John Conyers

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I want to thank Mr. Clay for his discussion here. I think it is courageous and necessary. To begin with, the painting's removal by the Architect of the Capitol was an infringement on the free speech rights of the artist and on the Congressman, yourself, Mr. Clay, from Missouri. The First Amendment of the United States Constitution provides that: ``Congress shall make no law . . . abridging the freedom of speech. . . . '' And it is undisputed that the First Amendment's free speech guarantee extends to artistic expression, including visual arts. This is true even when such expression may be offensive to many people or to some people. While Members who removed the artist's painting may have acted based on their belief that the artwork's viewpoint was offensive, that belief cannot trump the free-speech rights of the artist and of you, yourself, Congressman Clay. I congratulate you for putting this discussion into the Record. Mr. Speaker. This past January within the very confines of the Capitol complex, we witnessed a direct assault against the First Amendment when several Republican Members of Congress unilaterally removed a painting by high school senior David Pulphus from the 2016. Congressional Art Competition display in the Cannon Tunnel. The painting, sponsored by our colleague--Representative William Lacy Clay--had been displayed in the Cannon Tunnel along with more than 400 winners of the Art Competition for nearly 7 months without incident or comment. And, rather than upholding the artist's right to free expression and Representative Clay's prerogative to sponsor student artwork from his district, the Architect of the Capitol capitulated to political pressure generated by the right-wing media outlets and ratified these Members' acts of vigilante censorship by having the painting permanently removed from the Congressional Art Competition display in the Cannon Tunnel. This artwork, seemingly inspired by the events in Ferguson, Missouri in 2014 and other incidents that sparked tension between police and minority communities, depicts a protest, with two police officers and a young man facing each other in a standoff, all of three which have animalistic features. In the background, protesters look on and a young man of color appears to be depicted in a crucifixion tableau. Whatever message one draws from this painting, several things are quite clear. To begin with, the painting's removal by the Architect of the Capitol was an infringement on the free speech rights of Mr. Pulphus and Representative Clay. The First Amendment of the United States Constitution provides that ``Congress shall make no law . . . abridging the freedom of speech.'' And, it is undisputed that the First Amendment's free speech guarantee extends to artistic expression, including visual art. This is true even when such expression may be deeply offensive to many people. As the Supreme Court recognized in F.C.C. v. Pacifica Foundation, the ``fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection.'' While the Members who removed Mr. Pulphus's painting may have acted based on their belief that the artwork's viewpoint was offensive, that belief cannot trump the free speech rights of the artist and Representative Clay. Nor does it justify the Architect's removal of the painting in response to pressure from these and other Members who found the painting offensive. Once the House established the Congressional Art Competition and opened the Cannon Tunnel to display artwork sponsored by each individual Member office, it created a limited public forum. Having created such a forum, individual House Members and the Architect cannot then constitutionally discriminate against expression within that forum based on the viewpoint expressed. Yet, that is precisely what happened here. Unfortunately, the painting's removal was part of a broader pattern of behavior by the Majority to undermine the fundamental right of free expression in the House. For instance, in January the House adopted an unconstitutional gag rule that would allow the imposition of fines of up to $2,500 on a Member for using an electronic device to record, post, or live-stream activity on the House floor. This rule was a thinly-veiled response to the protest undertaken last year by Democratic Members on the House floor with regard to the Majority's failure to consider comprehensive gun reform. The rule is a direct attack against the Minority's right to political expression and it is clearly intended to stifle the American public's ability to access that expression. While it is easy to think that these matters concern only one young artist or a group of House Members, every American should be deeply concerned about such kinds of censorship. Tyranny starts in small ways. Censor a painting here, a poem there. Ban photos in some instances, videos in others. When such seemingly minor acts go unanswered, it invites more oppressive conduct in the future. Ensuring freedom requires vigilance and a willingness to push back vigorously against every instance of censorship. This is why I applaud the federal lawsuit filed by Mr. Pulphus and Representative Clay seeking to vindicate their free speech rights though it is shameful that they were forced to go to court at all. And, while the trial court incorrectly concluded that the First Amendment does not protect Mr. Pulphus and Representative Clay, I am confident this conclusion will be overturned on appeal. All Americans must be free to speak truth to power. Therefore, it is imperative that we draw a line in the sand now, lest we encourage further and even more troubling acts of censorship in the future.

