Testimony of

The Honorable Abigail Thernstrom

Commissioner

U.S. Commission on Civil Rights

Before the

Subcommittee on the Constitution

Committee on the Judiciary

U.S. House of Representatives

Oversight Hearing on the U.S. Commission on Civil Rights

April 11, 2002

2237 Rayburn House Office Building

Mr. Chairman and members of the Subcommittee, thank you for holding this hearing and for inviting me to testify.

My name is Abigail Thernstrom. I am a political scientist by training, a senior fellow at the Manhattan Institute in New York, a member of the state board of education in Massachusetts where I live, and a commissioner on the U.S. Commission on Civil Rights, appointed in January 2001.

I am the author of a multiple-award winning book, Whose Votes Count? Affirmative Action and Minority Voting Rights, and the co-author of America in Black and White: One Nation, Indivisible, a history of race relations and racial change in the decades since World War II. I am presently working on a book entitled Getting the Answers Right: Race, Class and Academic Achievement, which will be published by Simon and Schuster in 2003.

I will speak briefly and ask that a more detailed testimony be entered into the record.

A revolution in the status of blacks and the state of race relations has occurred in the decades since the Commission was formed in 1957. But on the road to racial equality, there is still much to do, and the Commission can play an important part--in theory.

In practice, however, it hurts more than it helps. It sullies the drive for civil rights--taints a cause to which every American should be committed. Or at least that is the picture I have seen in the fifteen months I have served.

Here are some of the reasons:

• Its hearings and briefings make a mockery of intellectual inquiry. Its reports are never circulated in draft form to distinguished scholars with a variety of perspectives and, as a consequence, the work is shoddy and ideologically-driven. Preliminary findings are issued without following basic scholarly or collegial process. Reports are leaked to the press before being given to Commissioners.

During the two Florida Hearings (January 11-12 and February 16, 2001), the most basic processes that would have guaranteed a fair and balanced hearing were not followed.

Chairman Berry and the staff director, Les Jin, refused to disclose the list of witnesses before the hearings on February 16. The rationale given: the witnesses were afraid, and had requested that their names be kept under wraps. However, McKinney and McDowell, a public relations firm retained by the Commission, has acknowledged in print that it had prior access to the witness list, which it distributed to the press before the hearings.

Further, it is absurd to say that these witnesses feared for their well-being. They had been interviewed by the staff attorneys and told that their testimony would be public; hearings were open to the press and filmed by C-Span. Had the procedure been proper, all commissioners would have been given an opportunity to suggest witnesses and would have known precisely who was appearing in order to adequately prepare for questioning.

Before the Commission had closed the record for the Florida hearings, the chairman issued preliminary findings and leaked her personal statement to the New York Times. Although it was described as an official Commission statement, in fact commissioners had not seen it. I attach the New York Times article of March 8, 2001, and the statement subsequently released to the Commission itself on March 9, 2001.

On March 9, the Commission also issued a press release, attached, that obfuscates the distinction between a personal statement issued by the chairman and one voted on by the Commission, prior to publication.

Before the chairman released her preliminary statement, I had asked to see the documents that staff attorneys had received in response to questions raised by the Florida election. They were attorney-work products and not available for review, I was informed. Basic documents were for staff-eyes only. I attach the memoranda recording my requests and responses from the staff director.

During the drafting process, only the office of the general counsel had access to the Florida report. On several occasions, to no avail, Commissioner Redenbaugh and I requested the timeline for the release of the report. Ultimately, stories on the report were published in the Washington Post, New York Times and the Los Angeles Times before I had even received a copy of the draft. In other words, the media were privy to the report's conclusions before I was. On June 9, 2001, the Washington Post called this leak “stupid and destructive.”

• Press releases are issued including my name, although I have not seen them beforehand and in fact often disagree with their substance. Moreover, they can be woefully inaccurate. For instance, following its meeting this past September, a press release stated that commissioners had voted for a hotline to solicit and catalogue complaints of discrimination involving Arabs and Muslims. In fact, this vote never took place. Moreover, there had been no discussion of the matter at any Commission meeting. I include the text of the transcript and the discussion of this issue.

