sense that you could engage in studies of minority women in various
aspects without the extensive jurisdiction?
Mrs. FREEMAN. No, we absolutely need the enactment of this legis-
lation to include the whole area of sex discrimination. First of all, our
present jurisdiction is so limited. It is true that minority women are at
the bottom of the bill, however, in terms of employment, in terms of
credit practices, and in terms of State laws which discriminate against
women. This Commission does not have the power to make any studies
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on the basis of that. And we believe that we should 'gave the jurisdic-
tion expanded to include discrimination on the basis of sex for that
reason.
Mr. BASKIR. I can understand that. I was just wondering, as it stands
now, whether the Commission has done anything, o- feels it could do
anything, with respect to minority women-assumli g the question of
the expansion of jurisdiction aside. Do you feel that your jurisdiction
now would enable you to do studies with respect to minority sex dis-
crimination without an extension?
Reverend HESBURGH. Perhaps that is for the G(,neral Counsel to
answer.
Mr. PowELL. Certainly, we have the jurisdiction ba sed on race, color,
religion, and national origin, and we would look at the other problem
of minority women as women of racial minorities, but we could not
look at the broader question.
Mr. BASKIR. I understand.
Has the Commission done anything, any studieseacept those which
you have suggested, with particular attention to mint irity women?
Reverend HESBURGH. No, we have not; although would say that at
every single hearing we have had testimony from minority women, and
that has been part of our total testimony.
Mr. BASKIR. Can we assume that the money in tie estimates sub-
mitted to us, the $1 million, roughly, for 1973 and the $2.25 million
for the succeeding years is tied to the expanded jurisdiction that you
do not have, that is to say, sex discrimination-not tied to the problems
of minorities of an ethnic or religious or racial nature?
Reverend HESBURGII. No. This would be for the total of the problems
based on sex, including minority problems based on se x.
Mr. BASEIR. In other words, if you do not get this, extension you will
not have any program, or money, with respect to minority women or
nonminority women?
Reverend HESBURGH. That is correct.
Mr. BASgrn. My understanding then is that the --tppropriation re-
quest you have submitted does not include any prog rams with specific
attention to women in any respect?
Reverend HESBURGH. That is correct.
Mr. BASKIR. Is that right? Does the Commission -lave any estimate
of the additional staff that would be required in 1973 or succeeding
years?
Reverend HESBURGH. Yes.
Mr. BASKIR. If you get the additional sc c discrimination
jurisdiction?
Reverend HESBURGH. I would ask Mr. Buggs to speak to that.
Mr. BUGGS. Yes. We have tried to cost this out int=rms of additional
number of people, that would be required to add thml responsibility to
the Commission's program both in the Washingto,, t office and in the
eight, seven or eight, regional offices. We come up with the figure of
somewhere between 70 and 80 staff people.
Mr. BASKIR. That would be for 1973 or what?
Mr. BUGGS. No, for after the 2-year period.
Mr. BASKIR. For fiscal year 1974 and beyond?
Mr. BUGGS. That is right.
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Mr. BASKni. This is in addition to the figures you submitted to us
with respect to the other increases without sex discrimination of some
40 I think it was-
Mr. BuGGS. That is right. That 40 did not include any consideration
of sex.
Mr. BASKIR. This is over the figures that you have already submitted
to us?
Mr. BUGGS. That is correct.
Mr. BASKIR. The figure of $2.25 million that you have budgeted out
for sex discrimination, the additional jurisdiction with respect to such
discrimination comes to, roughly, 25 percent of the $8.5 million. Do
you feel that this 25 percent of the total accurately reflects your esti-
mate of the social problems or the civil rights problems of sex discrimi-
nation as opposed to -the various other kinds you are also dealing with?
Reverend HESBURGHI. I think so, because you are talking about a big
segment of the population. Women constitute more than 50 percent of
the population while all the other minorities, including the Indians,
are less than 100 million people. When you speak of women it is more
than 100 million people. Clearly a large number of people are involved,
and when they are, the problem proliferates, you cannot underestimate
the great deal of urgency on these problems today and the great many
private organizations pushing us to do something about them.
Mr. BASKIR. I recognize that there may be only a million or 100,000
American Indians, but perhaps their problems, although small in terms
of number, might be greater than the problems of 100 million women
who might be a majority.
Reverend HESBURGI. That is correct. I think the women are in a
position to put more pressure on us, let me put it that way. We have to
respond to some extent to the problems as perceived by American
citizens generally. And I think all of you gentlemen will agree that
100 million women in this country can create a great deal of pressure
if they put their minds to it.
Mr. BASKIR. I think we have some familiarity with that kind of
pressure.
Reverend HESBURGH. And I should reiterate that we are going to
spend $300,000 on American Indian problems next year.
Mr. BASKIR. And you would say that the $2.25 million is a reflection
of not only the number of women but also the earnestness with which
they push their cause?
Reverend HESBURGHI. Yes, I think so.
Mr. BASKIR. In addition to, perhaps, the difficulties that they face?
Reverend HESBUaGII. That is right. It is a very honest reflection on
our part since we have never done this before. We can only extrapolate
from the past experiences of other groups that this is a very large
group that is developing a great head of steam, and we are going to
hear a lot from them. We know that we will the moment we are granted
jurisdiction over sex discrimination.
Mr. BASKIR. It may be that the quiet minorities who do not have as
much political pressure behind them, or do not have as much voice
might be more in need of your assistance than the ones that are vocal
and politically powerful. It may be that the Asian Americans or the
Mexican Americans or the American Indians or the Slovak Americans
who are not politically powerful might need more money than women
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who are politically powerful. They might need more than the $2.25
million.
Reverend HESBURGH. What we are finding now is r.hat we are really
responding more to all of these groups. I think when I began with this
Commission-and I go back to the first day-we had to begin with the
problems of blacks because that was the largest mbiority, we had and
the most obvious, and their problems were the most of ious.
From that time, we moved into our second series of five reports in
1961 and took up the American Indians problem, ter#atively in volume
V of that issue.
Then, we got to the Mexican Americans. Then we *ot to the Puerto
Ricans. And now we are getting to the Asian Americans in the next
year, because they are beginning to insist that we focus on their diffi-
culties. I have probably received 30 or 40 letters in th,~ last month from
Asian-American organizations and individuals sayir ,,4: "When are you
going to get around to us?"
So, we have a program to study that problem duirng the next year.