Mr. CONYERS

Mr. CONYERS. Madam Speaker, I ask unanimous consent that the gentleman from Connecticut (Mr. Courtney) be removed as a cosponsor from H. Res. 246.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I've been here a while and it's hard for me to recall a time when we've voted on something so obviously and willfully harmful to children, seniors and working Americans. This bill strips healthcare from 24 million people. It requires some seniors to pay 100 percent or more of their income in premiums. This legislation dramatically cuts Medicaid, directly contradicting President Trump's claim not to. In Michigan, HALF of all children rely on Medicaid. In my district alone, 56,000 people will lose coverage, including 16,000 children. Let's be clear: if we pass this bill, children, seniors, and working people will suffer and some will die, so that the wealthy can get a tax cut. Healthcare is a right, not a privilege. That's why I support a single-payer, Medicare-for-All plan, and why I will be voting ``no'' on this mean spirited legislation. Mr. Speaker, as Ranking Member on the House Judiciary Committee, I include in the Record a legal analysis prepared by committee staff that concludes that the provision of H.R. 1628 that requires New York State to change how its counties fund the State's portion of Medicaid expenses is not related to a legitimate Federal interest, that no rational Federal purpose has been proffered for the provision, and that it would severely intrude on traditional state prerogatives. As such, this provision would violate Constitutional limits on the Federal Spending Power, the Due Process and Equal Protection Clauses and the Tenth Amendment (reserving all undelegated powers to the States) and would likely be held unconstitutional if challenged in court. Memorandum To: Interested Members. From: House Judiciary Committee Democratic Staff. Re: Constitutionality of Faso-Collins Amendment. Date: March 24, 2017. The Faso-Collins amendment, incorporated into the Manager's amendment, would violate Constitutional limits on the Federal Spending Power, the Due Process and Equal Protection Clauses and the Tenth Amendment (reserving all undelegated powers to the States). Requiring New York State to change how its counties Fund its portion of Medicaid expenses is not related to a legitimate Federal interest, no rational Federal purpose has been proffered for the provision, and it would severely intrude on traditional state prerogatives. If the Faso-Collins amendment were ever enacted, it quickly would be invalidated by the Federal courts. The irony of this ``buyout'' is that the ``payment'' supposedly being delivered in exchange for votes--the unconstitutional provision--is the legislative equivalent of a check on a closed bank account, which will never deliver the promised benefits. For the last 51 years, New York State has chosen to fund a portion of its share of the Medicaid Program by using funds from county property taxes. Fifteen other States structure Medicaid funding through a similar legally authorized system. The Faso-Collins amendment specifies that any State that had an allotment of Disproportionate Share Hospital (DSH) funds that was more than 6 times the national average, and that requires subdivisions with populations of less than 5,000,000 to contribute toward Medicaid costs, shall have its reimbursement reduced by the amount of contributions by such subdivisions. (This effectively limits the application to New York State, and carves out New York City.) Under the amendment, New York State is at risk of losing $2.3 billion of its $32 billion in Federal Medicaid funds. This provision is unconstitutional, and could be struck down for several reasons: Violation of Limits on Spending Power--Article I of the Constitution grants Congress spending power to ``provide for the . . . general Welfare.'' In South Dakota v. Dole, 483 U.S. 203 (1987), the Supreme Court held that any spending condition imposed on the States must be related to the Federal interest in that particular project or program and that Congress cannot coerce the States into compliance with the Federal government's objectives. In NFIB v. Sebelius, 132 S. Ct. 2566 (2012), the Supreme Court found provisions of the Affordable Care Act which required all States to comply with the law's Medicaid expansion violated this spending authority, noting the ``Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions.'' The Faso-Collins language does not appear to be related to any Federal interest in the use or allocation of Federal Medicaid funds: it does not further Medicaid's purposes and has nothing to do with ensuring the proper disbursement of Federal funds. Indeed, because the provision applies to counties in a single State--and leaves the very same system undisturbed in 15 other States--it could not possibly be justified by any legitimate Federal interest. An additional line of Supreme Court cases, including New York v. United States, 505 U.S. 144, 167, 172 (1992), has held that conditions on Federal grants must be ``reasonably related to the purpose of the [Federal] expenditure'' because otherwise ``the spending power could render academic the Constitution's other grants and limits of Federal authority.'' Likewise, in Massachusetts v. United States, 435 U.S. 444, 461 (1978), the Supreme Court noted that it has ``repeatedly held that the Federal Government may impose appropriate conditions on the use of Federal property or privileges and may require that State instrumentalities comply with conditions that are reasonably related to the Federal interest in particular national projects or programs.'' Under these precedents, the Faso-Collins language would be held to be an arbitrary exercise of Federal power which intrudes on only one particular State's sovereign tax powers, and is unrelated to any Federal interest or purpose in the Medicaid Program. As Yale Law School Professor Abbe Gluck wrote in a post on the Balkinzation blog today, the Faso-Collins ``amendment is likely unconstitutional. The protection from federal interference of the internal functions of a state government is one of the bedrocks of state sovereignty protected by the limitations on Congress's powers in Article I of the Constitution and the reservation of power to the states in the Tenth Amendment.'' She further reasoned that ``Even if one could argue that this is an exercise of the federal spending power under Article I, for Congress to legally use that power, the conditions on a state's use of federal funding have to be tied to a reasonable federal propose . . . It is hard to see a reasonable federal purpose here other than garnering more GOP votes for the struggling repeal bill.'' (available at https://ballkin.blogspot.com/2017/03/ is-gop-aca-repealer-unconstitutional-on.html?m=1) Violation of Due Process and Equal Protection--Under the Fifth Amendment, the Federal government is not permitted to deprive its citizens of equal protection or due process of law. Those clauses have been interpreted on numerous occasions to prevent the government from discriminating between the treatment of the sovereign States absent a rational basis. For example, in Helvering v. David, 301 U.S. 619, 640 (1937), the Supreme Court warned that Congress does not possess the right to demonstrate a ``display of arbitrary power'' in its treatment of the various States. In this regard, in 2009, when an earlier Senate version of the Affordable Care Act sought to provide special treatment for Nebraska with respect to Medicaid reimbursements, 13 Republican State attorneys general wrote to Congress (available at http://www.law.columbia.edu/sites/default/ files/microsites/career-servicesifiles/Letter%20to% 20the%20 Honorable%20Nancy %20Pelosi%20 and%20the %20Honorable%20Harry %20Reid.pdf) asserting the provision was unconstitutional (the provision was ultimately dropped). In the case of the Faso-Collins language, there is no legitimate policy justification for developing a special rule limiting Medicaid funds for New York as compared to all other States, including 15 States which have sharing agreements with their counties. Nor has a justification been offered for why New York City should be excluded from the application of the special rule. As such, it is clear that the provision is discriminatory, ``arbitrary'' and has no rational basis. Abrogation of Tenth Amendment Principles--The Tenth Amendment provides in relevant part that powers not delegated to the Federal government or prohibited to the States are reserved for the States. This has been read to prevent the federal government from ``commandeering'' the states to serve its own purposes. In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court held that Congress cannot commandeer State officers to implement Federal policy--in that case requiring criminal background checks for handgun purchases pursuant to the Brady Handgun Violence Prevention Act. The Faso-Collins language commandeers New York State government to facilitate the partisan political ends of a faction in the U.S. Congress, which would seem well outside the proscriptions of Printz. In fact, by essentially ordering New York to reorganize its internal affairs, the Faso-Collins amendment may run even further afoul of Tenth Amendment principles than was the case in Printz given the lack of a Federal purpose and the interference with the core sovereign function of how a State chooses to use its taxing power. It is of particular constitutional concern that the Faso- Collins provision directly interferes with New York's internal decisions about how to structure its own tax and spending policies, and how to allocate those responsibilities between the State and its subdivisions--which is a core function of a sovereign entity protected by the Tenth Amendment (and potentially Article IV Sec. 4 of the Constitution, which provides that the ``United States shall guarantee to every State in this Union a Republican Form of Government.''). This is constitutionally significant because in Reynolds v. Sims, 377 U.S. 533, 575 (1964), the Supreme Court held that political subdivisions such as counties and cities ``have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of State governmental functions.'' In Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907), the Court noted that these subdivisions are ``created as convenient agencies for exercising such of the governmental powers of the state, as may be entrusted to them'' and that the ``number, nature, and duration of powers conferred upon these [entities] and the territory over which they shall be exercised rests in the absolute discretion of the state.'' The Faso-Collins amendment purports to invoke Federal power to displace New York's sovereign exercise of this ``absolute discretion'' and, for that reason, violates the Constitution. As Chief Justice John Marshall long ago explained in Gibbons v. Ogden, 22 U.S. 1, 198-200 (1824), the States' ``power of taxation is indispensable to their existence. . . . In imposing taxes for State purposes, [States] are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States.''

