Civil Rights Attorney's Fees Awards Act of 1976 (Public Law 94-559, S. 2278)

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Title:
Civil Rights Attorney's Fees Awards Act of 1976 (Public Law 94-559, S. 2278) source book : legislative history, texts, and other documents
Physical Description:
xvii, 313 pages : ; 23 cm
Language:
English
Creator:
United States -- Congress. -- Senate. -- Committee on the Judiciary. -- Subcommittee on Constitutional Rights
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U.S. G.P.O. :
For sale by the Supt. of Docs., U.S. G.P.O.
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Washington
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Subjects / Keywords:
Civil Rights Attorney's Fees Awards Act of 1976 (United States)   ( fast )
Lawyers -- Fees -- United States   ( lcsh )
Costs (Law) -- United States   ( lcsh )
Costs (Law)   ( fast )
Lawyers -- Fees   ( fast )
United States   ( fast )
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federal government publication   ( marcgt )
bibliography   ( marcgt )
legislation   ( marcgt )
non-fiction   ( marcgt )

Notes

Bibliography:
Includes bibliographical references.
Statement of Responsibility:
prepared by the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate.
General Note:
Cover title.
General Note:
At head of title: 94th Congress, 2d Session. Committee print.

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
oclc - 02805971
ocm02805971
Classification:
lcc - KF316 .U5 1976
System ID:
AA00026686:00001

Full Text

































PREPARED BY THE

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE














Printed for the use of the Committee on the Judiciary


U.S. GOVERNMENT PRINTING OFFICE
79-86 0 WASHINGTON : 1976


For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 Price $2.95
Stock Number 052-070-03911-7
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COMMITTEE ON THE JUDICIARY
JAMES 0. EASTLAND, Mississippi, Chairman
JOHN L. McCLELLAN, Arkansas ROMAN L. HRUSKA, Nebraska
PHILIP A. HART, Michigan HIRAM L. FONG, Hawaii
EDWARD M. KENNEDY, husetts HUGH SCOTT, Pennsylvania
BIRCH BAYH, Indiana STROM THURMOND, South Carolin
QUENTIN N. BURDICK, North Dakota CHARLES McC. MATHIA, J., Mary
ROBERT C. BYRD, West Virginia WILLIAM L. SCOTT, Virginia
JOHN V. TUNNEY, California
JAMES ABOUREZK, South Dakota


SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
JOHN V. TUNNEY, California, c harman
JOHN L. McCLELLAN, Arkansas HUGH SCOTT, Pennsylvania
fEDWARD M. KENNEDY, Massachusetts ROMAN L. HRUSKA, Nebraska
BIRCH BAYH, Indiana HIRAM L. FONG, Hawaii
PHILIP A. HART, Michigan STROM T
JAMES ABOUREZK, South Dakota
JANE L. FRANK, Chief Coume and StafDi
ROBERT A. MALSON, Counsel and Editor
W. DEAN DBAKE, Chief CGerk
KARL PILGER, Legal Intern
SHERI LEY, Research Assistant
EL A SAXOD, Resarch Assistant
(U)







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PREFACE
It is an honor to present to the Senate and to the general public
this compilation of materials relating to the legislative history of
Public Law 94-559, the Civil Rights Attorney's Fees Awards Act
of 1976. This landmark legislation, in my view, will go far to insure
that the statutory civil rights already protected by our Constitution
can be vindicated whenever they are denied, without regard to the
victim's ability to afford a private atorney to argue his or her case.
This source book is an effort to bring together in one publication the
legislative history which led to the enactment of Public Law 94-559.
In addition, it includes a number of tables and indexes which may
help shed light on the growing law in this field.
The design and overall coordination of this book was the responsi-
bility of Robert A. Malson, Counsel to the Subcommittee. Many of
the indexes and tables were prepared at our request by Mary Frances
Derfner, the Director of the Attorneys' Fees Project of the Committee
for Civil Rights Under Law. In addition, the assistance of the staff
of the Congressional Research of the Library of Congress proved
invaluable. %
I would like to express a special word of gratitude to Senator Philip
A. Hart of Michigan who is retiring this year after 18 years of service
in the Senate. His ddication and faith in our Constitution as the
bodi t of he spirit of freedom and justice and his impeccable
record and strong leadership in the civil rights struggles of the Con-
gres he left their mark in the minds of all of us who have come to
know him. Without his hard work in the Judiciary Committe this
te, like the Voting Rights Act, would not have become law at the
Sit did. The Nation owes much to Senator Hart. He will be
missed in the Senate.
JOHN V. TUNNEY, Chairman
Judiciar ubcommittee on Constitutional Rights.







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CONTENTS

Page
Preface .. .-.. ---- -----------
Topical index of items covered in the legislative history--.----------- vii
Congressional Debate Speaker's Index:
i Senate--....----- --- -----------_.-----.--------...-.. xi
House of Representatives ------------------------------
Table of cases cit in legislative history - -.- x
Text of Public Law 94559 (S. 2278), The Civil Rights Attorney's Fees
Awards Act of 1976 (October 19, 1976)--- .----.-------- xviI
INTRODUCTION OF S. 2278 AND JUDICIARY COMMITTEE REPORT

Statement of Senator John V. Tunney upon introducing S. 2278 (August 1,
1975)-------------------------------- 3
Senate Report No. 94-1011 (June 29, 1976)-- ------------ 7
SENATE DEBATES1
122 Cong. Rec. No. 143, Daily Ed., September 21, 1976:
[S. 16250-16263] ---------- -17
[S. 16267-16270] ------------------------ 54
[S. 16280] ------ ----- -------------- ------------ 63
122 Cong. Rec. No. 144, Daily Ed., September 22, 1976:
[S. 16390] -- ----- ------------------------- --------- 63
S. 16427-16434 ------------ ----- ----- 64
[S. 16445-16457]_ -----------84
[S. 16467.- -- ----- -- -- --- ------108
12 Cong. Rec. No. 145, Daily Ed., September 23, 1976:
([S7. 16473-16478]-- --- ------- .---- -----..-109
[S. 16481-16482]----------- 127
[S. 16484-16485] -------------------------133
[S. 16489-16491] -------.----. -------------- 133
[S. 16493-16494]-- --- ---- ---- 139
122 Cong. Rec. No. 146, Daily Ed., September 24, 1976:
[8 565-16567----------- ----143
[S. 6595_------- ----_------------ 146
122 Cong. Rec. No. 147, Daily Ed., September 27, 1976:
[S. 16649]------ -. ------ --- --146
[S. 162] --- ------------- --------147
[S. 166<5616666] --------148
[S. 6673]- ---____ _ ------------- ------175
122 Cong. Rec. No. 148, Daily Ed., September 28, 1976:
[S. 16876-168771--- ------------ 176
S. 16879-16884] ---.------------ .---------177
122 Cong. Rec. No. 149, Daily Ed., September 29, 1976:
[S. 17048-170531---------.------------------------- 191

COMMITTEE REPORTS
House Report No. 94-1558 (September 15, 1976)-___ ____----_ 209
House Report No. 94-1741 (September 30, 1976) ------------------- 231
TextofHouse Reso ltion 1591_-- --------_----------------- 231

SCongressional Record pages, (daily edition) are shown in brackets.
(V)






VI

HOUSE OF REPRESENTATIVES DEBATES

122 Cong. Rec. No. 151, Daily Ed., October 1, 1976:
[H. 12150-12152]- ... ..- --- ....... 23
122 Cong. Rec. No. 151, part II, Daily Ed., October 1, 1976:
[H. 12153-12156] ------------------------------------------- 241
[H. 12158-12167]- .. .. ---- ---- ----- ----- .... 251

APPENDIX
A. Statutes covered or amended by S. 2278 ------------. 281
B. Citations of pre-Alyeska opinions awarding attorney's fees in civil
rights cases under the "Private Attorney General" concept----- 91
C. Index of key votes on S. 2278: Consideration, cloture, amendments
and final passage----.--._.. . ..----------_- --------. -293
D. Texts of amendments to S. 2278 introduced in the Senate .-----..--295
E. Federal attorney's fees statutes -.-3---03------- ----------














terate ds, fees awar when rated to substantial fee claim: Page
[ .ep.4.]--- --- -.-.- ---------... -..--- ---.- 212
Alyeska, bill designed to overcome:
[. Rp.1, 4, 5].---..-.--....--. ----- ------. 7, 10, 11
S16251, 816252, 81624, 16431, S16491, S16664, S17052]--------- 18,
21, 27, 74, 137, 169, 200
[H. ep. 2, 3, 9]... ---- 210,211,217
[112150, H12154, H12155, H12159, H12160, H12161, H12162,
1112163, H112164, H12165]- -235, 242, 245, 252, 254, 257, 260, 263, 265, 266
Amount of fees, method of computing:
[S. Rep. 6]--......-- .. ---- ---- ------ -- -----12
[816258, 816432, S16449, S16491, S16665, S170521-_ 35, 77, 89, 137, 172, 200
[H. Rep. 6, 8, 9]-..-,--_ ------------------ 214, 216,217
112151, H12154, H12160]--... --. -.. ---- ----- 236, 242, 254
Awards to defendants:
[8. Rep. 51--------- -- ---- --- -- 11
[816428, S16431, 816491, 816662, 16663, S17050, S17051]--------- 63,
74, 137, 163, 166, 194, 197
S. ep. 6, 71-...-------........-------------------- ----------------214,215
1214, 1H12155, H12156, H12160, 161, 12162, H12164,
H112165 1H121661-----.---.- 242,.245, 247,254, 257, 2, 266, 28, 271
Awards to plaintiffs:
[. p. 10
16428 816491,817052 -----.------ 65, 137, 200
H. Rep.]-- -- ---------------214,217
[12160, H12161, H12165 .--..------------254,257, 268
tional authority for legislation:
[S*. Rep. 5 ------ ---- ------ ----- -- 11
[S16252,8 17052, 817053] .1----------.------.- -.----. 21, 200, 203
[lH12160].]----------------------.. --------. 254
Discretionary standards for award, generally:
[S. Rep. 45 ----.- ---- --- --- ------- 10,11
[16251, 625, 816259, 816390, 816428, S16430, 16431, 816432
S16491, 816662, 816663, S16881, 17050 S17051, S17052] ------ 18,
35, 38, 63, 65, 71, 74, 77, 137, 163, 166, 180, 194, 197, 200
[.c I Re. 5, 6, 7, 9] _------------------ --- 213,214,215,217
[110 12152 H1112154, H12155, 112156, H12160, H12161,
12162, 12163 H12165, H12166] .---- --- 235,
239,242,245, 247,254, 257,260, 263, 268, 271
History of b (hearings, reports, etc.):
[S.Rep .2, __ ______5_ 11
SS1651 1 2 16253, 816262, 816267, S16268, 1626'9 164
1449 16664, 16665 817050 817051, S17052] --------------- 18,
21, 24, 48, 54, 56, 59, 65, 89, 169, 172, 194, 197, 200
[H. Rep. 2 4, 9 ----------------- 210, 211, 212, 214 216, 217
H1112150, 1i12151, H12155, H12158, H12159, H12161, H112162,
H12163, H12164, 2H12166 ...235,
l liability for fes: 235, 236, 245,2 52, 257,260, 266, 271
[S. Rep.5] 5------------------------------------------------- 11
[.Rep. 217
[ -.S. M -Rep.5 11
[H. 213
Congressional Record, Senate report and House Report pages are show In ibrackets.
( AI





VIII

IRS amendment:
[S16428, 516431, 816446, 16482, 16490, S16491, 817050]----------
74, 85, 130, 134, 137,
p H2151, 12152, H12159, 1112162, 1112163, 12164, H12166 236
.239, 252, 260, 263,6,2
Other fee statutes, general:
S. Rep. 2 3,4, 5]- ------------- ------------- 8.9, 11
[S16251, S16252, S16254, S16267, S16268, 816269, $16432, 816449,
S16491, S16665, S17051, $17052]--- -------
21, 27, 54, 56, 59, 77, 89, 137, 172P,1
[H. Rep. 3, 5, 6, 8, 13-------1.----. ---1, 213, 216
IH12150, H12151, H12152, H12154, 112155, H12158, H12160,
H12161, H12163, H12164, H12165]....--- --.-------... 235,
36, 239, 242, 245, 251, 254, 257, 263 266,26
Prevailing party, need not gain full fo mal relief:
[S. Rep. 5]-- ------------------------.------ --- 11
[$16258]----------------------------------------------.. 5
[H. Rep. 7 ---------------- 215
Procedural posture, miscellaneous (intervenors, pendent jurisdiction, etc.):
[S. Rep. 4] -----------------------10
[S16258]---------------------------------- ----------- 35
[H. Rep.4] ..212
[H. Rep. 4]------ ------- ------------ ----- -- --- --- -------- 212
[H12152, H12153, H12161 ----------------------------239 239,241, 25
Public interest and non-profit ecipients:
[H. Rep. 8]-- ---------- .. 216
[H12165]-_ ..--.........- ------ ------ ----.---- -268
Purpose of bill, to enforce federal rights (private attorneys general):
[S. Rep. 2, 3, 4, 5, 6]------------------------------- 8, ,10,, 12
[S16251, S16252, S16258, S16430, S16431, $16432, $16449, S17051,
817052] ..--- --- ------ 18, 21, 35, 71, 74, 77, 89, 197, 200
[H. Rep. 1, 2, 3] ------- ------209, 210, 211
[H12151, H12152, 112155, H12158, 1112160, H12161, 112162,
H12163, H12164, H12165, H12166]- 236,
239, 245, 251, 254, 257, 260, 263, 266, 267, 268, 271
Retroactivity, application of statute to pending cases:
[S16446, S17052]8.------- -------, 5200
[H. Rep. 4---------------- 212
[H12155, H12160, H12166, H12167] ----------------- 245, 254 271, 275
State courts:
[H12158] ----------- 2--51----- .------....
State officials' liability, notwithstanding 11th Amendment:
[S. Rep. 5, 6]--- -- --- ------. 11, 12
[H12160]--- ------------- --..------------ 254
Test cases not excluded:
[H. Rep. 7] --- ,--------------------------- 215
Time and items to be compensated:
[S. Rep. 6] 12
[S16258, S16260, 516482] -------------- 35,41, 13
[H12160, H12165] -------- -------------254 268
Title II, Civil Rights Act of 1964:
[S. Rep. 2, 3, 4] ..--.. ---------- --- --8,9,10
[16432] -------------------------- 77
[H. Rep.51------------------------- 213
[H12150, 112163, H12165]---- _---- ------- 35, 268
Title VI, Civil Rights Act of 1964:
[S16252]------------------------21
[H. Rep. 5, 20, 21, 22, 23] -------213, 227, 228, 229,230
[H12153, H12159]------------241,252
Title VII, Civil Rights Act of 1964:
[S. Rep. 2, 3, 4] ------------------------ 8,9, 10
[S16251, S16254, S16432] --- -------- -- 18,
[H. Rep. 5]..-------- -- ---------------- ----.-. 213
[H12150, H12161, H12163, H12165] .--------- -- 235, 257, 263, 268
Title IX, Emergency Schools Aid Act:
[S16252, $16262, S16428, $16664]- --------.--------- 21,48 65 169
[H. Rep. 4, 5, 17, 18, 19, 20]----- -212,213,224,225,226,227
[H12152, 1112153, H12159, H12161, H12164] ---- 239, 241, 252, 257, 266






IX

Types of cases covered, general: Page
[S. Rep. 4]----------------------------------------------- 10
[S16252, S16258, 816262, 816268, 816428, S16431, 816432, 816446,
S16456, S16482, S16490, S16491, S16664, S17050, S17052]------- 21,
35, 48, 56, 65, 74, 77, 85, 104, 130, 134, 137, 169, 194, 200
[H. Rep. 4, 5, 7, 9, 16, 17, 18, 19, 20, 21, 22, 23]----------- -- 212,
213, 215, 217, 223, 224, 225, 226, 227, 228, 229, 230
[H12151, H12152, H12153, H12154, H12159, H12160, HI2161,
H12162, Hi12163, H12164, H12165, 1112166] ...-__ 236,
S239, 241, 242,52, 254, 257, 260, 263, 266, 268, 271
Voting Rights Act, 402:
[S. Rep. 2, 4]-----------------.----------8 8, 10
[S16254]--------------------------- 27
[H. Rep. 5]2----_----- -.--- .. ------- 213
[H12150, H12158, H12163] ------- -235, 251, 263
20 U.S.C. 1617:
[S. Rep. 4, 5]-- ------ -- --- ----- 10, 11
[S16254]__ ------- ---------------- 27
[HI12163]------------------- ---------- 263
42 U.S.C. 1981:
[S. Rep.4---- ---- ------- --------------10
[H. Rep. 4, 15] ------- -- --------212, 222
[H12159, H12161, H12163, H12165] --- ----------252, 257, 263, 268
42 U.S.C. 1982:
[S. Rep. 4]------ --- --------- -- ---- - 10
[H. Rep. 4, 15]---- -------------212, 222
[H12159, H12163]- -----_--- ---------252, 268
42 U.S.C. 1983, general:
[S. Rep. 4] ----- ------------- -10
[16252, S16431, 816432]- --- --------_- ----- 21, 74, 77
[H. Rep. 4, 5, 7, 9, 15] .- -----------------212, 213, 215, 217, 222
[H12154, H12159, H12160, H12163, H12165]---- 242, 252, 254, 263, 268
42 U.S.C. 1983, non-racial cases:
[S. Rep. 4]-------------- -------- ----- 10
[H. Rep. 5] ------------ ------ ----- 213
[11121631------ -- ------ ---- ------------ 263
42 U.S.C. 1983, cases against governmental defendants:
[S. Rep. 41------- --- ----------------------- 10
[16252, 16431, 16432]-------- ----- 21, 74, 77
[H. Rep. 7,9]213,5, 23 21 217
[H12154, H12159, H12160, H12163, H12165]--- ---242, 252, 254, 263, 268
42 U.S.C. 1983, cases to enforce constitutional rights:
[S. Rep. 4]------ --- ----------------10
[H. Rep. 5]- .--- ---------- ------ -- 213
[121,H12163,H12165] ------- 252, 263, 268
42 U.S.C. 1983, cases to enforce federal statutory rights:
S. Rep. 4 -------- --- --------------------- 10
162_52]--. -.. -- ----------.------- -- 21
[H12 1112165 ----- ---------- -- -- 252, 268
42 U.S.C. 1985:
[H. Rep 5, 15, 16] --------- ---- -------------- 213, 222, 223
[1I2159, 1112161] 2i---------------- ---- 252, 257
42 U.S.C. 1986:
[H. Rep 17 -- ------- -----213, 223, 224
[HI2159, H12163] -- ---- ------ 252, 263
42 U.S.C. 1988:
S. .. ------------------------9,12
[H. 4, 10, 11, 17]----------.. --. -- 212 218 219, 224




















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CONGRESSIONAL DEBATE SPEAKER'S INDEX
Senate:
Abourezk, James S.
75, 92, 93, 94, 95, 111, 112, 113, 133, 134, 146, 147, 148, 163, 166, 168, 170,
174, 175, 176, 178, 181, 182, 184, 186, 189, 191, 194, 198, 199, 202, 205
Allen, James B.
21, 24, 25, 26, 30, 32, 40, 42, 45, 46, 48, 49, 50, 53, 54, 60, 61, 62, 63, 64,
65, 66, 67, 68, 72, 74, 76, 81, 88, 89, 91, 92, 108, 109, 110, 111, 112, 113,
114, 116, 117, 118, 119, 120, 121, 122, 123, 125, 126, 127, 128, 129, 130,
131, 132, 134, 139, 140, 141, 142, 143, 145, 146, 147, 148, 171, 174, 176,
182, 191, 192, 193, 194, 195, 198, 205
Bayh, Birch
84, 86,87,88
Brooke, Edward W.
49
Buckley, James L.
18833
Bumpers, Dale
63
Byrd, Harry F., Jr.
84
Byrd, Robert C.
17, 31, 32, 41, 43, 44, 46, 49, 50, 51, 52, 53, 54, 60, 61, 65, 72, 81, 82, 83,
92, 93, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 119, 120, 121, 122,
123, 124, 125, 126, 127, 128, 129, 130, 133, 134, 139, 140, 141, 142, 143,
145, 147, 148, 150, 163, 168, 170, 174, 176, 181, 183, 184, 186, 189, 191,
192, 193, 195, 198, 203
Cranston, Alan
65, 68, 73, 74, 113
Durkin, John A.
99,205
Fong, Hiram L.
42
Goldwater, Barry
84, 85,87, 88,123,125, 130,131, 132, 133
Gravel, Mike
107
Grifin, Robert P.
17, 31, 33, 41, 44, 47, 51, 65, 72, 82, 93, 107, 110, 113, 115, 119, 121, 122, 124,
127, 132, 133, 135, 149, 150, 163, 168, 170, 174, 176, 181, 185, 187, 190,
192, 195, 203
Hansen, Clifford
125, 191
Hart, Gary
Haskell, Floyd K.
178
Hathaway, William D.
73, 74, 75, 76,
Helms, Jesse
34, 36, 38, 39, 40, 43, 64, 75, 76, 80, 81, 82, 107, 113, 132, 147, 164, 165, 166,
167, 169,170,182,183, 184, 186,187, 189,194
Javits, Jacob
88, 147
Kennedy, Edward M.
21, 22, 23, 24, 25, 26, 30, 31, 82, 91, 92, 16, 170 197, 198,200

61, 62, 63, 140, 141, 142, 180, 182, 183
Mathias, Charles Me., Jr.



205
.. cm






XII

Senate-Continue
Muskie, Edmund S.
21, 133, 136
Nelson, Gaylord
32, 72
Pastore, John 0.
30, 194
Scott, Hugh
19, 83
Scott, William L.
143, 166, 167, 177, 178, 179, 180, 181
Stennis, John C.
196, 198
Talmadge, Herman E.
178
Thurmond, Strom
94, 95, 99, 106, 133, 146, 151, 160, 163, 178
Tunney, John V.
138, 195, 199
House of Representatives:
Anderson, John B.
235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 247
Ashbrook, John M.
242, 243, 246, 272
Bauman. Robert E.
241, 242, 248, 251, 252, 261, 262, 268
Beard, Robin L.
244, 247
Bolling, Richard
235, 245, 246, 247, 248
Brown. Garry
244, 245
Butler, M. Caldwell
275
Drinan, Robert F.
240, 241, 242, 243, 244, 246, 251, 252, 257, 258, 260, 261, 26, 264, 265, 266,
267, 271
Fish, Hamilton
264
Holtzman, Elizabeth
267
Hyde. Henry J.
243, 244
Jordan, Barbara
267, 268, 269
Kastenmeier, Robert W.
260, 261, 262
Lott, Trent
247
McClory, Robert
238. 239, 240
Quie, Albert H.
240, 241, 265, 266, 267
Railshbck. Tom
242, 258, 259, 260, 265, 266. 267
Ronsselot. John H.
237, 238, 239
Seiberlini John F.
245. 246. 269
White. Richard C.
246, 257, 258













TABLE OF CASES
Page
Adam v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) [Title VI case]
[H. Rep. 5]-------------------------------------------- 213
Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240
(1975) [Federal courts lack general power to award fees without Con-
gressional authorization] _-_-------------- ----_-------------- Passim
Aspira of New York, Inc. v. Board of Education of the City of New York,
65 F.R.D. 541 (S.D.N.Y. 1975) [fee award after consent decree]
[S. Rep. 5] ----------------------------.----------------- 11
[H. Rep. 7]_---------------- ------------------------------ 215
Blue v. Craig, 505 F.2d 830 (4th Cir. 1974) [Example of suit under 42
U.S.C. 1983 alleging violation of federal statutory rather than consti-
tutional rights]
[H12159] -------------------------------------------------- 253
Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir. 1967), cert.
denied, 388 U.S. 911 (1967) [Title VI case]
[H. Rep. 5] ------------------------------ ------------------ 213
radley v. School Board of the City of Richmond, Virginia, 416 U.S. 697
(1974) [New fee authorization statutes apply to pending cases; also
supporting award of interim fees]
[S. Rep. 5] -.--- - ---- ------ ---- ------------------- 11
[H. Rep. 4, 8]- ----- -----------------------------. 112, 216
[S17052l -----i -- --- --------------- ------------_ 202
H121601 --------------------------------------------- 256
Brown v. Dallas, 331 F. Supp. 1033 (N.D. Texas 1971) [Example of suit
under 42 U.S.. 1982]
[H121631 ._--.-------------------------------------------- 265
Brown v. Board of Education, 347 U.S. 483 (1954) [Example of suit under
42 U.S.C. 1983]
[ H. Rep. 4, 7]__ ----------- --- ---------- 212, 212,215
[H12159] ---- -:- ------------------------------------------ 253
Brown v. ity of Meridian, Meridian, Mississippi, 356 F.2d 602 (5th Cir.
196) [Example of the breadth of remedies available in civil rights cases;
:42 U.S.C. 1988].....
[S. Rep. 3] ------------------------------------------ -------- 9
Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972),
cert. denied, 409 U.S. 982 (1972) [Fee award without granting of formal
relief]
[H. Rep.7] -- _-_____ -...._.._____.-- --.-.--- 215
Cannon v. University of Chicago, F.2d (7th Cir. 19) [Case holding there
was no private right to sue unde Title VI of the Civil Rights Act of 1972]
[H112161] ------ ------------------------------259
award of fees to prevailing defendant]
[H. Rep.7] --------------------------------------- 215
[H 12160 ------------------------------------------------ 255
Class v. Norton, 505 .2 12722 (2d Cir. 1974) 6)Description of standard for
assessing fees against State officials in their individual capacities]

[Fees to defendant upon volu.tary dismissal of a groundless com laint
i[H. Rep. 7-8] -------------------- - -- -- 215-16
Davis v. County of Los Angeles, 8 E.P.D. 9444 (C.D. Cal. 1974) [Correct
applic n of comptation standards; fee award of $60 per hour to lead
counsel, and $55 per hour and $35 per hour to associate counsel, plus a
"bonus" award for the excellence of results, expert witness fees, para-
legal expenses and out-of-pocket expenses]
[S.Rep.6] ------------------------------------------------- 12
(XIII)






