Senator ERVIN. But if the defendant wins the action, the defendant will not?

Attorney General KENNEDY. That is correct.

Senator ERVIN. The proponents of this bill claim that it is designed to produce a supposed equality. Yet, they put in the bill a rule which requires an unequal law in respect to the taxing of costs.

Attorney General KENNEDY. Senator, first I might say this is not unusual. You have this in other statutes.

Senator ERVIN. That does not make any difference, Mr. Attorney General. The question is, isn't it rather queer to advocate an unequal law to bring about supposed equality?

Attorney General KENNEDY. No, I don't think so, any more than this type of provision which exists in other statutes passed by Congress, is unequal.

Senator ERVIN. Well, Mr. Attorney General, the preparation of inequities in other acts of Congress does not justify the perpetration of an additional inequity here, which discriminates in this fashion in favor of a winning plaintiff and against a winning defendant.

I consider it a rank injustice for a law to make a distinction which indicates that the law itself thinks that one side ought to win the case and the other side ought to lose it regardless of the facts. That is what it does.

Attorney General KENNEDY. I don't believe so, Senator. As I say, it has been done in other statutes. We are trying to deal here with a situation which has brought about a good number of injustices. I think if you examine the income

Senator ERVIN. But, Mr. Attorney General

Attorney General KENNEDY. Could I finish, Senator?

Senator ERVIN. Yes.

Attorney General KENNEDY (continuing). The earnings of a Negro in the United States as contrasted to the earnings of a white person, Negroes are at a great disadvantage. This is not a major matter to us, Senator. If the committee feels that it should not be in-as I say, it has a good number of precedents-but if the committee feels it should not be in or that the matter should be decided by the judge or by the court rather than having it written into the law, certainly we would accept that provision.

But that is the reasoning behind it, Senator.

Senator ERVIN. In other words, the reasoning behind this provision is that the law should give a right to one man because he is a Negro and deny the same right to another man because he is white? Attorney General KENNEDY. No, Senator.

Senator ERVIN. Mr. Attorney General, it is to be assumed that when a defendant wins a case, he wins it because justice is on his side. Isn't that the assumption on which you have to base this thing? Attorney General KENNEDY. That is correct, yes.

Senator ERVIN. So when one man's cause is just, if he happens to be a Negro, he is to get an attorney's fee. But if his cause happens to be just and he happens to be a white man, he is not to get an attorney's fee.

Attorney General KENNEDY. That is not

Senator ERVIN. That is the way this statute would operate.

Attorney General KENNEDY. No, in the first place, it deals not only with color. It deals with nationality, race, creed. You would have to take that into consideration. A white man could bring in a case against a white man.

Senator ERVIN. Do you know of any man denied service on account of nationality?

Attorney General KENNEDY. Yes.

Senator ERVIN. Well, who?

Attorney General KENNEDY. Well, there are places.

Senator ERVIN. Where are they? I would like to know, because I have never heard of one and I have been living a lot longer than you have.

Attorney General KENNEDY. Senator, it certainly has happened and I don't think it would be fair or right for me to start naming them.

Senator ERVIN. I think it would be fair or right to dissipate my ignorance.

Attorney General KENNEDY. This is not the forum for it. I would be glad to call you up on the telephone and discuss it with you.

Senator ERVIN. I think things like this should be discussed under the glare of noonday sun.

Attorney General KENNEDY. People here know of people who have been denied service because of creed, nationality, or race. I think that is as plain as the reason we are sitting here.

Senator ERVIN. I have never heard of one. I don't know of one. I am sorry you won't tell us about it in public, so other Senators sitting on the committee will have the benefit of it as well as myself. Do you think it is necessary to pass a law to say that people who profess a religion need this kind of protection?

Attorney General KENNEDY. Excuse me, Senator.

Senator ERVIN. Do you think it is necessary to pass a law like this to extend protection to people on account of their religion? Attorney General KENNEDY. Yes, Senator.

