During his confirmation hearings, Eric Holder vowed that as attorney general, he would restore the Civil Rights Division, which he referred to as a "crown jewel" of the Justice Department, to its former luster. The division was marred by scandal -- internal department investigations found that officials appointed by George W. Bush had politicized the hiring process, resulting in an unprecedented exodus of career attorneys.
While the politicization of the Civil Rights Division has drawn a great deal of attention, the politicization of the U.S. Commission on Civil Rights, the independent fact-finding body created in 1957 by the same law that established the Civil Rights Division, has gone largely unnoticed until the recent controversy over its role in the New Black Panther Party (NBPP) voter-intimidation case. More than any other institution outside the conservative media, the commission has added momentum and legitimacy to what one Republican appointee described as a partisan effort to bring down the Obama administration.
The commission was thrust into the center of the controversy on Friday, when Politico reported that one of the commission's Republican members, Abigail Thernstrom, said the commission's conservative faction had discussed the NBPP investigation in the context of "how they could use this issue to topple the [Obama] administration."
"I think conservatives are very smart about the commission; I think they're a lot smarter than liberals are," says Mary Frances Berry, a Democratic appointee who chaired the commission from 1993 to 2004. "They figured out in the Reagan years that the Civil Rights Commission is a little tiny agency with a little tiny budget, but it has the name 'Commission on Civil Rights.' … The commission became more important than its size, just because of the uses to which it could be put."
The commission was first created by the Civil Rights Act of 1957, which was signed into law by President Dwight Eisenhower. Once known as "the conscience of the nation," the commission's in-depth research on racial discrimination in the South provided the empirical basis for such monumental civil-rights legislation as the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In the 1970s, its continued work on voting-rights issues led to language provisions being added to the 1975 renewal of the Voting Rights Act.
Critics compare the commission's past achievements on voting rights to the 2006 Voting Rights Act renewal, when the commission's influence had so waned that its report did little to influence the process. Indeed, the Lawyers' Committee for Civil Rights (LCCR) authored its own report and sent it to Congress.
"We knew that the Civil Rights Commission was not going to do anything significant, so we went out and we did it ourselves," says Jon Greenbaum, formerly a line attorney in the voting section, now legal director of the LCCR. He described it as an "expensive and time-consuming process."
Democratic Commissioner Arlan D. Melendez says the commission's handling of the NBPP investigation is a continuation of the Bush-era politicization of voting-rights issues. The NBPP investigation "almost seems like a retaliation on the issue of the U.S. attorneys who were let go by the Bush administration," Melendez says.
The commission showed comparably little interest in exploring allegations of politicization in the Civil Rights Division during the Bush administration, when headlines about politicization in voting-rights enforcement were screaming across national newspapers' front pages.
All commissioners were once appointed by the president, but a partisan compromise in the 1980s mandated that four of the commissioners be appointed by the president, two by the House, and two by the Senate -- an unsuccessful attempt to stem future political fights over the commission. (There are eight commissioners in all.) The current conservative majority on the commission was established during the Bush administration in part, as Charlie Savage reported in 2007, through political maneuvering that violated the spirit of the commission's charter, which requires that no more than four members of one party be on the commission at once, setting aside two spots for independents. In 2007, the Bush administration appointed two conservative "independents" who had recently been registered Republicans -- a move the Bush Office of Legal Counsel said was legal but outside experts said was questionable.
One of those independents was Thernstrom -- she switched her affiliation back in 2007. Her replacement, selected by the Republican minority in 2007, Todd Gaziano, is arguably more partisan. Of the two independents currently on the commission, one, Gaziano, is the director for the Center for Legal & Judicial Studies at the conservative Heritage Foundation, and the other, Gail Heriot, is a member of the conservative Federalist Society and was an alternate delegate to the 2000 Republican Convention who, when asked, couldn't name a point of divergence between her and the GOP. Along with the four Republican appointments, the "independents" have helped give the commission's conservative members the numbers they needed to proceed with the NBPP case. While President Barack Obama will be allowed to make two appointments in December, the commission will have kept the NBPP scandal alive long enough for Republicans to continue the investigation should they win the House in November.
Conservative attempts to pack the commission have been challenged before -- in 1983 two commissioners, Mary Frances Berry and Blandina Cardenas Ramirez, successfully sued to prevent the Reagan administration from replacing them. When Bush made his appointments, Democratic Commissioners Arlan Melendez and Michael Yaki said they discussed a similar path but ultimately decided against it, fearing that the controversy might be the death knell for the commission itself.
