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Census Forms and Federal Questionnaires
Congress in the mid-1960's also expressed increasing concern about the 1970 decennial census. The census provided a natural focus for the growing legislative concern over individual "rights to privacy" versus governmental prerogatives to collect and use personal information.
In August 1966, during the Eighty-ninth Congress, the House Committee on Post Office and Civil Service held a series of hearings on the questions proposed for the 1970 Census of Population and Housing. In testimony before the Committee, Representative Gallagher congratulated the Bureau of the Census on inaugurating a mail-out, mail-back system that would have the effect of increasing the privacy of returns. However, noting that the forms were machine-readable, he worried aloud that "the computerization of such information could lead to the premature establishment of a national data bank.” 35 As a result of these hearings, the committee recommended that information on religious affiliation, social security number, the physically and mentally handicapped, and registration and voting records not be collected as part of the 1970 Census program. The Bureau of the Census, accordingly, eliminated these questions from consideration.
During the Ninetieth Congress, the Subcommittee on Census and Statistics of the House Committee on Post Office and Civil Service convened to hear arguments for and against H.R. 10952, "a bill to amend title 13, United States Code, to limit the categories of questions required to be answered under penalty of law in the decennial censuses of population, unemployment, and housing, and for other purposes. This legislation, introduced by Representative Jackson E. Betts of Ohio, proposed restricting coerced information on census forms to the following seven categories: (1) name and address; (2) relationship to head of household; (3) sex; (4) date of birth; (5) race or color; (6) marital status; and (7) visitors in home at time of census. All other questions would be answered voluntarily.
At the hearing Congressman Betts contended that the inclusion of many personal, mandatory questions on census forms contradicts the "constitutional intent" of the census, which is to count the people for congressional districting purposes.37 He felt that a simplified form divided between required and optional questions would result in the the collection of more information from a greater percentage of the population. After the hearing, no further action was taken on H.R. 10952, nor on the forty-four identical or similar bills introduced during the course of the Ninetieth Congress.
The Senate also expressed concern about enforcement of the census and approved S. 4062 on October 4, 1968. This bill would have eliminated the imprisonment penalty for refusal to answer or false response to "any census or survey conducted by the Department of Commerce," however, the House took no final action.
Legislative review of the decennial census intensified in the Ninetyfirst Congress (1969–1970). Congressman Betts introduced as H. Ř. 20 a modified version of his previous proposal. The modified bill provided for only six mandatory questions (excluding race) and the elimination of the imprisonment penalty for refusing to answer census questions or responding falsely. One hundred and thirty Members co-sponsored H.R. 20; and sixty-nine similar or identical bills were introduced during this Congress. Support for the Betts bill was not sufficient, however, to result in its passage by the House.
35 U.S. Congress. House. Committee on Post Office and Civil Service. 1970 Census Questions. Hearings, 89th Congress, 2d session. August 23-25, 1966. Washington, U.S. Govt. Print. Off., 1966. p. 7.
36 U.S. Congress. House. Committee on Post Office and Civil Service. Subcommittee on Census and Statistics. Limit Categories of Questions in Decennial Censuses. Hearings, 90th Congress, 1st session on H.R. 10952. Oct. 24, 1967. Washington, U.S. Govt. Print. Off., 1968. p. 1.
37 Ibid., p. 2.
In April 1969, no fewer than three congressional committees were investigating controversies surrounding the 1970 decennial census. Before the House Post Office and Civil Service Subcommittee on Census and Statistics, Director A. Ross Eckler of the Bureau of the Census insisted that "every question included in the census has such important governmental uses that it qualifies for the census on that ground alone." The Subcommittee on Economic Statistics of the Joint Economic Committee also examined the nature and necessity of census questions. These hearings included a review of Federal statistical programs.
In the spring of 1969, the Senate Subcommittee on Constitutional Rights widened the scope of its concern about individual privacy to include the census and other Federal questionnaires. The basis of the Senate Constitutional Rights Subcommittee hearings on "Privacy, the Census and Federal Questionnaires” was S. 1791, a bill introduced by Senator Sam J. Ervin, Jr., to make it unlawful for any official of the United States Government to require disclosure of personal or financial activities for statistical purposes, except under authority of a specific act of Congress or provision of the Constitution. The Ervin bill required that the citizen be informed that disclosure of additional information is voluntary. At the same time, Senator Ervin expressed confidence in the cooperative spirit of the American public:
"It is my firm belief that Americans are a law-abiding people and that the great majority will respond as good citizens to their Government's reasonable request for disclosure of information, when the need to know is made clear,
and when its methods are fair and just.” 38 The Senate took no further action on S. 1791.
