What We Have Done: An Oral History of the Disability Rights Movement

Chapter 26. Drafting the Bill, Part 2

460 26 Drafting the Bill, Part 2 The first draft of the ADA, introduced into Congress by Senator Weicker and Congressman Coelho, lapsed into legislative oblivion with the end of the 1988 congressional session. It was obvious to most advocates , especially those with legislative experience, that a new version needed to be written. And so, in early 1989, there began a series of meetings between advocates such as Patrisha Wright, Arlene Mayerson, and Bob Funk (who had left DREDF to take a position in the White House), John Wodatch, a policy expert at the US Department of Justice, and legislative aides Robert Silverstein (staff director and chief counsel for the Subcommittee on the Handicapped) and Carolyn P. Osolinik (chief counsel for Senator Kennedy), working to produce a bill that both met the needs of the community and stood some chance of being both passed by Congress and signed by the president. Others involved in this effort, what one historian called “a line by line” review of the bill, included Paul Marchand, Liz Savage, Ralph Neas from the Leadership Conference on Civil Rights, Robert Burgdorf from the National Council on Disability, Jim Weisman from Eastern Paralyzed Veterans of America, Chai Feldblum, counsel for the American Civil Liberties Union in Washington, and others. Among the many changes made in the draft, two of the most significant— and controversial—were the exclusion of health insurers from the covered entities and the adoption of a more stringent definition of “disability.” Those crafting the legislation decided early on that the health insurance lobby—which was unalterably opposed to being included in the ADA—was too powerful to oppose. And while the previous NCD draft defined a “disability” as “a physical or mental impairment, perceived impairment, or a record of impairments,” Wright and others felt that the new version should echo the definition already included in Section 504 of the Rehabilitation Act of 1973 and subsequent disability legislation and litigation: “a physical or mental impairment that substantially limits one or more of the major life activities”—such as seeing, walking , self-care, and learning. The idea, as Evan Kemp often put it, was to ensure drafting the bill, part 2 461 that “people with hangnails and hernias” wouldn’t suddenly expect somehow to be covered by the new law. This process of drafting and redrafting would continue even after the bill was submitted, indeed, virtually up until the final vote in July 1990. Patrisha Wright (continued) “We had a twenty-four-hour DREDF operation.” In order for the ADA to pass, it was necessary that the law being drafted not only satisfy the needs of the community, but that it also win the support of a majority of the members of Congress. Patrisha Wright, as DREDF’s pointperson on Capitol Hill, had to ensure that the two needs were balanced in such a way that neither side felt unable to endorse the bill as it made its way through the legislative process. We probably saw Senator Harkin every single day. During that time Arlene [Mayerson] and I basically lived out of the conference room in his office. He would come in at least once a day and offer us pizza or whatever, because the whole group of us was there for many, many long hours. You know, I can’t say enough about the disability legal community. We were really able to garner the best and the brightest, all the people who had previously done litigation related to these various sections of the new bill, to come in and act as the expert whenever the issues were out there. I’ve felt it was an incredible gift to work with all these lawyers. They were just brilliant, is all I can say. They did the real heavy lifting of getting the language together. And I have to tell you, we had fun. You talk about being together, that close and for that long. We had a great time. And exciting, intellectually stimulating, trying to solve some of these issues. And Bobby Silverstein, with his ninety-two books filled with everything anybody has ever said in their life, so he could turn to tab number 32 and pull it out. He would come in with his big wheelbarrow full of books. . . . When [Congressman] Steny [Hoyer] took over for Coelho, he held the negotiations [over the details of the new draft]. Chai Feldblum1 and 462 chapter...