We think that once we have a baseline study, thin we have some-
where to go. But our problem is that in all of thec=. areas there just
is no dependable baseline study to begin with. We;omen has been long
and tedious but has moved ahead in recent years. The lack_ ),f studies, statistics
and other concrete evidence of discrimination has been "h major obstacle for
women in pressing their case before courts and legislatures. A clearinghouse for
information is essential if the battle to eliminate sex discrimination is to be
successful. S. 3121 would enable the Commission to do this job
For all of the above reasons, the ACLU urges prompt enactment of S. 3121.
STATEMENT OF SENATOR J. CALEB BOGGS, SUBCOMMITTEE 01; CONSTITUTIONAL
RIGHTS, JUNE 15, 1972
Mr. Chairman, I am grateful for this opportunity to make a few remarks today
in support of S. 3121, the legislation to expand the duties -if the United States
Commission on Civil Rights and to extend the Commission for five years. As a
cosponsor of this bill, I have given it my strongest support and I urge the Sub-
committee to act quickly to approve it.
The Civil Rights Commission has proven to be an effect`ve and valuable re-
source of the Federal Government. Its appraisal of civil rights issues, its exami-
nation of Federal laws and policies relating to civil rights, and its investigations
into complaints of denial of civil rights have all contributed to our national com-
mitment to equal protection under the law. The Commission s less publicized but
nonetheless essential work of collecting and evaluating civi rights information,
and submitting reports and recommendations to the Preside it and the Congress,
have likewise served to focus attention on civil rights issues in a most constructive
manner.
Despite its many diverse activities, the Commission's principal role is that of
an independent, fact-finding agency.
It was originally established in 1957 to undertake an extensive study of denials
of the right to vote. In the years that followed, substantia. progress was made
in this area. This, I am happy to note, has allowed the Commission to broaden
its activities to include studies of denials of equal protec ion in the fields of
housing, education, employment and the administration of justice.
I am especially pleased, Mr. Chairman, with the provisions of Section 4 of
S. 3121. This section expands the Commission's jurisdiction. to include studies and
investigations of discrimination on account of sex. This expansion is a principal
recommendation of the Report of the President's Task Forare on the Rights and
Responsibilities of Women which was issued in 1970.
This is an area that has been neglected for too long, an4 I am anxious that
the resources and expertise of the Civil Rights Commission be brought to bear
on it. I am pleased that the Commission has made plans to undertake extensive
studies of sex discrimination in education programs and in hiring practices. As
in the past, I know these studies will be of great value to !he Congress and the
Executive Branch in terms of proposing and shaping poliCi4s and legislation.
The Commission has also begun to study a number of oth=r areas where ques-
tions of equal protection under the law have arisen. The particular problems of
the Mexican-American, the Puerto Rican, the Asian-Ameri -4:.n and the American
Indian are either under study or slated for examination in -he near future. The
Commission is also planning to look into subtler forms of discrimination arising
from religious differences and ethnic heritage. A comprehensive report on Civil
Rights Progress in the Past Decade is planned for next year.
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Mr. Chairman, although real progress has been made in the field of civil rights,
it is my belief that the work of the Civil Rights Commission has, in a sense,
just begun. We have not reached a point where we can afford to let down our
guard or ignore patterns of discrimination that persist. I urge the Subcommittee
to act favorably on S. 3121.
Thank you, Mr. Chairman.
STATEMENT OF THE LEAGUE OF WOMEN VOTERS OF THE UNITED STATES
The League of Women Voters of the United States, with members in all 50
states, the District of Columbia, the Virgin Islands and Puerto Rico, wishes to
be recorded in favor of H.R. 12652.
The League of Women Voters was organized following the final success of the
extraordinary efforts of a dedicated group of citizens whose aim was to achieve
suffrage for women. Since 1920, League members have worked tirelessly to over-
come discriminatory practices in education, employment, housing, or voting-
whether these practices were against children, women, or racial minorities. Since
the 1954 school decision, members have concentrated on achieving equal oppor-
tunity for minorities.
We therefore considered establishment of the Civil Rights Commission in 1957
a major step forward in implementing civil rights statutes and in demonstrating
the federal government's commitment to equal opportunity for all citizens. As a
non-partisan, independent agency the Civil Rights Commission has established
itself as an objective advocate for non-discriminatory practices in all aspects of
American life, and the volunteer 'members of State Advisory Committees, repre-
senting broad segments -of the community, have helped provide essential inter-
pretation and oversight of each newly enacted civil rights law.
The League supports the work already done by the Commission, citing as an
example the comprehensive report of 1970 documenting the failures of the federal
government to use its structures, mechanisms and procedures to enforce ade-
quately the civil rights laws already on the books.
New federal initiatives to improve federal agency compliance have resulted
from that 1970 report. Why? Because interested citizen groups for the first time
had factual evidence on which to base efforts to bring the federal establishment
into compliance with the law. Without the Civil Rights Commission the general
public would have no way to determine whether or not hard-won laws to pro-
tect civil rights are buried in legal code books or are put to work to effect
change. The League, therefore, supports continuation of the Commission.
Because the investigation and determination of compliance with law requires
continuous work over long periods of time, and because social change resulting
from compliance with civil rights laws takes place slowly, the League favors
extension of the Civil Rights Commission for five years. Furthermore, it is im-
portant to League members that sufficient authorization of funds be included to
enable the Commission to carry out its mandates effectively.
In order for the distinguished citizens who serve on State Advisory Com-
mittees to use their time and expertise to best advantage, an adequate Civil
Rights Commission field staff should be available to them.
To do the necessary work under a new mandate giving jurisdiction over sex
discrimination, additional funds are required.
Asian-American and other minorities have particular problems which must be
faced by the Commission in the months and years to come.
The Civil Rights Commission has many requests for timely studies in response
to civil rights emergencies, such as recent prison uprisings.
The League is therefore fully in support of the authorization for $6.5 million
for fiscal 1973 and $8.5 million for fiscal 1974 and each fiscal year thereafter.
Were such increased support not available, 'the Commission would not be able to
cope with any new mandates without curtailing or reducing present programs,
thereby losing not only the timeliness and relevance of previously collected data,
but also the momentum already built.
The existence of the Commission provides a monitoring eye on governmental
activities leading 'to compliance with existing statutes and correction when com-
pliance policies are inadequate. There is a persistent need for an agency which
can point out progress made and pinpoint areas where discrimination persists.
In addition, League members are not convinced that sufficient enforcement ma-
chinery exists to make necessary progress in civil rights. Such machinery must
have an unbiased advocate ; the Commission has acted in this capacity in the past
and should continue so to act in the future.