Meanwhile, on September 25, 1969, the House approved H.R. 12884, unanimously supported by the House Subcommittee on Census and Statistics. This bill was designed to broaden the possible scope of census questions; to give congressional committees with jurisdiction over the Bureau of the Census final authority over the content of census questionnaires; to eliminate the jail sentence penalty for either refusal to answer census questions or falsification of response; and to strengthen the confidentiality guarantees accorded census information. The Senate took no action on this legislation.
Although this congressional activity did not produce a specific federal statute, it was not without effect. In a letter to Senator Ervin, dated April 17, 1969, Secretary of Commerce Maurice Stans pledged the following changes in census policy:
• Proposed questions will be submitted to the appropriate com
mittees of Congress two years in advance of future censuses; • An increased number of representatives of the general public
will be appointed to various advisory committees which con• A blue-ribbon commission will be appointed to fully examine
tribute to the formulation of census questions; 38 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Rights. Privacy, the Census, and Federal Questionnaires. Hearings, 91st Congress, 1st session on S. 1791. Washington, U.S. Govt. Print. Off., 1970. p. 8. Hearings held Apr. 24, 25; May 2; July 1, 1969.
a number of important questions regarding the Census Bureau, including whether or not the decennial census can be conducted
on a voluntary or a partially voluntary basis.39 In the Ninety-second Congress (1971–72), the House Committee on Post Office and Civil Service issued a favorable report on H.R. 14153, a bill which provided for:
*** a mid-decade sample survey of population to be taken
employees of the Federal government. No further action was taken on H.R. 14153, nor any of the other bills regarding census requirements brought before the Ninety-second Congress. Rights of Federal Employees
For many years, certain administrative and personnel policies in Federal agencies have raised vigorous protest that individual rights such as privacy, which are guaranteed to all citizens by the Constitution, are denied to Federal employees. These protests relate to a variety of privacy-invading practices, including a number of obtrusive data collection procedures such as requirements that Federal employees: provide data regarding their race, religion and national origin; report on their outside political, social and even sexual activities; unnecessarily disclose family financial assets; and submit to interviews, psychological tests and polygraphs designed to probe their personal feelings about religion, family and sex.
In the Eighty-ninth Congress, the Senate Subcommittee on Constitutional Rights conducted extensive hearings on this subject. The first focus of concern was psychological tests. The subcommittee convened four times in June of 1965 to examine the contents and validity of such tests, and to determine whether or not their administration threatens individual rights to privacy and due process.
The testimony reflected strong differences of opinion on the part of Government officials, legislators, psychiatrists, psychologists, writers, and law professors. Chairman John W. Macy of the Civil Service Commission defended the limited use of personality testing by qualified psychologist "in connection with medical determinations for employment or fitness for duty.”' 40 Dr. Arthur H. Brayfield, executive director of the American Psychological Association, in defining psychological tests as "a systematic refinement of the normal process of observation and evaluation,” 41 stated: “I know of no other professional tool which has matched the effectiveness of psychological tests in assisting individuals to realize their civil and human rights and personal
Martin Gross, author of The Brain Watchers, who had extensively researched the subject of psychological testing, countered these views.
39 Ibid., p. 811.
40 U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Constitutional Rights. Psychological Tests and Constitutional Rights. Hearings, 89th Congress, 1st session on Psychological Testing Procedures and the Rights of Federal Employees. June 7-10, 1965. Washington, U.S. Govt. Print. Off., 1966. p. 202.
' Ibid., p. 61. 11 Ibid., p. 59.
He reported that a substantial number of psychologists believe that "personality testing is closer to alchemy and to other non-sciences than it is to the truth." 43 Professor Monroe Freedman also disputed the validity of psychological tests and argued against their use in Government employment as a violation of due process rights. In his judgment: "Whatever dubious good may come from dissecting, cataloging, and evaluating the personality characteristics of individual American citizens, it will never justify the great injury done to all of us, individually and as a 'society, in the process.
During the second session of the Eighty-ninth Congress, Senator Sam J. Ervin, Jr., introduced a bill to protect the constitutional rights of Federal employees. S. 3779 specifically prohibited any officer of an executive agency, to request or require Federal employees to submit to the following:
(1) disclosure of race, religion, or national origin;
(7) attendance at lectures designed to advise the employee on matters other than his work;
(8) interrogation about misconduct without the presence of counsel or other selected persons;
(9) interviews, psychological tests, or polygraphs which probe personal feelings about religion, close relationsħips, and sexual
attitudes. Thirty-five Senators cosponsored this proposal. Two substantially similar bills were introduced in the House. The Senate Subcommittee on Constitutional Rights held hearings on S. 3779 in September and October 1966. Testimony in support of the bill came from lawyers, academicians, and spokesmen for Federal employees. Civil Service Commissioner John Macy dissented, explaining his agency's reservations about the extent of the bill's provisions and penalties. No further action was taken on S. 3779.