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I yield such time as he may consume to the gentleman from Rhode Island (Mr. Cicilline), who is a distinguished leader of the Judiciary Committee.

Mr. CONYERS. Mr. Speaker, how much time is remaining?

Mr. CONYERS. Mr. Speaker, I yield such time as she may consume to the gentlewoman from Texas (Ms. Jackson Lee).

Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in qualified support of H.R. 372, the Competitive Health Insurance Reform Act, but I do not endorse the majority's exaggerated claims regarding the bill's impact on the affordability and availability of health insurance. H.R. 372 would partially repeal the limited Federal antitrust exemption for the business of insurance established by the McCarran- Ferguson Act in 1945. Specifically, the bill only permits Federal antitrust enforcement with regard to the business of health insurance. Now, House Democrats have long supported a full repeal of McCarran- Ferguson's antitrust exemption for all insurers, not just for health insurers. In 2010, under a Democratic House majority, we passed legislation to repeal the McCarran-Ferguson exemption for health insurers by a vote of 406-19, even though House Republicans had not previously supported moving any version of a McCarran-Ferguson repeal bill. But let me be clear. Enacting H.R. 372 would in no way be a substitute for the many health insurance guarantees of the Affordable Care Act. The two things are completely separate. To begin with, enacting H.R. 372 would not significantly improve healthcare affordability or coverage. According to the Congressional Budget Office, H.R. 372's effect on health insurance premiums would probably be quite small, and enacting the bill would have no significant net effect on the premiums the private insurers would charge for health or dental insurance. That is according to the Congressional Budget Office. The Consumers Union observes that the application of the antitrust laws to some health insurance activity, by itself, is simply not enough to create a vibrant insurance market because our long experience shows you can't expect a healthcare system to run effectively on competition alone. That is the Consumers Union. Likewise, the majority's claim that enacting H.R. 372 would create major new competition by allowing cross-State insurance sales is unavailing. Current law, including the Affordable Care Act, already allows States to agree with each other to allow cross-State insurance sales. Enabling Federal antitrust agencies to police certain forms of anticompetitive conduct will not, in and of itself, incentivize health insurers to offer products across State lines beyond the incentives that already exist for offering such products. It just won't happen by itself. Whatever the incentives for health insurers to offer such products, they have little to do with Federal antitrust law or enforcement. Finally, enacting H.R. 372 would not ensure that the Affordable Care Act's prohibitions against discrimination and limits on premium growth would remain in place. H.R. 372 only applies to certain anticompetitive conduct and does not preserve or enhance existing protections for consumers of health insurance. For instance, it does not prohibit discrimination by health insurers on the basis of preexisting conditions, nor does it reduce premium growth or require health insurers to be accountable for price increases. Repeal of the antitrust exemption for health insurance is a complement to and not a replacement for the Affordable Care Act's many consumer protections. This is not an either-or situation. We need H.R. 372 and the Affordable Care Act to be in place to maximize benefits, improve quality, and lower costs for consumers. So while I support the bill with some reluctance, I take issue with the majority's rhetoric. It is very important that we set the record straight here. Mr. Speaker, I reserve the balance of my time.

Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume. In closing, I want to reiterate my support for this measure, H.R. 372. Now, I don't know what is happening on the other side, but many of its leaders voted against a substantively identical version of this bill in 2010, and that was including Speaker Ryan, Health and Human Services Secretary Tom Price, Committee on Ways and Means chairman Kevin Brady. They voted against a substantively identical version of this bill. I don't want to impugn motives that I don't know about, but maybe if you support H.R. 372, you are going to be making the Affordable Care Act, ACA, better. So I want to thank my friends on the other side for helping us out. This is great. We passed something like this a few years ago, and we were very proud that it was an overwhelming vote. This is a very important step forward. The Affordable Care Act is not going to be affected in any kind of negative way, and that is why I am eager to join with those who are going to be voting for H.R. 372. I thank my friends on the other side for supporting H.R. 372 as well. Mr. Speaker, I yield back the balance of my time.

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I ask that my amendment be brought forward at this time.

Mr. CONYERS. Mr. Chairman, I am very concerned that H.R. 720 may have a serious, deleterious impact on the ability of individuals to protect their civil and constitutional rights in Federal court. This is a point that has been emphasized on this side ever since we have started examining, more carefully, H.R. 720. Accordingly, my amendment would simply exempt these types of cases from the bill. Based on a decade of experience with the 1983 version of the Federal Rules of Civil Procedure, we know that the civil rights cases were, in fact, disproportionately impacted because they often raised novel arguments. For example, a 1991 Federal Judicial Center study found that the incidence of rule 11 motions was ``higher in civil rights cases than in some other types of cases.'' Another study shows that, while civil rights cases comprised only 11 percent of the Federal cases filed, more than 22 percent of the cases in which sanctions had been imposed were, in fact, civil rights cases. The bill contains a rule of construction intended to clarify that ``it not be construed to bar the assertion of new claims or defenses or remedies, including those arising under civil rights laws or the Constitution.'' The inclusion of this language is an acknowledgment of the disproportionate impact that the 1983 rule had on civil rights cases, and we should applaud--and I am sure we do--its intent. Nevertheless, I fear this rule of construction, by itself, will not prevent defendants from using rule 11 as a weapon to dissuade civil rights plaintiffs from pursuing their claims. My amendment makes an explicit exception for civil rights and constitutional actions. As a result, litigants will be clearly aware of its existence and will not be able to force opposing parties into satellite litigation when the case is brought under a civil rights law. This amendment is necessary to avoid even the possibility of a chilling effect that the revisions made by the bill to rule 11 could have on those advocating for civil rights and constitutional law protections. As the late Robert Carter, a former United States judge for the Southern District of New York, who earlier in his career represented one of the plaintiffs in the Brown v. Board of Education case, said of the 1983 version of rule 11: ``I have no doubt that the Supreme Court's opportunity to pronounce separate schools inherently unequal in Brown v. Board of Education would have been delayed for a decade had my colleagues and I been required, upon pain of potential sanctions, to plead our legal theory explicitly from the start.'' For that reason alone, I urge the adoption of this amendment. Mr. Chairman, I reserve the balance of my time.

Mr. CONYERS. Mr. Chairman, I demand a recorded vote.

Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume. I rise in strong opposition to H.R. 720, the so-called Lawsuit Abuse Reduction Act. This bill amends rule 11 of the Federal Rules of Civil Procedure in ways that will chill the advancement of civil rights claims and increase exponentially the volume and costs of litigation in the Federal courts. These concerns are not hypothetical. H.R. 720 restores the deeply flawed version of rule 11 in effect from 1983 to 1993 in two ways: by requiring mandatory sanctions for even unintentional violations rather than leaving the imposition of sanctions to the court's discretion, as is currently the case; and secondly, by eliminating the current rule's 21-day safe harbor provision, which allows the defending party to correct or withdraw allegedly offending submissions. Simply put, H.R. 720 will have a disastrous impact on the administration of justice in numerous ways. To begin with, the bill will chill legitimate civil rights litigation, which, to me, of course, is very important. Civil rights cases often raise novel legal arguments, which made such cases particularly susceptible to sanction motions under the 1983 rule. For example, a Federal Judicial Center study found that the incidence of rule 11 motions under the 1983 rule was ``higher in civil rights cases than in some other types of cases.'' Another study showed that, while civil rights cases comprised about 11 percent of the cases filed, more than 22 percent of the cases in which sanctions had been imposed were, in fact, civil rights cases. Under the 1983 rule, civil rights cases were clearly disadvantaged. Yet, H.R. 720 would reserve this problematic regime. Although the bill's rule of construction is a welcome acknowledgment of the problem, it does nothing to prevent defendants from using rule 11 as a weapon to discourage civil rights plaintiffs. Even a landmark case like Brown v. Board of Education might not have been pursued had H.R. 720's changes to rule 11 been in effect at that time, because the legal arguments in the case were novel and not based on then-existing law. In addition, H.R. 720 will substantially increase the amount, cost, and intensity of civil litigation and create more grounds for unnecessary delay and harassment in the courtroom itself. By making sanctions mandatory and having no safe harbor, the 1983 rule spawned a cottage industry of rule 11 litigation. Each party had a financial incentive to tie up the other in rule 11 proceedings. We heard testimony on a previous version of this bill that almost one-third of all Federal lawsuits during the decade that the 1983 rule was in effect were burdened by such satellite litigation, where the parties tried the underlying case and then put each side's counsel on trial. Finally, H.R. 720 strips the judiciary of its discretion and independence. H.R. 720 overrides judicial independence by removing the discretion that rule 11 currently gives judges in determining whether to impose sanctions and what type of sanctions would be most appropriate. It also circumvents the painstakingly thorough Rules Enabling Act process that Congress established more than 80 years ago. For all of these reasons, I urge my colleagues to join us in opposing this highly problematic legislation. Mr. Chairman, I reserve the balance of my time.

Mr. CONYERS. Mr. Chairman, I am pleased to yield 3 minutes to the gentleman from New York (Mr. Nadler), the senior member of the House Committee on the Judiciary.

Mr. CONYERS. Mr. Chairman, I am pleased to yield 4 minutes to the distinguished gentlewoman from Texas (Ms. Jackson Lee).

Mr. CONYERS. Mr. Chairman, I yield an additional 1 minute to the gentlewoman.

Mr. CONYERS. Mr. Chairman, it is my pleasure to yield 4 minutes to the gentleman from Georgia (Mr. Johnson).

Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume. These constitute my closing observations on this measure. Mr. Chairman, H.R. 720 would turn back the clock to a time when rule 11 discouraged civil rights cases, restricted judicial discretion, and engendered vast amounts of time-consuming and costly so-called satellite litigation. Not surprisingly, the Judicial Conference of the United States, the principal policymaking body for the judicial branch charged with proposing amendments to the Federal Rules of Civil Procedure under the careful, deliberate process specified in the Rules Enabling Act, opposes this measure, noting that it creates a cure worse than the problem it is meant to solve. Likewise, the American Bar Association opposes this legislation, as do numerous consumer and environmental groups, including: Public Citizen, the Alliance for Justice, the Center for Justice and Democracy, the Consumer Federation of America, Consumers Union, Earthjustice, the National Association of Consumer Advocates, and six other major organizations. Finally, last Congress, the Obama administration, strongly opposed a substantively identical measure, noting that the bill was ``both unnecessary and counterproductive,'' and that it ``actually increases litigation.'' Accordingly, I urge my colleagues in this body to reject this flawed bill. Mr. Chairman, I yield back the balance of my time.

Mr. CONYERS. Mr. Chairman, I yield the balance of my time to the gentlewoman from Texas (Ms. Jackson Lee).

Mr. CONYERS. Mr. Chairman, I yield back the balance of my time.