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League members have consistently supported citizen involvement in governmen-
tal decisions-end change through evolution, not revolution. The Civil Rights
Commission stands for the kind of response to citizen need. which shows that
representative government can and does work-for both the` roajority and minor-
ity. The members therefore stand firmly behind HR 12652 aid urge favorable
Congressional action to extend the Commission and to fund it adequately.
'STATEMENT OF SENATOR HUGH 'SOOTT
Mr. Chairman, the contributions of the Commission on civil Rights to the
advancement of human rights and human dignity are well known. The Com-
mission has been the conscience of the Nation in matters of racial equality since
its creation in 1957. Commission reports and recommendations have formed the
basis for important legislation, executive action and judkial opinions dealing
with civil rights across the United States.
While significant strides have been taken toward securing Individual civil
rights since the Commission was established in 1957, there 1,4 a continuing need
for this type of independent agency. The Commission heca been increasingly
active in focusing attention and Federal action on the problems faced by Mexican
Americans, _ American Indians and other minority groups. Its vital work must
continue.
To date, the Commission's work has been limited to issrn(,; of discrimination
because of race, color, religion, and national origin. Studies have indicated,
however, that widespread discrimination because of sex exists in our Nation.
S. 3121, which Senator Hart and I introduced In the Senate =ln February 3, and
H.R. 12652, which passed the House of Representatives on May 1, would meet
this denial of equal rights by authorizing the Commission oh Civil Rights to deal
with discrimination because of sex. This provision would implement an impor-
tant recommendation of the 1970 report of the Presidents. Task Force on the
Rights and Responsibilities of Women and is in accord with he President's civil
rights program.
Although the jurisdiction of some Federal agencies encompn ses discrimination
because of sex, their activities are generally limited to dis erimination in the
area of employment. Studies of the full range of issues, in rdditfon to more ex-
tensive studies of discrimination in employment, are nece::.sary. As has been
demonstrated so cogently by the Commission's record, studio? and recommenda-
tions firmly grounded on authoritative facts are an essen ial prerequisite to
legislation and other remedial relief. Further, it is Important that a Federal
agency be empowered to appraise the Federal performance in this area and pro-
vide a focal point for the development of affirmative action` programs within the
Federal Government.
The structure and work of the Commission on Civil Right?1 are well suited to
these needs. I believe that it is both logical and necessary that the jurisdiction
of the Commission be expanded to include discrimination because of sex.
I am delighted that the House of Representatives has passed legislation nearly
identical to the bill introduced by Senator Hart and myself. Although the House.
passed bill does not include the open-ended authorization' senator Hart and I
favored, it does provide an authorization of $6.5 million for.Tiscal Year 1973 and
$8.5 million for Fiscal Year 1974 and thereafter. These fonds will allow the
Commission to continue its present action for racial equalb. and to expand its
efforts to include discrimination on account of sex.
I would like to stress that this program has the full barling and support of
the President of the United States. In his State of the Union Message, the Presi-
dent requested that the Commission be extended for another" ?-year term. In addi-
tion, the President called for the expansion of the Commies?on's jurisdiction to
include discrimination because of sex.
STATEMENT OF THE WOMEN'S EQUITY ACTION LEAGUE IN SurdoRT OF H.R. 12652,
JUNE 15, 1972
(By Norma Raffel, Ph.D., National President, and Marguerite Rawalt, L1.D.,
Chairman, Ad Hoe Committee)
The Women's Equity Action League (WEAL) is a nationial voluntary, non-
profit organization formed to press for full enforcement of e fisting anti-discrimi-
nation laws affecting women, to gather and disseminate information and educa-
tional materials thereon, to seek solutions to their economic, educational and
employment problems, to combat job discrimination against women by government
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or private employers, working for reappraisal of Federal, State, and local laws
limiting women's employment opportunities. H.R. 12652 would be a step in
carrying out such purposes.
WEAL therefore supports H.R. 12652, which would have the effect of con-
ferring upon the U.S. -Civil Rights Commission jurisdiction to consider denials
of equal protection of law because of sex in addition to its present jurisdiction
with respect to race, color, religion and national origin.
"Equal protection of the laws" under the Fourteenth Amendment has long
been withheld from women. The distinguished Chairman of the House Judiciary
Committee, the Hon. Emanuel Geller, stated in 1956 during debate on the legis-
lation which created the U.S. Civil Rights Commission that-
"The 14th Amendment to the Constitution * * * prohibits the denial by state
action of the equal protection of laws, but distinctions based on sex have never
been considered within the purview of this prohibition." 102 Cong. Rec. 13552,
84th Congress.
With this statement we are in full agreement. The U.S. Constitution means
what the U.S. Supreme Court says it means. Distinguished members of Congress,
both of the House and the Senate, advocating approval of the Equal Rights
Amendment, have placed in the record complete analyses of Supreme Court de-
cisions showing continuing and long-standing denial of the Fourteenth Amend-
ment protection to women." Constitutional scholars and teachers of constitutional
law have testified before Judiciary Committees of both houses of Congress to this
same effect and have advocated a constitutional amendment as the broad and
conclusive guarantee of constitutional equality.-'
Authoritative and centralized resource data is a fundamental need in achieving
legal equality. Informed women and women's organizations working to throw
off their legal inferiority status, have long recognized the lack of comprehensive,
organized research, documentation, and centralization of authentic source mate-
rials which are prerequisite to combatting discrimination in laws and practices.
Their individual efforts and data are not coordinated or centralized in a publicly
available source. Data focused upon discriminatory laws and practices is scat-
tered and piecemeal. To adequately effectuate the purposes of this Bill requires
a reliable comprehensive and voluminous storage bank of information, publicly
available, respecting the whole network of existing state and federal statutes and
their court interpretation. This is an undertaking beyond the scope of an un-
funded, volunteer group, no matter how dedicated. It is a proper job for
government.
Government agencies do not now provide a centralized and comprehensive
source of data focused upon discrimination and denial of constitutional protec-
tion. The laudable statistics of the Women's Bureau have not been so focused.
Its studies have been factual analyses of statutes and practices without measure-
ments for discrimination. Its prescribed duties point to the interests of "wage-
earning women" to "women in industry." P.L. 259, 66th Congress. The Equal
Employment Opportunity Commission is statutorily directed to elimination of
sex discrimination in employment only, and limited to private employment and to
larger employers. The Civil Service -Commission reports and statistics are not
designed to frame constitutional equal protection issues. All women, employed
outside the home or inside, should be brought into protection of their property
rights and their civil and political rights.