XIV

Pagse
Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975) [Individual assessmet of "bad
faith" fees against official defendant]
[S. Rep. 51 ------------------------.------------------...... 11
Elrod v. Burns, 49 L.Ed. 2d 547 (June 28, 1976) [Example of a nonracial case
under 42 U.S.C. 1983]
[H. Rep. 5] ------------- ---------------------------------. 213
Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C. Dir. 1974) [Standards
of computation listed]
[II. Rep. 8]----------------....................---------..... 216
Evers v. Dwyer, 358 U.S. 202 (1958)
[H. Rep. 7].-------....... ----. -------------------------- 215
Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974) [Fees to nonprofit
group]
[H. Rep. 8]--- ------------------------------------- ---- 216
Fairmont Creamery Co. v. Minnesota, 275 U.S. 168 (1927) [States liable for
costs in federal court, despite Eleventh Amendment]
[S. Rep. 5] ---------------------------------- ------- 11
Fitzpatrick v. Bitzer, 49 L.Ed.2d 614 (June 28, 1976) [Eleventh Amend-
ment no bar to Congressional authorization of fees against State of-
ficials]
[H. Rep. 7] ----- ----------------- ----------__ 215
[H121601-------------------------------------- 255
Fleish nann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967)
[Fees not generally available without statutory authorization]
[S16432]-- ---........----.........------- ------------ 7
Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972) aff'd 501 F.2d 1291
(5th Cir. 1974) [Prison suit for which fees would be authorized under
Act: suit under, inter alia, 42 U.S.C. 1981, 1983 and 1985]
[1112163 ----------------------------------------------........ 265
Griffin v. Breckenridge, 403 U.S. 88 (1971) [Example of suit under 1985]
[H. Rep. 5] 213
Hagans v. Lavine, 415 U.S. 528 (1974) [Case describing the test for awarding
fees under a nonfee ground related to a claim under which fees would be
authorized]
[H. Rep. 4] ---. .-, -,--_-... ----- 212
Hall v. Cole, 412 U.S. 1 (1973) [Common benefit case]:
[S. Rep. 3]------ ------------------- 9
Hammond v. Housing Authority & Urban Renewal Agency of Lane County,
Oregon, 328 F. Supp. 586 (D. Oregon 1971) [Non-racial equal protection
case under 42 U.S.C. 1983]
[H12163] ----- ------- -------- ----..-- 265
Harper v. Virginia State Board of Elections, 383 U.S. 773 (1966) [Non-
racial suit under 42 U.S.C. 1983]
[H. Rep. 5] ----- ------ --- ----213
Hills v. Gautreaux, 47 L.Ed.2d 792 (1976) [Title VI case]
[I1. Rep. 5, 7] -------- 213, 215
Hutchinson v. William Barry, Inc., 50 F. Supp. 292 (D. Mass. 1943) [Case
describing double standard for statutory fee awards to prevailing plain-
tiffs as opposed to prevailing defendants]
[S. Rep. 5]-.__-_-------------------- 11
Incarcerated Men of Allen County v. Fair, 507 F. 2d 281 (6th Cir. 1974)
[Fees awarded to federally funded attorneys; award after consent decree]
[H. Rep. 7, 8] ------------------- 215, 216
Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (5th Cir. 1974)
[Twelve factors for computing amount of fees]
[S. Rep. 6] -- --------------- 12
[H. Rep. 8]_ -- ----------216
[H12160; S16491]- -------- -------- ----------- 255, 138
Johnson v. Railway Express Agency, 421 U.S. 454 (1975) [Case under 42
U.S.C. 1981]
[H. Rep. 4]-..--- --- ---- ----- ---- 212
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) [Case under 42 U.S.C.
1982]
[H. Rep. 4] --- ---------. .------------. 212






xV

Kniht v. Aucello, 453 F. 2d 852 (1st Cir. 1972) [Suit under 42 U.S.C.
19821 Page
[817051-52]....-------------------------------------------... 200
Kopet v. squire Realty F. 2d 1005 (2d Cir. 1975) [Fees may be
awarded to party who does not obtain formal relief
[S. Riep.i'l -'^- 5L-- ---_ - -___ 11
SLu v. Nichols, 414 U.S. 563 (1974) [State officials who violatea federal
statute (e.g., Title VI) thereby violate 42 U.S.C. 1983]
S[H. Rep. 5]--- -------------------------------------- 213
[ s16252]-- ---..---------------------------------------..22
Laufman v. Oakley Building & Loan Co., 408 F. Supp. 489 [Title VI case]
S[H.Rep. 5]_ ..--. ...-----..---..------------------ 213
Lea v. Cone MillsCorporation,438 F. 2d 86 (4th Cir. 1971) [Fees available
Sin test cases]
[H. Rep. 7]_ .- ... -. --,-.- ------- .215
Lee v. outhern Home Sites, 429 F. 2d 290 (5th Cir. 1970) [Suit under 42
U.S.C. 1982]
[HM26113--- _--- ------ ---- .- --__.----- 265
Lefton v. City f Hatiesbrg, Mississipp, 333 F. 2d 280 (5th Cir. 1964)
[Example of the breadth of remedis available in civil rights cases; 42
U.S.C. 19881
[S.Rep. 3] __ .. . 9
i [S.aiep.. I1---:--'---,--------.--4------------------~------9
McDnald v. Sane Fe Trail ansportation ., 49 L.Ed.2d [Case holding
42 U.S.C. 1981 available to white as well as black plaintiffs]
[H. Rep. 4J]--------------------------- 212
Mills v. Electri Auto-Lite Co., 396 U.S.C. 375 (1970) [Case supporting the
award of interim fees]
[S. Rep. 51-] -- ---- ------------ 11
[H. Rep. ...216

5------------------------------------ ------,-------------,-- -213
Monroe v. Pape, 365 U.S. 167 (1961) [Nonracial case under 42 U.S.C.
1983]
[H. Rep. 2 3. 2
Morales v. Haines, 486 F. 2d 880 (7th Cir. 1973) [Case holding plaintiff
entitled to determination on claim under which fees can be awarded if
case ded on clam under which fees cannot]
[ H. Rep. _4. 1-- -_ ...------.- --- ---. ---- -- ----212
Mrrow v. Crisler, 479 F. 2d 960 (5th Cir. 1973), 491 F. 2d 1053 (5th Cir.
1974) ( r r en ba) [Employment suit under 42 U.S.C. 1983]
[H12163 -- ----, 265
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) [First
Supreme Cot enunciatio of the "private attorney general" theory for
statutory fee awards]
[S. Rep. 3] _ 9
[H. Rep. 2, 6, 9] ---------------------------------------- 210, 214, 217
------------------- -270---------, 139
orthcross v. Memphis Board of Education, 412 U.S. 427 (1973) (per curiam)
[Describes standards for awarding fees to prevailig plaintiffs]
[H--. Rep. 6, __-___.-----..----- 214,217
O'Connor v. Donaldson, 422 U.S. 563 (197) [Nonracial suit under 42 U.S.C.
1983].
i :J'71---------------------------- -1--213,215
[H. Rep. 5, ____213,215
Sv. othwestern Bell Co., 433 F. 2d 421 (8th Cir. 1970)
Fees to plaintiff who gained no formal r eief
S[S. Rep. 51-- _-___ ---- 11
[H. Rep..7 ....8 ... 215 216
Parker v. Matthew, 411 F. Sup. 1049 (D.D.C. 1976) [Fee award after
[H. Rep:.......-- .....---.--------------.-.. --- .. 215
Pierson v. Ray, 386 U.S. 547 (1967)
[H. Rep. 91--- --------------- --- 217
Reed v. Arlton HM)tel Co., Inc., 476 F. 2d 721 (8th Cir. 1973) [Plaintiff
|'prevails" by winning class action claims, even where he loses individual
claims]
[H. Rep. 8]- -------.--- 216





xvI

Page
Richards v. Griffith Rubber Mills, 300 F. Supp. 338 (D. Ore. 1969) [Fee
award without formal relief]
[S. Rep. 5].- .--- -. _-- ...... -- __ _ ...__ ____ 11
Richardson v. Hotel Corporation of America, 332 F. Supp., 519 (E.D. La.
1971), aff'd mem., 468 F. 2d 951 (5th Cir. 1972) Rigid standard for fee
award to prevailing defendant]
[S. Rep. 5]- -----..-. ................-------11
[S16280]--------_ ----- .... 4
[H. Rep. 7] --- -- --------------215
Scheuer v. Rhode, 416 U.S. 232 (1974)
[H. Rep. 9]- ..---,-- .--------. 217
Skelley v. Kraemer, 334 U.S. 1 (1948) [Instance where the "private attorney
general" is a defendant]
[S. Rep. 4]-- ---,- ---....-. "10
Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972), aff'd mem., 409 U.S.
942 (1972) [Case under 42 U.S.C. 1983]
[S. Rep. 4]- --- -- ------ -10
Stanford Daily v. Zurcher, 366 F. Supp. 18 (N.D. Cal. 1973) [Case under
42 U.S.C. 1983]
[S. Rep. 4]- ..-- --- --- --------- -- - 10
Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974) [Correct appli-
cation of fee computation standards; $ per hour, plus a "bonus" of $;
supports payment of fees for all time reasonably spent]
[S. Rep. 6]--- ---------- -- ------12
Swann v. Charlotte-Mecklenberg Board of Education, 66 F.R.D. 483
(W.D.N.C. 1975) [Correct application of fee computation standards;
c. $6.00 per hour]
[S. Rep. 6]----------------------- 12
Symkowski v. Miller, 294 F. Supp. 1214 (E.D. Wis. 1969) [Suit under 42
U.S.C. 1986]
[H12163] ----------------------------- 265
Thomas v. Honeybrook Mines, Inc., 428 F. 2d 981 (3d Cir. 1970) [Intervenor
eligible for fees upon proper showing]
[S. Rep. 5]---- ___------------- 11
Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S., 431 (1973)
[Case under 42 U.S.C. 1981]
[H. Rep. 4]------- -------------- ---212
Torres v. Sachs, 69 F.R.D. 343 (S.D.N.Y. 1975), aff'd, F. 2d (2d Cir. 1976)
[Fees to plaintiffs represented by a pro bono lawfirm]
[H. Rep. 8] --------------216
Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972)
[H. Rep. 2]- _-_ _____ __ -- _---__---- -- 210
United Mine Workers v. Gibbs, 383 U.S. 715 (1966) [Case describing the
"substantiality" test under which fees may be awarded although case
decided on nonfee ground]
[H. Rep. 4]--.._ ------.------------------ .. 212
United States Steel Corp. v. United States, 385 F. Supp. 346 (W.D. Pa. 1974),
aff'd, 519 F. 2d 359 (3d Cir. 1975) [Rigid standards for award to pre-
vailing defendant]
[(S16280, 16491]......-------------------------64, 139
[S. Rep. 5]. .. _ _ _. _.. . _.. . _. _. __ _.. . . . . . 11
[S. Rep. 51--------------- ----------- ---------- 11
[H. Rep. 6, 7, 8] .-- ----------- -- -- ---- 214,215,216
Wood v. Strickland, 420 U.S. 308 (1975)
(H. Rep. 9]-------------217
Wright v. Stone Container Corp., 524 F. 2d 1058 (8th Cir. 1975) [Rigid stand-
ards for award to prevailing defendant]
[H. Rep. 7]-- ----------------------- 215





(XVII)


PUBLICAW 94-559-OCT. 19, 1976 90 STAT. 2641

Public Law 94-559
94th Congress
An Act
The Civil Rights Attorney's Fees Awards Act of 197 Oct. 19, 1976
[S. 22781
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may The Civil
be cited as "The Civil Rights Attorney's Fees Awards Act of 1976". Rights Attorney's
Sc. 2. That the Revised Statutes section 722 (42 U.S.C. 1988) is Fees Awards
amended by adding the following: "In any action or proceeding to Act of 1976.
enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the 4
evised Statutes, title IX of Public Law 92-318, or in any civil action 42 USC 1981-
or proceeding, by or on behalf of the United States of America, to 1983, 1985,
enforce, or chargg a violation of, a provision of the United States 1986.
Internal Revenue Code, or title VI of the Civil Rights Act of 1964, 20 USC 1681.
the court, in its discretion, may allow the prevailing party, other than 26 USC 1 et seq.
the United States, a reasonable attorney's fee as part of the costs.". 42 USC 2000d.

Approved October 19, 1976.















LEGISLATIVE HISTORY:
HOUSE REPORT No. 91558 accompanying H.R. 15460 (Comm. on the Judiciary).
SENATE REPORT No. 94-1011 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 122 (1976):
Sept. 21-24, 27-29, considered and passed Senate.
Oct. 1, considered and passed House.





















79-586 77 2













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INTRODUCTION OF S. 2278
AND
JUDICIARY COMMITTEE REPORT














[121 Cong. Rec. S 1497 (daily ed., Aug. 1, 1975) ]
By Mr. TuNNEY
2278. A bill entitled The Civil Rights Attorneys Fees Awards
Act of 1975." Referred to the Committee on the Judiciary.

CIVIL RIGHTS ATTORNEYS FEES AWARDS ACT
Mr. TuNNEY. Mr. President, today I am introducing a bill which
would allow a court, in its discretion, to award attorney's fees to a pre-
vailing party in suits brought to enforce the civil rights acts which
Congress has passed since 1866.
This bill is identicalto a provision in S. 1279, the Senate version of
the Voting Rights Act extension, which was reported favorably by the
Subcommittee on Constitutional Rights by a vote of 8 to 2, and by the
fll Judiciary Committee by a vote of 10 to 4. As you know, the time
pressure created by the August 6th expiration date of the Voting
Rights Act prevented the Senate from considering its own version of
the extension. Even though I felt strongly about this attorney's fees
provision that was in the Senate version, as floor manager I urged
passge of the House version without substantial modification because
I felt that the need to get a Voting Rights Act passed before its expira-
tion was an overriding consideration. As a result, this provision of
S. 1279 was never taken up by the full Senate. I introduce it today as
a separate bill in the hope that it can receive the swift consideration
of this body.
The purpose and eect of this bill issimple-it is to allow the courts
to rvide, the tradiioal remedy of reasonable counsel fee awards to
private citizens who must go to court to vindicate their rights under
or civil rights statutes. The Supreme Court's recent Alyeska decision
ha required specific statutory authorization if Federal courts are to
continue previous policies of awarding fees under all Federal civil
rights satutes. This bill simply applies the type of "fee-shifting" pro-
vision already contained in titles II and VII of the 1964 Civil Rights
Act to the other civil rights statutes which do not already specifically
authorize fee awards. It therererestores to .the Federal courts au-
thority which they had ercised for years until a little over 2 months

In the typical case that arises under these statutes the citizen whose
s have violated has little or no money with which to hire a
lawyer, and there is often no damage claim from which an attrney
d d i fe If private citizens are t be ale to assert their
rights under these laws-if those who violate these most basic human
freedoms are not to proceed with impunity-then citizens must have
the opportunity to recover what it costs them to vindicate these rights

Congress recognized this need when it made specific provision for
such fee-shifting in titles II and VII of the Civil Rights Act of 1964,
(3)






4

which apply to discrimination in public accommodations and employ-
ment. This ort of provision is equally appropriate in other civil rights
statutes, because there, as in employment and public accommodations
cases, Congress depends heavily on private enforcement.
Mr. President, the reason why this legislation specifically authoriz-
ing fee awards under all our civil rights laws was not introduced year
ago is simply that, until very recently, it was widely believed and held
that the courts already had the power to award counsel fees in all civil
rights cases as part of their inherent equity power. Before May 12 of
this year, when the Supreme Court issued its opinion in Alyeska Pipe-
line Service Co. against Wilderness Society, many lower Federal courts
had followed the congressional fee-shifting policies of titles II and
VII of the 1964 act and had awarded fes to prevailing plaintiffs in
suits brought under these other civil rights laws without requiring
specific statutory authorization.
However, in the Alyeska case the Court held that Federal courts did
not have the power to grant fees to prevailing parties without such
specific statutory authorization.
I should emphasize here that the Alyeska court did not disapprove
of these attorney's fee awards. On the contrary, Justice White, speak-
ing for the majority, noted that it was-
apparent from our national experience that the encouragement of private action
to implement public policy has been viewed as desirable in a variety of circum-
stances.
The Court's holding merely reflected its belief that it is powerless
to proceed with such beneficial fee awards until Congress "gives the
word"-in a bill such as this one.
However, even though the Alyeska decision turned on a question of
judicial power and not on the merits of fee awards-and even though
Alyeska was an environmental case and not a civil rights case-its
effect was to create an unexpected and anomalous gap in our civil
rights laws whereby awards of fees are suddenly unavailable in the
most fundamental civil rights cases. For instance, fees are now author-
ized in an employment discrimination suit under title VII of the 1964
Civil Rights Act, but not in the same suit brought under 42 U.S.C.
1981, which protects similar rights but involves fewer technical pre-
requisites to the filing of an action. Fees are allowed in a suit under
title II of the 1964 act challenging discrimination in a private restau-
rant, but not in suits under 42 U.S.C. 1983 redressing violations of the
Federal Constitution or laws by officials sworn to uphold the laws.
This bill would remedy these gaps in the statutory language by pro-
viding the specific authorization required by the Court in Alyeska.
It would thus return to Federal judges the beneficial power to award
counsel fees to the victims of violations of our most basic civil rights
statutes.
Of course, since citizens would only recover fees under this bill if
they were successful in their suits, this act would do nothing to en-
courage frivolous or bad faith litigation. In fact, by allowing assess-
ment of fees against a "bad faith" plaintiff, it would have exactly the
opposite effect.
Mr. President, if our civil rights laws are not to become mere hollow
pronouncements, which the average citizen cannot enforce, we must






5

maintain the traditionally effective remedy of fee-shifting in these
cases. This bill, then, contains no startling new remedy-it only meets
the technical requirements that the Supreme Court has laid down if
the Federal courts are to continue the practice of awarding attorney's
fees which had been going on for years prior to the Court's May de-
cision. It does not change the statutory provisions regarding the pro-
tection of civil rights except as it provides the fee awards which are
necessary if citizens are to be able to effectively secure compliance with
these existing statutes. This provision has already received the favor-
able recommendation of the full Judiciary Committee, and I urge its
speedy passage by the full Senate.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the ecord.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2278
Be it enacted by the enate an H e of Repreentatives of the United States
of America in Congrebled, Revised Statutes Section 722 (42 U.S.C. Sec.
1988) is amended by adding the following: "In any action or proceeding to
enforce a provision of section 1977, 1978, 1979, 1980 and 1981 of the Revised
Statutes, or Title VI of the Civil ights Act of 1964, the court, in its discretion,
may allow the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs".










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Caendar No. 955
94TH CONGRESS ) SENATE Rxo RT
Sd Session No. 94-1011




CIVIL GHTS ATTORNEYS' FEES AWARDS ACT


JuNE 2 (legislative day, JUNE 18), 197 rdered to be printed


Mr. TUNNEY, from the Committee on the Judiciary,
Ssubmitted the following

RE]PORT
[ o accompany S. 2278]
The Committee on the Judiciary, to which was referred the bill
2278) to amend Revised Stutes section 722 (42 U.S.C. 188)
to allow court, in its discretion, to award attorneys' fees to a pre-
valng party in suits brought to enforce certain civil rights acts, having
erd te same, report favorably thereon and recommends that
the bill do pass.
The text of S. 2278 is as Iollows:
S. 2278
Revised Statutes section 722 (42 U.S.C. Sec. 1988) is
amended by adding the following: "In any action or pro-
eeding to enrce a prvision of sections 1977, 1978, 1979,
1980 and 1981 of the Revised Statutes, or Title VI of the Civil
Rights Act of 1964, the court, in its discretion, may allow the
party, other than theUnited States, a reasonable



This amendment to the Civil Rights Act of 1866, Revised Statutes
Section 722, gives the Federal courts discretion to award attorneys'
fees to prevailing parties in suits brought to enforce the civil rights
acts which Congress has passed since 1866. The purpose of this amend-

Service Co. v. Wilderness Society, 421 U.S. 240 (197t), and to achieve
consistency our civil rights laws.




(7)





8

2

HISTORY OF THE LEGIBLATION
The bill grows out of six days of hea gs on legal fees held before
the Subcommittee on the Representation of Citizen Interests- of this
Committee in 1973. There were more than thirty witnesses, including
Federal and State public officials, scholars, practicing attorneys from
many areas of expertise, and private citizens. Those who did not
appear were given the opportumity to submit material for the record,
and many did so, including the representatives of the American Bar
Association and the Bar ciations of 22 States and the District
of Columbia. The hearings, when published, included not only the
testimony and exhibits, but numerous statutory provisions, proposed
legislation, case reports and scholarly articles.
In 1975, the provisions of S. 2278 were incorporated in a proposed
amendment to S. 1279, extending the Voting Rights Act of 1965.
The Subcommittee on Constitutional Rights specifically approved
the amendment on June 11, 1975, by a vote of 8-2, and the full
Committee favorably reported it on July 18, 1975, as part of S. 1279.
Because of time pressure to pass the Voting Rights Amendments, the
Senate took action on the House-passed version of the legislation.
S. 1279 was not taken up on the Senate floor; hence, the attorneys'
fees amendment was never considered.
On July 31, 1975, Senator Tunney introduced S. 2278, which is
identical to the amendment to S. 1279 which was reported favorably
by this Committee last summer.
Shortly thereafter, similar legislation was introduced in the House
of Representatives, including H.R. 9552, which is identical to S. 2278
except for one minor technical difference. The Subcommittee on
Courts, Civil Liberties and the Administration of Justice of the
House Judiciary Committee has conducted three days of hearings at
which the witnesses have generally confirmed the record resented to
this Committee in 1973. H.R. 9552, the counterpart of S. 2278, has
received widespread support by the witnesses appearing before the
House Subcommittee.
STATEMENT
The purpose and effect of S. 2278 are simple-it is designed to allow
courts to provide the familiar remedy of reasonable counsel fees to
prevailing parties in suits to enforce the civil rights acts which Congress
has passed since 1866. S. 2278 follows the language of Titles II and VII
of the Civil Rights Act of 1964, 42 U.S.C. *i 2000a-3(b) and 200
5(k), and section 402 of the Voting Rights Act Amendments of 1975,
42 U.S.C. 19731(e). All of these civil rights laws depend heavily upon
private enforcement, and fee awards have proved an essential remedy
if private citizens are to have a meaningful opportunity to vindicate
the important Congressional policies which these laws contain.
In many cases arising under our civil rights laws the citizen who
must sue to enforce the law has little or no money wit which to hire a
lawyer. If private citizens are to be able to assert their civil rights, and
if those who violate the Nation's fundamental laws are not to proceed
with impunity then citizens must have the opportunity to recover
what it costs them to vindicate these rights in court.


S.R. 1011





9


8

Se when it madec provision for
such fee shifting i Titles II and VII of the Civil Rights Act of 1964:
When a plaintiff brings an action under [Title II] he cannot
recover damages. If he obtains an injunction, he does so not .
for himse as a "private attorney general,"
vindicat a pht Cs considered of the highest
Pri Is were routinely forced to bear
r own ator s, f d parties would be in a
position to advance the interest by invoking the
junctive powers of the eral courts. Congress therefore
individuals inured by racial discriination to seek judicial
relief under Ttle II' Neoman v.- Piggie Park Enterprises,
Inci., 30 U.S. 400, 402 (1968)
idea of the "private attorney general" is not a new one, nor
&are new .C has commonly authorized
attorneys'ees in laws under wate attoreys general" play a
have, e 1870, author-
1ed fee under more than 50 laws, including, among others, the
Securities Act of 1934, 15 U.S.C. 78i(c) and 78r(a), the
r's Re ustment Act of 38 U.S.C. 1822(b), the
Co munications Act of 1934,42 U.S.C. 206,and theOrganized
rime Control Act of 1970, 18 U.S.C. 1964(). In cases under these
laws, fees ae an integral part of the remedy ne to achieve
compliance with our statutory policies. As former Justice Tom Clark
suit r the Labor-Management

tantamount to repealing the Act itself by frustratin its basic
urp counsel fees the gant Federal.
urisdiction is but an empty gesture * *. Hallv. O Ce, 412
U.S. 1 (1973), quoting 462 Y. 2d 777, 780-81 (2d Cir. 1972). -
The remedy of attorneys' fees has always been recognized as par-
tiulaly appropriate in the civil rights area, and civil rights and
attorneys' fees have alway been closely interwoven. In the civil rights
area, Congress has instructed the courts to use the broadest and most
effective remedies available to achieve the goals of our civil rights
En ement Act of 1870, 16 Stat 140, which provided or toey'
fees in three sepaate ti votg rights.
; h.

fees as well. In 1964, seeking to assure full com pliance with the Civil






Mi3F.d 290 (5th Cir. 1964).
The e on established by these provisions were eliminated in 1894. 28 Stat. 36.

