Posted on December 6, 2004

Rule of Lawlessness

Peter Kirsanow, National Review Online, December 6, 2004

Mary Frances Berry‘s term as a member of the U.S. Commission on Civil Rights ended at midnight Sunday, but as of this writing she maintains that her term doesn’t end until January 21, 2005, and imperiously refuses to step down.

Her claim is nonsense. Her primary commission documents, signed by President Bill Clinton when he appointed her to her now-expired term, show that her term ended on December 5, 2004. If that alone wasn’t enough, the Congressional Research Service issued an opinion to the House Oversight Committee to the same effect. Finally, the decision of the U.S. Court of Appeals in U.S. ex rel. Kirsanow v. Wilson involving the specific issue of commissioner terms, uncontrovertibly instructs that her term ended Sunday.

Unimpressed, Berry clings to the seat she’s held for almost 25 years, the last 12 as chairman. She’s summarily cancelled this coming Friday’s commission meeting in violation of federal regulations and over the strenuous objections of Republican commissioners. The action deflects a face-to-face confrontation between Berry and the newly appointed commissioners—at least momentarily.

None of this is particularly surprising to anyone who’s followed the commission over the last dozen years. A culture of unaccountability has become an entrenched feature of the commission’s administrative character. Numerous governmental reviews of the commission have concluded that the agency is wholly dysfunctional.

In 1997, a Government Accountability Office report noted that management is in disarray, projects are poorly managed and take years to complete, spending data isn’t maintained by office, program, or function and the agency’s policies and procedures are unclear. GAO couldn’t even verify project spending because of the commission’s indecipherable record keeping.

The Office of Personnel Management conducted two reviews of the commission in the 1990s. Yet despite evidence of pervasive management problems, the civil-rights commission failed to implement five of six substantive OPM recommendations.

The GAO’s 2003 review of the commission showed that the commission had also failed to comply with the Government Performance and Results Act of 1993. The civil-rights commission has not updated its strategic plan since 1997.

Moreover, the commission has not had a full independent audit in at least 12 years. The House Judiciary Subcommittee on the Constitution is currently investigating the commission’s finances, management, and contracting practices. Good luck. Many commissioners have found the agency to be financially inscrutable.

The commission that was once known as “the conscience of the nation” has become a theater of the absurd. Anyone reading a transcript of a commission meeting might well believe it was authored by Lewis G. Carroll. Berry habitually releases to the public statements, reports, and press releases (usually critical of Republicans or at least consistent with her positions) that have been voted down previously by the commission as a whole.

Just last week she released a deeply flawed and biased report critical of the Bush administration’s civil-rights record, despite the fact that such report had been rejected by the commission at its November 12 meeting (the report was originally scheduled for release just days before the presidential election but Republican commissioners succeeded in tabling it, noting that the report on the Clinton civil-rights record wasn’t released until after his second term, expressly to avoid politicization). Why even vote on reports if the chairman will simply issue them as she sees fit?

The commission’s mounting problems have caused the chorus of those who contend that the agency has outlived its usefulness to become larger and louder. I don’t agree with them. While it becomes increasingly difficult to defend the commission’s usefulness, it could function as the nation’s conscience if its deliberative processes were rational, open, and fair; its findings objective, unbiased, and unimpeachable; and its membership fully engaged in framing, shaping, and drafting its reports. As the Washington Post recently editorialized, “a serious, rigorous commission could create breathing space for creative civil rights dialogue unbeholden to the orthodoxies of either the left or the right.”

By engaging an independent audit, implementing structural forms, and adopting sound GAO recommendations, the commission would be taking the first steps toward becoming the kind of agency described by the Washington Post. But not before Ms. Berry observes the rule of law and steps down.