The establishment of a national clearing house of authoritative data is a
proper task for the U.S. Civil Rights Commission, an assignment an an equally
urgent and needed level as its present areas of concern with race, religion and
national origin. Women of every race, religion, and national origin should be
legally emancipated. The Civil Rights Commission by authorization, by valuable
experience, by governmental support, is in position to extend its expertise of
hearings, reports, and activities in educating the public, to the cause of equal
legal protection of women. To that end, we urge the provision for appropriations
necessary to adequately and sincerely discharge the functioning of this extra
field of action.
1 Cong. Rec., 91st Cong., 2d Sess., pp. H-7953-7985, debate preceding passage of amend-
ment ; hearings before Senate Subcommittee on Constitutional Amendments, May 5-7, 1970,
pp. 112-135 for case analyses. (Rawalt)
Cong. Rec., 92d Cong., Oct. 6, 1971, pp. H9235 et seq. Hearings, Subcommittee 4, House
Judiciary Committee, March 24-31, 1971, on #.J. Res. 208, pp. 36-42 (Griffiths) ; pp.
194-209.
2 Hearings before Senate Judiciary Committees, 91st Cong., Sept. 9-15, 1970, on S.J. Res.
61 and S.J. 231: p. 298 (Emerson) ; 312 (Doreen) ; 161 (Kanowitz).
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The Women's Equity Action League is gratified that Presi:lent Nixon includeu
a recommendation for this legislation in his recent message to Congress as em-
bodied in this Bill introduced by the Chairman of the Judiei:fry Committee. The
measure should continue to have bi-partisan support. The 1:169 Report of Presi-
dent Nixon's Task Force on Women's Rights and Responsiblities recommended
this action.
We would point out that this measure, desirable as it is, 1s not a substitute for
the Equal Rights Amendment to the Constitution which would bring women of
all races and classes within the ambit of the Constitution ar human beings and
citizens without restrictions or distinctions based solely up- n the circumstance
of having been born female. It is a colorful thread in what'sifould be a complete
tapestry of equality. This Bill would propel American women a full step higher
on the escalator of constitutional recognition in this democracy.
We support passage of H.R. `12652 and emphasize the need for the authoriza-
tion of "such sumsas are necessary to carry out the provisions of this Act." The
experience and effective work of the U.S. Civil Rights Cotii aission, as thus ex-
tended to women, would contribute materially toward alueving our goal of
"equal justice under law" which is the principle inscribed' , source of income,
or liabilities, or his personal or domrstic expenditures or
those of any member of his family or household: Provided,
however, That this subsection shall not =rpply to any civilian
employee who has authority to make CG"~t,r/ final determination
with respect to the tax or other liability of any person, cor-
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poration, or other legal entity to the United States, or
claims which require expenditure of moneys of the United
States : Provided further, however, That nothing contained
.in this subsection shall prohibit the Department of the
Treasury or any other executive department or agency of
the United States Government from requiring any civilian
employee of the United States to make such reports as may
be necessary or appropriate for the determination of his
liability for taxes, tariffs, custom duties, or other obliga-
tions imposed by law.
11 (j) To require or request, or to attempt to require
12 or request, any civilian employee of the United States
13 embraced within the terms of the proviso in subsection (i)
14 to disclose any items of his property, income, or other assets,
15 source of income, or liabilities, or his personal or domestic
16 expenditures or those of any member of his family or house-
17 hold other than specific items tending to indicate a conflict
18 of interest in respect to,the performance of any of the official
19 duties to which he is or may be assigned.
20 (k) To require or request, or to attempt to require or
21 request, any civilian employee of the United States serving
22 in the department or agency, who is under investigation for
23 misconduct, to submit to interrogation which could lead to
24 disciplinary action without the presence of counsel or other
H.R.12652 2
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1 person of his choice, if he so requests: Provided, however,
2 That a civilian employee of the United States serving in the
3 Central Intelligence Agency or the National Security Agency
4 may be accompanied only by a person of his choice who
5 serves in the agency in which the employee serves, or by
G counsel who has been approved by the agency for access to
7 the information involved.
8 (1) To discharge, discipline, demote, deny promotion
9 to, relocate, reassign, or otherwise discriafninate in regard to
10 any term or condition of employment of, any civilian em-
11 ployee of the United States serving in the department or
12 agency, or to threaten to commit any of such acts, by reason
13 of the refusal or failure of such employee to submit to or
coricply with any requbrcmcnt, request, or action made un-
lawful by this Act, or by reason of the exercise by such
civilian employee of any right granted or secured by this
Act.
SEc. 202. It shall be unlawful f(,,- any officer of the
United States Civil Service Commission., or for any person
acting or purporting to act under his authority, to do any of
the following things:
(a) To require or request, or to attempt to require or
request, any executive department or any executive agency
of the United States Government, or any officer or employee
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1 serving in such department or agency, to violate any of the
2 provisions of section 1 of this Act.
3 (b) To require or request, or to attempt to require or
4 request, any person seeking to establish civil service status
5 or eligibility for employment in the executive branch of the
6 United States Government, or any person applying for
7 employment in the executive branch of the United States
8 Government, or any civilian employee of the United States
9 serving in any department or agency of the United States
10 Government, to submit to any interrogation or examination
11 or to take any psychological test which is designed to elicit
12 from him information concerning his personal relationship
13 with any person connected with him by blood or marriage,
14 or concerning his religious beliefs or practices, or concerning
15 his attitude or conduct with respect to sexual matters: Pro-
16 vided, however, That nothing contained in this subsection shall
11 be construed to prevent a physician from eliciting such in f or-
18 mation or authorizing such tests in the diagnosis or treatment
19 of any civilian employee or applicant where such physician
20 deems such information necessary to enable him to determine
21 whether or not such individual is suffering from mental ill-
22 ness: Provided further, however, That this determination shall
23 be made in individual cases and not pursuant to general prac-
24 tice or regulation governing the examination of employees or
25 applicants according to grade, agency, or duties: Provided
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1 further, however, That nothing containu14 in this subsection
2 shall be construed to prohibit an officer of the Civil Service
3 Commission from advising any civilian erzployee or applicant
4 on a specific charge of sexual miscondw1 made against that
5 person, and affording him an opportunity to refute the charge.