S.1. 1011




10


4

E.g., Title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3612(c);
the Emergency School Aid Act of 1972, 20 U.S.C. 1617; the Eq
Employment Amendments of 1972, 42 U.S.C. 20e-16(b) the
Voting Rights Act Extension of 1975, 42 U.S.C. 19731(e).
These fee shifting provisions have been successful in enabling
vigorous enforcement of modern civil rights legislation, while at the
same time limiting the growth of the enforcement bureaucracy. Before
May 12, 1975, when the Supreme Court h ded down its decision in
Alyeska Pipeline Service C. v. Wilderness Society, 421 U.S. 240 (1975),
many lower Federal courts throughout the Nation had drawn the obvi-
ous analogy between the Reconstruction Civil Rights Acts and these
modern civil rights acts, and, following Congressional recognition in
the newer statutes of the "private attorney general" concept, were
exercising their traditional equity powers to award attorneys fees
under early civil rights laws as well.3
These pre-Alyeska decisions remedied a gap in the specific statutory
provisions and restored an important historic remedy for civil rights
violations. However, in Alyeska, the United States Supreme Court,
while referring to the desirability of fees in a variety of circumstances,
ruled that only Congress, and not the courts, could specify which laws
were important enough to merit fee shifting under the "private
attorney general" theory. The Court expressed the view, in dictum,
that the Reconstruction Acts did not contain the necessary ongres-
sional authorization. This decision and dictum created anomalous gaps
in our civil rights laws whereby awards of fees are, according to Alyeska,
suddenly unavailable in the most fundamental civil rights cases. For
instance, fees are now authorized in an employment discrinatio
suit under Title VII of the 1964 Civil Rights Act, but not in the same
suit brought under 42 U.S.C. 1981, which protects similar rights but
involves fewer technical prerequisites to the filing of an action. Fees are
allowed in a housing discrimination suit brought under Title VIII of the
Civil Rights Act of 1968, but not in the same suit brought under 42
U.S.C. 1982, a Reconstruction Act protecting the same rights. Like-
wise, fees are allowed in a suit under Title II of the 1964 Civil Rights
Act challenging discrimination in a private restaurant, but not in suits
under 42 U.S.C. 1983 redressing violations of the Federal Constitu-
tion or laws by officials sworn to uphold the laws.
This bill, S. 2278, is an appropriate response to the Alyeska decisin.
It is limited to cases arising under our civl rights laws, a category
of cases in which attorneys fees have been traditionally regarded as
appropriate. It remedies gaps in the language of thee civil rights
laws by providing the specific authorization required by the Court in
Alyeska, and makes our civil rights laws consistent.
It is intended that the standards for awarding fees be generally the
same as under the fee provisions of the 1964 Civil Rights Act. A party
seeking to enforce the rights protected by the statutes covered by
S. 2278, if successful, "should ordinarily recover an attorney's fee
unless special circumstances would render such an award unjnst."
Newanv. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968).'
SThese civil ghts es are too numerous to cite here. See, e.g., Sim* v. Amos 340 F. Su. 91 (M.D.
Ala. 1972) aff'd, 409 U.S. 942 (1972); Stanford Daily v. Zurcher, 3 Supp. 18 (N.D. Cal. 197); andases
cited in Alyeka Pipeline, supra, at n. 46. Many of the relevant cases are cleted in "Hai on the Effect
of Legal Fees on the Adequacy of eprntaton Before the de y Subcom. on Representatn of Ctizen Interests
of the enate Comm. on the Judiciary," 93d Cong., 1st sess., pt. at pp. 888-1024, and 1
4 In the large majority of cases the party or parties seeking to enforce such rights will be the plaint
and/or plaintiff-intervenors. However, n the procedural posture of some cases, the parties seeking to enforce
such rights may be the defendants and/or defendant-ntervenors. See, e.g., Shelley v. Kraemr, 334 U.S.
1 (1948).
S.R. 1011








5
Such "private attorneys general" should not be deterred from bringing
Sfaith actions to vdicate the fundamental rights here involved
by the prospect of having to pay their opponent's counsel fees should
ey lose. Ricrdso v. Hotel Corporation of America, 332 F. Supp.
519 (E.D. La. 1971), af'd, 468 F. 2d 951 (5th Cir. 1972). (A fee award
to a defendant's employer, was held unjustified where a claim of racial

party, if unsuccessful, could be assessed his opponents opponent's fee only where
it is shown that his suit was clearly frivolous, vexatious, or brought for
harassment purposes. ited States Steel Corp. v. ited States, 385
F. Supp. 346 (W.D. Pa. 1974), affd, 9 E.P.D. 10,225 (3d Cir. 1975).
This bill thus deters frivolous suits by authorizing an award of
attorneys' fees against a partyshown to have litigated in "bad faith"
under the guise of attempting to enforce the Federal rights created
by the statutes listed in S. 2278. Similar standards have been followed
not only in the Civil Rights Act of 1964, but in other statutes providing
for attorneys' fees. E.g., the Water Pollution Control Act, 1972 U.S.
Code Cong. & Adm. News 3747; th e Mai Protection Act, Id. at
4249-50; and the Clean Air Act, Senate Report No. 91-1196, 91st
Cong., 2d Sess., p. 483 (1970). See also Hutchinson v. William Barry,
Inc., 50 F. Supp. 292, 298 (D. Mass. 1943) (Fair Labor Standards
Act).
In appropriate circumstances, counsel fees under S. 2278 may be
awarded pendente lite. See Bradley v. School Board of the City of
mond, 416 U.S. 696 (1974). Such awards are especially appropriate
where a party has prevailed on an important matter in the course of
litigation, even when he ultimately does not prevail on all issues.
See Bradley, supra; Mills v. Electri Auto-te Co., 396 U.S. 375
(1970). Moreover, for purposes of the award of counsel fees, parties
may be considered to have prevailed when they vindicate rigts
through a consent judgment or without formally obtaining relief.
Kopet v. quire Realy o., 523 F. 2d 1005 (2d Cir. 1975), and cases
cited therein; Parham v. thwestern Bel Telephone Co., 433 F. 2d
421 (8th Cir. 1970); Richards v. Grith Rubber Mills, 300 F. Supp.
338 (D. Ore. 1969); Thomas v. Honeybroo Mines, Inc., 428 F. 2d
981 (3d Cir. 1970); Aspira of New York, Inc. v. Board of Education
of the City of New York 65 F.R.D. 541 (S.D.N.Y. 1975).
In several hearings held over a period of years, the Committee has
found that fee awards are essential if the Federal statutes to which
S. 22'78 applies are to be fully enforced.' We find that the effects of
such fee awards are anc ry and incidet to securing ompliance
with these laws, and that fee awards are an integral part of the
remedies necessary to obtain such complance. Fee awards ae there-
fore provided in cases covered by S. 2278 in accordance with Congress'
powers under, inter alia, the Fourteenth Amendment, Section 5. As
with cases brought under 20 U.S.C. 1617, the Emergency School
Aid Act of 1972, defendants in these cases are often State or local
bodies or State or local officials. In such cases it is intended that
the attorneys' fees, like other items of costs,8 will be collected either
directly from the official, in his official capacity,7 from funds of his
agency or under his control, or from the State or local government
(whether or not the agency or government is a named party).
See, e.g., "Hearings on the Effect of Legal Fees," supra.
Fairmont Creamery Co. v. Minnesota, 275 U.S. 168 (1927).
'7 Proof that an official had acted in bad faith could also render him liable for fees in his individual capacity,
under the traditional bad faith standard recognized by the Supreme Court in Alyteaka. See Class v. Norton,
W F. 2d 123 (2d Cir. 1974); Doe v. Poelker, 515 F. 2d 541 (8th Cir. 1975).
5.R. 1011





12

6

It is intended that the amount of fees awarded under S. 2278 be
governed by the same standards which prevail in other types of equally
complex Federal litiation, such as anttrust cases and not be reduced
because the rights volved may be nonpeuniary in nature. The
appropriate standards, see Joso v. Georgia Highway E
488 F. 2d 714 (5th Cir. 1974), are correctly plid insuch cases as
Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis v.
Conty of Los Angeles, 8 E.P.D. 9444 (C.D. Cal. 1974); and Swa v.
rlotteMekleburg Board of Education, 66 F.R.D. 483 (W.D.N.C.
1975). These cases have resulted in fees which are adua to attract
competent counsel, but which do not produce windfalls to attorneys.
In computing the fee, counsel for prevailing parties should be paid,as
is traditional with attorneys compensated by a fee-paying client, "for
all time reasonably expended on a matter." Davis, supra; Stanford
Daily, upra, at 684.
This bill creates no startling new remedy-it only meets the
technical requirements that the Supreme Court has laid down if the
Federal courts are to continue the practice of awarding attorns'
fees which had been going on for years prior to the Court's May
decision. It does not change the statutory provisions regarding the
protection of civil rights except as it provides the fee awards which
are necessary if citizens are to be able to effectively secure compli-
ance with these existing statutes. There are very few provisions in our
Federal laws which are self-executing. Enforcement of the laws depends
on governmental action and, in some cases, on private action through
the courts. If the cost of private enforcement actions becomes too
great, there will be no private enforcement. If our civil rights laws
are not to become mere hollow pronouncements which the average
citizen cannot enforce, we must maintain the traditionally effective
remedy of fee shifting in these cases.
CHANGES IN EXISTING LAw MADE BY THE BILL ARE ITALICIZED
REVISED STATUTES 722, 42 U.S.C. 1988
"The jurisdiction in civil and criminal matters conferred on the
district courts by the provisions of this chapter and Title 18, for the
protection of all persons in the United States in their civil rights, and
for their vindication, shall be exercised and enforced in conformity
with the laws of the United States, so far as such laws are suitable
to carry the same into effect; but in all cases where they are not
adapted to the object, or are deficient in the provisions necessary to
furnish suitable remedies and punish offenses against law, the common
law, as modified and changed by the constitution and statutes of the
State wherein the court having jurisdiction of such civil or criminal
cause is held, so far as the same is not inconsistent with the Consti-
tution and laws of the United States, shall be extended to and govern
the said courts in the trial and disposition of the cause, and, if it is
of a criminal nature, in the infliction of punishment on the party found
guilty." In any action or proceeding to enforce a provision of sections
19771978,1979,1980 and 1981 of the Revised Statutes, or Title VI of the
Civil Rights Act of 1964, the court, in its discretion, may allow the pre-
vailing party, other than the United States, a reasable attorney's fee
as part of the costs.
S.R. 1011





13


7

CoST OF LEGISLATION
The Congressional Budget Office, in a letter dated March 1, 1976,
has advised the Judiciary Committee that: "Pursuant to Section 403
of the Congressional Budget Act of 1974, the Congressional Budget
Office has reviewed S. 2278, a bill to award attorneys' fees to prevailing
parties in civil rights suits.
"Based on thisreview, it appears that no additional costs to the
over" ment would be incurred as a result of the enactment of this







































S.R. 1011


























jXL






a ~ ~ ; ~I~ I ~I''~, a


,;~ j ,~~ ";' ~, "








C




.'E





























SENATE DEBATES
























79-586-77-3







































































































































E










I

[122 Cong. S 16250 (daily ed., Sept. 21,1976) ]

Ci R s ATTOiRY' FEEs AWARD ACT
Mr. RoBmT C BRD. Mr. President, I move that the Senate proceed
to the consideration of 2278.
The PRE8DING OFFICER (Mr. Hollings). The bill will be stated by
title.
The legislative lerk read as follows:
A bill (S. 2278), the Civil Rights Attorney's Fees Awards Act of 1975.
Mr. RoBFRT. ~ D. I ask for the yeas and nays.
The P.SING O ER. Is there a sufficient second? There is a suf-
ficient second.
The yeas and nays were ordered.
The PRESIING O IER. The question is on agreeing to the motion
to proceed. The yeas and nays have been ordered. The clerk will call
the roll.
The second assistant legislative clerk called the roll.
Mr. ROBE C. Y I announce that th Senator from Texas (Mr.
Bentsen), the Senator rom Nevada (Mr. Cannon), the Senator from
Idaho (Mr. Church), the Senator from Michigan (Mr. Philip A.
Hart), the Senator from Indiana (Mr. Hartke), the Senator from
Wyoming (Mr. McGee), the Senator from Minnesota (Mr. Mondale),
the Senator from New Mexico (Mr. Montoya), the Senator from Cali-
fornia (Mr. Tunney), and the Senator from Kentucky (Mr. Ford)
are necessarily absent.
I further announce that the Senator from Ohio (Mr. Glenn), the
SMontana (Mr. Mansfield), and the Senator from South
akota (Mr. McGovern), are absent on official business.
Mr. nri n. I nounce that the Senator from Maryland (Mr.
Beall),he Senator from Tennessee. (Mr. Brock), the Senator from
New York (Mr. Buckley), the Senator from Maryland (Mr. Mathias),
and the Senator from Idaho (Mr. McClure) are necessarily absent.
I also announce that the Senator from Tennessee (Mr. Baker) is
absent on official business.
The resut ws announcedyeas 69, nays 12, as follows:
[Rolleall Vote No. 613 Leg.]


Abourezk Byrd, Harry F., Jr. Dole
Bart Byrd, bert Domii
Riden Clark Fong

Burdick Curtis Griffn "






18

YEAS-69-Continued

Hart, Gary Long Ribicoff
Haskell Magnuson Roth
Hatfield McIntyre Schweiker
Hathaway Metcalf Scott, Hugh
Hollings Moss Spa
Hruska Muskie tfford
Huddleston Nelson Stevins
Humphrey Nunn Stevenson
Inouye Packwood Stone
Jackson Pastore Sym ngton
Javits Pearson Taft
Johnston Pell Talmadge
Kennedy Percy Weicker
Laxalt Proxmire Williams
Leahy Randolph Young
NAYS-12
Allen Helms Thurmond
Eastland McClellan Tower
Fannin Morgan
Goldwater Scott, William L. ..
Hansen Stennis
NOT VOTING-19
Baker Ford McGee
Beall Glenn McGovern
Bentsen Hart, Philip A. Mondale
Brock Hartke Montoya
Buckley Mansfield Tunney
Cannon Mathias
Church McClure
So Mr. Robert C. Byrd's motion was agreed to.


CLOTURE MOTION

Mr. OBERT C. BYED. Mr. President, I send a cloture motion to the
desk.
The PRESIDING OFFIiER. The cloture motion having been presented
under rule XXII, the Chair, without objection, directs.the clerk to
read the motion.
The legislative clerk read as follows:

CLOTURE MOTION
We, the undersigned Senators, In accordance with the provisions of Rule XXII
of the Standing Rules of the Senate, hereby move to bring to a close the debate
upon S.
[S 16251] -
2278, the Civil Rights Attorney's Fees Awards Act of 1975.
Hubert eL Humphrey, Birch Bayh, Quentin N. Burdick, Alan Cranston,
Robert C. Byrd. Patrick J. Leahy, William D. Hathaway, Dick
Clark. Edward M. Kennedy, James Abourezk, Hugh Scott, arri
son A. Williams, John A. Durkin, James B. Pearson, Bob Pack-
wood, Frank E. Moss, Jacob K. Javits, William Proxmir, Henry
M. Jackson, Lowell P. Weicker, Mark Hatfield.
SCongressional Record pages are shown in brackets









The Senatecontinued with the onsideration of the bill (S. 2278)
relating to the Civil Rights Attorney's Fees Award Act of 1975.
Mr. HU Scorr. Mr. President, I rise in support of S. 2278.
I lieve it ranks g e mos important measures we will act on
this year. Simply 27 is designed principall to allow the
courts to award attorney fee to prevailing plaitiffs civil rights
cases. Suc a provision would greatly aid th cause of human rights in
this country, would cost the Government nothing, and would make
the civil rights laws almost self-enforcing.
If we pass this worthwhile easure, w will do a great servce in
the continuing battle to eradicate discrimination n the United States.
e will swithot an increase in the Feeral budget or in the
bureaueracy.
Each of the provisions covered by S. 2278 relies upon private enforce-
ment. Recently, spiraling court costs have created an absolute necessity
of attorney's fee provisins in those civil rights statutes which cntain
citizen suit provisions. Congress should encourage citizens to go to
court in private suits to vindicate its polices and protect their rights.
To doso Cngress must inure that they have the means to go to court
tand o be effe e oe they get there. This is particularly true in the
civil rights. areawhere those men and women whom the laws protect
are rarely, if ever in a financial position to undertake the costly task of
enfr nt of teir rights.
S228 is neede to asure thatattorney's fees will
be available in suits brought under the reconstruction-era civil rights
lawVIf te964 Cil Rht Act, and ile X of the Educa-
tion Amendmet of 1-97 in the same fashion and to the same extent
as e statutes presently provide in cases b uder title VII of
the 1964 Civil Rights ct. Mr. President, as a nation of laws, and as
governent of lawswe hould welcome citien uits which succeed
in enforing the laws. Attorney's fees have proven to be a singularly
effective and flexible way to encourage private enforcement of public
rights, and I strongly urge this body to accept S. 2278.
Myon regret s at t ditingshed Senator from Michigan (Mr.
PIMP A. ART),who has been at my side so often in the past fight-
ing for the cause -of civil rights,cannot be with us for the last battle
of this fil campaign. Hisefforts on behalf of the bill earlier in the
session proved decisive, however. Without his powerful intellect and
mor suasion, the bill would have languished in ommittee. I know
he. too jns us n urgig its passage.
Mr. Mr. President, as a supporte r all

The goal of S. 228 is clear and compelling-to insre that the high

the Senate can transform this goal into a reality.

which has erected a formidable financial barrier against those seeking








access to Federal courts and has lt a serious blow to
the effective enforcement of our civi rights laws. Specifically, in
Alyeska Pipeline Service Co. v. Wil Society, 421 U.S. 240
(1975) the upree Court held that not the judiciary should
authorize the award of attorney fees in cae aris&g under ederal
laws. The Court foundthat in the absence of statutory language
the courts were powerless to award attorney's fees.
Given the often staggering costs of litigation, this decision has pre-
dictably slowed the number of private suits brought to enforce fed-
erally mandated rights, including case premised upon our civil rights
laws. Alyeska presented Congress with an opportunity to enact legisla-
tion to help insure that one's financial resources need not be a pre-
requisite to access to Federal court.
I believe that S. 2278 constitutes a much needed response to Aleska
and is necessary to guarantee the proper enforcement of our civil rights
laws which the Congress has so earnestly labored forin the past. Unless
the Congress enacts S. 2278, one of the groups of potential litigants
most severely affected by Alyeska-those persons seeking to their
rights under Federal civil rights statutes-will frequently be denied
access to Federal courts.
Mr. President, we must bear in mind at all times that rights that can-
not be enforced through the legal process are valueless; such a situa-
tion breeds cynicism about the basic fairness of our judicial system
Consequently, Congress must be vigilant to insure that our legal rights
are not hollow ones.
The vigilance is especially important at a time when access of in-
dividuals to our Federal courts has been severely limited by several
recent Supreme Court decisions interpreting Federal statutes. Mr.
Justice Brennan poignantly described the inequities flowing from such
restrictive judicial rulings:
A series of decisions have shaped the doctrines of jurisdiction, justiciability
and remedy, so as to increasingly bar the federal courthouse door in the absence of
showings probably impossible to make. It is true of course that there has been an
increasing amount of litigation of all types filling the alendars o virtually every
state and federal court. But a solution that shuts the courthouse door in the face
of a litigant with a legitimate claim for relief, particularly claim for a depriva-
tion of a constitutional right, seems, to be not only the wrong tool but a danger-
ous tool for solving the problem. The victims of the use of that tool are motften
the litigants in need for judicial protection of their rights: the poor the under-
privileged, the deprived minorities. The very life blood of courts is the popular on
fidence that they mete out evenhanded justice and any discrimnation J hat dnenes
these groups access to the courts for resolution of their meritorious claims, un-
necessarily risks loss of that confidence.
I fully concur with the views expressed by Justice reian and I
urge my colleagues to keep his eloquent words in mind when consider-
ing S. 2278 and related legislation.
Mr. President, I believe that it is incumbent upon Congres to doit
part to insure the proper enforcement of our civil rights laws. By
providing for reasonable counsel fees to prevailing parties in civil
rights cases, the Congress can take a giat step in that diectioby
minimizing the formidable barrier erected by the Court's decision. I
urge my coleagues to act favorably upon S. 2278.






21

UP AMENDMENT NO. 469


Mr. KENNEDY. Mr. President, I send to the desk an amendment and
ask for its imnediate consideration.
The PRESMING OFIOER. The amendment will be stated.
The legislative clerk read as follows:
The Senator from Massachusetts (Mr. Kennedy) proposes an unprinted
'Strke out allfter the enating clause and insert in lieu thereof the following:
ct may ced as "The Civil Rights Attorney's Fees Awards Act
'Sac. 2. That the Revised Statutes section 722 (42 U.S.C. 1968) is amended by
adding the following: "In any action or proceeding to enforce a provision of
seti 177, 8, 1 1980, and 1981 of the Revised Statutes, title IX of
Plic aw 92-318 or VI of the Civil Righ-ts Act of 1964, the court, in its
discretion, may allow the prevailing party, other than the United States, a reason-
able attorney's fee as part of the costs".
Mr. K NNEDY.Mr. Preident, I yield for a unanimous-consent re-
quest to the Senator from Maine without losing my right to the floor.


r. AMr. President, there will be no unanimous-consent re-
. .


quests granted in the Senate until this matter has been disposed of as

ThePPassiD OFICEIR. Objection is heard.
The Senator from Massachusetts has the floor.
Mr. Ken, Mr. President, I ask that Jim Davidson be


ThePRE SIDNG F InCER.Objection is heard.
Mr. K ED. Mr. President, the purpose of this amendment is
rather simple, yet it is important. It has the support of the admin-
istration. It is, basically, to conform this legislation to the legislation


It will thus expedite final enactment of this bill.


zes ederal to aar attorys' fees to a prevailing party
in suits brought to enfor c ertain civil rightsacts. This bill would
close a series of loopholes in our civil rights laws created by the Su-
preme Court's Alyeska decision last year, and would reestablish a uni-
formity in the remedies available under Federal laws guaranteeing
civil and constitutional rights.


nuthorized "fee-shifting" by statute. Although prior to this decision
Federal courts had been awarding fees to successful plaintiffs in cases
l l +^,

+++i +++ ++++++++++++++++ + ++ + M i+ + + + + + +++ ++ + ,++ ++
+++I Ili ++ + + + + ++ +++ + + +++





22

brought under a broad variety of civil rights laws, he Court's Alyeska
ruling reated enormous incongruities in that private citizens can now
afford to seek enforcement f only those civil rights laws which con-
tain explicit prvisions for fee-shifting. The result is plain: few private
civil rights enforcement actions can now be brought under these Fed-
eral statutes not providing for fee awards. The bill bore us today
would elimiate this anomaly by permitting courts to make discre-
tionary fee awards under all Federal civil rights statutes.
The Senate and House versions of the bill differ in only one sub-
stantive respect: in addition to those civil rights statutes included
within the coverage of the bill reported by the Senate Judiciary Com-
mittee, the House bill includes coverage of title IX of Public Law
92-318, the Education Amendments of 1972. Inclusion of cases brought
under title IX would mean that where educational programs which
receive Federal assistance discriminate on the basis of sex or blindness,
courts would be able to make discretionary awards of attorneys' fees
to successful litigants in order to assist private enforcement efforts in
this crucial area of the law.
I am therefore offering an amendment in the nature of a substitute
to S. 2278, which would confirm the language of the bill precisely to
the HIouse bill, H.R. 15460. Inclusion of title IX cases provides a useful
improvement in the bill, and one which has the full support of the
bill's Senate sponsors. The administration itself also expressed support
for this amendment when it was offered during the House Judiciary
Committee markup on the bill.
In recent years, there has been a growing recognition that discrim-
ination on the basis of sex is both pervasive and persistent. For that
reason Congress has banned sex discrimination in such areas as em-
ployment, housing, credit, and, in title IX of the Emergency School
Aid Act, education programs or activities which receive Federal assist-
ance. The title is the analog, in the field of education, of title VI of
the Civil Rights Act of 1964, which prohibits discrimination on the
basis of race or sex, they violate fundamental rights which are at the
bedrock of our soiety's notions of fair play and human decency. It
is Congress' obligation to enforce the 14th amendment by eliminating
entirely such forms of discrimination, and that is why both title VI
of the Civil Rights Act of 1964 and title IX of the Education Amend-
ments of 1972 have been included. As basic provisions of the civil
rights enforcement scheme that Congress has created, it is essential
that private enforcement be made possible by authorizing attorneys'
fees in this essential area of the law.
Where title IX is violated by a public school system, section 1983
is also involved, as in Lau v. Nichols, 414 U.S. 563 (1974). But in many
cases title IX involves other situations, for example, a private voca-
tional school receiving Federal assistance which discriminates on the
basis of sex in its admissions policy. In these cases, only title IX would
reach this pernicious form of discrimination.
Title IX also reaches another pernicious form of discrimination-
that against blind people and those who are visually impaired-and in
thse circumstances thse same fundamental principles apply.
Mr. President, the bill now before the Senate addresses the issue of
citizen access to the courts in a direct and effective manner. As chairman
of the Subcommittee on Administrative Practice and Procedure, I have






23

been concerned with removing legislative ad judicial barriers which
have the effect of denying citizens full access to the courts In order to
ure their legal rights. It is of little moment for the Congress to
enact laws expanding the protections afforded citizens in securing jobs,
housing, credit, or education without insuring that the beneficiaries of
our laws have the means of enforcing compliance with them, legal
battles to vindicate basic human rights-congressionally secured
rights-can be as costly as any other form of litigation, and the costs
frequently outrun te economicenefits ultimately obtained by success-
fulitigants. Inevitaly this leads to the inability of the victims of
discrimination to obtain legal redress because they cannot shoulder the
full costs of vindicating their rights.
Fee-shifting is a time-honored judicial remedy. And Congress has
already provided for recovery of attorneys' fees in over 50 pieces of
legislation. Where Congress decides to emphasize certain policies, and
correspondingly to secure private rights or encourage more vigorous
enforcement of Federal laws, Congress frequently includes fee-
recovery provisions in its enatments. An attorneys' fees provision was
most recently included for ex ple, in the Hart-Scott-Rodino Anti-
trust Improvmenit Act for injunctive actions brought under the
Clayton Antitrust Act.
I believe that it is especially important that the availability of fee
awards be expanded to encompass all major Federal civil rights laws.
Not just a select few-chosen through historical accident-but all the
iv:il rights laws of this country must be complied with. Long experi-
ence has emonstrated, however, that Government enforcement alone
ca t co ish this. Private enforcement of these laws by those
mostdirectly affected must continue to receive full congressional sup-
port. shifg provides a mehanism which can give full effect to
ur civil rights laws, at no added cost to the Government.
Mr. President, while I hope this bill can be passed by both Houses
and signed into law before Congress djourns, I think it is important
that we reaie tht our efot to improve citizen access to the courts
will not end with the enactent of this legislation. Earlier this year the
Jud yittee reported S. 2715, which would authorize, among
s, wards of attrneys' fees in judicial actions for review of
certain Federal administrative decisions. While I do not anticipate
thatthe Sente will be able to act on this bill before the end of this
session I consider it to be essential to Congress' overall effort to i-
volve citizens in the enforcement of our laws, and I intend to press for
prompt Senate action in the snext session.
The bill now before us, Mr. Presdent. does not create an new
leal remdies nordoes it expand our civil rights laws into new areas
which Congress has not peviosly considred. It merely lends sub-
stance to the private enforcement of 'rights already auithorized under



lowing prior to the Alyeska decision.
attorneys' fees to Isuccessfuil arties, the rihts secured by those civil
kin ^ ofi feIffath


3!^rsy ertrMe l a
prova *,il llisIo~4e X ridsof
att<~ ~ osuiet riht scurd y os cvi





24

rights laws covered by this act are hollow igts indee En actment
of this legislation would do much to assure all th itizens of s
Nation that the words "equal protection of law" mean what they say,
and that Congress firmly intends that all our civil rights laws be
vigorously enforced.
Mr. President, I do not intend to spend any more tiie disc
this particular amendment because it is well understood. It inoes
issues the Senate has acted on in the past.
It does seem to me to be an extremely important amendment. It will
expedite the passage of this legislation. It does have the support of
the administration. I am very hopeful it will be accepted here this
afternoon.
The PRESIDING OFFICER. The question is on the adoption
Mr. ALLEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. ALLEN. Mr. President, may I inquire of the Chair if this is a
printed amendment or if this is an unprinted amendment ?
The PRESIDING OFFICER. It is an unprinted amendment.
Mr. ALLEN. I wonder if copies might be made available to Senators.
The PRESIDING OFFICER. A copy will be provided to the Senator.
Mr. ALLEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.

[S 16253]
Mr. ALLEX. M. President, I am delighted to find the distinguished
Senator from Massachusetts (Mr. Kennedy) acting as floor leader for
the administration with respect to this particular amendment.
It is interesting that he would represent the administration on the
floor of the Senate. It is interesting to see he is doing that.
I am interested to see that his views correspond with the views of the
administration with respect to this particular subject.
Mr. President, this Congress may well go down in history as the
Congress that provided more bonanzas to the legal profession than any
other Congress in history.
We have already passed antitrust legislation which provides that the
attorneys general of the various States may farm out these antitrst
cases to attorneys of their choice as political favors, if they so desire,
and I assume they would, and, in some cases, treble damages are avail-
able.
Mr. President, inasmuch as we did not accept the House language
with respect to banning contingency fees, these attorneys can ollet,
these favored few can collect, in some cases-and it is not beyond the
realm of the possible-literally millions of dollars for their services.
Here, again, we are providing not one single additiona substantive
civil right or the enforcement of one single civil right provision but
are, instead, providing for attorney fees in civil rights cases, attorney
fees to be set by the court.
Frankly, Mr. President, I do not know what has happened to this
idea from the time it was considered by the Subcommittee on the Rep-
resenttion of Citizen Interests of the Judiciary Committee in 1973.
According to the committee report, this matter was considered in 1973.
If it was such a good idea, Mr. President, it seems to me that the Sen-







ate would have been called upon to act on it before now; 1973 was the
last Congress. Apparently nothing happened to the bill in te last Con-
It does not say that the Judiciary Committee ever reported it
St. f it was such a great idea, I wonder
Si id not f h iiay Committee back in 1973 to come
' to Shave e some good reason because
I am sure there were plenty of advocates to the legislation.
I am wondering if a person advocating this legislation is interested
in civil rights or if he is interested in attorney's fees.
Mr. President, I am a member of the legal profession, having een
admitted to the bar in Alabama in 1935. When I came to the Senate
I ceased all law prac di y a indirectly, with the exception of
the fact th I v, n ocasion, filed amiius curie briefs in the
Suprem Court rs affecting the well being of the people of the



r. President, I do ot see any reson fo bringing up Senate bill
w was considered by the subcommittee back in973. I do not have
the record of what happened t it in the committee. I am going to try
iiit was efated i the o i In 1973 it was passed
out of the subcommittee of the Judiciary Committee. It has not arrived
on the floor from 193 until this very day, unless I am mistaken. I do
not see any indication that it has. I am sure if it has arrived, I will be
MrKw ,. If the Senator will yield at that point-
M A x..No, I dno yield. The Senator will have an opportu-
SKENNEDY. If the Senator doe not wan to yield for a question,
I will wait.
M.M Amj Very well. I will vield for a question.
Mr. K NEDY. Was this the same provision included in the voting
rights of 1975 which passed the Judiciary Committee and -actually
--
Mr. A I am talking about this bill. It was never considered on
the Senate floor.
.Mr. KENNEY. It was passed out of the Judiciary Committee and in-
cluded in the Voting Rights Act of 1975.
Mr. AJ It v c e out on the floor here.
Mr.. Te Senator is not correot. It was included in the
Voting Rights Act and it passed the Judiciary Committee. It was not
enacted as part of the final Voting Rights Act because the Senate ac-
pro ions. But I think it is quite clear that
it was already considered in the Judiciary Committee.
Sn n i Wha't the Sen-
ator from Alabama said was that this bill had never been considered


bill, but he also says that the Senate did not consider that bill and in-
Mr. KENNDY. Will the Senator yield for a question.