Records show that other commissioners in past years (before my time) have protested the practice of the chairman to release statements without consultation. I attach a memo dated August 10, 1995 written by Commissioner Robert George addressing the use of the press office in releasing statements made by Chairman Berry.

• The chairman, Mary Frances Berry, has a public relations agency, funded with taxpayer money, that only works for her.

On August 15, 2001, Scripps Howard published an article stating that the Commission had paid $135,000 to a private public relations firm, McKinney & McDowell. A survey conducted by Scripps Howard of twelve other government commissions of similar size found that only one agency had hired a public relations consultant and that was five years ago for one specific project.

I am not an expert in government contracting, but I do suspect that, as a commissioner, I am responsible when taxpayer money is being used to pay an outside public relations firm. Furthermore, the contract had no obvious justification; the Commission has a Public Affairs Unit whose job McKinney & McDowell assumed.

Until a month ago, the Commission had a Public Affairs Unit staffed by three career employees. Les Jin, however, has slowly stripped this unit of all authority, removing (in November 2001) its ability even to answer its own phones. Media cannot reach the PAU directly. They work through Jin's office, which screens calls. The unit has become a very expensive clipping service--nothing more. Two of its employees have quit recently.

According to a cumulative cost analysis issued by McKinney & McDowell, senior staff at the public relations agency charge the Commission $200 an hour. However, I have never seen an accounting, although I suspect I have fiduciary responsibility as a Commissioner.

I have asked, at a minimum, to receive copies of the press releases issued at taxpayer expense and including my name. McKinney & McDowell told my assistant, Kristina Arriaga, that they worked only for the chairman. Often, I have had to request copies of press releases after I see them posted on the internet or quoted in news articles.

• Commission meetings are marked by procedural chaos. Rules are changed arbitrarily. I can't be sure of what will be on the agenda until I arrive at a monthly meeting, and topics and speakers are switched without warning. As a result I cannot adequately prepare for meetings, and I waste time on issues that will not be addressed. Thus, a hearing on welfare was scheduled for the meeting in March; at the very last moment, the chairman substituted a speaker on bioterrorism.

This problem has risen several times in years prior to my service on the Commission. I include sections of the transcripts of two meetings-one in 1996 and another in 1999-- at which commissioners protested this practice on the record. In spite of assurances by the chairman and memoranda requesting an explanation, this practice continues.

On March 8, the chairman justified the last minute change by stating that the briefing was being conducted by a “speaker” even though the agenda and the Federal Register indicated there would be a “briefing.” At the meeting, I asked for a clarification of the distinction between speakers and briefings. That question was subsequently posed as well in a memo to the staff director. I have yet to receive an answer.

• I lack basic access to the staff and its work. Direct conversations with anyone outside of the Les Jin's office are prohibited.

I was told by the former general counsel that this prohibition was detailed in the Administrative Instructions, but I find no language in the AIs that creates a fire wall between commissioners and staff other than Les Jin. Moreover, memos to Jin containing vital questions are regularly unanswered or only very partially answered. Communications from him can be…well, let's say, just totally bewildering. For instance, on July 20, 2001 I received a memo stating that I did not participate in a meeting between Commissioner Redenbaugh and the general counsel, and that the deadline to discuss the issues at hand had passed. In fact, there was never a meeting, and never a deadline, as I made clear in an uncontested memo of July 23. He has yet to respond to that memorandum.

• Grandstanding substitutes for effective work. The hotline to record instances of discrimination experienced by Muslims and Arab-Americans was a disaster, as Time magazine accurately reported on February 9, 2002. It was basically useless. That did not bother Chairman Berry who, on October 12, said: "People around the country have expressed their gratitude, so I think we ought to be proud that we're doing this rather than worrying about whether it's helping anybody."

• Most important, an apparent fear of dissenting voices pervades all of the Commission's work. That was evident in the recent cancellation of important hearings on education; the staff is writing an education report behind closed doors.

This fear of dissenting voices was most obvious in connection with the Commission's Florida report, of course--a report that an unsigned Washington Post editorial described as "highly politicized," contributing little "beyond noise, to the national discussion of the problems in the 2000 election.”