6 (c) To require or request, or to attempt to require or
7 request, any person seeking to establish e vil service status or
8 eligibility for employment in the executive branch of the
9 United States Government, or any perst#n applying for ejn-
10 ployment in the executive branch of the United States Gov-
1.1 ernment, or any civilian employee of the 1 rnited States serving
12 in any department or agency of the United States Govern-
13 ment, to take any polygraph test designtiWd to elicit from him
4 information concerning his personal roc 'ationship with any
1.5 person connected with him by blood or marriage, or concern-
16 ing his religious beliefs or practices, or concerning his attitude
17 or conduct with respect to sexual matter,.
18 SEc. 203. It shall be unlawful for any commissioned o ffi-
19 cer, as defined in section 101 of title 10, United States Code,
20 or any member of the firmed Forces acting or purporting to
21 act under his authority, to require or !,equest, or to attempt
22 to require or request, any civilian employee of the executive
23 branch of the United States Government under his authority
24 or subject to his supervision to perforvi any of the acts or
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1 submit to any of the requirements made unlawful by section
2 1 of this Act.
3 SEc. 204. Whenever any officer of any executive depart-
4 ment or any executive agency of the United States Gov-
5 ernment, or any person acting or purporting to act under his
6 authority, or any commissioned officer as defined in section
7 101 of title 10, United States Code, or any member of the
8 Armed Forces acting or purporting to act under his author-
9 ity, violates or threatens to violate any of the provisions of
10 section 1, 2, or 3 of this Act, any civilian employee of the
11 United States serving in any department or agency of the
12 United States Government, or any person applying for
13 employment in the executive branch of the United States
14 Government, or any person seeking to establish civil service
15 status or eligibility for employment in the executive branch
16 of the United States Government, affected or aggrieved by
17 the violation or threatened violation, may bring a civil action
18 in his own behalf or in behalf of himself and others Simi-
19 larly situated, against the offending officer or person in
20 the United States district court for the district in which the
21 violation occurs or is threatened, or the district in which the
22 offending officer or person is found, or in the United States
23 District Court for the District of Columbia, to prevent
24 the threatened violation or to obtain redress against the
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1 consequences of the violation. The 41 orney General shall
defend all officers or persons sued under this section
E, who acted pursuant to an, order, ref/ulation, or directive,
4 or who, in his opinion, did not willfully violate the
5 provisions of this Act. Such United States district court
6 shall have jurisdiction to try and deter wine, such civil action
7 irrespective of the actuality or amount of pecuniary injury
8 done or threatened, and without refiard to whether the
9 aggrieved party shall have exhauster) any adwinistra live
10 remedies that may be provided by low, and to issue such
11 restraining order, interlocutory injunction, permanent injunc-
12 tion, or mandatory injunction, or enter such other judgment
13 or decree as may be necessary or appropriate to prevent
14 the threatened violation, or to afford the plaintiff and others
15 similarly situated complete relief against the consequences of
16 the violation. With the written cowsent of any person
17 affected or aggrieved by a violation or threatened violation
18 of section 1, 2, or 3 of this Act, any mployee organization
19 may bring such action on behalf of such person, or may
20 intervene in such action. For the pzwposes of this section,
21 employee organizations shall be cons/rued to include any
22 brotherhood, council, federation, organ. zzation, union, or pro-
23 fessional association made up in whole or in part of civilian
24 employees of the United States and wb.ich has as one of its
25 purposes dealing with departments, agencies, commissions,
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1 and independent agencies of the United States concerning
2 the condition and terms of employment of such employees.
3 SEc. 205. (a) There is hereby established a Board on
4 Employees' Rights (hereinafter referred to as the "Board").
5 The Board shall be composed of three members, appointed
6 by the President, by and with the advice and consent of the
7 Senate. The President shall designate one member as chair-
8 man. No more than two members of the Board may be of
9 the same political party. No member of the Board shall be
10 an officer or employee of the United States Government.
11 (b) The term of office of each member of the Board
12 shall be five years, except that (1) of those members first
13 appointed, one shall serve for five years, one for three years,
14 and one for one year, respectively, from the date of enact-
15 meat, of this Act, and (2) any member appointed to fill a
16 vacancy occurring prior to the expiration of the term for
17 which his predecessor was appointed shall be appointed for
18 the remainder of such term.
19 (c) Members of the Board shall be compensated at the
20 rate of $75 a day for each day spent in the work of the
21 Board, and shall be paid actual travel expenses and per
22 diem in lieu of subsistence expenses when away from their
23 usual places of residence, as authorized by section 5703 of
24 title 5, United States Code. .
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1 (d) Two members shall constitu! a quorum for the
2 transaction of business.
3 (e) The Board may appoint and fix the compensation
4 of such officers, attorneys, and empic fees, and make such
5 expenditures as may be necessary to cc.?ry out its functions,
6 (f) The Board shall make such ules and regulations
7 as shall be necessary and proper to car,ry out its functions.
8 (g) The Board shall have the as?thority and duty to
9 receive and investigate written comple ints from or on be-
10 half of any person claiming to be a f f cc,ted or aggrieved by
11 any violation or threatened violation of this Act and to con-
12 duct a hearing on each such cornple nt. Within ten days
13 after the receipt of any such compliant, the Board shall
14 furnish notice of the time, place, and ,,,afore of the hearing
15 thereon to all interested parties. The ,board shall render its
16 final decision with respect to any complaint within thirty
17 clays after the conclusion of its hearing iF ereon.
18 (h) Officers or representatives of ;cony Federal employee
19 organization in any degree concerned with employment of
20 the category in which any alleged violation of this Act
21 occurred or is threatened shall be giv w an opportunity to
22 participate in each hearing conducted under this section,
23 through submission of written data,riews, or arguments,
24 and in the discretion of the Board, will opportunity for oral
presentation. Government employees called upon by any
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17
1 party or by any Federal employee organization to participate
2 in any phase of any administrative or judicial proceeding
3 under this section shall be free to do so without incurring
4 travel cost or suffering loss in leave or pay; and all such em-
5 ployces shall be free from restraint, coercion, interference,
6 intimidation, or reprisal in or because of their par licipation.
7 Any periods of time spent by Government employees during
8 such participation shall be held and considered to be Federal
9 employment for all purposes.
10 (i) Insofar as consistent with the purposes of this sec-
11 tion, the provisions of subchapter II of chapter 5 of title 5,
12 United States Code, relating to the furnishing of notice and
13 manner of conducting agency hearings, shall be applicable
14 to hearings conducted by the Board under this section.