S26
Mr. ALLE For a question.
Mr. KENNY. The record of the pre s d ussion ws t poi
where the Senator said that it was considered in the Senate Commttee
on theJudiciary, that it passed the Senate Committee on the Judiciary
and it was reported. The Senator is correct that it was not considered
on the floor because the Senate considered the House-passed bill.
The record will show whether the Senator stated that or whether the
Senator said that the Senate Committee on the Judiciary did not con-
sider it.
I am correcting the Senator's suggestion that the Judiciary Com-
mittee did not consider it. It did consider it. It did report it and it did
feel that it was a good idea at that particular time.
Mr. ALLEN. In answer to what the Senator fro Massachusetts said,
the Senator from Alabama said that this bill, apparently, and I am
referring to the committee report, was not acted upon by the full com-
mittee. I will stand by that and back it up with this committee report
from the Senator's own committee, the Committee on the Judiciary.
He is saying that this was a provision in another bill having to do
with an entirely different matter. I had stated that it was never acted
upon here on the Senate floor. It was never considered here on the Sen-
ate floor. I will stand by that statement. The Senator has not pro-
duced any evidence that the bill or this provision was ever considered
on the Senate floor.
Now, Mr. President, if it was reported by the Senate Comite
the Judiciary and it was so important, why did the Senate not act on
it? It seems like a pretty easy bill to bring up. All they have to do is
put in a nondebatable motion that it come up and it will. So here it is.
This bill apparently laid dormant from the subcommittee hearing in
1973 until it was passed in this Congress, but had never before been
considered, before today here on the floor of the Senate, from 1973 on.
This particular provision, Mr. President, the Senator says was in
another bill. Well, that bill, though reported out of the Committee on
the Judiciary, has never been considered on the Senate floor. So if it
is such a great bill, if it is an idea whose time has come, if these attor-
neys need their fees, I guess they needed them back in 1973, and they
needed them in 1974, and they needed them in 1975, and they needed
them in the first 8 months of 1976; but nothing was done to help these
poor attorneys under that bill. No action on the Senate floor.
Advocates of the bill having full control of the Senate machinery,
advocates of the bill having full control of the committee sy m,
advocates of the bill having a topheavy vote on bringing the matter
u), why has it not been considered on the Senate floor, if it is so great?
That is what puzzles the Senator from Alabama.
So now. Mr. President, as the Senate is supposed to be racing toward
adjournment on October 1 or October 2. here we are, taking up the time
of the Senate and taking up the time of Congress on a Senate bill tat
I assume will go to q committee over in the House of Representatives
after it passes here. I assume it will, though they sem eto have a way
of shortlctting committees when they want to. I assume this matter
will go to a committee over there, and maybe they will ave an amend-
ment, and it may go to conference. But how are we going to work all
those things in, in the short time that remains to the Senate on this
matter ?





27




[S 16254]

of leadership on this important attorney' fees bill over to the dis-


You know, Mr. President, I kind of hate to embarrass. the distin-
guished Senator from California (Mr. Tunney) by bringing this bill
up in his abse! n I jst d ot feel tt the proponents of the bill
S ve ema god frin from California, who is in
a life-and-death struggle out in California to retain his seat. But I
edict that before this bill is passed-and it will be several days before
it passes, I assurethe Senat-befre this bill passes, the distinguished

in behalf his ther torney, ecause mistake it not, thi is a
lawyers' bill.
I hazard the guess that they e not satisfied with the action by
Congres i providig windfalls in the tens of millions of dollars
for the bar throughout the 50 States of the Union under the antitrust
bill. ey are not content with that, Mr. residen. They come forward
a a te Su ee ourt has said that in many cases
St cas are allowed. We have got to

That is. what the Supreme Court said. The Supreme Court held, in
the case mentioned by the distinguished Senator from Massachusetts,
the Alyeska case, that thecourts do not have the power under their
equity powers to grant attorneys fees in cases unless there is a specific
authorization by Congress for such fees to be paid.
Mr. President, you can imagine the consternation that this ruling
by the Supreme Court caused in legal circles. "Why, the Supreme
Court says we can't collect attorneys fees when we prosecute civil
rigits cas" do not know 'hat t e attorneys came lt be sponsors
of this legislation here in the Senate They said, "W have avgot to
straighten this out; we have got to make provision for attorneys'
fees." There is not one single additional civil rights protection in this
Illeasure; so what is the concern? TIs the concern for protecting civil
rights, or is it for protecting the fees of attorneys, who have grown

Mr. President, there is atermin the law or a word in the law called
"barratry." That is a, word that is applied to the stirring up of

President, barratry is unethical if not illega So we t con-
cludeMr.President, that this bil wold constitute, if there coul be
such a designation, legal and ethical barratry, if that were not a con-
tradiction in terms, which it is. This bill would stir up litigation,
because, with all due respect to my brothers at the bar, the average
attorney s ot going to work up too much enthusiasm about bringing
a civil rights case unless he sees a prospect of obtaining a fee. n
There are organizations that in many cases do good work in furnis-
in legal counsel. The Civil Liberties Union has made a notable con-
f-ia~~ii~ i f~t":p~^^ : iiih'"! l''hniii "IiiS~ipi"^ sit mJ B r'ik1jf"EV ri'nTi~s rT iE *r~'iy "i^i~~ik ii nb1 Q i.iVn .
li~lACa-,^ (^^ASXIAI^ .,JI A~^ U 5~~~lJ li.^^^^B l~I .fl^ ^M^^s is. ^ i ^ ^"f'"5 "^ ""~i^B if'iil ^ "!'. I5 1 l I~ ^t.^ ff'^'fl ffT~l" "Wi5^I^^5 Vw i j iss ^ l gg^p* y A







|llB-BIsl..B.(l: i;l*OClp, WAl'n kulpo^M'l.. i~mIA Wlyi~.! gl^ j( Lnv~'filVl






28

tribution in frnisig counsel unpaid by the litigant in any areas
where the legal rights of an individual are being trampled upon. But
her, Mr. President, we have a bill whose ole pur is te
torneys fees for attorneys who file suits under the various sections
mentioned in the bill.
So, I do not believe this bill for the aid of attorneys ought to be
taking up the important time of the Senate. Let us let thim suffer
along for a few months, We will have another Con convening
January 3. I do not know, though, whether this measure will fare so
well in another Congress or not.
I do not propose to predict the outcome of the November Presiden-
tial election, but if the Democratic candidate should be eleted-and
the chances are that he will-I do not know whether he would look
with such great favor on a bill providing attorney's fees for lawyers.
One of his standard statements, in identifing himself at speeches that
he has made from time to time, is that he is these various things-these
various things being a peanut farmer and a Christian. He is t a
lawyer. though, he is quick to emphasize. So I do not know what the
Democratic candidate thinks he might gain from saying he is not a
lawyer, unless there are many who feel that lawyers are able to take
care of themselves, and it is my observation that they are. I do not be-
lieve we need this legislation that would add more areas open fo at-
toreys fees.
We have not had an explanation of the bill, Mr. President, of course.
It, was immediately brought up. There was not one word of explana-
tion about it. There is an amendment, I guess a substitute. I have not
had an opportunity to examine it too closely. Yet, it is a substitute,
and. of course, it will wipe out the provisions of the other bill.
But there has been not one word of explanation about the bill-not
one. There has been scant explanation of the substitute. Then it is up
for a quick vote unless someone should see fit to address some re rks
with respect to the bill.
I might state, also, that since this is a substitute, if it should be
adopted-and it looked as if it were pretty well on track to be
adopted-it would cut the Senate off from any amendment whatsoever
on this bill. There would be no further amendments. Ram it through.
Take care of the attorneys. Add no more civil rights. Protect o more
civil rights. Only see that the attorneys get paid. That is what this bill
does. And here we are in the Senate considering a bill to provide at-
torneys fees for attorneys.
Mr. President, there are a number of provisions now under which
attorneys fees can be paid. As a matter of fact, I see here at the bot-
tom of page 3 of the report that the last two lines has this interesting
sentence:
Since 1964 every major civil rights law passed by the Congress has included or
has been amended to include one or more fee provisions.
Mr. President if that be true, why are we working on this? I am
simply taking the Committee on the Judiciary at its word. They pre-
pared the report. I did not.
But the report says:
Since 1964 evry major civil rights law passed by the Congress has inluded
or has been amended to include one or more fee provisions.





29

So there is not one word of explanation of what civil rights provi-
s ihg in"
sions do not have attrneys fes attahed to them, and the very wording
of the committee report on this very bill-it is not on something else-
says that
. . every major civil rghts law passed by the Congress has included or has
been amended to include one or more fee provisions.
That being true, what is the need of this bill It provides attorneys
Severy cvil rights l that has passed si 1964. How much
farther back need you go That is when the great breathrough came-
in 1964.
d it gives some exa les of these acts that do have attorney's
fee but I am relying on this statement in the Judiciary Committee
report that all of these civil rights laws, all the major ones, passed
since 1964 have fee provisions attached.
That being true, what is he need of this bill
At the top of page 4 they give some specific examples, without
limiting the generality of the other statement which says "All major
civil rights laws when passed had attorney's fees provided, or were
ater amended tprovide attorney's fees," then, as I say, without limit-
ing t" h generaty that statement, they give examples of some of the
civil rights laws that do have attorney's fees attached.
I not that throughout all the bills of this type, very high in the
priority of those pushing bills of this sort is that there be a provision
for paying attorney's fees. Let us take care of the attorneys. Civil
Scare of themselves. Let us take care of the attorneys. That
is what this bill does. Let us see some of the acts that the Judiciary
Committee says have attorney's fees.
They say that title VIII of the Civil Rights Act of 1968, codified
in 42 U.S.C., section 3612(c), has attorney's fees attached. Then the
Emergency chool Aid Act of 1972, which is codified in 20 U.S.C.,
section 1617, has attorney's fees attached. Then Equal Employment
Amendments of 1972, codified in 41 U.S.C., section 2000(e) 16(b) has
attorney's fees. Then there is the Voting Rights Act Extension of 1975,
42 U.S.C., section 1973 (e). Those laws specifically have attorney's fees
provided.
However, the report, says that all major civil rights acts have
atto 's fees ttache. What do we conclude from that? Also, what
is a major civil rights law and t is a minor civil rights law If, as
the Judiciary Committee on the report says, every major civil rights
law passed y Congress has included or has been amended to include
one or more fee provisions and they are bringing in another bill, I
would have to assume from that, by a process of reasoning, by a process
of logic, by use of a syllogism, that this bill must refer-n the lan-
guage, not of the Senator from Alabama, but in the language of the
Cmmittee on the Judiciary-to minor civil rights laws. It said that
all major civil rights laws have that attached. So what is a minor civil


I do not regardanycivil rihts law as being minor. It has to do
with the rights of an individual, the rights to equal protection under
thelaw. It is a major civil rights. There are no minor civil rights. I





30

will have to disagree with the Judiciary Committee in apparently
branding the civil rights referred to in these sections as minor civil
rights. That does not follow the reasoning of the Senator from
Alabama.
The Senate has voted to proceed to the consideration of this bill
by a top-heavy vote. Having done so, it is going to continue to stay
on this bill. I say to the distinguished Senator who made the request
a moment ago that as soon as the Senator from Alabama sits down, it
would not take unanimous consent to bring up a House message. He
could call it up and move
Mr. PASTORE. Not while the Senator is on his feet.
Mr. ALTEN. I stated that as soon as the Senator from Alabama gives
up the floor, he could comply with the request of the distinguished
Senator.
Mr. PASTORE. I do not have to be told that.
Mr. ALLEN. That being the case, we will not worry about it.
Mr. PASTORE. I was only asking for a courtesy. I know the rules.
Mr. ALLEN. I thank the Senator. I want to accommodate him, but
apparently he does not want to be accommodated.
Mr. President, what we are dealing with here-and I am somewhat
in the dark, because there has been no explanation given, as to the
thrust of this bill, other than that it provides attorneys' fees in civil
rights cases-is that, somewhere along the line, I would like the pro-
ponents of the bill to explain what minor civil rights are involved in
the bill, inasmlch as the report says that all major civil rights laws
passed by Congress have included a fee provision. So somewhere
along the line, I assume, Mr. President. we will find out.
At this time, I move to table the substitute offered by the distin-
guished Senator from Massachusetts (Mr. Kennedy), and I ask for
the yeas and nays.
The PRESmING OFFICER. IS there a sufficient second? There is not a
sufficient second.
QUORUM CALL
Mr. ALLEN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the
order for the quorum call be rescinded.
Mr. ALLEN. I object.
The PRESIDING OFFICER (Mr. Abourezk). Objection is heard.
Mr. KENNEDY. Mr. President, I move that the Sergeant at Arms be
instructed to request the presence of the absent Senators.
Mr. ALLEN. The motion is out of order, Mr. President.
The PRESIDING OFFICER. Until the rollcall is completed, that motion
is out of order.
The clerk will continue to call the roll.
The assistant legislative clerk resumed and completed the call of the
roll and the following Senators answered to their names:
[Quorum No. 42 Leg.]
Abourezk Kennedy Percy
Allen Leahy Stennis
Bayh Muskie





31

The PESIDING O ER. A quorum is not present.
The Clerk will call the names of the absent Senators.
Mr. KENNEDY. I ask for the yeas and nays on the motion.
The PRESIDIG OFFICE. Does the Senator make a motion to instruct ?
Mr. KENNEDY. I move that the Sergeant at Arms be instructed to
request the presence of the absent Senators. I ask for the yeas and and
nays.
The PRESIDING OFICER. Is there a sufficient second ? There is a suf-
ficient second,
The clerk will call the roll.
The assistant legislative clerk called the role.
Mr. OBERT C. BYRD. I announce that the Senator from Nevada (Mr.
Cannon*, the Senator from Idaho (Mr. Church), the Senator from
Kentucky (Mr. Ford), the Senator from Michigan (Mr. Philip Hart),
the Seiator from Indiana (Mr. Hartke), the Senator from Wyoming
(Mr. McGee), the Senator from Minnesota (Mr. Mondale), the Sen-
ator from New Mexico (Mr. Montoya), the Senator from Missouri
(Mr. Symington), and the Senator from California (Mr. Tunney)
are necessarily absent.
I further announce that the Senator from Ohio (Mr. Glenn), the
Senator from Motana (Mr. Mansfield), and the Senator from South
Dakota (Mr. McGovern) are absent on official business.
Mr. GRIFFI. I announce that the Senator from Maryland (Mr.
Beall), the Senator from Tennessee (Mr. Brock), the Senator from
New York (Mr. Buckley), and the Senator from Alaska (Mr. Stevens)
are necessarily absent.
I also announce that the Senator from Tennessee (Mr. Baker) is
absent oft'official business.
The result was announced-yeas 79, nays 3, as follows:
SRolleall Vote No. 614 Leg.]
YEAS-79
Abourez, Hansen Nelson
Bartlett Hart, Gary Nunn
Bayh Haskell Packwood
Bell mo Hatfield Pastore
Bentsen Hathaway Pearson
Biden Helms Pell
Brooke Hollings Percy
Bumpers Hruska Proxmire
Burdick Huddleston Randolph
Byrd, Harry F., Jr. Humphrey Ribicoff
Byrd, Robert C. Inouye Roth
Case Jackson Schweiker
Chiles Javits Scott, Hugh
Clark Johnston Scott, William L.
Cranston Kennedy Sparkman
Culver Laxalt Stafford
Curtis Leahy Stennis
Dole Long Stevenson
Domenii Magnuson Stone
Durkin Mathias Taft
Eagleton McClellan Talmadge
Eastland McOlure Thurmond
Fannini McIntyre Tower
Fong Metcalf Williams
Garn Morgan Young
Gravel Moss
Griffin Muskie
79-586--77----4




32

NAYS-4
Allen Goldwater Weicker
NOT VOTING-18
Baker Ford McGovern
Beall Glenn Mondale
Brock Hart, Philip A. Montoya
Buckley Hartke Stevens
Cannon Mansfield Symington
Church McGee Tunney
So the motion was agreed to.
The PRESIDING OFFICER (Mr. ABOUREZK). A quorum is present.
The Senator from West Virginia.
Mr. ROBERT C. BYRD. Ar. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second There is a suffi-
cient second.
The yeas and nays were ordered.
Mr. ALLEN addressed the Chair.
The PRESIDIN O. The question is on agreeing to the motion
of the Senator from Alabama to lay on the table the amendment f the
Senator from Massachusetts. Theeas and nas have been ordered
and the clerk will call the roll,
The legislative clerk procee to call the roll.
Mr. ALLEN. I have an amendment at the desk.
The legislative clerk resumed calling the roll.
Mr. ALLEN. I have an aendment. -
Mr. ROBERT C. BYRD. Mr. President, Iask for the regur order.
The PRESIDING OFICER. The rolleall is in pr
The legislative clerk resumed calling the roll. .
The PRESIDING OFIC:RR. The clerk will suspend until there is order
in the Senate Chamber.
I ask Senators-the Senator from ine and the Senator from
Iowa-I am going to ask for order in the Chamber and the clerk will
suspend the rollcall until order is achieved.
Mr. NELSON. Mr. President, the 8enators obviously have not been
able to hear the Chair, to have order in the Senate.
The PRESIDIN OFFICER. The point of the Senator from Wisconsin
is well taken. Would the Senate please come to order? Would the
Senate show the courtesy to the other Senators who would like to vote
and have their vote rcorded?
The clerk will not proceed until order has been achieved in the
Chamber.
The clerk may proceed.
The legislative clerk resumed and concluded calling the roll.
Mr. ROBERT C. BYRD. I announce that the Senator from Neva (Mr.
Cannon), the Senator from Idaho (Mr. Church), the Senatorrom
Kentucky (Mr. Ford), the Senator from Michigan (Mr. Philip A.
Hart), the Senator from Indiana (Mr. Hartke), the Senator from
Colorado (Mr. Haskell), the Senator from yoming (Mr. McGee),
the Senator from Minnesota (Mr. Mondale), the Senator from New
Mexico (Mr. Montoya), and the Senator from California (Mr. Tun-
ney) are necessarily absent.



&







Sfurther announce that the Senator from Ohio (Mr. Glenn), the
Senator from Montana (Mr. Mansfield), and the

[S 16256]

Senator from South Dakota (Mr. McGovern) are absent on official

SMr. Gtiwri. I announce that the Senator from Maryland (Mr.
Beall), the Senator from Tennessee (Mr. Brock), the Senator from
New York (Mr. ckley), and the Senator from Alaska (Mr. tevens)
are necessarily absent.
I further announce that the Senator from Tennessee (Mr. BAKER)
is absent on official business.
The result was annunced-yes 5, nays 57, as follows:
[Rolleall Vote No. 615 Leg.]


Allen Goldwater Nunn
Bartlett Hansen* Scott, William L.
BeUlmon Helms Stennis
Byrd, Harry F, Jr. Bruska Talmadge
Curtis .Johnston Thurmond
Dole axat Tower
Eastand Long Young
Garn Meolure
NAYS-57
Abourezk Hart, Gary Packwood
Bayh Hatfield Pastore
Bentsen Hathaway Pearson
Biden Hollings Pell
Brooke Huddleston Percy
Bumpers Humphrey Proxmire
Burdiek Inouye Randolph
Byrd, Robert 0. Jackson Ribicoff
Case Javits Roth

Cranston Magnuson Sparkman
Culver Mathias Stafford
Domenic McIntyre Stevenson .
Durkin Metcalf Stone




NOT VOTING-18
Baker Ford McGee

I ,Buckley Hartke Montoya l
Cannon Haskell Stevens
|i; '''6 '*. !^flp|^i||lI~ :.6 ~ l.i" S ., r* B, ^s11.1 i .sI.. i'iRH^*^ M"SiI iii~ ^.. gs s^"5 p^*^^^^^l^^t sg !'"5] '






34

[S 16257]

CIVI RIGTs ArrOiEY' FEs AWARDS ACT

The Senate continued with the consideration of the bill (S. 2278)
relating to the Civil Rights Attorney's Fees Awards Act of 19.

UP AMJENDMENT NO. 470

Mr. HELS. Mr. President, I call up an unprinted amendment which
I have at the desk.
The PRESING OFIER. The amendment will be stated.
The legislative clerk read as follows:
The Senator from North Carolina (r. Helms) proposes an unprinted amend-
ment numbered 470 to the amendment of Mr. Kennedy numbered 469.
The amendment is as follows:
SEc. 3. The Congress finds that serious inequities and inequalities exist be-
tween-
(1) the Federal Government; and
(2) individuals, companies, unions, other organizations and State and local
governments in terms of the relative ease with which each is able, without
economic hardship, to prevail or secure vindication in civil and criminal
actions in the courts and in administrative proceedings. It is the purpose of
the Congress in this Act to diminish these inequities and inequalities by pro-
viding for the payment by the United States of attorney fees, expert witness
fees, and other costs in specified situations.
SEC. 4. (a) Section 2412 of title 28, United States Code, is amended to read as
follows:
" 2412. Attorney and witness fees and costs
"(a) Except as otherwise provided by subsections (b) and (c) of this sectio
and in section 2678 of this title, a judgment for costs, as specified in section 1920
of this title (but not including the fees and expenses of attorneys), may be
awarded to the prevailing party in any civil action brought by or against the
United States in any court having jurisdiction of such action.
(b) A judgment for costs as specified in section 1920 of this title, for the rea-
sonable expenses of any witnesses or expert witnesses, for the re ae cot of
any studies, analyses, engineering reports, tests or projects whichhe court finds
necessary to litigation of the action and for a reasonable attorney fee, based upon
the actual time expended by any attorney of a party and his or her staf in
advising and representing a party (at prevailing rates for such services, includ-
ing any reasonable risk factor component), may be awarded to any party, other
than the United States or any agency or official thereof, who prevails in any
civil action including an action for judicial review of agency action brought by
or against the United States or any agency or oicial thereof in any court having
jurisdiction of such action.
(c) In actions, including actions for judicial review of agency action, instituted
by or against the United States or any agency or official thereof, in which a party
other than the United States or any agency or official thereof-
"(1) prevails partially, such party may be awarded a judgment for costs
and fees, as specified in subsection (b), to the extent to which he prevails.
(2) does not prevail, such party may be awarded a judgment for costs and
fees, as specified in subsection (b), in any case in which such an award would
be in the interests of justice.
"(d) Any amount awarded for costs and fees shall be in addition to the com-
pensation, if any, awarded in any judgment.
"(e) A judgment for costs and fees shall be paid in the form and maner
provided, in sections 2414 and 2517 of this title, for the payment of jdgmets
against the United States.".
(b) The analysis of chapter 161 of title 28 of the United States Code is amended
by amending the item relating to section 2412 of said title to read as follows:








"2412. Attorney and witness fees and costs.".
S. 5. Subsection (a) of section 2517 of title 28, United States Code, is amended
to read as follows:
(a) Any final jdgent and any final gment for costs and fee which is
rendered by the Court of Claims against the United States shall be paid out
of any general appr on therefor, on presentation to the General Accounting
Office of a certification of such judgment, by the clerk and the chief judge of
such court.".
SEc. 6. Section 2678 of title 28, United States Code, is amended to read as
follows:
(a) If any judgment is ren ed, or if any settlement, award, compromise or
recommendation in favor of any party other than the United States is made,
after the'United States or a edera agency has received notice that a party has
retained a specified att y, such party shall be awarded a reasonable attorney's
fee, based upon the actual time expended by such attorney and his or her staff
in avising and repre ng sh party (at prevailing rates for such services,
including any reasonable risk f ponent) and all costs (including wit-
ness fees, studies, analyses, engineering reports, tests and projects) necessary
to litigation. In any other case, the court may award such costs and fees as are
in its discretion, in the interests of justice.
"(b) A amount awarded under this section for costs and fees shall be in
addition the comipensation awarded in any judgment, settlement, award,
compromise, or recommendation.".
Ec. 7. (a) Subehapter I of chapter 5 of title 5 of the United States Code is
amended by adding at the end thereof the following new section :
S504 Costs and fees of parties
(a) A party other than the United States or any agency or official thereof
participating in an agency proceeding shall be granted by the agency conducting
the proceeding and aid agency may pay, an award for fees and costs incurred
in order to participate in the proceeding if :
S( sai party is successf isscs n his defense against imposition of a sane-
S(2) in proceeding n which the agency is a moving paty, e is suc-
cessful in sing issuance of a order, or in proposing an amendment to
an order, which-
"(A) affects the freedom of said party;
"() withholds relief from said party;
(C) imposes a penalty or fine on said party;
(D) requires the destruction, seizure or withholding of prop-

assesses dama ges, reimbursement, restitution, compensation,
costs, cha or fees against said party;
() requires revokes, o susnds a license of said party; or
( otherwise compels or restricts said party; or
(3 a review appeal is determined substantially in favor of the party
which appeals a decision or which is subject to the decision reviewed.
SA u in so (a) of this sectoni, an 'award for fees and costs'
sof witnesses and expert witnesses and the
reasonable cost of any studies, analyses, engineering reports, tests, or. projects
necessary to determination of the proceeding together it a reasonable ttr-
neys or agent's fee based upon the actual time expended by such attorney or


[S 16258]
representing a party (at prevailing rates for such services, including any reason-