Mr. CONYERS. Mr. Speaker, I demand a recorded vote.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I am pleased to introduce the End Racial Profiling Act of 2017, along with additional cosponsors. This legislation represents a comprehensive federal commitment to healing the rift caused by racial, ethnic and religious profiling and restoring public confidence in the criminal justice system at-large. This legislation is designed to enforce the constitutional right to equal protection of the laws by changing the policies and procedures underlying the practice of discriminatory profiling. Recent events in the wake of President Trump's Executive Orders on Immigration demonstrate that racial, ethnic and religious profiling remain dangerous and divisive issues in our communities. Airport detentions of Muslims and immigration raids targeted at the Latino community strike at the very foundation of our democracy. Though people across our nation are protesting in response to these actions, there is no substitute for comprehensive federal anti-profiling legislation. This legislation can be traced back to the data collection efforts of the late 1990's that were designed to determine whether racial profiling was a fact versus an urban legend. Based upon the work around that legislation, by September 11, 2001, there was significant empirical evidence and wide agreement among Americans, including President Bush and Attorney General Ashcroft, that racial profiling was a tragic fact of life in the minority community and that the Federal government should take action to end the practice. Moreover, many in the law enforcement community have acknowledged that singling out people for heightened scrutiny based on their race, ethnicity, religion, or national origin had eroded the trust in law enforcement necessary to appropriately serve and protect our communities. Despite the fact that the majority of law enforcement officers perform their duties professionally and without bias, and we value their service highly, the specter of discriminatory profiling has contaminated the relationship between the police and minority communities to such a degree that Federal action is justified to begin addressing the issue. The End Racial Profiling Act is designed to eliminate the well documented problem of racial, ethnic, religious, gender, sexual orientation, gender identity and national origin profiling. First, the bill provides a prohibition on racial profiling, enforceable by declaratory or injunctive relief. Second, the bill mandates that training on racial profiling issues as part of Federal law enforcement training, the collection of data on all routine or spontaneous investigatory activities that is to be submitted through a standardized form to the Department of Justice. Third, the Justice Department is authorized to provide grants for the development and implementation of best policing practices, such as early warning systems, technology integration, and other management protocols that discourage profiling. Finally, the Attorney General is required to provide periodic reports to assess the nature of any ongoing discriminatory profiling practices. In recent years the deaths of Walter L. Scott, arising from a traffic stop, Michael Brown, Eric Garner, and Antonio Zambrano-Montes, all at the hands of police officers, have highlighted the link between the issues of race and reasonable suspicion of criminal conduct. These individuals were denied the basic respect and equal treatment that is the right of every American. Ultimately, these men are tragic examples of the risk of being victimized by a perception of criminality simply because of their race, ethnicity, religion or national origin. These dangerous misperceptions of criminality helped to cultivate an environment in which the United States government considers discriminatory and unconstitutional executive orders a reasonable use of executive power. Decades ago, the passage of sweeping civil rights legislation made clear that race, religion and ethnicity should not affect the treatment of individual Americans under the law. The practice of using race or other characteristics as a proxy for criminality in law enforcement undermines the progress we have made toward achieving equality under the law. Please join me in supporting this legislation.

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I demand a recorded vote.

Mr. CONYERS. Mr. Chairman, I have an amendment at the desk.

