Rush of Events Broke Rights Bill Impasse

For two years, the two sides had been locked in place, frozen in the angry politics of race.

And then, a rush of events--the vicious fight over the nomination of Clarence Thomas to the Supreme Court, the electoral success of former klansman David Duke in Louisiana, the rising fear of another bruising battle over a presidential veto on civil rights--conspired to push both the White House and Senate Democrats into sudden agreement.

In the end, when White House Chief of Staff John H. Sununu arrived on Capitol Hill Thursdayevening, the negotiating rooms were decorated with dictionaries festooned with yellow Post-It notes and final haggling had come down to such arcana as whether the wording of a crucial definition should refer to Supreme Court “decisions” or “holdings.”

And despite the conflicting claims of victory from both sides, the combined accounts of key White House and congressional negotiators make clear the basic trade-off:

Administration officials accepted a bill that significantly increases the money women may be awarded when they win discrimination suits and that, for the first time, openly endorses the idea of race-conscious preferences to redress discrimination against blacks and other minorities in hiring and promotion.

In return, Democratic advocates of civil rights dropped their insistence on a bill that would be so precise that the increasingly conservative Supreme Court would be unable to reinterpret it.

That trade-off involves risks for each side.

For Administration strategists, the risk is political: They have limited their ability to use the issue of “quotas” as a club to attack Democrats. That issue proved highly successful in 1990 for candidates as different as Gov. Pete Wilson in California and Sen. Jesse Helms in North Carolina.

For civil rights advocates, the risk is the Supreme Court. For more than a decade, Chief Justice William H. Rehnquist and his conservative allies have shown unrelenting disapproval of affirmative action and other civil rights measures. Civil rights groups, in response, were determined to obtain a bill so tightly written that even a hostile judge would have to interpret it their way. In the end, that goal had to be abandoned.

“The goal was to get a degree of clarity that would not easily permit the kind of wiggle room” that the high court’s conservatives could use, said William Taylor, a veteran civil rights lawyer and key strategist in the legislative battle. The compromise bill is “a strong reaffirmation” of the principles civil rights leaders had sought, “but you won’t have a bill that eliminates wiggle room,” he said.

As recently as Wednesday, many members of the Senate, White House officials and civil rights leaders believed that a compromise would never be reached. Instead, both wooed a handful of wavering Republicans, moderate conservatives such as Frank H. Murkowski and Ted Stevens of Alaska, Warren B. Rudman of New Hampshire, Pete V. Domenici of New Mexico and Christopher S. Bond of Missouri. They would determine if sponsors of the civil rights bill could round up the 67 votes that would be needed to override an expected presidential veto.

Wednesday afternoon, most of the members of that group met with Bush and his key aides at the White House. It was, by most accounts, a tense meeting. The White House was putting them in a terrible position, the senators believed.

“Everybody was becoming exhausted with negotiations and wanted a civil rights bill,” Murkowski said.

The civil rights bill had at least 65 votes. And none of those senators wanted to be the ones to put it over the top. But, in the wake of the Thomas fight, they desperately wanted to be able to vote for a bill that would be seen as doing something to combat sexual harassment--a major portion of the civil rights measure.

Moreover, the chief Republican sponsor of the bill, John C. Danforth of Missouri, had been Thomas’ chief backer, and several Republicans resented White House criticism of him.

Finally, the specter of former klansman David Duke, who last week--running under the GOP banner--reached a runoff for the governship of Louisiana, had many Republicans worried. The “quota” issue had helped drive white voters into the Republican camp. But now the party was being publicly associated with a former leader of the Ku Klux Klan.

The time had come “to clearly distinguish Republicans from Duke,” one senior Administration official said, recounting the arguments that were made.

With the meeting over, Bush instructed his key aides, White House counsel C. Boyden Gray and Chief of Staff Sununu, to try again to find a deal. And that night, Senate Minority Leader Bob Dole of Kansas provided the opening.

For months, the chief sticking point on the bill was an obscure, but crucial, legal definition: “business necessity.” When an employer is sued on the grounds that some practice--a required test, for example--has the effect of discriminating by race or sex, he can defend himself by showing that the practice is a business necessity. How that concept is defined is often crucial to which side wins when cases go to court.

But, in a 1989 decision, the high court had defined business necessity in a way that civil rights lawyers claimed would allow almost any practice to pass muster. For more than a year, defining business necessity had been the chief battleground over the bill.

Dole’s idea, which Sen. Arlen Specter (R-Pa.) had proposed months earlier, was that both sides should simply give up trying to write a definition. Instead, the bill would simply say that business necessity meant whatever the court had said before the 1989 case. Because the justices, themselves, disagree over what those earlier cases mean, the compromise will allow both sides to go back to court in the future for another round.

In the past, neither side had been willing to take that risk. Wednesday night, however, Danforth aides said that they thought the ploy might work.

On Thursday, Dole summoned Gray, who had long been the strongest opponent of the proposed bills, to a meeting of Republican senators. And as the talks wore on, “we started getting good vibes,” said one participant. In mid-afternoon, Gray and Dennis Shea, a longtime Dole aide, looked up from their papers. “This is going to go,” Gray said.

But even as they negotiated, Administration officials remained skeptical that the Democrats, led by Massachusetts Sen. Edward M. Kennedy, would sign on.

In the past, Kennedy had carefully consulted with his allies in key civil rights groups before making a decision. But, this time, as he sat in the ornate office of Majority Leader George J. Mitchell (D-Me.), Kennedy directed his aides to cut off contact with the outside.

Kennedy tried one negotiating tactic first. He would accept the deal if the bill referred to “holdings” of past cases, rather than “decisions.” The aim was to circumvent a footnote in one decade-old case that the White House had cited to bolster its arguments. Footnotes, the lawyers would argue, are not part of a “holding.”

Gray rejected the idea. Then, Kennedy tried a new tack involving a different issue in the bill--the limits on how much women can recover in court if they win sexual harassment or other discrimination cases.

White House lawyers earlier in the day had agreed to a three-tier system in which larger companies would face higher damage limits than small businesses. Now, Kennedy and two top aides walked over to Dole’s office and huddled in the hallway with Danforth to suggest a new compromise: He would accept Dole’s proposal if the White House accepted a fourth tier with damages of up to $300,000 for the largest companies.

Inside the office, Gray, Sununu and their aides reviewed the proposal. Raising the damage limits was anathema to business leaders. But Kennedy had compromised the interests of his allies. Now it was their turn.

At 10 p.m. Sununu picked up the phone in Dole’s office and called Bush. The message was short: “We have a deal.”

Staff writers Paul Houston and Ronald J. Ostrow contributed to this story.

CIVIL RIGHTS PACT: President Bush and Senate leaders hail the compromise on civil rights legislation. A16