SThe analysis of subehapter I of chapter 5 of title 5, United States Code, is
amended by adding at the end thereof the following new item:
SEc. 8. (a) Chapter 201 of title 18, United States Code, is amended by adding i



at the end thereof the following new section:
" I I- *-- Z" lES .* IF~ i






36

" 3013. Fees and costs of defendants
(a) A defendant in a criminal case shall be granted by the court havng juris-
diction of the case and the United States may pay, an award to cpe id
defendant for the reasonable attorney fees and costs incurred by him in his de-
fense against a charge at trial and on any appeals if :
"(1) said defendant pleads not guilty to said charge and
"(A) said defendant is found not guilty, or
(B) the charge against said defendant is dismissed; or
"(2) said defndant is found guilty at trial and said finding is set aside
on appeal.
"(b) No award shall be made pursuant to paragraph (2 of subsection (a)
of this section unless the prosecution certfies to the court that no further appeal
will be made or unless the time for further appeal haexpired.
"(c) No award shall be made except on motion of the efendant with notice to
the prosecution.".
(b) The analysis of chapter 201 of title 18, United States Code is amended by
adding at the end thereof the following new item:
"3013. Fees and costs of defendants.".
Mr. HELMS. Mr. President, this amendment would grant successful
litigants in civil cases or agency hearings against the Federtl Govern-
ment, and acquitted criminal defendants, the right to an award of legal
fees and other expenses incurred in preparing and pursuing the litiga-
tion or the defense against prosecution for a Federal crime.
Mr. President, this amendment, in the main, is quite similar in its
thrust to S. 2871, introduced by the able Senator from New York (Mr.
Buckley) on January 26 of this year. There have been some modifica-
tions, which will be obvious to Senators comparing the two pieces of
legislation.
It is my feeling that this legislation is necessary in order to combat
the growing tendency of escalating legal costs to deter Americans from
enforcing and defending their legal rights against the U.S. Govern-
ment in the Federal district courts.
There is no question but that the Federal Government today possesses
an institutional power comparable to no other in our society. It spends
more than $370 billion annually, which constitutes more than one-
quarter of the Nation's total annual expenditures. The Federal Gov-
ernment employs millions of persons, among whom. are thousands of
lawyers assigned to enforce and defend the often lengthy arbitrary
regulations and rulings of hundreds of Federal departments and agen-
cies.
The annotated laws of the United States take up dozens of thick
volumes. Furthermore, the Federal Government's departments, age
cies, and bureaus profound regulations which are counted in the hun-
dreds of thousands, mandating such disparate requirements as product
safety standards, affirmative action programs, marketing practices,
and so forth.
Concurrent with the growth of Government, there has grown up a
feeling of helplessness among a large portion of the population. People
do not know how to cope with an institution the size and complexity
of which is so great that, literally, no one can come to terms with it.
Whether one is involved with a question regarding social security en-
titlement or a highly technical income tax regulation, or complex anti-
trust practices, or welfare regulations, or the withholding of categori-
cal grant formula funds, or Government contract disputes many of
which have nothing to do with the commercial terms of the contract-












of litigat aganst the
kndhkw toe bedwrng bdre eoas us~ cau he can-
not aord te l cost of tain te matter to court. In the case ~ a private
caitzen .it i o the in wealthy who could even begin to contem-
tand lcal gvemetd therore ta-
payeors, normally i~ on tight budgets, as do labor organizations
and business o rporations. Howeverights unr, the Federal Government is not
undr similar constaints. N aly, agecy or bureau is funded
to bring suits, to enforce the laws, to implement social policies. The
his proble i exacebated w the t incom e and assets oft
ate f. t iin, that is o say the average America n citizen, nd
S ndre the individual citn can be subject to a war of

tri t art of a determin Federal bureaucracy. Justice for
not afforde that the cost of sec uring justice not outweigh the
ent. It is ip also that could the expense
p t patte of the Government-a task which could

id business g bnficial impliHowever, cations for othe r Americant is not
to bring suits, to enforce the laws, to implemento social policies. Turt has helped
biatnc limits f eralauthority.
Thir awarding l l fs and cs civil actins ap-
pivt e tlli tcions in hich the United Saes or an agency or officialnd
a nat dingn claims nd judicial reviews of agency actions.remely




limay be de by courts in b avo of paties






.; .. .. .. .. .
prevaitiog over the Government in actions instituted or defended by
the Government. If the private party prevails partially, he must be


ofrdedaninmount for fees and costs incurred by him in the action
oha with hi#- suiccess. In cases n which the private party
reil wholly aworded fpat and wcosts when it is in the intrrest of

dnin proposal feren awards to prevailing parties. The costs subject
Sa i the amendmentor a h criteria or fees

sar c indi t ostms are subject to the overiding con iderations.
The ro rearig fees and costs my be md by curties in fav cofy parties









prevailingend to pGoviernment in actions instituted or defended by

SI th ho tpartpartially, he must ben order


deed an t orig aandcst i rre in action
reinmenw o at. Awlthohis aardi s Io faes iand oit the gvr b itht e paty
fai fees and costs wf it isvew the interest iof
oare delimted; prn ih fees and costs are suoc totheoveridings cn ieratio






38

criterion of reasonableness. Items to be included in awards are elabo-
rated in the bill. All awards are to be made by the agency conducting
the proceeding, and are to be paid out of the appropriation for that
agency.
The awarding of legal fees to successful private litigrants will not in
any way deter Government attorneys from pursuing meritorious
claims. Similarly, it can hardly be regarded as an incentive to spurious
litigation, as the nonprevailing party will be awarded legal fees only
when the interests of justice manifestly dictate.
What this amendment will do is deter the governmental tendenc
to dispute meritorious claims in the expectation of outlasting an ad-
versary. This is a practice which should be discouraged.
CRIMINAL ACTIONS
A substantial number of criminal defendants already receive, as a
sixth amendment matter, the services of a Government-subsidized at-
torney, irrespective of the strength of the case or the actual outcome on
the merits. It can only be viewed as ironic that a middle-income acquit-
ted defendant in a misdemeanor case may be required to expend virtu-
ally all of his assets in order to finance a defense in his case, whereas
an indigent convicted minor felon will be furnished his legal fees, and
will frequently be released on probation with only a small fine.
This amendment provides for awards of fees and costs for defend-
ants who plead not guilty and are acquitted at trial or on appeal or
who have the cases against them dismissed. The award of fees and
costs would cover both trials and appeals if the defendant ultimately
prevails. No provision is made for awarding fees to de-
fendants pleading no contest, or who are found guilty. No
maximum limit is placed on awards other than the award
must stand to the test of reasonableness. There are no condi-

[S 16259]
tions under which awards to successful defendants would be denied or
decreased, as, for example, when they succeed on a technicality of the
law rather than on the merits.
Mr. President, I hope that the amendment to the amendment of the
Senator from Massachusetts may be accepted without a rollcall vote.
Mr. MATHIAS. Mr. President, I am wondering if the distinguished
Senator from North Carolina could advise the Senate what. he feels
would be the cost of this amendment to the amendment ?
Mr. HELMS. The Senator from North Carolina has no estimate of
that. I do not know that you can place a price tag on fair play to the
individual citizen who is, under existing circumstances, being harassed
and intimated by Federal bureaucrats.
MAr. MATHIAS. I agree with the distinguished Senator from, North
Carolina that fair play for the average citizen is simply beyond price,
that it ought to be a basic consideration of everything that we do here,
in the Senate and throughout the Government, and certainly in the
courts. But there still has to be a bill paid. It appears to me that this
would be one of the most expensive provisions and the fact that it







extends to riminal cases as well as to civil cases, I think, raises some

What it of, is change a very fundamental coept of
American jurisprudence. Perhaps it should be changed-the concept
f casti the burden of cost in criminal ases which have been borne
by defendants up to this time. There are other rules prevailing i
other ountries. Perhaps they should be studied.
t the fact at this would be a very casual way to undertake
one of the most fundal changes in the procedures of the U.S.
courts-without hearings, without any careful study, without getting
the judgment of judges, of lawyers, of people who are going to be
intimately involed, and the general public, whom the Senator's

Sthink it should be given consideration. I would not want to make
a judgen t f had on it. I would not want to make the judgment
either way.
I thinkf course, as the S r says, fair play is beyond price. But
there is a price th last amendment, and I am wondering, in
the y d of estimate of the cost of the amendment,
wheth t is with the budget authorization. Can the Senator advise
the Senate as to whether there is authorization?
I am e tha neither the cost of the proposal of the
tor from Massachuss nor this modification is
without cost But I wil say to the Senator, I hope the Senator from
n~ baby may be regarded by his voting record as
one of the more prudent spenders of the taxpayers' money in this
body. But when it comes down t giving far play to the average citi-
zen hisdaily intimidted by Federal bureaucrats and Federal
e reltively llcost will be worth it if it restrains the
Federal bureaucrats, agencies, and bureaus, if it makes the bureau-
ise more fness n filing arges which ave no merit. So
often, these charges are brought on the theory that, "This poor sucker
will nt have the money or the time to contest the Federal Govern-
Sthe almighty Federal Government. Even if it costs $1 billion,
which it certainly will not, it b ey well spent." Of course,
to ai would co an immense amount of money is to admit
tha e, ndeed, swars of Federal bureaucrats who now feel
no in bringing flimsy, unfair, and even frivolous actions
against citizens and.small businessmen who have neither the funds nor

Mr AT Let me say if the Senator's object is to prevent the
filing of charges that have no merit, I will go a ot furtherthan this
bill with him. I agree with the Senator that $1 billi~qon would be cheap
if thatis the kind of situation we have. I think more than just being
willing to spend a little money, we ought to get rid of the people who
are making the mistakes. If they are repetititvely making mistakes
which result in the aras t f citizens, they ought to go.
Mr. HIE s. Mr. President, if the Senator will yield-
Mr. MATHAS. f the Senator and I make mistakes, we go.
Mr. H ms. If the able Senator will yield, if the Senator's proposi-
tion were put into effect, it would require hundreds of Greyhound
buses to move the bureaurats out of Washington, D.C.
l 'is





40

Mr. MA IA. Without any lack of sympath for wht the tr
is trying to do, I would point out, however, tohe
fiure of $1 billion, that is a substantial of money to be
raised outside the budget.
I wanted to inquire of the Senator whether there had been a budget
waiver.
Mr. HEiLrs. There has not. I do not believe a waiver is nee ry,
but I may be in error. In case I am, would the Senator be willing to
send both y amendment and the amendment of the Senator from
Massachusetis to the Budget Committee? Would h willing to offer
such motion ?
Mr. MATIA. I do not believe we have to make that motion. I do
think-and I want to be completely fair with the Senator from North
Carolina-this amendment to the amendment would create newobliga-
tions for the Federal Government, and it ould constitute an author-
ization without a hearing.
Mr. HELMS. The same may be true of the Kennedy amendment.
Mr. MATHIAS. I think it is subject to a point of order,
I do not want to restrict the debate on this subject, but I would be
constrained to make a point of order whenever the Senator has com-
pleted his observations on this subject.
Mr. HELMS. I would ask the Senator, oes he hold the e pi
regarding the original Tunney bill, to which the Kennedy amendment
in the nature of a substitute has been submitted
Mr. MATHIAS. The difference the Senator will find on page 7 ofthe
committee report:
The Congressional Budget Office, in a letter dated March 1, 1976, has advised
the Judiciary Committee that: "Pursuant to Section 403 of the Congressional
Budget Act of 1974, the Congressional Budget Office has reviewed S. 2278, a
bill to award attorneys' fees to prevailing parties in civil rights suits.
"Based on this review, it appears that no additional costs to the government
would be incurred as a result of the enactment of this bill."
Mr. HELMS. I think the Senator may be talking about anotherpiece
of legislation.
QUORUM CALL
Mr. President, while we resolve this, I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to called the roll.
Mr. MATHIAS. Mr. President, I ask unanimous consent tht the order
for the quorum call be rescinded.
Mr. ALLEN. Object.
The PRESDING OFFICER. Objection is heard.
The assistant legislative clerk resumed and concluded the call of the
roll and the following Senators entered the Chamber and answeed to
their names:
[Quorum No. 43 Leg.]
Allen Hatfield Pearson
Burdick Helms Schweiker
Byrd, Robert C. Hollings Scott, William L.
Chiles Kennedy Stone
Culver Lnng Thurmond
Eastland Math ias Tower
Gari Mci'lllan
Hart, Gary Packwood





41

The~PREIDING OmcER (Mr. Hatfild. A quorum is not present.
r. Mr. President, I move that the Sergeant at
Arms be direc uest the attend~nce of absent Senators.
Mr. MA s.Mr. President, I ask for the yeas and nays.
The PRESING OFFICR. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
SThe PRIING OF R. The question is on agreeing to the motion of
Sthe Senator fromWest Virginia (Mr. Robert C. Byrd) to direct the
Sergeant at Arms to request the attendance of absent Senators. On
this question, the yeas and nays have been ordered and the clerk will
call the roll.
The assistant legislative clerk called the roll.
r. ROBRTC. B I announce that the Senator from Nevada (Mr.
Cannon), the ator from Idaho (Mr. Church), the Senator from
Kentucky (r. Ford), the Senator from Michigan (Mr. Philip A.
Hart), the Senator from Indiana (Mr. Hartke), the Senator from
Wyoming (Mr. McGee), the Senator from Minnesota (Mr. Mondale),
the Senator from New Mexico (Mr. Montoya), the Senator from Cali-
fornia (Mr. Tunney), the Senator from South Dakota (Mr.

sarily absent.
b), the r from Illi nois(M S ) are neces-

I further announce th the Senator from Ohi (Mr. lenn), the
Senator
[S 16260]
Montana (Mr. Mansfield), and the Senator from South Dakota
(Mr. Govern) are absent on official business.
Mr.G. I nnouce that the Senator from Maryland (Mr.
Beall), the tor from Tennessee (Mr. Brock), the Senator from
SYork (Mr. Buckley), and the Senator from Arizona (Mr. Gold-
water) are necessarily absent.
I als announce that the Senator from Tennessee (Mr. Baker) is

The result was announced-yeas 78, nays 3, as follows:
[Rolleall Vote No. 617 Leg.]

Allen Durkin Inouye
Bartlett Eagleton Jackson
Bay Eastland Javits
Bellmon Fannin Johnston
Bentsen Fong Kennedy
Brooke Garn Laxalt
Bumpers Gravel Leahy
Burdick Griffin Long
Byrd, Harry F., Jr. Hansen Magnuson
Byrd, Robert C. Hart, Gary Mathias
Case Haskell McClellan
Chiles Hatfield McClure
Clark Hathaway McIntyre
Culver Hollings Moss






42

YEAS-78--Continued
Packwood Schweiker Symington
Pastore Scott, Hugh Taft
Pearson Scott, Talmadge
1ll Wililam L. Thurmond
Percy Sparkman Tower
Proxmire Stafford Williams
Randolph S tennis Young
Ribicoff Stevens
Roth Stone
NAYS-3
Biden Metcalf Weicker
NOT VOTING-19
Abourezk Ford McGovern
Baker Glenn Mondale
Beall Goldwater Montoya
Brock Hart, Philip A. Stevenson
Buckley Hartke Tunney
Cannon Mansfield
Church McGee
So the motion was agreed to.
The PRESIDING OFFICER. With the addition of Senators voting who
did not answer the quorum call, a quorum is present.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. Fo-G. Mr. President, will the Senator yield to me for a unan-
imous-consent request ?
Mr. MATHIAS. Mr. President, I ask unanimous consent that I may
yield to the Senator from Hawaii for a unanimous-consent request.
Mr. ALLEN. I object.
Mr. FoxG. I ask unanimous consent-
The PRESIDING OFFICER. Objection is heard. The Senator from Mary-
land has the floor.
Mr. MATHIAS. The administration has taken a position strongly op-
posed to the Helms amendment. As the sponsor of the amendment
has explained, the language is substantially similar to S. 2871.
The Department of Justice has commented at lenzth on S. 2871 and
I think it would be useful to acquaint the Senate with the opinion set
forth in a letter addressed to the chairman of the Committee on the
Judiciary under date of September 20,1976.
I ask unanimous consent to include a copy of that letter at the con-
clusion of my remarks.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
DEPARTMENT OF JUSTICE.
Washington, D.C., Septemer O, 1976.
Hon. TAMES 0. EASTLAND.
Cthairman. Comnmittee on the Judiciary,
7X.,. Senate, Wa.hington, D.C.
DErAR MR. CHAIRMAN: This is in response to your request for the views of the
Department of Justice on S. 2871, a bill, "To provide for equal access to courts
in In wsnit involvine the Federnl Government. and for other purposes".
The hill amends Sections 2412. 2517. and 278 of Title 2R. United States Code.
The bill also adds new Sections. 504 to Title 5, and 3013 to Title 18, United States
Code. This proposed leislation would substantially alter and enlarge recover-








able item s in "a judgment for costs" in actions by or against the United States,
or any agency or oficial thereof, to any on-governmental party whorevails in
whole or in part Allable-costs would include: "the sonable expenses of any
witnesses or expert witnesses the reasonable cost of any studies, analyses,
engineerg r ts or p s which tihe ou fs s
tion of the action", and "a reasonable attorney fee . at prevailing rates for








,o a ,,ea
is p roveertain agency
An award of attorneys' fees against the United States, or any agency or official
thereof, absent"ongressionalauthorization", is expressly prcluded under exist-






"ing law.28 U.S.C. 2412. SeeAlyesa Pipelin Co. v.iT ildernes Sooiety, 421 U.S.ie
2 (975); Pyrami re f Indians v. Morton, 16 U.S. App. D. 9
90, 499 F. 2d 1095 (1974), dened, 420 U.S. 962. Traditionally, American
courts have, for the most part, resisted the inclusion of attorneys' fees and other
litiative expenses in costs tedagainst the osng partySee Fei man .
Maier Brewing Co., 38 S 714 (1967). It is the view of the Justice Depart-
St .the A re uld ontinue t be the prevailig standard,
ith exceptions limited to specif reas, carefully identified and considered, where
stli as the ropriateness of the exceptions. The
bill, however, does not address specific areas where suc exceptions might be
d ln oud all civil litigation
(as well as criminal actions and certain administrative orders). While the Js-
tice Department is not primarily concerned with administrative proceedings and
ittor s fs othe costs i such roceedi we expess
our objection on the broadness of the proposed statute.
The bill's rovisions run contrary to it preamble. inding serios nequities
in providing "for equal access to courts in lawsuits involving the Federal Govern-
ment", the bill does not distinguish between the categories of litigants engaged in
suits involving the Federal Government. Indeed, this proposed legislation would
allow for recoveryh disparity is
absent, e.g., suits brought by against "companies, unions, other
organizations and State and ond the obvious drain on the
Treasury, the bill also threatens to encourage litigation involving the Govern-
ment when the Executive and the dibia are currently tasked with substan-

A further major co n is the provision ineon7 of the bill for the award-
ing of attorney fees ad costs to defendants'in etin criminal cases. When a
riminal trial or appeal results in a defendant being found not guilty or in the
charges being disissed, the bill provides that the court shall award to the de-
fendant "... reasonable rney fees and costs inurred by him in his defense. .".
A finding of not guilty t trial, the setting asd a. guilty finding on aippeal, or
dismissal of the charges may occur for many reasons other than lack of guilt on
the part of the defendant. To compensate the defendant in allch asesrere
sents a radical departre from the long standing current practice. We are not
aware of any justifiation-for placing this burden on the Government. There re,
of course, adequatns in current law fr providing for attorneysad at-
1tendant costs when tedfnt is financially unable to meet such expenses.
The Department of Justice therefore recomends against enactment of this
legislation.
The Office of alnagemeit and Budget has adised that there is no objection to
the submission of this report from the standpoint of the Administration's

S eICHAEL M. UHLMANN,
Assistant Attorney General.
Me~ident, I move to lay the pending amendment

Mr. ROBERT C. YRD. r. reident, I ask for the yeas and nays.


ficient second.


ing to the motion to lay on the table the amendment of the Senator






A44
X=r
from North Carolina Mr. Helms). On hi q the yeas a
nays have been ordered, and the clerk will call the roll.
The second assistant legislative clerk called the roll.
Mr. ROBERTC. BiD. I announce that the Senator from Nevada (Mr.
Cannon), the Senator from Idaho (Mr. Church), the Senator from
Kentucky (Mr. Ford), the Senator from Michigan (Mr. Philip A.
Hart),the Senator from Indiana (Mr. Hartke), the Senator from
Wyoming (Mr. McGee), the Senator from Minnesta (Mr. Mondale),
the Senator from New Mexico (Mr. Montoya), and the Senator from
California (Mr. Tunney) are necessarily ab snt.
I further announce that the Senator from Ohio (Mr. Glenn), the
Senator from Montana (Mr. Mansfield), and the Senator from South
Dakota (Mr. McGovern) are absent on fficial business.
Mr. GRiTN. I announce that the Senator from Maryland (Mr.
Beall), the Senator from Tennessee (Mr. Brock), the Senor from
New York (Mr. Buckley), the Senator from Kansas (Mr. Dole), the
Senator from Arizona (Mr. Goldwater), and the Senator from Ohio
(Mr. Taft) are necessarily absent.
I also announce that the Senator from Tennessee (Mr. Baker) is
absent on official business.

[S 16261]

The result was announced-yeas 54, nays 27, as follows:
[Roleall Vote No. 18 Leg.]
YEAS-54
Abourezk Haskell Parson
Bayh Hatfield Pell
Bentsen Hathaway Percy
Biden Hollings Pro mire
Brooke Huddleston Randolph
Bumpers Humphrey Ribicoff
Burdick Inouye Schweiker
Byrd, Robert 0. Jackson Scott, Hugh
Case Javits Scott,
Chiles Johnston William L.
Clark Kennedy Stafford
Cranston Leahy Stevens
Culver Magnuson Stevenson
Durkin Mathias Stone
Eagleton McIntyre Symngton
Fong Moss ecer
Gravel Muskie Williams
Griffin Nelson
Hart, Gary Pastore
NAYS-27
Allen Hansen Packwood
Bartlett Helms Roth
Bell mn Hruska Sparkman
By rd, Ln xalt Stennis
Harry F., Jr L on Talmadge
Cnrtfi McClellan Thurmond
Domenici McClure Tower
Eastland Metcalf Yong
Fannin Morgan
Garn Nunn






45

NOT VOTING---19
Baker Ford McGovern
Brock Goldwater Montoya
IBuckley Hart, Philip A. Taft
Cannon Hartke unney
Church Mansfield
Dole McGee
So the motion tlay onthe table was agreed to.
UP AMENDMENT NO. 7 41
Mr. A i M. esidnt, I ofer anmndmnt nd ask that it be

The PRESIDING O. e amendm t will be stated.
The assistant legislative clerk read as follows:
STe Seaor fom Aabaa (Mr. Allen) proposes an unprinted amendment
numbered 471:
On line 6 after the comma following the word statutes add the following:
"title IX of Public Law 92-318."
Mr. A Mr. Psident, this amendment would put into effect
the stated purposeo substitute offered by the distinguished Sena-
tor from Massachutts, and it would add title IX-that is, enforce-
ment of ih der tat-as a area calling for the payment of
attorney's fees were action is brought to enorce those rights.
Ife iis to b passed, there is no reason why it should not contain
this; but it s not necessary to offer a substitute which would cut off all
oter amendments. So this amendment would bring title IX under the
provisions of the bill and would make unnecessary, and possibly out of
order, the amendm t of the Senator fr Massachusetts. It would
low other amendments to be offered to the bill itself.
On this amendment, I ask for the yeas and nays.
The PRE NG OFICER. Is there a sufficient second? There is not

MATHIAS. Mr. President, will the Senator from Alabama yield ?
Mr. ALLEN. I yield.
As I uderstad the Senator amendment, it would be
to add on line 6, after the comma, at the end of the line, the words
"title IX."
l Mr. AiX. That is correct; yes.
Mr. M A. Is this an amendment to the bill or to the pending
amendment
Mr. ALLEN. It is an amendment to the bill. It would make unneces-
sary the Kennedy substitute. This puts into effect the thrust of the
substitute of the distinguished Senator from Massachusetts. In other
words, it is not only the Civil Rights Act referred toin the bill. This

Mr. MATnus. I understand. I thought originally that the amend-






46

Mr. rALN. No, because if the amendent of the Senator from
assachusetts is adopted, no further amendment ill be in order. Th
would not quite serve the public interest.
Mr. President I ask for the yeas and nays.
The PRESIDING OFFICER. IS there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
Mr. MATHIAS. Mr. President, I makethe point of orer th quorum
is not present.
The PRESIDING OFFICER. The clerk will call the roll to ascertain the
presence of a quorum.
The second assistant legislative clerk called the roll.
Mr. MATHIAS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
Mr. ALLEN. Objection.
The PRESIDING OFFICER. Objection is heard.
The second assistant legislative clerk resumed the call' ot tle roll
and the following Senators entered the Chamber and answered to their
names:
[Quorum No. 44 Leg.]
Abourezk Hart, Gary M oss
Allen Haskell Nunn
Biden Hatfield Pearson.
Brooke Helms Schweiker
Bumpers Huddleston Scott, William L.
Burdick Jackson Sparkman
Byrd, Robert C. JAvits Stevens-
Case Kennedy Stone
Chiles Laxalt Symington
Culver Leahy Talmadge
Durkin Magnuson Thurmond
Garn Mathias Williams
Gravel McIntyre Young
Griffin Metcalf
Hansen Morgan
The PRESIDING OFFICER. A quorum is not present. The clerk will
call the names of the absentees.
The second assistant legislative clerk resumed the call of the roll.
Mr. ALLEN. Mr. President, I move that the Sergeant at Arms be
directed to request the attendance of absent Senators, and I call for
the yeas and nays.
The PRESIDING OFFICER (Mr. Laxalt). Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion of
the Senator from Alabama. The yeas and nays have been ordered, and
the clerk will call the roll.
The legislative clerk called the roll.
Mr. ROBERT C. BYRD. I announce that the Senator from Nevada (Mr.
Cannon), the Senator from Idaho (Mr. Church), the Senator from
Kentucky (Mr. Ford), the Senator from Michigan (Mr. Philip A.
Hart), the Senator from Indiana (Mr. IHartke), the Senator from
Wyoming (Mr. McGee), the Senator from Minnesota (Mr. Mondale),
the Senator from New Mexico (Mr. Montoya), the Senator from
California (Mr. Tunney), the Senator from Louisiana (Mr. Johnston),






.47

the Senator from Massachusetts (Mr. Kennedy), the Senator from
Illinois (Mr. Stevenson), and the Senator from Colorado (Mr. Gary
Hart) are necessarily absent.
I further announce that the Senator from Montana (Mr. Mans-
ield)I, the S ator from South Dakota (Mr. McGovern), and the
Senator from Ohio (Mr. Glenn) are absent on offcial business.
Mr- GmrrN. I -ann nce that the Senator from Maryland (Mr.
Beall) the Senator from. Tennessee (Mr. Brock), the, Senator from
New York (M. Buckley), the Senator from Arizona (Mr. Goldwater),
the Senator from Nebrask (Mr. Hruska), and the Senator from Ohio
(Mr. Taft) are necessarily absent.
I also announce that the Senator from Tennessee (Mr. Baker) is
absent on oflicial business.
The result was announced-yeas 74, nays 3, as follows:
-[Rollal Vote No. 619 Leg.]
YEAS--74
Abourezk Griffin Nunn
Allen Hansen Packwood
Bayh Haskell Pastore
Bellmon Hatfield Pearson
Bentsen Hathaway Pel
Brooke Helms Percy
Bumpers Hollings Proxmire
Burdick uddl eston andolph
Byrd, Harry F., Jr. Humphrey Ribicoff
Byrd, Robert C. Inouye Roth
Case Jackson Schweiker
Chiles Javits Scott, Hugh
Clk Laalt ..Scott, William L.
:Crnton Leahy Sparkman
Culver Long Stafford
Curtis Magnuson Stennis
iDo le Mathias Stevens
Do en ic M* lellan Stone
Dkin McClure Symington
Eagleton McIntyre Talmadge
Eastland Metcalf Thurmond
Fannin Morgan Tower
ong Mo .Williams
Garn Muskie Young
Gravel Nelson
NAYS8-3
Bartlett Biden Weicker
NOT VOTING-23
Baker Gosldwatwer McGee
Beall 'Hart, Gary McGovern
Brock Hart, Philip A. Mondale
Buckley artke Montoya
Cannon Hruska Stevenson
Church Johnston Taft
Ford Kenned VTunney


0The PREsmlG OFE. A quorum is present.
**'' ** lJ BIt1 !":.*>l *^ '***s'* ;* !*'* '**