"The commission is teetering on the brink of extinction," says Yaki, pointing out that its charter has expired and that the commission only continues to exist through the congressional appropriations process. "That could have been the tipping point."
With the exception of Thernstrom, who is an expert on voting-rights issues, most of the other conservative commissioners' experience with civil rights is limited to opposing affirmative action, and their commitment to other civil-rights issues is questionable -- for example, Commissioner Peter Kirsanow told a gathering of Arab leaders in 2002 they could "forget about civil rights" if there were another terrorist attack on U.S. soil. Party identification might matter little if the commission were dominated by appointees like Thernstrom whose work has focused on useful inquiries like the effect of minority voting districts on ideological polarization. But that's not the commission that exists. Instead, the commission's recent activities reflect more of an appetite for culture-war red meat than serious inquiry.
During the recent debate over the Affordable Care Act, the conservative bloc on the commission, absent Thernstrom, sent a letter to Congress objecting to provisions in the bill that sought to increase the number of minority doctors, even though the provision closely resembled a 2004 bill authored by then-Sen. Bill Frist (a Republican).
The commission also explored the widely debunked theory that laws outlawing redlining led to the mortgage crisis and asked that the Justice Department investigate the Association of Community Organizations for Reform Now (ACORN) over "vote fraud." A Congressional Research Service report later found no evidence that the group had ever been responsible for someone casting a fraudulent ballot. In April, the commission released a report calling for Title IX, the law banning gender discrimination at colleges receiving federal funds, to be weakened because it discriminates against men. To the extent that the current majority on the commission sees discrimination as a problem, it appears to be solely in government efforts to help historically disfavored groups. Its 2008 report on voting rights was authored with the help of former Justice Department official Hans von Spakovsky, whose nomination to the Federal Election Commission was blocked by Democratic senators over complaints from former colleagues that he had played a key role in politicizing the Civil Rights Division.
The commission's partisan bent, current and former Democratic commissioners say, has resulted in missing valuable opportunities to investigate important events like the impact of Hurricane Katrina in 2005 or the dispute over a school fight in Jena, Louisiana, that in 2007 led to one of the largest demonstrations since the civil-rights movement.
The commission has held few of the labor-intensive fact-finding hearings around the country in recent years, according to a 2009 report from the LCCR, relying instead on two-hour briefings in which experts are invited to discuss particular issues. According to the report, in the past, briefings were not "considered an adequate basis on which to issue findings" and recommendations, but that is no longer the case. The work of the commission's glory days in the 1950s, 1960s, and 1970s was the product of rigorous investigation involving hearings held across the country, in which commissioners would make effective use of their subpoena power. Congress would then use the subsequent reports as the empirical basis for legislative actions. In 2007, the former staff director explained to The Boston Globe that the process was "time-consuming."
Indeed, those kinds of hearings have become rare. Prior to the NBPP investigation, the last time the commission undertook one was in 2001 when it looked into voting issues in Florida in the aftermath of the 2000 election, which conservative commissioners characterized at the time as politically motivated. Changes have been made to the State Advisory Committee selection process that critics say have given the majority more influence. The SACs are meant to be the "eyes and ears" of the commission, able to gather information and produce reports about civil-rights issues on a local level. They established a retroactive 10-year term limit on committee members and gave the national staff director, who is appointed by the president with majority approval from the commissioners, more control over appointments, getting rid of most of the more experienced hands who staffed the boards and replacing them with more conservative-friendly figures.
Still, civil-rights experts concede that the politicization of the commission hardly began during the Bush administration. "The Civil Rights Commission has become extremely politicized over the last 15 years or so," Greenbaum says. "At one point you had the Democrats that had the numbers, and now you have Republicans that had the numbers." Indeed, during Berry's tenure, it was conservatives who complained about being railroaded and left out of the loop on important matters. The irony is that the commission was arguably more effective at its fact-finding duties back in the 1950s, when there were segregationists on it. That may be because back then, regardless of what side you were on, the struggle for civil rights was central to American life. Now, for many Americans, civil-rights issues are a more abstract affair.
"I wouldn't say generically the commission has outlived its usefulness; I think there's a role for what the commission used to do," Greenbaum says. "It's just not fulfilling that role anymore."