Despite two defeats in less than a week, Senator Lowell P. Weicker, the Connecticut Republican who has been fighting anti-busing legislation in Congress since last summer, intends to resume his filibuster, with slightly different tactics, when Congress reconvenes next Monday after a weeklong recess.
“The filibuster is alive and well,” said Martin H. Moore, the Senator’s press secretary. “We’ve got 600 amendments. We’re ready to go.”
The Senate on Feb. 4 approved, by a vote of 58 to 38, an amendment that would severely curtail the authority of the federal courts and the U.S. Department of Justice in school-desegregation cases. And last Wednesday, the Senate voted 63-33 to end the bipartisan filibuster led by Senator Weicker against the bill to which the amendment is attached, which authorizes spending for the Department of Justice. Further debate will be limited to 100 hours.
Prohibits Busing
The two-part amendment, sponsored by Senators Jesse Helms, Republican of North Carolina, and J. Bennett Johnston, Democrat of Louisiana, would prohibit federal courts from ordering that students be bused more than five miles, or more than 15 minutes, from their homes.
The amendment would also bar the Department of Justice from seeking busing as a remedy for segregation--something the Reagan Administration has said it will not do anyway--but would allow the department to ask that busing plans be dismantled in districts that are under federal court order to desegregate.
The Helms-Johnston amendment cites “overwhelming social-science evidence” that busing has failed to improve education and that it has resulted in resegregation of schools. Senator Carl M. Levin, Democrat of Michigan, charged that the evidence is not conclusive, that busing has worked in some communities, and that Senator Johnston has not produced information on the number of school districts and students affected.
‘Expressions of Opinion’
“We are being asked to vote on findings which are based on certain information which is not even available,” Senator Levin said. The amendment, he charged, “rests upon several findings of fact which are, in reality, little more than expressions of opinion.”
The House of Representatives last year approved similar restrictions on the Justice Department’s authority to seek busing orders, but there is considerable opposition in the House to curbing the authority of the federal courts.
Even with strong support in the Senate, the amendment is a long way from becoming law. Senator Weicker and his allies have 100 hours to debate the issue. And if the Senate should approve the Justice Department authorization bill as amended, a final version would have to be worked out in conference by members of the House and Senate judiciary committees.
Because the provision curbing the courts’ authority has less support in the House than in the Senate, Mr. Moore predicted, “It would be a very, very difficult conference.”
Furthermore, Senator Barry Goldwater, Republican of Arizona and a longtime standard-bearer for conservative causes, announced last week that he would oppose attempts to restrict the authority of the federal courts in cases involving busing, prayer in public schools, and abortion.
‘Fundamental Principles’
“Whatever our viewpoints may be on the various social issues as a matter of policy,” Senator Goldwater said, “there are fundamental principles involving the separation-of-powers doctrine and independence of the courts that must be balanced against our feelings about busing or whatever the immediate subject is.”
Opponents of the Helms-Johnston amendment considered Senator Goldwater’s “conversion” a boon to their cause because of his stature among conservatives.
“I think it helps a lot,” said Senator Weicker’s press secretary, Mr. Moore. “I think we’ve finally turned the thing around. Even Bennett Johnston is talking about the constitutional issues now.”
Added William L. Taylor, a civil-rights lawyer and director of the Center for National Policy Review at Catholic University of America: “We’ve been saying that true conservatives ought to oppose these measures because they’re a radical alteration to the Constitution. Senator Goldwater showed he understands that.”
Speaking for the Leadership Conference on Civil Rights, a national coalition of some 150 labor and rights groups with which he is affiliated, Mr. Taylor said the anti-busing measure would be strenuously opposed in Congress and in the courts. “We are going to take every step that we can to prevent passage of these amendments,” he said. “We don’t think the fight is over.”
The measure is opposed not only by civil-rights groups, but also by the chief justices of the state supreme courts, which would have ultimate authority over desegregation cases if the federal courts were stripped of their jurisdiction, and by the American Bar Association.
Mr. Taylor added that he feared school boards and citizens would misconstrue the Senate’s action as final. “I’m concerned that people know that the obligations of school systems [to desegregate] have not disappeared overnight.”
Should the strong anti-busing language survive both the filibuster and the House-Senate conference, he said, both provisions will be challenged in court.
The U.S. Court of Appeals for the District of Columbia ruled in January 1980, he pointed out, that Congress had the right to restrict the desegregation-enforcement activities of the old Department of Health, Education and Welfare so long as the Justice Department retained enforcement authority.
That decision, in the case called Brown v. Califano, “would be the thrust of our argument” in challenging restrictions on the Justice Department, Mr. Taylor said.
And if the attempt to curtail the jurisdiction of the federal courts succeeds in the conference committee, he added, “There will be a challenge.
“I think what we have in mind--those groups that litigate civil-rights cases--would be to attack it in the most expeditious way so as to get a definitive ruling rather than have several cases with attempts to dismantle existing orders or place restrictions on new orders. Just how to do that, we’re not sure.”