[S 16262]
Several Senator addressed the Chair.
The PRING OFICEn. The Senator from Alabam.
Mr. ATLrN. Mr. President, I have not had the oprtunity to ex-
plain this amendment. I am pleased that the Chairsaw itt recogn
me rather than the distinguished Senator from Maryla becaue I
do not beleve there has been an opportunity to explain the amend
What the amendment does is to add to the original bill reported by
the committee the words "title IX of Public Law 92 18."
What the bill does is to provide that in any proceeding under cer-
tain sections of the revised statutes-and it lists the sections, sections
1977. 1978, 1980, 1981, of the revised statute, having no
ence to a year-the court may, in its discretion, allow the prevailing
party, other than the United States, a reasonable attorney fee as part
of the cost.
What this amendment does is to add title IX of Public Law 92-
318 as one of the sections, one of the provisions of law, where an action
can be brought and the prevailing party would, in the discretion of the
court, be allowed attorney fees. In other words, it adds a section to the
civil rights section.
This is a different approach from the substitute of the distinguished
Senator from Massachusetts (Mr. Kennedy). His substitute would do
the same thing, but it would be a substitute and not a simple amend-
ment.
If his substitute is adopted, then no further amendments can be
offered to the bill. I feel sure that other amendments will be offered.
Senator Helms and I have an amendment at the desk that would make
this same rule apply on the court in its discretion allowing attorney
fees to the prevailing party in cases where the IRS brings an action
against a person, charging the existence of tax liability to the Govern-
ment on the part of that person, and the result of the action is found
in favor of the person being sued or harassed by the IRS in the
j udgmnent.
Then in the judgment of the court and in the discretion of the court
attorney fees could be added to the prevailing party.
That is a very fine amendment. In the opinion of the Senator from
Alabama, and one that should be added to this bill. With the long arm
of the Federal Government reaching out against our citizens and
charging income tax liability, if it develops on the trial of the case that
there is no liability, or that the action was frivolous, then under my and
Senator Helms' amendment the court, in its discretion, could allow
attorney fees to the citizen who has been harassed by the Government.
That is not a farfetched situation. We see instances where suits by
IRS or the Treasury Department, as the case might be-and the terms
can be used interchangeably, I assume-have brought actions against
citizens who owed no tax, as it developed, but they may well have been
impoverished by defending against an action of the Government in
this matter.
The amendment that we hope to offer would allow Attorney fees
to this citizen who may have been harassed by the Government.
If the Kennedy substitute is adopted, then there will be no oppor-
tunity to offer amendments. On the other hand, Mr. President, if the






49

pending amendment of the Senator roAlabama is adopted, it does
say that in se discrimination cases, title 9 cases, where an action is
brought to assert the rights of a citizen under this title, in addition
to the civil rights section, attorney fees could be added to the prevail-
ing side.
The distinguished Senator from Massachusett pointed out that to
do this was something that the administration approved, that it was
suppored by the administration. I called to the attention of my col-
leagues at the time that I was delighted to see the distinguished
nator from Massachusetts acting as floor leader forthe admnistra-
tion, pushing this concept.
When I speak of the distinguished Senator from Massachusetts, I
have referenc to the distingished senior Senator from Massachusetts.
I see the distinguished junior Senator from Massachusetts (Mr.
Brooke) in the Chamber.
All my amendment would do would, be to put into the bill as an
amendment, allowing still further amendments to the bill, the thrust
of the Kennedy substitute. The Kennedy substitute would cut off all
further amendments.
Mr. President, I am not going to speak unduly long on this amerd-
ment. May I inquire of the Chair if the yeas and nays have been
ordered on the Kennedy substitute ?
The PMsIDImG OFFICER. The yeas and nays have not been ordered
Mr. A I ask unanimous consent that it ight be in order at
the conclusion of m remarks that I might request the yeas and nays
on the Kennedy substitute and on my own amendment.
The PRESDING OFFICER. Is there objection ?
Mr. ROBERT C. BYRD. Mr. President, reserving the right to object, the
distinguished Senator has not consented to any request today on the
part of others.
Mr. A Iappreciate the Senator's calling my attention to that.
I appreciate his calling that to my attention. I would hate to estab-
lish a precedent to make a request for myself that I am denying to
other Senators. I will wait until the proper time to make that request.
The PRESIDING OFFICER. The Senator is advised that unanimous
consent has already been obtained with regard to his own amend-
ment, the request for the yeas and nays.
Mr. Axuxi I withdraw the unanimous-consent request on the other.
That being true, Mr. President, the issue which is before the Senate,
as put into effect by the amendment of the Senator from Alabama, is
shall the right to be free from sex discrimination as guaranteed by title
JIX be protected to the extent of giving the court the authority in its
discretion to grant attorney fees in an action under that section to
assert such rights to the prevailing side?
Mr. President, I yield the floor.
Mr. BR Mr. ident, Imove to lay on the table the amend-
ment of the distinguished Senator from Alabama.
Mr. AuLur. T call the yeas and nays.
The Paruimm OFFIcER. Is there a sufficient second? There is not
a sufficient second.
Mr. BitooxE. Mr. President, I sugge. the absene of a quorum.
,|~t ** rb *r~ ** *iJ ir n : C
||~a~ b~; ~t






50

The PRSDING OFFICER. The clerk will call the roll.
Mr. ROBERT. BYD. Mr. President, I ask for the yeas and nays.
Mr. AuiLLN. Had not the quorum call started? I request that the
Chair continue the quorum call. Mr. President, the qur call
started.
The PREIDING OFICER. The Senator is correct, it had started.
The clerk will continue calling the roll.
The second assistant legislative clerk proceeded to ca. the roll.I

Mr. AmN.. I object.
The PRESMING OFnim Objection is heard.
The rolleall was resumed and concluded and the following Sena-
tors answered to their names:
[Quorum No. 45 iLeg.]
Allen Haskell Nelson
Bayhi Helms Pearson
Brooke Inouye Percy
Burdick Jackson Randolph
Byrd, Robert C. Kennedy Ribicoff
Chiles Laxalt Scott, Hugh
Griffin Leahy Stone
Hart, Gary : Magnuson
Mr. ROBIET C. BYRD. Mr. President, I move that the Sergeant at
Arms be directed torequest the attendance of absent Senators, and I
ask for the yeas and nays.
The PRIDING OFFICER. Is there a sufficient second? There is a suf-
ficient second.
The yeas and nays were ordered.
Mr. AXii. Mr. President, I move to lay onthe table the motion to
direct the Sergeant at Arms, and I call for the yeas and nays.
The PRESIDING OFFICE. The motion is not in order.
The question is on agreeing to the motion of the Senator from West
Virginia that the Sergeant at Arms be directed to request the attend-
ance of absent Senators. The yeas and nays have been ordered, and
the clerk will call the roll.
The second assistant legislative clerk called the roll.
Mr. ROBERT r. BYRD. I announce that the Senator from Indiana
(Mr. Bayh), the Senator from Nevada (Mr. Cannon), te Senator
from Idaho (Mr. Church), the Senator from Kentucky (Mr. Ford),
the Senator from Michigan (Mr. Philip A. Hart), the Senator from
Indiana (Mr. Hartke), the Senator from Louisiana (Mr. Joso),
the Senator from Wyoming (Mr. McGee), the Senator from Mo
(Mr. Metcalf), the Senator from Minnesota (Mr. Mondale),

[S 16263]
the Senator from New Mexico (Mr. Montoya), he Senator from
Illinois (Mr. Stevenson), and the Senator from Missouri (Mr. Sym-
ington), and the Senator from California (Mr. Tunney) are neces-
sarily absent.
I further announce that the Senator from Ohio (M. Glenn:, the
Senator from Montana (Mr. Mansfield), and the Senator from South
Dakota (Mr. McGovern) are absent on official business.








Mr. GR I announce that the Senator from Maryland (Mr.
Beall), the Senator from Tennessee (Mr. Bock), the Senator from
New York (Mr. Buckley)b, the Senator from Kansas (Mr. Dole), the
Senator from Arizona (Mr. Goldwater), the Senatr from Ohio (Mr.
Taft), and, the Senator from North Dakota (Mr. Young) are neces-

I also nnounce that the Senator from Tennessee (Mr. Baker) is
absent on official business.
Th resuiilt was announced-yeas 72, nays 3, as follws:
[Rollall Vote No. 820 Leg.]
YEAS-72
Abourezk Hansen Muskie
Allen Hart, Gary Nelson
Bellmon Haskell Nunn
Bentsen Hatfield Packwood
Brooke Hathaway Pastore
Bmpers .Helm Pearson
Burdiek Hollings Pell
Byrd, Harry F., Jr. Hruska Percy
Byrd, Robert C. Huddleston Proxmire
ase Humphrey Randolph
Clark Jackson Roth
Cranston Jvits Schweiker
Culver Kennedy Scott, Hugh
Curtis -Laxalt Scott William L.
Domenici Leahy Sparkman
Durkin Long Stafford
Eagleton Magnuson Stennis
Eastland Mathias Stevens
Fannin McClellan s tone
Fong McClure Talmadge
Garn Mntyre Thurmond
ravel Morgan Tower
Griffin Moss Williams

NAYBS--
Bartlett Biden Weicker


Baker MGlenn Mondale
Bay>h Goldwater Montoya
Beall Hart, Philip A. Stevenson
rock Hartke Symington
Buckley Johnston Taft
Cannon Mansfield Tunney
Church McGee Young
Dole McGovern
Ford Metcalf
So the motion was agreed to.
The PRESIDING O mICER. A quorum is present.
Mr. ROBERT C. BYRD. Mr. President, Iask for the yeas and nays on
the motion to table the Allen amendment.
The PRESIDING OFFICER. Is there a sufficient second? There is a suffi-
cient second.






52

The PRESmNG OFFICE. The question is on agreeing to the motion
of the Senator from Massachusetts. On this question the yeasand nays
have been ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. ROBERT C. BYRD. I announce that the Senator from Nevada
(Mr. Cannon), the Senator from Idaho (Mr. Church), the S at
from Kentucky (Mr. Ford), the Senator from Michigan (Mr. Philip
A. Hart), the Senator from Indiana (Mr. Hartke), the Senator from
Louisiana (Mr. Johnston), the Senator from Wyoming (Mr. McGee),
the Senator from California (Mr. Tunney), the Senator from Indiana
(Mr. Bayh), the Senator from Minnesota (Mr. Mondale), the Senator
from New Mexico (Mr. Montoya), and the Senator from West Vir-
ginia (Mr. Randolph) are necessarily absent.
I further announce that the Senator from Ohio (Mr. Glenn), the
Senator from Montana (Mr. Mansfield), and the Senator from South
Dakota (Mr. McGovern) are absent on official business.
I further announce that, if present and voting, the Senator from
West Virginia (Mr. Randolph) would vote "yea."
Mr. GRIFFIr I announce that the Senator from Marylaid (Mr.
Beall), the Senator from Tennessee (Mr. Brock), the Senator from
New York (Mr. Buckley), the Senator from Kansas (Mr. Dole), the
Senator from Arizona (Mr. Goldwater), and the Senator from Ohio
(Mr. Taft) are necessarily absent.
I also announce that the Senator from Tennessee (Mr. Baker) is
absent on official business.
The result was announced-yeas 54, nays 24, as follows:
[Rollcall Vote No. 621 Leg.]
YEAS-54
Abourezk Haskell Pearson
Bellmon Hatfield Pell
Bentsen Hathaway Percy
Biden Hollings Proxiire
Brooke Huddleston Ribicoff
Bumpers Humphrey Roth
Burdick Inouye Schweiker
Byrd, Robert C. Jackson Scott, Hugh
Case Javits Scott, William L.
Chiles Kennedy Stafford
Clark Leahy Stevens
Cranston Magnuson Stevenson
Culver Mathias Stone
Durkin McIntyre Symington
Eagleton Moss Weicker
Fong Muskie Williams
Gravel Nelson
Griffin Packwood
Hart, Gary Pastore
NAYS-24
Allen Hansen Morgan
Bartlett Helms Nunn
Byrd. Harry F., Jr. Hruska Sparkman
Curtis Laxalt Stennis
Domenici Long Talmadge
Eastland McClellan Thurmond
Fannin McClure Tower
Garn Metcalf Young







NOT VOTING-22
Baker rFord McGovern
Bayh Glenn Mondale
Beall G ldwater Montoya
Brock Hart, Philip A. Randolph
Buckley Hartke Taft
Cannon Johnston Tunney
Chureh Mansfield
Dole McGee
So the motion to lay on the table was agreed to.
Mr. ROBERT C. BYD. Mr. President, am I recognized ? I am recog-
nized, am I not?
The PRESIDING OrI CE (Mr. CULVER). The Senator is recognized.


REQUEST FOR COMMITTEE MEETINGS
Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that
the Committee on the Judiciary be authorized to meet on September
22 to consider committee business; that the Subcommittee on Environ-
ment and Land Resources of the Comittee on Interior and Insular
Affairs be authorized to meet on eptember 22 to consider the Forest
Service's performance in the preparation of the plan for the East
River Unit of the Gunnison River National Forest in Colorado; that
the Subcommite on aor of the Committee on Lbor and Public
Welfare be authorized to meet on September 27 on the Occupational
Safety and Health Act; that the Perm ent Subco ittee on
Investigations of the Committee on Government Operations be author-
ized to meet on September 29nd 30 to examine HEW's Medicaid Man-

Mr. A N. I O bject.
a,

The PRESDING O IER. Objection is heard


REQUEST FOR SPECIAL OiRRS T OMORROW
C. Predet, I sk uanimous nt that
on tomorro, after the orders for the recognition of Senators that have
already been entered, the following orders be entered: Mr. Muskie 10
minutes, Mr. Proxmire 10 minutes, Mr. Kennedy 10 minutes, and Mr.

The PRESIDNG OFFIC-ER. ]Is there objection?
Mg the right to object, Mr. President, I have
notified the distinguished assistant majority leader we are on
this bill I feel like we ought to stay on it until we get through. I have
stated that I will object to unanimous-consent requests until the bill
has been disposed of and, therefore, I object.
Th PRSIDING O ICER.Objection is heard.


REQUESTTo PROCEED FOR 11/2- Hours ON S. 2925 Toxonpow
Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that
on tomorrow, after the orders for recognition of Senators have been





54

completed, and with the understanding that there will be no action
on the bill, the Senate proceed for not to exceed 1 hour and 30 minutes
on S. 2925, the sunset legislation, with the understanding that there be
no action on the bill, and it will be set aside at the expiration of
hours.
ThePREIDING OFFICER. Is there objection?
Mr. ALLEN. Reserving the right to object, until the question of
germaneness is diosed of-
The PRESIDG OFIcER. Is there objection
Mr. RoBEw C. BYRD. Mr. President, there is no problem with ger
aneness at this particular time.
Mr. AuEN. I object.
The PRESDING OFFICER. Objection is heard.

[S 16267]
[During the debate on the District of Columbia appropriations con-
ference report:]
Mr. ALLE addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. ALLEN. Mr. President, I am for the motion to concur in the
House amendments. I believe that is the motion, that we concur in
the House amendments and adopt the conference report.

CIVIL RIGHTS ATTORNEYS' FEES AWARD ACT
(At this point Mr. Culver assumed the chair.).
I do feel that inasmuch as the Senate has moved to proceed tothe
attorney fee bill, that matter should be disposed of before other mat-
ters are disposed of. I feel that that bill needs to be discussed a little
bit more because we have been having too many quorum calls, too many
rollcalls, and not enough debate.
I am delighted that we have a sufficient number of Senators here to
hear some of this debate. I hope they will stay around for a while and
listen to some of this debate because this is an i mportant bill.
It is a bill that the leadership has set great store by because it has
moved to proceed to this measure. That motion was made at a time in
the proceedings when it would not be' debatable-.a motion to pro-
ceed. There was no debate on that motion, none permitted under the
rules. That is perfectly all right. ..
Of course, it was built up that way, so that there would be no debate
on that. No business was laid down at the end of the session yesterday,
so even if the motion had been made and dilatory tactics used-and I
hope that would never occur-but had they been used and carried the
matter beyond 2 hours after the convening of the Senate, the motion
to proceed would still have been nondebatable.
This is about the only time we are going to have to debate this im
portant issue. It is important, Mr. President, because it is putting the
Senate in a position of, apparently, being more interested in taking
care of our friends in the legal profession than most anything else
that we have been concerned with.
The bicg hassle over the antitrust bill was the matter involvig at-
tornev fees-the matter of State attorneys general throughout the
country having the right to farm out these antitrust actions to a fa-







vored few among the lawyers-an amatter of contingency fees. We


am a member of the prfession, but I do not practice law.
have great respect for the profession. I want to see them make
fees. wantto see lawyers w compensated. But I do not think that
should be a primar concern here in the U.S. Senate--and alltoo often

While the distinguished Senator from Massachusetts (Mr. Ken-
nedy)-I say that to identify himfurther because I see the distin-
guished junior Senator from Massachusetts here-has a bill (S. 2715)
scheduled to be brought up.
at doest provid It takes care of the attorneys. Of course, it
does. It provides that in agency proceedings-and we have them by
the thousand-attorney's ees may be allowed. Out of the taxpayer's
pocket. Not out of the litigant's. Out of the taxpayer's pocket.
That is what we are faced with here this evening.
As I say, I.have absolutely no objection to the conference report. I
hpeit will be passed unamously. To show thatI was notrying
toresort to dilatory tactics, even though the assistant majority leader
was calling fr the yeas and nays onmotion to proceed. I had no
desire to have a rol*call and kill time. I thought we ought to get on
with the debate, get on with this measure that the leaderhip is plac-
ing above all other bills on the calendar.
Is this a matter of making provision for civil right? No. Not one
single civil right is enunciated in this bill. Not one single civil right
is protected in this bill.
While we are considering the bill and proceeding like sheep to
vote for it, let us see what we are voting for.
A very fie amendment, in my judgment, was turned down by the
ate ust a moment ago. This amendment, apparenly, the dis-
tinguished Senator from Massachusetts (Mr. Kennedy) favored be-
cau he has a substitute that does nothing but put that amendment
in. But he went a circuitous route on it.
Sdid not go the siple route of merely a very few words. Let us
see how many words it would have taken. It would have taken seven
words. In seven words he could have carried into effect what his
substitute does.
I do not believe there would have been a great eal of opposition
to it. But instead of adding these seven words to the bill bly amend-
me putting title IX, the antise disrimination provision, under
this same bill and providing that attorney's fees could be paid to the
prevailing side where an action is brought to protect the rights guar-
anteed by this section-instead of merely putting those words as an
amendment to the Tunney bill-I might say I have an amenlment a
little later on to name this bill for the distinguished Senator from
California (Mr. Tunney). I feel they should be honored in that fash-
ion. This bill should be named for them.
along the line, probably sometime tomorrow, some-
time by midnight tonight possibly, that amendment will be offere






56

offer that, and I will get to that in a moent. I shall expl the
amendment that was turned down by the Senate.
Why ? Because the Senate opposed the revision of my amendment
No. Because when this bill finally passes it will have in it my amend-
ment, but it will not be the amendment offered by the Senator from
Alabama. It will probably be the Kennedy amendment that is going
to stay there, just like the laws of the Medes and Persias-unchange-
able, no amemenents to be acceptable to it.
It has this very same provision in it that I sought to offer to the
bill. The difference between my approach and the approach of the
Senator from Massachusetts (Mr. Kennedy) was that my amendment
would permit of other amendments.
Well, this is a deliberative body. It used to be called the greatest
deliberative body in the world. I do not suppose anybody would make
that statement today.
This is a deliberative body of sorts, and we ought to deliberate on
these matters and not just ram the bill through without any thought
of its contents.
There is too much polarization here in the Senate. At the time an
amendment is offered there are some four or five Senators in the
Chamber. Senators stream in in the last 5 minutes of the rollcall period,
and they say, "Well, whose amendment is it? Who is for it?"
When it is found that the Senator from Alabama offered the amend-
ment, immediately it has serious opposition. That is not on its merits,
Mr. President, because I say eventually the Senate will adopt this
amendment. Mark my word, it will eventually adopt it-if the matter
stays before the Senate.
I am hopeful, Mr. President, that we will not have something of a
logjam here of lawyer subsidization bills. I have another bill that seeks
to call this legislation what it is. It seeks to amend the title by calling
it the Civil Rights Attorney's Relief Act of 1976. We are going to
have an opportunity to vote on that, I daresay.
Had the Kennedy amendment been adopted, being a substitute, the
possibility of other amendments would have been wiped out.
Mr. President, my amendment, which was defeated by a large mar-
gin-I did not bother to look because I knew it would be tabled by the
distinguished assistant majority leader-would have provided what?
It was a simple amendment.
The bill says that in any action or proceeding to enforce a provision
of section 1977, 1978, 1980, or 1981 of the revised statutes, or title VI
of the Civil Rights Act of 1964, the court, in its discretion, may allow
the prevailing party, other than the United States, a reasonable attor-
nev's fee as part of the cost.
My amendment would have said we would also put in the provision
for title
[S 16268]
IX that guarantees one and all as to any program that is financed
directly or indirectly by the Federal Government; there shall be no sex
discrimination.
Well, sometimes there is sex discrimination. Sometimes it is thought
there is sex discrimination when there is no sex discrimination. But
these matters can be decided where an action is brought by the person





57

who feels aggriived by some entity that receives support directly or
indirectly from the Federal Government. They have a right to bring
action against the offending employer, the offending agency, or the
offending entity.
Without my amendment, Mr. President, such a person seeking to
strike down the discrimination against her or against him would have
to pay his or her own attorney fee, whereas those who sue on other civil
rights actions would, under the bill, have their attorney fee paid.
Mr. President, co to think of it, it looks to me as if the Senate,
in turning down my amendment was guilty of sex discrimination right
there. We do not have to go out to an outside entity to show sex dis-
rimination because the Senate has turned down an effort by the Sen-
ator from Alabama to give those who are aggrieved as a result .of sex
discrimination the same right to have their attorney fees paid as are
those who are complaining of discrimination under other civil rights
statutes.
I wonder if the Senate, in its haste to table this amendment, realizes
what it has done. It may be that the way to reach that would be to
move to reconsider the vote by which the amendment was tabled so
that the Senate would have an opportunity to right this little bit of
discrimination in which those voting to table the amendment of the
Senator from Alabama have indulged.
What was wrong with the amendment? Senators went to great
lengths to table it because it was an amendment of the Senator from
Alabama. In doing so they refused to give those who are injured
through sex discrimination an opportunity to have their attorney fees
paid when they seek redress while giving others feeling aggrieved by
other civil rights statutes, an opportunity to have their attorney fees
paid. Maybe we will hear something about that before long when some
of our lady groups realize what has happened to them here by a vote
of the Senate.
I do not see the logic of denying attorney fees in sex discrimination
cases and providing attorney fees in discrimination by race, color,
nationality, or religion.
Why discriminate against the ladies? That is what the Senate has
done, those who voted to table.
The vote was 54 to table, 24 not to table. Apparently some few
Senators realized what they were doing and got over on the nay side,
because that is a little bit more than some of these votes have been
running-24 opposition votes. Twenty-four Senators said that attor-
neys' fees should be allowed to those bringing actions against sex dis-
crimination to a like extent as attorneys' fees are paid for those bring-
ing actions for other civil rights discriminations. I would have felt
that the Senate, having a long record of opposition to sex discrimina-
tion, would have voted or this amendment.
If the amendment had been adopted, there would be absolutely no
necessity for the Kennedy substitute, because that is the only thing
it does; it puts in that amendment. Perhaps the Senate is awaiting an
opportunity to vote on that amendment. But what the Senator from
Massachusetts said he was trying to accomplish would have been ac-
complished by the amendment of the Senator from Alabama.
Mr. President, we have a number of important measures on the
calendar. We have a number of important conference reports to take





58

7up. But in the face of all of that, w ts the
A billtoprovidefor paying attorney. That is all it is. o
bit of other substantive matter; not one gl he p
attorney's fees. .
By and large, I say that attorneys ha a way f taki c of
themselves and making good fees. I do believe they
lot of protection. They do not need a woe lot of subsidizio, M.
President.
All the Senator from Alabama was tryin to do b his
was put those who are victims of sex the
of those who are victims of other types of discriminatio. But he
Senate has denied this right or this concession to those whoe victis
to sex discrimination. So I assume that no amendment, no matter w
good, that is offered by the Senator from Aabama-or I daresay the
Senator from North Carolina (Mr. Helms) because we are coonsors
of some amendments-I doubt that any of those amendments would
be accepted, no matter how good they are, because they didnot tink
of them. An amendment offered by the Senator from Alaama or the
Senator from North Carolina on this bill would not fare nearly-so well
as an identical amendment ofered by those who are sponsors ofth
legislation. That is the reason why I say, Mr. President, that we have
too much polarization here in the Senate. These measures ought to be
considered on their merits, not on who offers the amendments.
I will say, too, Mr. President, that a bill such as this before the
Senate, which has been singled out from all the bills on the calendar
to be given the top priority, should not have a substitute adopted, as
proposed by the Senator from Massachusetts (Mr. Kennedy), that
would cut off the right of Senators to offer amendments to the bill.
That is a provision of the rules, Mr. President; and they are followed
here in the Senate except when the shoe pinches a little bit, and then
possibly there are variations from the rules. I doubt if they will vary
that. Because once a substitute to a bill is adopted, no more mend-
ments are in order. So what the Senator from Alabama was trying to
do was get this amendment adopted without cutting off other amend-
ments, and that is exactly what would happen now -if no further
debate were held on the amendment of the Senator fro assachu-
setts, and I am speaking on his amendment at this time.
So I do not feel that the matter of providing a method by which
attorneys can bring actions on behalff of clients and assure them of
collecting an attorney's fee-I do not believe that is the most important
bill before the U.S. Senate or before the House of Representatives, to
make provision for a method by which attorneys can be sure of obtain-
ing fees for their services.
Mr. President, I was somewhat intrigued by the recital in the com-
mittee report to the effect that since 1964 every major civil rights law
passed by Congress has included or has been amended to include one
or more fee provisions.
What does that say ? It says that every major civil rights law, and I
am going to comment on the word "major" in a moment, passed by
Congress since 1964 has included or has been amended to include one
or more fee provisions.
What is the necessity of this bill if every bill passed since 1964 con-
tains provision for attorneys' fees? What is the need of this bill pro-







viding -for attorn- eys' fees under certain specified sections of, section
st 1oj! on
722 of the Revisdd Statutesp?
If in every major ivil rights law passed by Congress they have a fee
provision, it does not seem to me that there should be need for reenact-
ing such a provision.
Sdo not know. I a simply going by what the Judiciary Committe
tt t onthis bill ha.to about the bill. I am wondering, Mr.
President, if ther the phrase here that every major
civil right lawmakes p rovision for attorneys' fees ?
I ami wondering if th~e snsors of this legislation, being the ma-
orit em rof the Jy Comittee, who I imagine were in
on thewriting of this committee report, they feel that these civil
rights are minor civil rights They say every major civil rights law
has a fee rovision So I am wondering if they consider these setion
minor. Mr. Prdent, digress a moment. I might say that not one
single word of explanation has been offered for the need for this bill,
not one word. They call it up. enatr Kennedy offers his amendment-
killing substitute, and it would have been passed in a matter of see-
if the been a ew atrs who wanted to discuss the
So not one word of explanation has been given about this bill, S. 2278.
The author of the bill is not even here. That was not necessary. Simply
t is the s hving the author here to
I do not believe legislation ought to be stampeded through the Senate
Sstudy these bills aitt bit ad find out the pur-
pose of the Why this great interest in attorneys' fees
The Senator from Alabama on coming to the Seate retired com-
mthelegl professio s an ative practitioner, certainly as

[ S 16269
; .. '., a be ,- : ,: i ..;: .

lieve filed three amicus curiae briefs for puiblic bodies in his State and
that had matters pending befoe the upreme Court, feeling that such
talents that he might have were at the disposal of the people of Ala-
So I did file these amicus curiae briefs on important legal points
before the. Supreme Court of the United States. That has been the ex-
tent of the law practice of the Senator from Alabama since he has
been in the Senate.




