Document 27: Excerpt from Linda Colvard Dorian, "Legal Report," in National Commission on the Observance of International Women's Year, The Spirit of Houston: The First National Women's Conference (Washington, D.C.: U.S. Government Printing Office, 1978), pp. 261-62.
Introduction
Alongside protests at meetings associated with the NWC and attacks on the Conference through the media, conservative, anti-feminist opponents to the pro-change agenda of the NCOIWY launched a series of legal challenges to its activities as it worked to organize the NWC (see also documents 8 to 13). All of these challenges were decided in favor of the NCOIWY and are summarized by Linda Colvard Dorian, legal counsel for the NCOIWY.
p. 261
LEGAL REPORT
by Linda Colvard Dorian
General Counsel
Commission Litigation
The National Commission on the Observance of International Women's Year confronted novel legal problems from its earliest existence. Its powers, its expenditures, the composition of the Commission, the State meetings, and the National Women's Conference were all challenged in court. As of March 1978, nine lawsuits had been brought against the Commission. All of the cases that have been finally disposed of by the courts have been resolved in favor of the Commission.
One action brought in Federal court alleged that the Commission had misused its appropriated monies when, in fact, Congress had not yet appropriated any monies for the Commission. This lawsuit, typical of several such suits brought against the Commission, charged the Commission with unlawful lobbying activities, misusing Federal monies, and violating the requirements of the Federal Advisory Committee Act.
Plaintiffs in these court actions charged that the Commission was in violation of the lobbying restriction in the public law. That provision states that no funds authorized under the public law can be used for lobbying activities. Plaintiffs interpreted this provision to mean that the Commission was barred from taking positions on matters that may be pending in legislative bodies, such as the Equal Rights Amendment, and that Commissioners and staff were barred from stating their views on such matters in public matters.
The courts and the Comptroller General were unanimous in their judgment that the plaintiffs were erroneous in their interpretation of the lobbying restriction contained in the public law. The Comptroller General set forth his interpretation of lobbying in response to a persistent congressional critic of the Commission:
"We explained that the term ‘lobbying’ and the advocacy of a particular point of view are not necessarily synonymous, and that in our view, ‘lobbying’ means ‘direct communication to a member or members of a legislative body, State and Federal, to influence the vote on legislation pending before or proposed to that body or the vote on the ratification of constitutional amendments.’"
The Comptroller General further described the nature of the Commission's role:
"In our view, the Commission has been specifically directed to play an active role in encouraging and promoting ‘women's rights,’ as it sees them and there is nothing inconsistent with its advocacy position so long as it refrains from engaging in direct lobbying activities …."
As to an alleged violation of the Federal Advisory Committee Act (FACA), plaintiffs argued that the Commission, the State coordinating committees, the State meetings, and the National Conference were not balanced in terms of points of view and were therefore in violation of the FACA. Rejecting this argument, the Comptroller General noted that the Commission was in large part operational rather than advisory in its functions, and that the State coordinating committees existed solely to plan and conduct a State meeting for women, not to perform an advisory function.
In assessing the nature of the State meetings and the National Women's Conference, the Comptroller General found that the requirements of the public law and the Commission's regulations "do not restrict the balance of the membership, but afford an extremely broad base for participation. In fact, the necessary practical result of these provisions and requirements is to leave the degree of ‘balance’ essentially to the participants in the State and regional meetings themselves through the normal democratic process."
The Commission required each State coordinating committee to maintain records regarding its grant monies. Although the Commission was charged by its critics with mismanaging its monies, no credible evidence of any irregularity or specific allegations were ever brought to the attention of the Commission, the courts, or the Government Accounting Office. In fact, the fiscal records of the State coordinating committees were maintained with great care and with the continuous assistance of the Commission's budget and grant personnel in the national office.
Another line of litigation to which the Commission was a party involved the election of delegates at the State meetings held under the public law. After State meetings were held and delegates elected, some participants at the State meetings filed challenges with the Commission alleging that the elected delegates should not be certified as that State's delegation to the National Women's Conference. Bases for such challenges included claims that the delegates were not sufficiently diverse as to viewpoints or age, income, religion, or ethnicity, as required by section 3(a) (2) of P.L. 94-167; that the delegates were opposed to the purposes of the law, namely, achieving equality for women; and that there were technical defects in the election process such that the election should be considered null and void. Challenges were submitted in 36 States.
The Commission reviewed each challenge at an
administrative proceeding after it gave notice to the public in the
Federal Register and through other means that it would view
all challenges and accompanying
p. 262
Subsequent to the Commission's rejection of challenges, three separate lawsuits were filed in Federal courts challenging the election of delegates in three States -- Hawaii, Ohio, and Washington. Two challenges were filed by pro-change groups and one challenge was filed by an anti-change faction. Hearings were held in all of these cases and legal memoranda were submitted by the parties. These actions were ultimately resolved, all in favor of the Commission, the week prior to the national Conference.
The remainder of the litigation to which the Commission has been a party involves contract disputes and legal problems encountered by the several State coordinating committees. A total of 12 lawsuits have been filed against the Commission; all decisions to date have been in favor of the Commission.
Interpretive Regulations The public law conveyed broad powers upon the Commission, including the power to issue regulations interpretive of the law. In exercising this responsibility the Commission initially issued two sets of regulations. The first set of regulations invested the State coordinating committees, members and employees, with certain responsibilities and powers. This set of regulations also set forth detailed financial procedures to govern the allocation and expenditure of grant monies and the reporting of expenditures. The second set of regulations governing the State coordinating committees established rules of conduct for the State meetings. These rules attempted to insure the broadest possible democratic participation consistent with an orderly parliamentary process and fair election procedures.
The Commission issued a final set of regulations governing the conduct of the National Women's Conference. These regulations were based on standard parliamentary procedure as well as Congressional models governing debate.
Legislative Liaison The Commission was involved, throughout its tenure, with frequent coordination and exchange of information with the Congress. These contacts included congressional requests that the Commission state its views in testimony and written comments on issues of concern to women presently awaiting legislative action. Two such legislative matters on which the Commission stated its views are the pregnancy amendment to Title 7 and the Displaced Homemakers Bill.
In an effort to fully inform the broadest segment of the public, the Commission, through its presiding officer, issued statements explaining the State meetings process and events associated with the State meetings in the Congressional Record. The Commission also listed the elected delegates in the Federal Register so that interested members of the public would know the identities of delegates from their State who would be attending the national Conference.
*The Commission did, however, deplore the lack of diversity in the composition of certain delegations, particularly when the imbalance involved significant under-representation of a racial minority in a State's population.
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