Fear of input from affected parties in Florida, from scholars outside the Commission, and from Commissioners themselves drove a process that lacked even bare-bones integrity. And a corrupt process insured a worthless result.

I would like to speak briefly about the suppression of the Thernstrom-Redenbaugh dissent--on totally specious legal grounds. That the U.S. Commission on Civil Rights should even think about suppressing a dissent is of course jaw-dropping. This Commission not only thought about silencing a dissenter; it acted.

Chairman Berry often claims the dissent has in fact been published by the Commission. Not so. A crude first draft of the dissent has been included in a pile of material taken from Senate hearings on election reform. I was not permitted to submit the polished and quite amended version. And that crude first draft does not appear labeled as a dissent, published in its proper place. Furthermore, The Commission's statistical expert, Dr. Allan J. Lichtman, wrote a rejoinder to my dissent, although I had been told no rejoinder was forthcoming without a notational vote. His work was thus inserted into the Senate record (unbeknownst to me), despite the fact that I had been promised a chance to respond to anything he wrote.

• Finally, I would like to address the issue of who manages the operations of this agency. During the House Budget Subcommittee hearing on July 17, 1997, Chairman Berry repeatedly stated that she did not manage the “day-to-day” operations of the agency. Further, she said: “I clearly believe there should be better management at the Commission, that’s why we have a new staff director.” It is true that the statute has delegated day-to-day responsibility to the staff director. However, the chairman and the Commission as a whole are responsible for the operations of the Commission. Under 42 U.S.C. § 1975d(3) the Commission appoints personnel it deems advisable and under § 1975h(1) the Commission has the power to make rules and regulations necessary to carry out the purposes of the Commission.

Therefore, contrary to the testimony of the chairman in the 1997 hearings the Commission does not merely supervise the staff director, but rather, has ultimate authority over all personnel, and sets polices and rules governing such personnel. The Commission has a fiduciary obligation to oversee the staff director’s management and set the terms by which he does so. Indeed, under 45 CFR § 701.12 the staff director is the chief executive officer of the agency. That term has a specific meaning. The staff director is answerable to the Commission just as a CEO is answerable to a Board of Directors, and just as a Board of Directors cannot absolve itself of responsibility for malfeasance, misfeasance or nonfeasance of the CEO, the Commission cannot absolve itself of the malfeasance, misfeasance or nonfeasance of the staff director, nor, by virtue of § 1975d(3), any other staff member. In this regard, and by virtue of the responsibilities charged to the Chair under 45 CFR § 701.11(c), the Chair has a special responsibility for ensuring that the staff director discharges his responsibilities in accordance with the directives of the Commission.

The Commission, and most particularly the chairman, cannot be blind to or disclaim responsibility for the day-to-day operational failures of the staff director in an Enronesque fashion.

Other management issues plague the Commission. On April 13, 2001, after I had protested the staff director's lack of responsiveness to my concerns, the chairman stated that the staff director does not work for any particular commissioner. He works collectively “for the Commission” and does not answer to individual commissioners.

Finally, contrary to the chairman’s statement, as CEO the staff director is unequivocably responsible for responding to an individual Commissioner (not just the Chair or the Commission as a whole) where such Commissioner is performing his or her fiduciary obligations under § 1975.

Mr. Chairman, every year the Commission has requested a substantial budget increase. However, the Commission is unable to plan the year, let alone month to month. The chairman’s penchant for secretiveness and her desire to control the discourse and the terms of the discussion are such that the entire staff of the Commission floats from day to day.

Being an independent Commission should not mean that the agency is unaccountable for the $9 million dollars it spends every year. At the Commission meeting, last month, Commissioner Braceras asked what might be on the agenda in April. The response from the chairman was: “I have no idea” and the staff director was unable or unwilling to answer either.

The problems I have outlined are, frankly, the tip of a very large iceberg. Obviously, the Commission should function in a responsible manner. It should be a place of procedural integrity, a forum for robust debate, and a source of hard facts on current civil rights issues. It fails on all these counts. Indeed, it has become a national embarrassment.

Thank you very much.