SI sy, I h r r r respect, ad love for t
Mr. President, I am at a loss to know or to understand what is the
orneysd fo thees legovislation and what is the reason for the haste at this






60

Let us study the history of this bill a little bit, and I got by them-
ittee report and that is, in the main, what I am ~ elying o
The committee report says this very same bill, not the same number,
because we are in a different Cong but the very same bill ca p
in a subcommittee of the Judiciary Committee in 1978. t a
subcommittee called Subcommittee on Representaition of Citize In-
terests of the Judiciary Committee. Then, Mr. President, there is a
great big hiatus after that paragraph. The subcommittee acted on it, so
says thehing is said aboi t committee action in 1973,
and nothing is said about committee action in 1974. So what happened
to it in committee? Did the full committee kill it? What happened
to it? That is something I believe the Senate needs to know.
Is the champion of the bill present on the floor? If so, when I get
through with my remarks I hope he will speak on the matter and tell
us what happened to this bill in 1973 after the subcommittee ap
proved it.
They do not say the Judiciary Committee approved it. They say the
subcommittee approved it.
So, nothing happened to it in 1973. Nothing happened to it in 1974,
which closed out the 93d Congress and, of course, the bill died a pro-
vided by law.
If, Mr. President, it had already been killed by the committee, the
report is silent. If this was such a good bill back in 197 and tey said
there were more than 30 witnesses who testified, I make this point:
I looked at the hearings, and a large number of lawyers cae in and
testified. I do not believe that even one lawyer testified against this
bill back in 1973. Why would they beexpeted to do so It provides
that they are going to get paid for their services in certain anot
on fighting sex discrimination. The Senate has decided that that could
not be done. They do not want to do it, at any rate. It provides for at-
torneys' fees in other areas, but nobody says why it is necesary t
have this bill, in the face of the fact that the committee report says
that every major civil rights bill since 1964 has had an attorney's fee
provision in it. So why is this bill necessary?
I wish that a champion of the bill, if there be such, would come for-
ward and explain some of these matters after I have concluded my
remarks. This would be very interesting to hear as to that.
They say that in 1975, the provisions of this bill were incorporated
in a proposed amendment to S. 1279, extending the Voting Rights A
of 1965; and they reported it as a part of S. 1279 in the 4th Cong s,
back in 1975. They reported it on July 18,1975.
Mr. President, that bill never was brought up on the Senate floor.
So here we have a bill with a hiatus from 1973 to 1976. There isno ex-
planation of why they wait until now to bring it up. This bill has been
on the Senate calendar since June 29 of this year-almost mnth.
During that time, we had short sessions.
Mr. ROBERT. Mr. President, will the Senator yield or
question only,
Mr. ALiN. Iyield.
Mr. ROBERT C. BYRD. Can the Senator state how long he will talk
on the D.C. appropriations conference report? Senators would like
to vote on the conference report and go home.







Mr.. A EN. would be willing to yield for a motion to adjourn or
recess, right now.
Mr. RoBERTC. ,BR. How about a vote on the D.C. appropriations
conference report now?
Mr. ALLEN. And then adjour until tomorrow?
Mr. ROBERT 0. BYRD. Yes.
Mr. ALL At what time?
SMr. ROBERT BYR. Eleven o'clock.
Mr. A The Senator has made a fine proposal, and I wish he had
ade it earlier. However, there are a few more facts I should like to
bring into play. The adjournment motion will be made immediately,
and there will be no more business transacted?
Mr. ROBERT iC. YRD. That is correct. We would like to vote on the
D.C. appropriations conference report first.
Mr. ALLEN. I said at the outset of my remarks that I favored the
bill.
Mr. LONG. Mr. President, will the Senator yield
Mr. ALEN. I yield.
Mr.* LON. I do believe, Mr. President, that the Senator has made
some very signifant points that the Senate would do well to consider
and think about overnight and during the next day or so, before this

In my judgment, this idea of having the Federal Government pay
everybody who sues somebody can'really create havoc with this great
country of ours. We have had this type situation where we paid law-
yers to try to get people off the welfare rolls who did not belong there
and who tried to do something about fraud on our system.
For example, the Senator from Louisiana has been trying to get the
Government to prosecute some of these people who are fraudulently
using other people's social security numbers to obtain improper bene-
fits. So far as I know, they have not yet mad the first successful
prosecution. They have had thousands of cases and have recom-
mended only about six to be prosecuted.
One of those cases involves more than 7,000 violations. That is just
what the Government has charged the person wit. For all we know,
the person might be guilty of 70,000 violations of using other people's
social security numbers. The Government is alleging 7,000 violations
in that particular case, That is what the Government thinks it knows.
The person might have been committing 10 times that much fraud,
for all we know.
In a case in New Orleans, which I think is not at all unusual, 1 per-
son is on the welfare rolls under 18 names. The Government proceeds
to pay somebody, in the first instance, to try to protect the people and
to try to bring this mischief to an end; and not much is accomplished
in that respect many times-altogether too little. On the other side, the
Government is then proceeding to pay the lawyers to defend the
culprits.
Mr. Aurxw. That is the truth.
Mr. LONG. I have contended-and I believe this to be true-that
nobody but an absolute idiot would pay somebody to sue himself. Yet,
that is what this Government does--it pays lawyers to sue the Govern-
ment. If the Government is wrong, it should cease its course of wrong-







ful conduct, rather than pay a lawyer to sue itself. i o wha is
waste of Government money it is to pay someone to se the Go
ment and then pay another lawyer to defend the Gov
We have just seen this fiasco, which surprid me i
on the revenue sharin bill, to encourage everybod e
every little town. Podunk will be sued, Crpple eek wi e e,
Dry Prong will be sued. Every little town in merica will be and
by the time they get through spending the money to defend them-
selves, it may exceed the revenue sharing money-to be sued on any
sort of basis that anyone thinks he might be discri ed a
because of religion or because of age or because of disabilty o
whatever.
As the Senator knows, the amendment on that bill says that if the
person is successful in the suit, the Government will have topay him
an attorney's fee.
Mr. ALLENr. That is correct.
Mr. LONG. To encourage the people to sue every little count, every
little municipality, no matter how small, in the entire United States,
even if they are getting only $5 of revenue-sharing money. The Gov.
eminent still can be paying somebody an attorney fee to sue them for
their entire budget because they are alleged to have discriminated in
some respects, on four or five different grounds.
Mr. ALTNx. That is certainly true.
[S 16270]
Mr. LONG. I am not contesting one's right to sue, but a great numbe
of these cases are not well taken. In fact, I think that most of the
people who feel sorry for themselves and feel discriminated against
would do well to reconcile themselves by recognizing that everybody
has this problem. Everybody feels at one point or another in life that
he is disappointed: something does not go his way. One would like to
feel that he is discriminated against, so he wants to go to court and-sue
about it. For the Government to be paying the lawyers to sue people
and to use every little municipality and then to sue everybody that one
can think of, on whatever basis, can be a never-ending thing and abso-
lutely ridiculous.
People expect us to give them an accounting of their taxmoney. On
could say, "Well, the Government only pays when the person is su
cessful in the suit." But the Senator knows that a lot of these cases
are compromised. So if someone is being sued and wants to get the
litigation off his back, then, of coure, the amount that he wou settle
for would be higher because the plaintiff knows that if he is successul
in a lawsuit, he can make them pay a lawyer's fee.
Mr. ALLEN. That is exactly right. That is what I am trying to-ght
Mr. LONG. Now, a plaintiff lawyer, starting out just like ayone,
hoping to make it through a starvation period in the practice of law-
I can recall those days when I would sue nybody about anything, st
at the drop of a hat.
One lawyer stopped me on the street one time to express his outrage
tat I was suinf his client and the case was so farfetched. I asked him
this question: "Did you have that man as your client before I filed, the
lawsuit against him ?"
He said, "No, he came to me when you sued him."







omplning about? I got you a client by

I a not the only young plaintiff lawyer, I am sure, who started out
practicing by just s g people about anything that somebody might
f anything better to do, I would go sue

Mr. A N. The Senator did not have any guarantee by the Govern-.
attorneysfee out of the taxpayers'
pockets; did he?
r. L I would drive somebody wild, just to be active. A young
fellow, just starting a law ce, if he did not have anything else
to do, elt, if he had a li in court, after a while, people would get
cquintwith the idea that he was around and see him down there.
They might bring their business to him It would sort of get a young
lawyer publicity. Lawyers were not supposed to advertise, but they
would read your name in the legal news, that sort of thing. So people
know you are active, that you are around.
Young people are known to be pretty busy, just stirring up activity
in their early days as a lawyer.
ere, the Government would be paying the lawyers' fees and sub.
Mr..A Au*. Stirring up litigati' on.
Mr. LONG. Theoretically, they do not stir it up, but as a practical
matter, they do, because if one knows that they make a settlement, this
is the point of what they would have to pay if they lost the lawsuit, so
they would have to pay more to settle a nuisance suit, because the
Government is there to pay the lawyers' fee.
Mr. Ai.N. ;That is true.
I yield the floor.
[S 16280]
Ciivm Riorrs ATrORNEYs FEE'S AWARDs Ace--S. 2278
Amendments Nos. 2348 and 2349
(Ordered to be printed and to lie on the table.)
Mr. Amv submitted two amendments intended to be proposed by
him to amendment No. 2347, proposed to the bill (S. 2278) entitled
"The Civil Rights Attorneys'Fees Awards Act of 1975".





I, i, i |:
[122 ong. Rec. S 16390 (daily ed. Sept. 22, 1976)]
Civir RIGHT A ONEYSFEEs AwAD Acr-S. 2278
AMENDMENT NO. 2 7 7 8

(Ordered to be printed and o lie on the table.)
Mr. BUMPERs. Mr. President, I have never believed that the inability
to pay for an attorney should be an imped iment to litigation regarding
basic civil rights and liberties. Indeed, I believethat a courtsyste
available only to the wealthy is directly antithetical to the principles
Having said that, I must take issue with one glaring deficiency in
S. 2278. It does not apply the "hifting fee" principle for the benefit
the committee report on this bill and I quote:

faith actions to vindicate the fundamental rights here Involved by the prospect
79-586-77--6






64

of having to pay their opponent's counsel fees should they lose. ichardon v.
Hotel orportion o America, 332 F. Supp. 519 (E.D.La. 19 afF.
951 (th Cr. 1972). (A fee award to a deendant employer, was held un
where a claim of racial scrimination, though me s made h.)
Such a party, if unsuccessful, could be assessed his opponent' fee only whe
it ia shown that his suit wa clearly frvolous, veatioor broughts-
ment purposes. Unted States Steel Corp. v. tnited States, 385 Supp. 34
(W.D.Pa. 1974), aff'd. (3d Cir. 1975). This bill thus deters frivolous uits
authorizing an award of attorneys' fees against a party shown to.have litigated
in "bad faith" under the guise of attempting to enforce the Federal ght
by the statutes listed in S. 2278. Similar standards have been followed not ony i
the Civil Rights Act of 1964, but in other statutes providing for attorneys'fees.
My amendment would eliminate this jIuicial gloss on the "shifting
fe" principle for the purposes of S. 2278. Defendants, in order to vail
themselves of the principle, would not have to prove that th i
acted in bad faith, frivolously, vexatiously, r for harassme pur-
poses. Federal courts could then award prevailing defendants attor-
neys fees, paid by the plantiffs, without requiring that prevailig
defendants satisfy such a stringent burden of proof.
This is only fair. We should treat both paies in iti i he
same whether the matter be a civil rights case, unlawful deaih action,
or whatever.
I urge my colleagues to join with me in the adoption of this aend
ment and I ask unanimous consent that the text be prin in the
Record.
There being no objection, the amendment was orered to be printed
in the Record, as follows:

AMENDMENT No. 2378
On page 1, line 10, strike out the quotation marks and the period and insert in
lieu thereof a period and the following:
"For purposes of this section, a prevailing party who is a defendant in such
an action or proceeding may be awarded a reasonable attorneys' fee. at the
Court's discretion, even if such defendant cannot show that the plaitiff bring-
ing such action or proceeding acted in bad faith, frivolously, vexatiously, or
for the purpose of harassing such defendant.'.

AMEDENDTS NOS. 2379 THROUOG 2391

(Ordered to be printed and to lie on the table.)
Mr. ALLEN submitted 13 amendments intended to be pr sed by
him to the bill (S. 2278), supra.

AMENDMENTS NOS. 2392 AND 2393

(Ordered to be printed and to lie on the table.)
Mr. HELMS submitted two amendments to be proposed to amend-
ment No. 2347 to the bill (S. 2278), supra.

[S 16427]

CIVIL RIGHTS ATTORNEYS' FEE AWARDS ACT

The PRESIDING OFFICER. Under the previous order, the Senate will
now resume consideration of S. 227,8, which will be stated by tit e.
The second assistant legislative clerk read as follows:
A bill (S. 2278) relating to the Civil Rights Attorneys' Fees Awards Act of
1975.








IQUORUM CALL
Mr. ROBRT YRD. Mr. President, I suggest the absene of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The second assistant legislative clerk proceeded to call the roll.
Mr. ROBERTC YRD. Mr. President, I ask unanimous consent that
the order for the quorum call be rescinded.
Mr. ALLEN. I object.
ThePREIDING ER. Objection is hrd. The Clerk will call the
Sroll. .
The second assistant legislative clerk resumed the call of the roll and
the following Senators entered the Chamber and answered to their
names:
names ( [Quorum No. 47 Leg.]
Allen Helms Thurmond
Bumpers cClellan Williams
Byrd, Robert C. Pastore
Cranston Pearson
The PRESIDING OFFIER. A quorum is not present, the clerk will call
the names of absent Senators.
The second assistt legislative clerk resumed the call of the roll.
Mr. ROBERT C. Bn.. Mr. President, I move that the Sergeant at
Arms be directed to request the attendance of absent Senators.
Mr. CRANsTox. I ask for the yeas and nays.

[S 16428]

The PRESIDING OFFICER. Is therea sufficient second ? There is a suf-
ficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The qstn is on agreeing to the motion
of the Senator from West irginia. The clerk will call the roll.
The legislative clerk. called the roll.
Mr. ROBERT C. Byr, I announce that the Senator from Kentucky
(Mr. Ford), the Senator from Michigan (Mr. Philip A. Hart), the
Senator from Louisiana (r. Johnston), the Senator from Massa-
chusetts (Mr. Kennedy), the Senator from Louisiana (Mr. Long)the
Senator from Arkansas (Mr. McClellan), the Senator from Wyo-
mig (Mr. McGee), the Senator from Montana (Mr. Metcalf), the
Senator from Minnesota (Mr. Mondale), the Senator from New Mexico

Senator from California (Mr. Tunney), are necessarily absent.
I further announce that the Senator from South Dakota (Mr. Mc-
Govern), the Senator from Montana (Mr. Mansfield), and the Sen-
ator from Ohio (Mr. Glenn), are absent on official business.
Mr. G N. I announce that the Seto from New York (Mr.
Buckley), the Senator from Nebraska (Mr. Curtis), the Senator from
Kansas (Mr. Dole), the Senator from Arizona (Mr. Goldwater), the
Senator from Ohio (Mr. Taft), the Senator from Texas (Mr. Tower),
and the Senator from Connecticut (Mr. Weicker), are necessarily
absent.








I also announce that the Senator from Tennessee (Mr. Baker) is
absent on official business.
The result was announced-yeas 76, nays 1, as follows:
[Rocall Vote No. 624 Leg.]
YEAS-76
Abourezk Garn Nelson
Allen Gravel Nunn
Bartlett Griffin Paekwood
Bayh Hansen Pastore
Beall Hart, Gary Pearson
Belimon Hartke Pell
Bentsen Haskell Percy
Brock Hatfield Proxmire
Brooke Hathaway Randolph
Bumpers Helms Ribicoff
Burdick Hollings Roth
Byrd, Harry F., Jr. Hruska Schweiker
Byrd, Robert C. Huddleston Scott, Hugh
Cannon Humphrey Scott, William L.
Case Inouye Sparkman
Chiles Jackson Stafford
Church Javits Stennis
Clark Laxalt Stevens
Cranston Leahy Stevenson
Culver Magnuson Stone
Domenici Mathias Symington
Durkin McClure Thurmond
Eagleton McIntyre Williams
Eastland Morgan Young
Fannin Moss
Fong Muskie
NAYS-1
Biden
NOT VOTING-28
Baker Johnston Mondale
Buckley Kennedy Montoya
Curtis Long Taft
Dole Mansfield Talmadge
Ford McClellan Tower
Glenn McGee Tunney
Goldwater McGovern Weicker
Hart, Philip A. Metcalf
So the motion was agreed to.
The PESIDING OFFICER (Mr. Gary Hart). A quorum is present.

CIVIL RIGHTS ATTORNEYS' FEES AWARDS ACT

The Senate continued with the consideration of the bill (S. 228)
relating to the Civil Rights Attorneys' Fees Awards Act of 1975.
Mr. ALLEN addressed the Chair.

AMENDMENT NO. 2347

The PRESIDING OFFICER. The question is on agreeing to the amen
ent of the Senator from Massachusetts.
Mr. ArLEN addressed the Chair.





67

The PimsmrNo OFFICER. The Senator from Alabama.
Mr. ALLa. Mr. President, I have waited in vain for more- than a
day for some sponsor of the legislation to rise in the Senate and explain
th bill, explan the need for the bil, explain why this bill providing
for attorney fees in certain actions is so important that it is placed
ahead of all the important legislation on the calendar of the U.S. Sen-
ate, explain why this bill guaranteeing attorney fees for lawyers who
bring civil rights actions is so important that it is placed ahead of im-
portant legislation, pending here in the Senate.
I was somewhat surprised on yesterday when I offered an amend-
ment that would provide another area, as long as we were providing
for attorneys' fees, in which attorney fees would be paid to the pre-
vailing party.
That amendment provided that where actions are brought under
title IX, which is the antisex discrimination section, attorney fees
would be paid to the prevailing side in such actions.
The Senate in its wisdom rejected this amendment, apparently
taking the position that it did not wish to see attorney fees paid where
actions arebrought under the antisex discrimination section.
I have now, Mr. President, an amendment which I am going to in-
troduce after I concude my remarks, and I take this precaution to
allow me to discuss the amendment without having it tabled without
discussion.
The amendment that I propose to present opens up another area in
which attorney fees shall e paid to a defendant in an action brought
by the IRS-the Internal Revenue Service, a department of the Treas-
ury Department-asserting that such person against whom the action
is brought owes money to the Government under internal revenue laws.
If in the final determination of the action it is found that the taxpayer
owes nothing to the Government, or it is found that this action by the
Government was without merit, or that itwas frivolous, then the Gov-
ernment would be required to pay the attorney fee to the taxpayer as
to whom it was found that there was no liability of taxes.
We know all too well the proclivity of the IRS to harass taxpayers
throughout the country. It is only right, Mr. President, that if the
Government harasses a taxpayer, brings a frivolous action against him
and it is found that the taxpayer does not owe the Government any
money, that action may have been before the courts for years'and may
well have bankrupted the taxpayer in attorney fees forthe defense of
that action, but if in the final determination of the suit it is found that
he owes nothing, then the Government should be required to pay that
attorney fee.
Mr. President, I do not see all of the concern we manifest here in the
Senate about attorney fees. I like to see attorneys earn fees. I like to
see them succeed in their profession. But I do not believe it is up to
the United States Government to subsidize attorneys who bring actions
against individuals, against corporate entities, against government
bodies.
It certainly is an encouragement to the stirring up of litigation.
There is a term in the law, or a word in the law, called barratry.
Barratry means the stirring up of litigation against people.
Certainly, it is unethical conduct for an attorney to engage in the
practice of barratry. It is illegal. It is unethical.







But here we are doing exactly that if we pass this bill. We a un-
necessarily stirring up litigation.
I will not say that the Senate in passing this bill is actinginan un-
ethical fashion. Crtainy, the Senate has got right to p this bill i
itso desires
But if it were an individual doing it, I would say it would be uneth-
ical and possibly illegal.
The Senate has shown an unusual concern for guaranteeing attor-
ney's fees, and large fees at that.
Mr. MATHAS. Will the Senator yield
Mr. ALLE. I do not yield.
Mr. MATHIAS. The Senator commented the lack of speakers sup-
porting the bill.
Mr. ALLEN. I do not yield to the Senator. I have the floor.
Mr. MATHIAS. The Senator does.
Mr. ALEN. I hope the Senator will not interrupt me while I dis-
cuss this important matter.
I might comment that I waited to see if anybody else wanted to ask
for the floor. The Chair was just about to put the question on agreeing
to the Kennedy substitute. The Kennedy substitute is a nice little item,
I might say. What it does is to add about 7 words to the bill ut it is
done in the form of a substitute.
A casual observer might feel, "What is wrong with passing a sub-
stitute and going on to other amendments"
The joker in that, is if we pass a substitute no further amendments
would be in order.
Amendments are now in order to the Kennedy substitute and to the
bill itself. I do propose to offer an amendment in a short while which
would pay attorney fees to taxpayers who are wrongfully sued by the
IRS.
I would welcome an explanation by advocates of the bill, but none
will come forward. The author of the bill is not even present. Mr.
Tunney is the author of the bill but he is not here to explain it.
Of course, it is easy to pass any bill that has the words "civil rights"
in the bill. That is an easy bill to pass. Those are te key words. If one
puts "civil rights" in the bill, the bill will pass without Senators both-
ering to check into what is involved.
But this bill, Mr. President, does not involve civil rights. This bill
involves attorney fees. That is all there is in the

[S 16429]
bill. There is not one single additional civil right extended. There is
not one single civil right protected, not one single one. There is not
one thing in the bill except guaranteeing attorney fees. Why should
we in the Senate be concerned about seeing that attorneys get fees?
Mr. President, I have mentioned that the Senate has shown undue
concern about seeing that attorneys get fees.
Mr. CRANSTON. Will the Senator yield ?
Mr. ALLEN. No; I do not.
Let use see the record of the Senate in this regard.
The first action the Senate took regarding attorney fees had to do
with the no-fault insurance legislation which came up here in the Sen-





69

ate. II do¬ favor the no-fault insurance. I do not believe it has worked
well where that is the law in the various States. I blieve itiis sme-
thing that t tates shold do if it is to be done at all and not the
Federal Government.
I favor the concept that the States should be allowed to perform
many governmenta services rather than the Federal Gvernment. If
our State legislature wants to enact a no-fault insurance law I would
certainly support that concept, if they wished to do it.
One of the lrg groups r I ght say the largest group oppos-
ing the no-fault insurance concept was the trial attorneys of the Na-
tion, the damage suit lawyers, we might say. Obviously, with the no-
fault certain but smaller amounts are paid for damages sustained in
automobile acidents. Under the present law of course, the sky would
be the limit, with certain limitations asto excess recovery. Naturally,
larger attorney fees would be received under the present law.
So the Senate turned back the noault insurance. I dare say if the
lawyers had not opposed no-fault insurance, it would have passed
overwhehingly .
That is the first instance of the Senate taking care of the lawyers
on their fees.
The next ins ce that I recall had to do with the antitrust legisla-
tion whi pasd the Senate and the House. There was no conference
report, but the bill now, I assume, is on the President's desk. That bill
ad a difficult course here in the Senate. We had considerable debate
on it. I believe it was debated for a couple of weeks, at least.
Mr President, do you know what the min thing involved in that
titst bill was It~was protecting lawyers, guaranteeing a certain
favored few among the legal profession access to litigation where tre-
mendous fees, up in the millions of dollars, Mr. President, might be
paid on some of these antitrust actions.
How did that cme about? How could lawyers profit by antitrust
legislation?
Well, the l this proviio in it: The attorneys general of the
50 St I so of the territories as well; certainly the 50
State---coud farm out to s cronies as they might have in the legal
profession antitrust actions, taking it away from the Justice Depart-
mentnot taking it away, ut adding this additional route onto the
present procedure, where th Justice Department handles antitrust
legislation-adding 50 separate and distinct agencies or entities bring-
ing or having authority to bring antitrust actions, where they would
go in and sue some company for everybody that may have paid 2 cents
too much for toothpaste over period of years. They sue for all of
those people, and when you add the damages up it runs into millions of
dollars; and the attorneys are allowed to receive contingent fees under




money.
What was at the ibottom of that legislation, Mr. President, was con-
cern for attornes an attorns' fees. Had tht been stripped from the
Si.plot..f





70

bill4 we would not have had a 2 weeks debate on it. It would have beenI
passed very quickly.
So there, Mr. President, is the second instance of the Senate's great
concern for attorneys and attorneys' fees. Oh, we do great things for
the consumer. We have great concern for the consumer. Oh, the con-
sumer is king; we have got to take care of him. And it
pear that this antitrust legislation is going to benefit the consumer.
Well, the consumer's recovery would be a pance. W woul
to ask the court for $1.57 Very few people. Butadd thatup and give
the attorney his contingency fee, and the consumer h ot
but the attorney has.
I have no fault to find with attorneys. I am a member of the legal
profession, and have been for 40 years. I do not practice law, in uc
as I have a fulltime job in the U.S. Senate, but retain my high regard
and great respect for the legal profession.
Mr. President, this type of suit really is not brought by the average
country lawyer, shall I say, the average small-town lawyer. These
types of suits, these antitrust suits, are brought by aly small
group of activist attorneys.
Talk about cronyism: that is what we had in this antitrust legisla-
tion; taking care of a small group of activist attorneys. All of the talk
about aiding the consumer is just a smokescreen, Mr. President. We
all know that. It is not publicized a great deal, because the ei li
to see free enterprise institutions assailed. They enjoy that; it makes
good news for them-though not very good news for those who are
sued. But you never really get the true story.
Going home some nights, I hear Paul Harvey. He says, "You know
the news; now I am going to tell you the rest of the story." And he has
really interesting little vignettes in the way of telling of some incident
or some person's life.
Just last night, or the night before, he was telling about a lady who
lived in a house that was formerly a freight train caboose, and who
made a living from her garden, where she raised vegetables of one
sort or another, and one vegetable or organic food that he mentioned,
I believe, was comfrey, which is supposed to have cetainmedicial
qualities.
They live far below the poverty level in their expenditures for liv-
ing, she and her husband. However, they do a whole lotf good wo
from funds that they have; and Paul Harvey told the rest of the story
that this lady is a granddaughter of John D. Rockefeller, Jr. But you
would never know that from their lifestyle.
I am telling the rest of the story on the antitrust legislation. It is
supposed to be for the benefit of the consumer, the little man, but
actually it benefits, in the main, a small group of activist attorneys.
So that was the main bone of contention, Mr. President. Some of us
did not want to see this harassment machineryset up where, instead
of just having the Justice Department file antitrust actions, 50 attor-
neys general's departments throughout the country were set up a sub-
ofices-suboffices-in the bringing of antitrust proceedings, so that if
you get some eager beaver attorney general who feels that prices have
been fixed on some commodity, he can haul the company that makes
it into cout and claim, perhaps, that they overcharged,through price
fixing, some 2 or 3 cents on an item.