Mr. CONYERS. Mr. Chairman, I rise in support of my amendment, which would exempt H.R. 985's unnecessary and burdensome class action provisions all class actions asserting civil rights claims. Class actions are an important litigation tool that consumers, workers, and anyone else who has suffered injury can use to vindicate their rights. They are also a critical mechanism for enforcing public policy and are especially key in the enforcement of Federal civil rights laws. For instance, plaintiffs in employment discrimination cases who seek backpay because of an adverse employment decision often pursue class actions because such cases tend to be the kind that are well-suited for class treatment. These cases typically concern multiple victims who were subjected to the same discriminatory employment practice or policy. While damages awarded pursuant to a single plaintiff may not be large enough to deter the employer's alleged wrongdoing, aggregate damages awarded to plaintiffs as a result of class action would have a deterrent effect. Unfortunately, this bill, H.R. 985, requires class action plaintiffs to prove at the certification stage that every potential class member suffered the same type and same scope of injury, a requirement that is obviously virtually impossible and cost prohibitive to meet. This onerous requirement would effectively deter employment discrimination and other civil rights plaintiffs from proceeding with any class action. As if this provision were not onerous enough, H.R. 985 would also harm civil rights plaintiffs by making it virtually impossible to pursue class actions pursuant to Rule 23(c)(4) of the Federal Rules of Civil Procedure. All Federal appeals courts interpret that provision as allowing courts to certify a class limited to one issue in a case, such as liability, without having to certify a putative class for the entire cause of action. Allowing courts to decide common questions within a case, while permitting other issues to be determined on an individual basis, would promote judicial efficiency, which is also one of the principal benefits of class actions. H.R. 985, however, would prohibit certification of such ``issue'' class actions unless the putative class for the entire cause of action is certified, which would only further delay and possibly deny justice for plaintiffs. This provision would have a particularly devastating impact on civil rights class actions that often can only be maintained as to particular issues, such as liability. Indeed, for these, and many other reasons, including the bill's mandatory appeals provision, its automatic stay of discovery, and its draconian and unworkable standards for setting attorneys' fees, 123 civil rights groups and organizations have written a letter to the Judiciary Committee in strong opposition to H.R. 985, which I include in the Record. March 7, 2017. Re Strong Opposition to H.R. 985--Section 2. Hon. Paul Ryan, Speaker, House of Representatives, Washington, DC. Hon. Nancy Pelosi, Minority Leader, House of Representatives, Washington, DC. Dear Speaker Ryan and Leader Pelosi: We understand that the House will soon consider H.R. 985, the ``Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2015.'' The 123 signatory civil rights organizations and advocates write to strongly oppose Section 2 of H.R. 985. The bill will undermine the enforcement of this nation's civil rights laws and upend decades of settled class action law. This sweeping and poorly drafted legislation will create needless chaos in the courts without actually solving any demonstrated problem. In this letter, we highlight the most egregious of its many harms. As advocates for the marginalized and often invisible members of our society, we write to remind House members that class actions are critical for the enforcement of laws prohibiting discrimination in employment, housing, education, and access to public areas and services. As the Supreme Court has recognized, class actions provide ``vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.'' Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997). Courts have interpreted Rule 23 of the Federal Rules of Civil Procedure, the federal class action rule, over decades and the Advisory Committee on Civil Rules has, through its deliberative process, reviewed and amended the rule to ensure its fair and efficient operation. No further revisions are needed at this time. H.R. 985 Adds Years of Additional Delay, Expense, and Disruption One of the stated purposes of the bill is to ``assure . . . prompt recoveries,'' yet it includes provisions that will extend the duration of cases by years and add exponentially to the expense on both sides. The bill allows for an automatic appeal--in the middle of every case--of the class certification order. Such appeals are extraordinarily disruptive and typically add one to three years to the life of the case. While the case sits in an appellate court, expenses and fees rise, memories fade, and injured victims remain without justice. Automatic appeals of all class certification orders will clog our already-taxed Courts of Appeals. Appeals of class certification rulings are already permitted at the discretion of the Courts of Appeals. An appeal of every class certification ruling is unnecessary. The bill similarly builds in an automatic stay of discovery in the district court whenever an alleged wrongdoer files any one of a list of motions. This is an invitation for gamesmanship and delay, and will deprive judges of the ability to properly manage their cases. The bill, by its terms, applies to all cases pending upon the date of enactment. This means that hundreds of cases that have been litigated and certified under existing law would start from scratch with new standards, new class certification motions, and new automatic interlocutory appeals. The resulting waste of judicial resources would be enormous. Civil Rights Injuries Are Never Identical and Are Already Subject to Rigorous Judicial Review H.R. 985 imposes a new and impossible hurdle for class certification. It requires that the proponents of the class demonstrate that ``each class member has suffered the same type and scope of injury.'' At this early stage of a civil rights class action, it is frequently impossible to identify all of the victims or the precise nature of each of their injuries. But even if this information were knowable, class members' injuries would not be ``the same.'' As a simple example, those overcharged for rent will have different injuries. In an employment discrimination class action, the extent of a class member's injuries will depend on a range of factors, including their job position, tenure, employment status, salary, and length of exposure to the discriminatory conditions. For this reason, nearly forty years ago, the Supreme Court developed a two-stage process for such cases in International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 371-72 (1977). In the first stage, the court determines whether the employer engaged in a pattern or practice of discrimination. If the employer is found liable, the court holds individual hearings to determine the relief (if any) for each victim. The Supreme Court recently reaffirmed the use of the Teamsters model for discrimination class actions in part because of the individualized nature of injuries. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 366 (2011). Thus, this bill would overturn the approach established four decades ago to permit a class of victims of discrimination to seek effective relief. For the same reason, the bill's limitation on ``issue classes'' will impede the enforcement of civil rights laws. Under current practice, the district court will decide in some cases that the best approach is to resolve the illegality of a discriminatory practice in an initial proceeding, and then allow class members to pursue individual remedies on their own. In such cases, class certification for the core question of liability (often a complex proceeding) will be tried and resolved just once for the benefit of the many affected individuals. These issue classes can promote both efficiency and fairness. Section 1720, however, would deprive courts of this ability that they currently have to manage class actions to ensure justice. Requiring the Early Identification of Class Members Is Unnecessary Section 1718 seeks to impose a heightened standard for identifying class members, an approach that has been rejected by the majority of circuits to have considered the question. This stringent standard would not further any interest that is not already adequately protected by Rule 23, which requires that the court consider whether the case is manageable and the class action device is the ``superior'' method for fairly and efficiently resolving the case. Moreover, Sec. 1718 would impose a nearly insurmountable hurdle in situations where a class action is the only viable way to pursue valid but low-value claims. In such cases, records of who has been affected may have been destroyed by the wrongdoer, may be incomplete, or may have never existed at all. In those cases, individual notice to all class members may be impossible. But, without class certification in these situations, class members who have valid claims and who can be identified would not be allowed to recover. The bill also ignores the important objective of deterring and punishing wrongdoing, and encourages defendants not to maintain relevant records. Arbitrary and Unworkable Standards for Attorneys' Fees Undermine Civil Rights Enforcement Civil rights class actions are often about systemic reforms that benefit the most vulnerable. In many cases, the sole remedy is an injunction to change illegal laws or practices. To ensure that non-profit legal organizations and other advocates are able to undertake these important, complex, and often risky cases, dozens of our civil rights laws incorporate fee-shifting provisions. If a case is successful, the judge awards a reasonable fee based upon the time that the advocates have spent working on the case. This method of determining attorneys' fees provides for consistent and predictable outcomes, which is a benefit to all parties in a lawsuit. H.R. 985 would entirely displace this well-settled law with a standard long ago rejected as arbitrary and unworkable. Under the bill, attorneys' fees would be calculated as a ``percentage of the value of the equitable relief.'' Sec. 1718(b)(3). But how is a judge to determine the cash value of an integrated school, a well-operating foster care system, the deinstitutionalization of individuals with disabilities, or myriad other forms of equitable relief secured by civil rights class actions? Asking judges to assign a price tag in such cases is an impossible task and would lead to uncertainty and inconsistency. Non-profit organizations cannot bear the risk of these long and expensive cases if, at the end, their fees are calculated under this incoherent and capricious standard. Indeed, the bill creates an incentive for defendants to prolong the litigation so as to make it economically impossible for plaintiffs' attorneys to continue to prosecute the litigation. These serious issues warrant, at a minimum, careful consideration and public hearings. A rush to pass such far- reaching and flawed legislation will deny access to justice for many and undermine the rule of law. Respectfully Submitted, Jocelyn D. Larkin, Executive Director, Impact Fund. Signatories 1. 9to5, National Association of Working Women 2. A Better Balance 3. Advancement Project 4. American Association of University Women 5. American Civil Liberties Union 6. Asian American Legal Defense and Education Fund 7. Asian Americans Advancing Justice--Asian Law Caucus 8. Asian Americans Advancing Justice--Los Angeles 9. Association of Late Deafened Adults 10. Atlanta Women for Equality 11. Baltimore Neighborhoods, Inc 12. Business and Professional Women/St. Petersburg-Pinellas 13. California Employment Lawyers Association 14. California Women's Law Center 15. Campaign for Educational Equity, Teachers College, Columbia University 16. Center for Children's Advocacy 17. Center for Independence of the Disabled, New York 18. Center for Justice and Accountability 19. Center for Popular Democracy 20. Center for Public Representation 21. Center for Responsible Lending 22. Central Alabama Fair Housing Center 23. Centro Legal de la Raza 24. Chet Levitt Fund for Employment Law 25. Child Care Law Center 26. Children's Law Center, Inc. 27. Children's Rights 28. Civil Rights Education and Enforcement Center 29. Colorado Cross-Disability Coalition 30. Columbia Legal Services 31. Communities for a Better Environment 32. Community Development Project of the Urban Justice Center 33. Community Justice Project 34. Community Legal Services in East Palo Alto 35. Dade County Bar Association Legal Aid Society 36. Disability Law Center 37. Disability Rights Advocates 38. Disability Rights Education and Defense Fund 39. Disability Rights Maryland 40. Domestic Violence Legal Empowerment and Appeals Project 41. Earthjustice 42. EarthRights International 43. Empire Justice Center 44. Environmental Justice Coalition for Water 45. Equal Justice Center 46. Equal Justice Society 47. Equal Rights Advocates 48. Farmworker Justice 49. Florida Justice Institute, Inc. 50. Florida Legal Services, Inc. 51. Florida's Children First 52. Freedom Network USA 53. Heart of Florida Legal Aid Society Inc 54. Homeowners Against Deficient Dwellings 55. Human Rights Defense Center 56. Human Trafficking Pro Bono Legal Center 57. Impact Fund 58. Institute for Science and Human Values 59. Jacksonville Area Legal Aid, Inc. 60. Justice in Motion 61. Lambda Legal 62. LatinoJustice PRLDEF 63. Law Foundation of Silicon Valley 64. Lawyers Civil Rights Coalition 65. Lawyers' Committee for Civil Rights of the San Francisco Bay Area 66. Lawyers' Committee for Civil Rights Under Law 67. Legal Aid at Work (formerly Legal Aid Society-- Employment Law Center) 68. Legal Aid Justice Center 69. Legal Aid of Manasota 70. Legal Aid of Marin 71. Legal Aid Service of Broward County, Inc. 72. Legal Aid Society of NYC 73. Legal Aid Society of Palm Beach County, Inc. 74. Los Angeles Center for Community Law and Action 75. Make the Road New York 76. MALDEF 77. Maurice & Jane Sugar Law Center for Economic & Social Justice 78. Metropolitan Washington Employment Lawyers Association 79. Mississippi Center for Justice 80. NAACP Legal Defense and Educational Fund, Inc. 81. National Advocacy Center of the Sisters of the Good Shepherd 82. National Center for Lesbian Rights 83. National Center for Transgender Equality 84. National Center for Youth Law 85. National Disability Rights Network 86. National Employment Law Project 87. National Employment Lawyers' Association 88. National Employment Lawyers' Association--New York 89. National Housing Law Project 90. National Immigration Law Center 91. National Law Center on Homelessness & Poverty 92. National Partnership for Women & Families 93. National Women's Law Center 94. New Mexico Environmental Law Center 95. North Carolina Justice Center 96. North Florida Center for Equal Justice, Inc. 97. Northwest Health Law Advocates 98. Oregon Communication Access Project 99. Prisoners' Legal Services of Massachusetts 100. Prison Law Office 101. Public Advocates 102. Public Counsel 103. Public Interest Law Project 104. Public Justice 105. Public Justice Center 106. Public Utility Law Project of New York 107. Rhode Island Center for Justice 108. San Diego Volunteer Lawyer Program, Inc. 109. Southern Center for Human Rights 110. Southern Legal Counsel, Inc. 111. Southern Poverty Law Center 112. Southwest Pennsylvania Chapter, National Organization for Women 113. Southwest Women's Law Center 114. Tenants Together 115. Texas Fair Defense Project 116. Transgender Law Center 117. Uptown People's Law Center 118. Washington Lawyers' Committee for Civil Rights and Urban Affairs 119. Washington State Communication Access Project 120. Western Center on Law & Poverty 121. Women's Employment Rights Clinic, Golden Gate University 122. Women's Law Project 123. Workplace Fairness Mr. Chairman, I yield back the balance of my time.

Mr. CONYERS. Mr. Speaker, I demand a recorded vote.