15 (j) If the Board shall determine after hearing that a
16 violation of this Act has not occurred or is not threatened,
17 the Board shall slate its determination and notify all inter-
1S ested parties of such determination. Each such determina-
19 tion shall constitute afinal decision of the Board for pur-
20 poses of judicial review.
21 (k) If the Board shall determine that any violation
22 of this Act has been committed or threatened by any civil-
23 ian officer or employee of the United States, the Board shall
24 immediately (1) issue and cause to be served on such of-
25 facer or employee an order requiring such officer or employee
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18
i_ to cease and desist from the unlawful tirl or practice which
2 constitutes a violation, (2) endeavor to eliminate any such
3 unlawful act or practice by informal mr=?thods of con f eren.ce,
4 conciliation, and persuasion, and (3) n cti 1---
(A) (i) in the case of the first 61j"ense by any civilian
6 officer or employee of the United States, other than
7 any officer appointed by the Presid< nt, by and with the
8 advice and consent of the Senate, ins ue an official repri-
9 nrand against such officer or employ gee or order the sus-
10 pension without pay of such, ofc( or employee from
11 the position or office held by him f o; a period of not to
exceed fifteen days, and (ii) lit the case of a second
i 3 or subsequent offense by any such officer or employee,
14 order the suspension without pay of such officer or em-
15 ployee from the position or office ii held by him for a
16 period of not to exceed thirty days car order the removal
1.7 of such officer or employee from sv! ~h position or office;
18 and
19 (B) in the case of any off ensc by any officer ap-
20 pointed by the President, by and r"ith the advice and
21 consent of the Senate, transmit a resort concerning such
22 violation to the President and the Congress.
23 (1) If the Board shall determine tlsat any violation of
24 this Act has been committed or thread ned by any officer
25 of any of the Armed Forces of the United States, or any
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19
it person purporting to act under authority conferred by such
2 officer, the Board shall (1) submit a report thereon to the
3 President, the Congress, and the Secretary of the military
4 department concerned, (2) endeavor to eliminate any un-
5 lawful act or practice which constitutes such a violation by
6 , informal methods of conference, conciliation, and persuasion,
7 and (3) refer its determination and the record in the case
a to any person authorized to convene general courts-martial
9 under section 822 (article 22) of title 10, United States
1 Code. Thereupon such person shall take immediate steps
1 1 to dispose of the matter under chapter 47 of title 10, United
12 States Code (Uniform Code of ? Military Justice).
(m) Any party aggrieved by any final determination
71 or order of the Board may institute, in the district court of
the United States for the judicial district wherein the viola-
1i lion or threatened violation of this Act occurred, or in the
17 United States District Court for the District of Columbia,
18 a civil action for the review of such determination or order.
19 In amiy such action, the court shall have jurisdiction to (1)
20 affirm, modify, or set aside any determination or order made
21 by the Board which is under review, or (2) require the
22 Board to make any determination or order which it is author-
23 ized to make under subsection (k), but which it has refused
24 to make. The reviewing court shall set aside any finding,
w5 conclusion, determination, or order o f the Board as to which
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1 complaint is made which is unsupported by substantial evi-
dence on the record considered as a ,hole.
3 (n) The Board shall submit, not later than March 31
4 of each year, to the Senate and I-Iou.e of Representatives,
5 respectively, a report on its activities render this section dur-
ing the immediately preceding calendar year, including a
7 statement concerning the nature of all complaints filed with
it, its determinations and orders rd.ar,lting from bearings
s
9 thereon, and the names of all officer,,. or employees of the
10 United States with respect to whom a); !j penalties have been
11 imposed under this section.
12 (o) There are authorized to be arpropriated sums nee-
13 essary, not in excess of $100,000, to corry out the provisions
34 of this section.
15 SEC. 206. Nothing contained in thi!? Act shall be construed
to prohibit an officer of the Central ;ntelligence Agency or
17 of the National Security Agency from r ?rluesting any civilian
_18- employee or applicant to take a polygraph test, or to take a
19 psychological test, designed to elicit from him information
20 concerning his personal relationship v-ith any person con-
21 nected with him by blood or marriate, or concerning his
22 religious beliefs or practices, or concerning his attitude or
23 conduct with respect to sexual matters. or to provide a per-
24 sonal financial statement, if the D I-etor of the Central
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21
1 Intelligence Agency or his designee or the Director of the
2 National Security Agency or his designee makes a personal
3 finding with regard to each individual to be so tested or
4 examined that such test or information is required to protect
5 the national security.
6 SEC. 207. No civilian employee of the United States serv-
7 ing in the Central Intelligence Agency or the National Secu-
8 rity Agency, and no individual or organization acting in
9 behalf of such employee, shall be permitted to invoke the pro-
10 visions of sections 4 and 5 without first submitting a written
11 complaint to the agency concerned about the threatened or ac-
12 tual violation of this Act and affording such agency one
13 hundred and twenty days from the date of such complaint to
14 prevent the threatened violation or to redress the actual viola-
15 tion: Provided, however, That nothing in this Act shall be
16 construed to affect any existing authority of the Director of
17 Central Intelligence under section 403 (c), of title 50, United
18 States Code, and any authorities available to the National
19 Security Agency under section 833 of title 50, United States
20 Code, to terminate the employment of any employee.
21 SEc. 208. Nothing in this Act shall be construed to affect
22 in any way the authority of the Directors of the Central
23 Intelligence Agency or the National Security Agency to pro-
24 tect or withhold information pursuant to statute or executive
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order. The personal certification by the Director of the
agency that disclosure of any information is inconsistent with
the provision of any statute or Executive order shall be con-
clusive and no such information shall be admissible in evi-
5 dence in any interrogation under section 1(k) or in any
(; civil, action under section 4 or in a),,r/ proceeding or civil
7 action under section 5.
8 Six. 209. This Act shall not be applicable to the Federal
9 Bureau, of Investigation.
10 SEC. 210. Nothing contained in ections 4 and 5 ,,hall
11 be construed to prevent establish men I of department and
12 agency grievance procedures to calorce this Act, but the
13 existence of such procedures shall not preclude any applicant
14 or employee from pursuing the remedies established by this
15 Act or any other remedies provider) by law : Provided,
16 however, That if under the procedures established, the em-
17 ployee or applicant has obtained complete protection against
18 threatened violations or complete redre. s for violations, such
1.9 action may be pleaded in bar in the United States district
20 court or in proceedings before the Board on Employee
21 Rights: And provided further, That if an employee elects
22 to seek a remedy under either secti a 4 or section 5, he
waives his right to proceed by an independent action under
2-1 the remaining section.