During this same Congress, two other legislative committees which were investigating the general operations of the Federal Government to identify possible invasions of privacy, focused on the rights of Government employees. Testimony before the Senate Judiciary Subcommittee on Administrative Practice and Procedure revealed that the Post Office Department frequently installed "observation galleries" or "peepholes" in men's restrooms to guard against employee theft. The examining Subcommittee sharply criticized this practice and the Post Office abandoned the policy shortly thereafter.45 A subcommittee of the House Committee on Government Operations undertook a "special inquiry on invasion of privacy.” In the course of hearings held in both sessions of the Eighty-ninth Congress, this subcommittee thoroughly reviewed the practice and implications of personality testing in Federal agencies. 43 Ibid., p. 33. 44 Ibid., p. 174. 45 U.s.' Congress. Senate. Committee on the Judiciary. Subcommittee on Administrative Practice and Procedure. Invasions of Privacy. (Government Agencies) Hearings, 89th Congress, pursuant to S. Res. 39, S. Res. 190. Part 4. Washington, U.S. Govt. Print. Off., 1966. p. 1652. Hearings held Oct. 18–20, 1965;
Feb. 2-4, 1966.
Very early in the Ninetieth Congress, Senator Sam J. Ervin, Jr., introduced Š. 1035, a revised version of S. 3779, designed to protect Federal employees from coercive personnel practices. Among the important amendments incorporated into S. 1035 were provisions to exempt the Federal Bureau of Investigation from the bill's requirements and to establish a regulatory Board of Employee Rights. 46 Fifty-four Senators co-sponsored S. 1035, which was reported to the Senate by the Judiciary Committee in August of 1967. The Judiciary Committee report to accompany S. 1035, advanced three important reasons for enacting this legislation:
(1) To preserve the rights and liberties of those who work, or will work, for the Federal Government;
(2) To attract the best qualified employees to Government service and retain them;
(3) To set an example of concern about individual privacy expected to influence the policies of State and local government
and private industry.47 On September 13, 1967, the Senate approved S. 1035, with floor amendments. Although at least thirteen identical or similar bills had been introduced in the House during the Ninetieth Congress, the measure did not receive House action.
In the Ninety-first Congress, Senator Ervin introduced substantially the same legislation, S. 782, which was reported favorably by the Senate Judiciary Committee, and passed the Senate with a few qualifications pertaining to applications of the bill within the Central Intelligence Agency and the National Security Agency.48 In the House, nine similar or duplicate bills were introduced during this term; but again the House took no final action.
In the Ninety-second Congress, hearings were again scheduled to investigate alleged invasions of Federal employees' privacy. In the spring of 1971, the Subcommittee on Employee Benefits of the House Committee on Post Office and Civil Service convened six times in public session “to pinpoint the problems facing many Federal employees and provide, hopefully, corrective legislation."'°49 The legislative proposals considered by this subcommittee were substantially similar to the Federal employee privacy legislation introduced by Senator Ervin in previous Congresses and reintroduced as S. 1438 in the Ninety-second Congress. In addition, three proposals (S. 2156, H.R. 9449, H.R. 9783) specifically prohibited the use of polygraph tests as a personnel tool in Federal agencies. Although S. 1438 easily passed the Senate, the House again failed to take legislative action on these privacy proposals.
Also during the Ninety-second Congress, a Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce met to investigate the collection of information about Federal employees which took the form of monitoring office telephones of Federal Communications Commission employees. Hearings were held in March and May 1972 to examine the circumstances surrounding
46 U.S. Congress. Senate. Committee on the Judiciary. Protecting Privacy and the Rights of Federal Employees; Report to Accompany S. 1035. Washington, U.S. Govt. Print. Off., 1967. (90th Congress, 1st session. Senate. Report no. 534) p. 11. 48 U.S. Congress. Senate. Committee on the Judiciary. Protecting Privacy and the Rights of Federal Employees; Report to Accompany S. 782. Washington, U.S. Govt. Print. Off., 1970. (91st Congress, 2d
49 U.S. Congress. House. Committee on Post Office and Civil Service. Subcommittee on Employee Benefits. Invasion of Federal Employees' Privacy. Hearings, 92d Congress, 1st session on H.R. 7199 and Related Bills. Washington, U.S. Govt. Print. Off., 1971. p. 1. Hearings held May 11-26, June 2, 1971.
47 Ibid., p. 3–4.
session. Senate. Report no. 8753) p. 1-2.