71

The damages are huge under this process of aggregation of damages,
where they do not have to show actual damages to anyone, but where
they just take a ci and say, "Now, look, on tis tube of toothpaste
they overchar 3 cents a tube and they have been selling 50 million
tubes a year, so have overcharged then some whatever that would
be.$1.5 milion, say.-
So, with a potential judgment of that sort against a company, they
are prone to settle. one case actually the amount of recovery
was $200 million. Think what a melon those attorneys sliced on that
litigation, a $200 million ement. I daresay the recovery if they had
gone on to cout might he been $1 billion. Or it might havebeen
nothing. Soetiesthatis the case.
I remember reading the paper the other day where some child had
ben injured damaged by a doctor and suit had been brought against
e doctor or the hpspitl I forget which That is not important. But
while the jury out, they reached a compromise settlement, some-
where inth nighborhood of $1.5 million, I think maybe $450,000.
But that is not important. It was a huge settlement. And as soon as they
haon settlement or signed papers, the jury an-
nounced it was ready to come back, and it did come back. The jury
made known what their verdict would have n had the case not been
sett been a verdict for the defendant.
That is not alays the case, of course, and these companies have to
settle these'matters rather than risk tremendous scare verdicts, and
the attorneysprofit under a contingency fee arrangement.
So that the main concern, and I am telling the rest of the story
here nw, Paul Harvey does. As he would say, "You know the news,


bill pased theCongress." But I am telling the rest of the story.
That was not, in the main, a consumer bill, a bill for the protec-
tio the consumer. It was a bill for nrotetion of lawyers. Mr.
President, if President Ford signs the bill-I hope he vetoes it-in
every State in the Union they will have a subantitrust office in the at-
torney epartment and the attorney general can checkaround
and see which company oic anfacturing or sales grou he
wantstsue. Then he can call his friend inone county who has been
supportipg him through the years, contributing to his campaign and



upon the preparation of his paper.
y %av! an at a here for' yoi, t/o bring8 and

Satt would the o d


SAMENDMENT NO. 472
Mr. President, I am going to send to the desk my amendment, on
stated at the outset, where the IRS wrongfully sues a citizen and is
found that the. suit seeking the establishment of tax liability is with-
out merit or frivolous, then in that event the Government will be re-
quired to pay an attorneys' fee to John Q. Citizen who has been har-





72

assed by the IRS. So I send this amendment to the desk and ask that
it be stated.
The PRESIDIN OIr iCR. The amendment will be tate d.
The assistant legislative clerk read as follows:
The Senator from Alabama (Mr. Allen), for himself and Mr. Helms, propoes
unprinted amendment No. 472, to the Kennedy amendment.
To aend the Kennedy substitute to S. 2278 on line 8, by stiking the comma
after 1964 and add the following :
"or where suit is brought by the IRS against any person asserting the existence
of tax liability to the government on the part of such person and said suit is
found in such action to be without merit or frivolous."
Mr. ALLuN. I ask for the yeas and nays, Mr. President.
The PRESIDTNG OFFICER. Is there a sufficient second? There is not a
sufficient second.
MAr. ALLEN. Mr. President, I have no recourse but reluctntly to
suggest the absence of a quorum which, under the policy I have estab-
lished, would be a live quorum. I would hope that we might hold
the request in abeyance for a moment. I hate to occupy the Senate in
a quorum.
Mr. NELSON. If the Senator will yield, perhaps there are some Mem-
bers in the cloakroom.
Mr. McCLURE. We can round one up.
Mr. ALLEN. So I will talk for a moment in the hope we can get the
Members of the Senate in the Chamber. I would much prefer that the
time of the Senate be used in discussion of the bill, rather than a
quorum call. I have no plans to put in a quorum call at ny time tday,
but if anyone does suggest the absence of a quorum, I am going to
assume that he wants to find out if there is a quorum of the Senate
present, and I will object to any request to call off the quum all.
So at this time inasmuch as several Senators have entered the Cham-
ber, I ask for the yeas and nays on my amendment.
The PRESIDING OFFICER, Is there a sufficient second? There is a suf-
ficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the amend-
ment of the Senator from Alabama. The yeas and nays have been
ordered. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. ROBERT C. BYRD. I announce that the Senator from Michigan
(Mr. Philip A. Hart), the Senator from Louisiana (Mr. Johnston),
the Senator from Wyoming (Mr. McGee), the Senator from Minne-
sota (Mr. Mondale), the Senator from New Mexico (Mr. Montoya),
the Senator from Utah (Mr. Moss), and the Senator from Caliornia
(Mr. Tunney) are necessarily absent.
I further announce that the Senator from Ohio (Mr. Glenn) and
the Senator from Montana (Mr. Mansfield) are absent on official
business.
Mr. GRIFFN. I announce that the Senator from New York (Mr.
Buckley), the Senator from Kansas (Mr. Dole), the Senator from
Texas (Mr. Tower), and the Senator from Connecticut (Mr. Weicker)
are necessarily absent.
I also announce that the Senator from Tennessee (Mr. Baker) is
absent on official business.






73

The result was announced-yeas 39, nays 47, as follows:
[Rollcll Vote No. 625 Leg.]
YEAS-39
Allen Fannin Nunn
Bartlett Garn Packwood
Bellmon Goldwater Pell
Brock Grifin Roth
Bumpers Hansen Scott, William L.
Burdick Hathaway Sparkman
Byrd, Harry F., Jr. Helms Stennis
Byrd, Robert C. Humphrey Stevens
Cannon axalt Stone
Chiles Long Symington
Domenici McClellan Talmadge
Durkin McClure Thurmond
Eastland Morgan Young
NAYS--47
Abourek Hart, Gary Metalf
Bayh kHarte Muskie
Beall Haskell Nelson
Bentsen Hatfield Pastre
Biden Hollings Pearson
Brooke Hruska Percy
Case Huddleston Proxmire
Church Inouye Randolph
Clark Jackson Ribicoff
Cranston Javits Schweiker
Cuer Kennedy Scott, Hugh
Curtis Leahy Stafford
Eagleton Magnuson Stevenson
Fong Mathias Taft
Gravel McIntyre



Buckley Mansfield Tower
Dole McGee Tunney
Glenn Mondale Weicker
Hart, Philip A. Montoya
So Mr. Allen's amendment was rejected.
Mr. HIATHAWAY -and Mr. HELMs addressed the Chair.
e (Mr. Leahy). The Senator frm Maine i
recognized.
Mr. HATHAWAY. Mr. President, I yield to the Senator from Cali-

Mr. CRANTON. Mr. President, it was alleged in the course of the
debate against this bill this morning by the Senator from Alabama
that those who are in favor of the pending measure have not been


I thenspoke with the Senator from Maryland to verify my impres-

sively his reasons or supporting this bill. He stated that he had done
so. The record shows that he did so.





74

The Senator from Maryland then sought the floor; he asked the
Senator from Alabama to yield, simply for the purpose of straighten-
ing out the record to ake plain that he had been present, had spoken
at leth, and his arguments are in the record. The Senator fro Ala-
baia refused to yield to him.
Uon another occasion, I asked the Setor from Alabama if he
would yield solely for the purpose of my making a few points in
reard to this bill. Again, the Senator from Alabama refused to yield
the floor.
My only point in making this statement is to correct th recrd.
There are those present and there have been those present who have
wished to speak for the bill ?
Mr. ALLEN. Will the Senator yield ?
Mr. CRANSTON. I cannot yield. The floor is in the hands of the Sen-
ator from Maine.
Mr. ALLEN. Will the Senator from Maine yield ?
Mr. HATHAWAY. I yield to the Senator from Alabama.
Mr. ALLEN. The Senator from California could get the floor now.
I do not recall the Senator from Maryland making any remarks.
Possibly he did.
Mr. CRANSTON. If the Senator from Alabama will read the record,
he will find that he did.
Mr. ALLEN. I do not recall, and I was here practically all the time.
I may have stepped to an adjoining room for a few minutes. I do not
recall the speech.
As for his asking for me to yield the floor to him, he had not ap-
peared, when the bill was called up, to speak. I hope advocates of the
bill will have something to say in favor of the bill, if in fact, there
is something to be said.
Mr. CRANSTON. Advocates of the bill have made statements for the
bill. The Senator from Maryland indicated to me that he gave a very
long speech.
Mr. HATHAWAY. Mr. President, the bill we have under considera-
tion, S. 2278, the Civil Rights Attorneys Fees Awards Act, uld
allow a Federal court to provide the familiar remedy of reason-
able counsel fee awards to private citizens who must goto court to
enforce the civil rights laws which Congress has passed since 1866.
This bill would add the same type of "fee shifting" provision con-
tained in portions of every major civil rights bill passed since 196 to
other civil rights
[S 16431]
statutes which do not now specifically authorize fee awards, thereby
achieving consistency in the civil rights laws.
In the typical case arising under these civil rights laws, the citizen
who must enforce the provisions through the courts has little or no
money with which to hire a lawyer, and there is often no damage claim
from which an attorney could draw his fee. If private citizens are to
be able to enforce the laws-if those who violate these most basic human
freedoms are not to proceed with impunity-then citizens must have
the opportunity to recover what it costs them to vindicate these rights
in court.





.75

The reason why this bill was not ofered yearsmago is that, until the
Alye Pipelinecasedecided by the Supreme Court last year, thederal
courts had been routinely awarding fees in ivil rights cases covered
by this bill. The courts reasoned that they had the inherent equity
power to make these laws efective, and thatCongress had indicated
very frequetly in civil rights bills that attorneys' fees were one way to
achieve efetiveiess.
Last year, however, the Supreme Court held thatthe Federal courts
did not have this inherent power, no matter how behefil fee awards
were, and that must specifically grant them t if the

technical requirements that the Supreme Court laid down if the courts
are to continue the pr ce of awarding attorneys' fees which had been
going on for years prior to the Alyeska decision. It does not change the
the protection of civil rights, except as
it provides the fee wards which are necessaryif citizensareto beable
to efectively secure compliance with these existing statutes.
Mr. President, right now the vindication of important congressional
policies i the vital area of civil rights is made to depend upon the
financial resources of those least able to promote them. Because of this,

enforcement of civil rights will become historical documents, rather
than the useful tools for law enforcement which they have become over
the past decade. Mr. President, we cannot allow this to happen. I urge

Mr. AB. Mr. President, will the Senator from Maine yield
to me for a question?
Mr. I would be happy to yield to the Senator from
South Dakota.
Mr. Th e al made here on the floor
by opponents of this l gsatiotn that it would encourage frivolous law-
suits. It has been the "law3 W relie bill," as every bill has been called
when it has come up and habeen opposition to it. But, accord-
ing to the provisions of the bill itself, is it not true that the legislation
says the court, in its discretion, may award attorneys' fees to the pre-
vailing party, so that if the defendant in a civil rights suit were to
prevail the court could prevent a frivolous lawsuit by having that
Mr. HATHAWAY. The Senator is absolutely correct. There is adequate
safeguard in the bill to protect against frivolous lawsuits.




The PRE G O (Mr. Leahy). Does the Senator from
yield thei t sfloor? s


S Sator fm Maine yieds te f .he

,,I i B f i jl l^ iIr fi| 'll.' a llc l i V" Hlr r 1 s C, y H i 1.i i .I ,I i





76

I am vy plead t long last to hear some comit, ef a i was
and defensive as it appears to be, on the part of the proponents of

Now, the distinguished Senator from California (Mr. Cranston)
referd to a l speech made yesterday by the ator from
Maryland (Mr. Mathis). The Snato from North Carolina was on
the floor just about all day long, and I did not hear any
by the istinguished Senator from Maryland. Did the Senator from
Alabama hear it?
Mr. AaN. No; I did not hear it.
Mr. HELMS. I will say to the able occupant of the Chair that either
Senator Allen or the Senator from North Carolina was on the floor
at all times day. Senator Mathias may have put some written
material into the Record, but he did not deliver it on the floor, where
it could be debated.
The only time I recall the Senator's making any comment was in
objection to an amendment submitted by the Senator from No Caro-
lina, which amendment was intended to relieve the average citizen of
this country of the harassment and intimidation of Federal bueau-
crats that now exist.
The Senator from Maryland said he agreed with me, yet he moved
to table my amendmentand, of course, as is well known in this ody,
as it operates, the majority came in and obtained their instructions on
how to vote. The amendment was tabled without even half the Senators
knowing what it was all about.
The same will happen-
Mr. HATHAWAY. Mr. President, will the Senator yield?
Mr. HiLMS. No; I believe I will finish my line of thought, if the
Senator does not mind.
The same thing will happen undoubtedly as to the amendment the
Senator from North Carolina will call up after he finishes is state-
ment in connection therewith. We can count the Senators on the floor
right now on two hands, and, undoubtedly, there will be a motion to
table. There will be instructions whispered to the Senators as they
enter the Chamber. They will obediently vote to table this amendment,
and another good amendment will bite the dust. The excellent amend-
ment submitted by the Senator from Alabama, cosponsored by the
Senator from North Carolina, would have given relief to tpayers
harassed and intimidated by the Internal Revenue Service. It was
defeated by the votes of Senators who were not present to hear one
word of debate.
This harassment of citizens by IRS bureaucrats is going on all over
the country. There have been many articles in various publications,
including the Reader's Digest. about how the IRS bureaucrats perse-
cute, prosecute, intimidate and harass the common man in this country.
Here the Senator from Alabama and the Senator from North Caro-
lina attempted to do something about it, and in come the absent Sen-
ators on a rollcall: they get instructions from the manafger of the bill,
"vote it down, vote it down." And vote it down they did.
That is the way it foes, Mr. President. This is the way this Senate
operates these days with the prevailing majoritv.
And then they piouslv lament the fact that the minority of the
Senate occasionally uses the rules in an attempt to restrain unwise







legislation. Well, I have got news for the majority. As long as this
kind of inattention to legislation continues, this Senator, at least-
and I am confident there are some others-is going to use every rule
he can to block ill-considered legislation.
Threats are already being heard about rule XXII. They say that
they intend to further dilute rule XXII when the 95th Congress conm-
mences in January. I would advise them to carefully think about that,
because if they want to play hard ball, the Senator from North Caro-
lina can play it also. So we will see.
But I just want to say for the record that I was on this floor prac-
tically all day yesterday. I did not hear the Senator from Maryland
make a long speech in defense of this bill. He did not do it.
He may have put written material in the Record, but he did not
make a speech on this floor in defense of this bill. So the Senator from
California is in error.
Mr. President, the amendment which I will call up shortly would
remedy the unnecessarily broad aspects of this proposed legislation.
Parenthetically, I might say tthat I am not going to call it up until
I conclude my remarks because the amendment would then be subject
to a motion to table with no further discussion. So I shall wait until
the conclusion of my remarks to call up the amendment.
First, it would require that the judge's decision to grant attorneys'
fees to the prevailing party be based upon a showing of the other
party's bad faith in conducting the litigation. Second, it would afford
protection to financially pressed State and local governments by in-
cluding them within the bill's exemption from liability granted to the
Government of the United States.
Mr. President, the American judicial tradition in general disap-
proves the allowance of attorney's fees to the prevailing party in civil
legal actions. The Federal judiciary has been exceedingly cautious in
carving out even limited exceptions to this rule. The basis of this

[S 16432]
approach was recently outlined by the Supreme Court. The Court

Since litigation is at best uncertain one should not be penalized for merely
defending or prosecuting a lawsuit, and that the poor might be unjustly dis-
couraged from instituting actions to vindicate their rights if the penalty for
losing included the fees of their opponent's counsel. Fleischmann Distilling Corp.
v. Maier Breting Co., 386 U.S. 714, 718 (1967).
In short, American jurists reject the proposition that the loser
in a law suit be required to pay the attorney costs of the winner. The
amendment that I shall submit momentarily is designed to bring this
pending legislation within the American tradition. My amendment
would do so, first by setting an objective standard to guide judges in
their awarding of such fees and second by more clearly identifying
which parties would be subject to its exemption under the statute.
Presently this bill requires a Federal court to grant attorneys' fees
.to the prevailing party solely on the basis of its own discretion. My
amendment incorporates an objective standard to aid judges in mak-
ing their decision. It would simplv require that the party seeking to
rcover legal fees demonstrate to the court through sufficient evidence
the "bad faith" of the other party in maintaining- the suit or in actions





78

wich receded the suit. This bad faith stana a a
judicial meaning and effect and should be construed in light of its
use in the Federal Rules of Civil Procedure. It has b i rted
by Federal courts to include dilatory and objectionable fore
or during trial. It would include actions for which a party has been
held in civil contempt. It would also include clearly spu or friv-
olous defenses and vexatious, wanton, or oppressive
litigation. While this requirement does set an objectie, reewble
standard, it is broad enough to be responsive to e t many disri
circumstances to which the court would have to respond. I : -
It is maintained that part of the rationale for S. 2278 ad the Ken-
nedy substitute is that a plaintiff in ases arising under these sttutes
is acting as "a private attorney general, and that therefore the award
of attorney's fees is appropriate. In the Alyeska case, Justice White
explained that-
Since the essential function of the private attorney general is to call public
officials to account and to insist t at they enforce the law, it would follow in
such cases that attorneys' fees should be awarded against the government.
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267 (1974).
However, this bill exempts the United States from such an award. If
the reason for passing S. 2278 is that the plaintiff is acting as a pri-
vate attorney general, then he should cearly be able to recover such
an award from the United States when the Federal Government is
involved in the lawsuit. Since he is not able to do so under this pro-
posal, I suggest that perhaps the privt atttorney geneal justfia-
tion is inappropriate for this legislation. One convincing argument for
rejecting liability for the United States and, therefre for rejecting
the concept of private attorney general was stated by Assistant Attor-
ney General Rex E. Lee:
The theory is that the government's adversaries in litigation are merely forcing
government to obey the law; that in this capacity they are performing a public
service as private Attorneys General, and are, therefore, entitled to be paid for it.
Once again, this argument assumes an overly simplistic notion of litigation. The
proposition that the government as a matter of policy or practice goes into court
for the purpose of asserting frivolous positions simply can not be sustained.
Mr. President, I disagree with the position that the bureaucrats in
the Federal Government cannot be said to act in a frivolous manner in
bringing legal action against American citizens, however, if the Sena
does find this analysis convincing in regard to ational Government,
I suggest that our system of federalism mandates that State and local
governments have the same constitutional integrity and should there-
fore be accorded the same exemption. We cannot respect our federal
system and accept legislation which assumes that State and local gov-
ernments act in a frivolous or vexatious manner while it is assumed
that the National Government can never do so.
This legislation provides that State and local governments and
their officials can be defendants in cases involving these statutes and
that attorneys' fees will "be collected either directly from the oficial
in his official capacity, from funds of his agency or under his control, or
from the State or local government." Presently this legislation poten-
tially places a tremendous burden upon State and local governments.
In other public interest law suits where the legal fees have been con-
tested they have ranged from $2000,000 to $80,000. Certainly, it i







is t bilit i amounts be assumed by
already financially hardIpressed State and local goverinments.
Therefore, the amedment Iam aboutto call up would xept

The court of appeals 'the Alyeska case discussed at length the
ircmstances which give rise to the neeity for the private attorney
general concept as it relates to attorneys' ees. The court stated that:
When violation fp a congressional enactment has caused little injury to any one
individual, but great harm to portan publi interests when viewed from the
perspective of the broad class intended to be protected by that statute, not to
ard counsel fees can seriusly frustrate the purposes of Congress. 495 F.t 2d

However, this fact pattern is not present under the civil rights
statutes affected by the present legislation. The violation of the rights
protected by these statutes result in a substantial injury to the parties
volved. That legal harm is incentive enough for legal action. These
are not cases where each member of a broad group is slightly injured

iin:entive to undertake litigation. Here we are dealing with fthe n|otmtal
type ofplaintiff and the extraordinary remedy provided by thig legis-
lation is unnecessary.
Chief Justice Burger haW' time And again stated the urgency for

icker for those who must utilize the Federafl courts. Those persons
whohliave foi nd themselves involved in cilil lega actions and iwho htive
S wait as long as 3 or 4ears for their case ust to come trial
because of the heavy aseloads of Federal pourts would surely agree
that every altertl8ve should be tried before the caseload of the Fed-
era. courts is increased still further. Recently the Supreme Court
respoided to thi roblem. The Wall Street Journal reports that the
decision of the Court denying attorneys' fees in the Alyeska case was
motivatedin part by the desire not to increase the caseload of the

Undoubtedly the added incentive of receiving one's attorneys' fees
from the opposing party will increase the number of cases brought
before the Federal bench. The legal journal, Juris Doctor, reports
fture "attorneys' fee awards were the number one factor in the future
of public interest law f inancing." This increased casload will again
expand the waiting periods for trial which are already far too lengthy
in the Federal court system. We are all familiar with the phrase "jus-
tic e delayed is justice denied." We are dangerously approaching the
threshold where this delay becomes the denial of justice in many areas


During the last 200 years our judicial system has developed a num-
ber of costs of litigation, both of a monetary nd a rimonetary
nature which act as a deterrent to trivial and specious law suits. By
reducing these costs, this legislation increases the burden on the Fed-


increase in the Federal courts' caseload. I suagest that our5responsi-
bility to further the timely administration f justice in this country
79-586-77- 7
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et d l'at l injury tfthei p 'ies


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requires'that we pursue every alternative before ineasing the case-
load of the Federal judiciary.
Another assumption behind this legislation is that many citizens will
not bring meritorious suits if they aro required topa e e
attor s' fees. I hope that all Americans will vi
aig tixtra inary advatge to one pay in these ited
cases when it has been steadfastly rejected in almost every area of
American lawWhy hould thee ights, important as they may be, be
give a greater priority than thright to receive rgn of one's
ontract or the freedom from the intentional or neglig inflicio
personal injury. I do not think that we today can say that the right
involved in this legislation are of significantly greater value thanour

[S 16433]
other traditional legal rights. Even f we assue tha it is proper to
ma~e this exception to the American rule in these cases to assist in-
digets, the problem of providing legal services to iniigents is already
being met by other methods. Legal assistance is already being provided
on the local level by both private and public organizations. Those who
are truly unable to afford legal enforcement of their rights can turn to
one of the many legal aid services or the many public interest law firms
and foundations. These already existing services make the wide-
spread use of the proposed fee-shifting mechanism in this legislation
unnecessary.
Emphasis has been placed upon the fact that titles IInd VI
the Civil Rights Act of 1964 and title VIII of th Civil Rights Act
of 1968 contain provisions for the award of attorneys' fees. These stat
utes meticulously detail and carefully outline the procedures and the
remedies available to a plaintiff seeking their protection. The civil
rights statutes affected by this legislation, however, are broad, ambigu-
ous, and far-reaching n coverage. Depending upon who may interpret
their effect, they coul dbe easily interpreted by se to reh conduct
which the vast majority of Americans would consider not only consti-
tutionally permitted but totally proper. To allow an award of ttor-
neys' fees without guidelies to govern a ourts deterination is o
invite potential test cases which will not only add to the congestin of
Federal courts, but also severely harass cizens wh are age in
constitutiona ly permissible conduct.
Mr. President, if the Senate fnds i necessary toake this ecept
to he American rule rerding he award of attorneys' fees uder
cases brought to enforce provisions of sections 19 7, 1978, 1979, 1980,
and 1981 of the revised statutes, tile IXofPublic w 92318 o tit
VI of the Civil Rights Act of 1964, then I urge that it do so under te
limitations provided for by my amendment.

UP AMENDMENT NO. 473
Mr. HIEL-s. Mr. President, I now call up my amendment and ask
that it be stated.
The PRESMDNG OFFicER. The amendment will be stated.








The assistant legislative clerk read as follows:

mnent No. 473 to the Kennedy amendment No. 247:
On page 1, line 8, after "ourt" insert the following: ", uon a showing or
On page, 1, line 9, after "United States," insert the following: "'or ;any territory
or possession thereof, or any State of the United States or any political subdiviio
thereof ncluding special purpose units of general loal gvernment,".
Mr. H s. Mr. President, I ask for the yeas and nays.
The PRESIDING Or ER. Is there a sufficient second? There is not a
sufficient second.
QUORUM CALL
Mr. HELs. I su the absence of a quorum, then.
The The clerk will call the roll.
legislative clerk prceeded to call the roll.
Mr. R r B Mr P e Mr. P ent, I ask unanimous consent that
he ordr for the call be rescinded that Mr. Helms can get
the yeas and nays amendment.
Mr. AujEN. I object.
The PRESMID OFFICER. Objection is heard.
The second stant legislative clerk resumed the call of the roll,
g tors entered the Chamber and answered to their
names:
iAlen Griffn McClellan
Byrd, Harry F., Jr. Helms Pearson
Byrd, Robert C. Inouye Scott, Hugh
Case Javits Stennis
Culver Kennedy Symington
Eastland Leahy
Goldwater Magnuson
The P.REsING OFFICE. A quorum is t present. The clerk will call
the names of the absent Senators.
esecond assistant legislative clerk resumed the call of the roll.
SR C. BYD. Mr. President, I move that the Sergeant at
Arms be drected to request the attedance of absent Senators.
The PRESIDIG The question is on agreeing to the motion
of the Senator from West Virginia.
Mr. ROBERT C. BYD. I fo yeas and nays.
The PRESI G OFFICER. Is there a suficient second? There is a suffi-
cient second.
The yeas and nays were ordered.
The questio on agreeing to the motion
Sthe Senator from West Virginia. The yeas and nays have
ordered, and the clerk will call the roll.
The, legislative clerk called the roll.
(Mr. Philip A. Hart)6, the Senator from **Louisiana (Mr. Johnston), the
ahe

Senator from Wyoming (Mr. McGee), the Senator from Minnesota
(Mr. Mondale), the Senator from New Mexico (Mr. Montoya), the

absent.








I further announce that the Senator from Ohio (Mr. Glenn) and the
Senator from Montana (r. ansfield) are absent on official business.
Mr. I announce that the Senator fro
.... I ' i
Beall), the Senator from New York (Mr. Buckley), the Senator from
Kansas (Mr. Dole), the Senator fro Texas. (Mr. Tower), and the
Senator from onnecticut (Mr. Weicker) are necessarily absent.
I also announce that the Senator ro Tnne (Mr. BA
absent on official business.
The result was announced-yeas 79, nays 5, as follows:
[Rolleall Vote No. 626 Leg.]
YEAS-79
Abourezk Gravel Nelson
Allen Griffin Nunn
Bartlett Hansen Packwood
Bayh Hart, Gary Pastore
Bellm on Haskell Pearson
Bentsen Hatfield Percy
Brock Hathaway Proxmire
Brooke Helms Randolph
Bumpers Hollings Ribicoff
Burdick Hruska R oth
Byrd, Harry F., Jr. Huddleston Schweiker
Byrd, Robert C. Humphrey Scott, Hugh
Cannon Inouye Scott, William
Case Jackson Sparkman
Chiles Javits Stafford
Clark Kennedy Stennis
Cranston Laxalt Stevens
Culver Leahy Stevenson
Curtis Long Stone
Domenici Magnuson Symington
Durkin Mathias Taft
Eagleton McClellan Talmadge
Eastland McClure Thurmond
Fannin McGovern Williams
Fong McIntyre Young
Ford Metcalf
Garn Muskie
NAYS-5
Biden Goldwater Morgan
Church Hartke
NOT VOTING-16
Baker Johnston Pell
Beall Mansfield Tower
Buckley McGee Tunney
Dole Mondale Weicker
Glenn Montoya
Hart, Philip A. Moss
So the motion was agreed to.
The PRESIDING OFFICER. (Mr. Goldwater). A quorum is present.
Mr. KEN-EDY. Mr. President, I make a motion to table the Helms
amendment.
Mr. ROBERT C. BYRD. Mr. President, I ask for the yes andnays.
Mr. ITELMNs. I ask for the yeas and nays on the tabling m ion.
The PRESTDING OFFICER. Is there a sufficient second? There is a s
ficient second.