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1 SEC. 211. If any provision of this Act or the application
f any provision to any person or circumstance shall be held
3 invalid, the remainder of this Act or the application of such
4 provision to persons or circumstances other than those as to
5 which, it is held invalid, shall not be affected.
Passed the House of Representatives May 1, 1972.
Attest: W. PAT JENNINGS,
Clerk.
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7 August 1972
AMENDMENTS TO H. R. 12652 (SENATE VERSION)
FOR CIA AND NSA EXEMPTIONS
(a) Amend section 209 as follows:
"This Act shall not be applicable to the Federal Bureau
of Investigation the Central Intelligence Agency and the
National Security Agency. "
(b) Strike the proviso in section 201(k).
(c) Strike sections 206, 207 and 208.
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August 10, 1972
uIV- I-ED STATES CIVIL SERVICE COMMISSION
WASHINGTON, D.C. 20415
Honorable Emanuel C
eller
Chairman, House Jud
iciary Committee
U. S. House of Repr
esentatives
Washington, D. C.
20515
Dear Mr. Chairman:
It is with grave concern that I write you concerning H. R. 12652,
a bill to extend the life of the Commission on Civil Rights. This
concern relates to the insertion entitled "Protection of Constitu-
tional Rights of Government Employees," the language of which is
identical to S. 1438, and previous bills which have received Senate
approval.
The Civil Service Commission has reported to the Subcommittee on
Employee Benefits of the House Post Office and Civil Service Com-
mittee on S. 1438 and similar bills, and has expressed strong ob-
jections to what we regard as major faults in the bills.
We do not, I can assure you, take any exception to the stated purpose
of these bills, which is to protect civilian employees of the execu-
tive branch of the government in the enjoyment of their constitutional
rights and to prevent unwarranted invasions of their privacy. We
agree that under no circumstances should the price of Federal employ-
ment be relegation of the individual to "second class citizenship."
But we feel very strongly that the proposed legislation goes beyond
the protection of constitutional rights; that it would seriously in-
fringe the proper right and responsibility of managers to see that the
business of government is performed effectively and efficiently; that
it is completely out of keeping with long-established principles of
sound judicial administration in that it provides for summary judicial
intervention into the management of the executive branch before the
individual has exhausted his available administrative remedy, and that
the establishment of a new agency, "The Board of Employee Rights" has
a number of faults, the most notable of which is a conflict of statu-
tory responsibilities with those of the Civil Service Commission.
While our reasons for objection are stated in greater detail in my
testimony on H. R. 7199, H. R. 7969, and S. 1438 (copy attached), I
should like to highlight just a few of the problems created by the
present language. It would prevent a supervisor in a munitions storage
depot from questioning an employee'about forbidden smoking on the job
THE MERIT SYSTEM-A GOOD INVCSTMIiNT IN GOOD GOVERNMENT
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until the employee's attorney was present. It could bar inquiries
about national security, or employee safety. It would, for all
practical purposes, negate the ethical conduct program within the
executive branch. It could preclude proper investigation of com-
plaints of discrimination because of race, religion or national
origin. By calling for a "prejudgment" by the Attorney General
before he decided whether to defend an accused Federal supervisor
in a lawsuit, it would tend to prejudice a fair hearing in court
in the case of a supervisor.who would not be defended by the At-
torney General.
While we strongly feel that the defects are so serious that the "Pro-
tection of Constitutional Rights of Government Employees" insert to
H. R. 12612 should not become law, I believe that the legitimate pur-
poses of the insert could be achieved by a suitable, carefully drawn
bill. The House Post Office and Civil Service Committee has already
given much attention to, and held hearings on, this matter. I would
strongly recommend therefore that the matter be divorced from the
urgencies.of H, R. 12652.
Sincerely yours,
Robert E. Hampton
.Chairman
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OLC 72-0949
23 August 1972
MEMORANDUM FOR THE RECORD
SUBJECT: Conversation with Mr. David Carper, House of
Representatives Legislative Counsel's Office
1. I called David Carper, in the House Legislative Counsel's office,
to obtain his opinion on the various procedural aspects pertaining to House
action on the Ervin bill as it was added as Title II of H. R. 12652. I also
picked up from Carper some interesting information on his involvement
with the Ervin-type legislation in the House.
2. Carper told me that he had been one of the three persons (two
were members of the House Post Office and Civil Service Committee staff)
who redrafted the Ervin bill for Representative Hanley's Subcommittee of
the House Post Office and Civil Service Committee. He said it was the
feeling of this trio that the bill, as it passed the Senate, set forth many
employee rights but said nothing about the rights of supervisors. One of
their goals was to correct this deficiency. He also commented that, as far
as he knew, the Hanley bill was generally acceptable to the Civil Service
Commission and contained only one wrinkle that was troublesome to the
Administration. This concerns the section which contained certain specific
exemptions (including the FBI, CIA and NSA) and provided for such other
exemptions as the President may determine. The provision for further
exemption ran into difficulty in the House Post Office and Civil Service Com-
mittee which inserted language requiring that Presidential exemptions be
recommended to the Congress. This insertion in turn brought forth an
objection from the Office of Management and Budget.
3. Carper said if the House accepts any legislation on employees'
rights, it should insist on the Hanley version minus the Committee insertion.
He is at a loss, however, as to how this might be accomplished since the
Post Office and Civil Service Committee seems happy to have this problem
transferred to the Judiciary Committee and the Judiciary Committee (not
having held hearings on the subject) has no desire to deal with the substance
of Government employee rights.
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4. We talked at some length about the various approaches which
could be taken on the question of the "germaneness" of Title II of H. R. 12652.
Carper reviewed the provisions of House Rules 20 (clause 3), 28 (clause 3),
and a resolution which has been introduced by Representative Colmer on this
subject (H. Res. 1103). He pointed out that there are precedents for various
interpretations of the Rules and the only way to determine how they would be
interpreted in this instance is by an inquiry to the House Parliamentarian.
This can be done only by a member or a committee staff member.
5. From this discussion it appears that if Chairman Celler decides
to report H. R. 12652 out of conference with a notation that there is a
"technical disagreement" on Title II, this would precipitate a floor discussion
and a subsequent decision as to whether Title II was germane to H. R. 12652
as it passed the House. This would appear to satisfy the desire which Ervin
expressed to Celler to have an "up or down vote on the bill on the House floor.
But the general feeling among those I have talked with is that if a vote were
taken at this time, the Ervin bill would probably pass the House.
6. Carper seemed to feel that at this juncture since neither the Post
Office and Civil Service Committee nor the Judiciary Committee want to get
involved in substantive discussions of the Ervin bill, Title II of H. R. 12652
could pass the House because of a lack of any substantive action against it.
.
Deputy Legislative Counsel
Distribution:
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1-OGC
1 - Chrono
STAT
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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, S. C. 20505
SE. 19
The Honorable Emanuel Celler, Chairman
Committee on the Judiciary
House of Representatives
Washington, D. C. 20515
My dear Mr. Chairman:
I am writing to tell you of my very serious concern over the
effects upon this Agency of certain provisions of Title II of H. R. 12652.
I believe that Chairman Hampton, of the Civil Service Commission, has
written to you expressing his concern over the effects of this legislation
on agencies of the Executive Branch in general, and I fully subscribe to
the points I am told he made in his letter. In addition, however, I am
especially disturbed over the impact this legislation would have on
existing statutory responsibilities and authorities relating to the protection
of intelligence sources and methods.
This Agency's views on bills identical to this proposed legislation
have been made known to the Chairman of the Senate Constitutional Rights
Subcommittee and the Chairman and members of the House. Employee
Benefits Subcommittee, and I enclose for your information copies of the
relevant correspondence. Chairman Hebert and Chairman Mahon, who,
as you know, share congressional oversight responsibility for this Agency,
have fully supported our position in this respect and have on an earlier
occasion communicated their views to Chairman Dulski, of the House
Post Office and Civil Service Committee.
Because I am convinced that the legislation in question could have
a major adverse impact on the security discipline and operational effec-
tiveness of this Agency, I would very much appreciate an opportunity to
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meet with you at your convenience to explain in detail the reasons
for our concern.
Since rely,
Richard Helms
Director
Distribution:
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1 - DCI
1 .- DDCI
1 .- ER
1 - Ex-Dir
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I -DDS
1 - OLC
OLC/GLC:smg (1 Sept 72)
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 ROUTING AND RECORD SHEET
19114mutive Registry
SUBJECT: (Optional)
FROM:
EXTENSION
NO.
Acting Legislative Counsel
DATE
1 September 1972
TO: (Officer designation, room number, and
DATE
building)
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
1.
6 SE
1972
An item of pending business
Director
before Congress when it returns
2.
ill be conference
from recess will
committee action on the "Ervin
bill" rider to the Civil Rights Com-
mission legislation. The Civil
Service Commission is tackling the
sticky procedural question of
4.
"germaneness" of the rider. If
this issue is lost and the Ervin bill
5.
is not deleted, CSC will press for
amendments which will include
NSA
ecific exemptions for CIA
s
,
p
b.
and FBI.
Former Representative, now
7.
Judge, Poff has spoken with Chair-
man Celler about our particular
problems with the bill and Poff,
8.
along with the staff of the Post
Office & Civil Service and Judiciar
d that
ou
itt
y
ees recommen
Comm
9.
address correspondence along the
lines of the attached letter to
10.
Celler to make this a matter of
record. Our letter has been
coordinated with the CSC and with
11.
the DDS and OG C.
We also plan to ask Chairmen S
12.
Hebert and Mahon to speak with
13.
eor uaryj~jjrj
Counsel
ti
i
l
A
ti
L
14.
a
ve
s
ng
eg
c
15.
3 62 6 I U U5E PREVIOUS
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AT
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UNITED STATES CIVIL SERVICE COMMISSION
WASH! NG T ON, D.C. 20415
August 10, 1972
Honorable Emanuel Celler
Chairman, House Judiciary Committee
U. S. House of Representatives
Washington, D. C. 20515
IN REPLY PLEASE RCFCR iG
It is with grave concern that I write you concerning H. R. 12652,
a bill to extend the life of the Commission on Civil Rights. This
concern relates to the insertion entitled "Protection of Constitu-
tional Rights of Government Employees," the language of which is
identical to S. 1438, and previous bills which have received Senate
approval.
The Civil Service Commission has reported to the Subcommittee on
Employee Benefits of the House Post Office and Civil Service Com-
mittee on S. 1438 and similar bills, and has expressed strong ob-
jections to what we regard as major faults in the bills.
We do not, I can assure you, take any exception to the stated purpose
of these bills, which is to protect civilian employees of the execu-
tive branch of the government in the enjoyment of their constitutional
rights and to prevent unwarranted invasions of their privacy. We
agree that under no circumstances should the price of Federal employ-
ment be relegation of the individual to "second class citizenship."
But we feel very strongly that the proposed legislation goes beyond
the protection of constitutional rights; that it would seriously in-
fringe the proper right and responsibility of managers to see that the
business of government is performed effectively and efficiently; that
it is completely out of keeping with long-established principles of
sound judicial administration in that it provides for summary judicial
intervention into the management of the executive branch before the
individual has exhausted his available administrative remedy, and that
the establishment of a new agency, "The Board of Employee Rights" has
a number of faults, the most notable of which is a conflict of statu-
tory responsibilities with those of the Civil Service Commission.
While our reasons for objection are stated in greater detail in my
testimony on H. R. 7199, H. R. 7969, and S. 1438 (copy attached), I
should like to highlight just a few of the problems created by the
present language. It would prevent a supervisor in a munitions storage
depot from questioning an employee about forbidden smoking on the job
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until the employee's attorney was present. It could bar inquiries
about national security, or employee safety. It would, for all
practical purposes, negate the ethical conduct program within the
executive branch. It could preclude proper investigation of com-
plaints of discrimination because of race, religion or national
origin. By calling for a "prejudgment" by the Attorney General
before he decided whether to defend an accused Federal supervisor
in a lawsuit, it would tend to prejudice a fair hearing in court
in the case of a supervisor who would not be defended by the At-
torney General.
While we strongly feel that the defects are so serious that the "Pro-
tection of Constitutional Rights of Government Employees" insert to
H. R. 12612 should not become law, I believe that the legitimate pur-
poses of the insert could be achieved by a suitable, carefully drawn
bill. The House Post Office and Civil Service Committee has already
given much attention to, and held hearings on, this matter. I would
strongly recommend therefore that the matter be divorced from the
urgencies of H. R. 12652.
Sincerely yours,
Robert E. Hampton
Chairman
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