Senator ERVIN. I certainly do not think you are urging Congress to pass it for the protection of Presbyterians or Catholics? Attorney General KENNEDY. I don't think so, Senator.

Senator ERVIN. I have never heard of anyone of them being denied service because of their religion.

Attorney General KENNEDY. Have you heard of any other religions being denied?

Senator ERVIN. I have never heard of a law of a State prohibiting anybody from rendering service to anybody else on account of his religion.

Attorney General KENNEDY. We are not referring here to laws, however.

Senator ERVIN. We would have to have such laws, if Congress is to legislate under the 14th amendment. Certainly, religion has nothing particularly to do with interstate commerce.

Attorney General KENNEDY. Senator, we keep going round and round.

Senator ERVIN. I am not going round and round. I am going right straight to the point I am trying to make: You are asking for a bill containing a provision which is not necessary.

Attorney General KENNEDY. These are establishments, Senator, that have an effect on interstate commerce.

Senator ERVIN. Establishments do not run themselves, Mr. Attorney General. They are run by people. The conduct to be regulated by this bill is that of the people who run these establishments. The establishments in and of themselves never do anything, except perhaps hold a little piece of earth together.

Attorney General KENNEDY. Could I finish?
Senator ERVIN. Yes.

Attorney General KENNEDY. The establishments which are run and discriminate against an individual because of his race, color, creed-this kind of discrimination has had an adverse effect, a major adverse effect on interstate commerce. Therefore, it can be covered by this bill and the legislation that we have recommended will try to alleviate the situation and remove the impediment to interstate

commerce

Senator ERVIN. Well, you make a statement

Attorney General KENNEDY (continuing). As I said.

Senator ERVIN. Excuse me.

Attorney General KENNEDY. Go ahead, Senator.

Senator ERVIN. You tell me this applies to places and establishments and not to people.

Attorney General KENNEDY. People run the establishments.

Senator ERVIN. That is what I have been trying to say. This bill is to apply to people, not to places and establishments-people who run places and establishments.

Attorney General KENNEDY. That is correct, Senator.

Senator ERVIN. I am glad we can agree on one thing.

Mr. Attorney General, you told me yesterday you had 900 attorneys in the Department of Justice. How many additional attorneys do you have under the employ or control or subject to the direction of the Department of Justice throughout the United States and not located in Washington?

Attorney General KENNEDY. I don't know what the figure is exactly, Senator. There are about 33,000 employees in the Department of Justice. That includes the Federal Bureau of Investigation, Immigration and Naturalization Service, Bureau of Prisons, as well as the legal work done by the Department of Justice.

Senator ERVIN. Have you made any estimation as to how many additional attorneys and employees the Department of Justice would have to have if this bill were enacted into law?

Attorney General KENNEDY. We estimate about 40 more, Senator. Senator ERVIN. Do you think the Federal Government can regulate all the places of public accommodations set out in this bill and bring all the school integration suits which may be instituted under this bill with only 40 additional people?

Attorney General KENNEDY. 40 additional lawyers.

Senator ERVIN. I asked about other employees, including investigators. How much would you have to expand the Department for investigating?

Attorney General KENNEDY. We expect to have about 40 attorneys. I think we would have to have some additional clerks. I do not think it would be a very large figure, Senator. I think the people generally would comply and that we won't have too many problems.

Senator ERVIN. How many attorneys do you have in the Civil Rights Division already?

Attorney General KENNEDY. I think about 40, Senator.

Senator ERVIN. Do you think that Congress could expand the power of the Federal Government to the extent that this bill would provide and that the Department of Justice would only need 40 more attorneys? About 40 employees additional?

Attorney General KENNEDY. Yes, Senator, about 40 more attorneys. Senator ERVIN. Are you familiar with the decision of the Supreme Court in the case of the NAACP v. Button, the attorney general of Virginia?

Attorney General KENNEDY. I am not sure.

Senator ERVIN. I will state what the case held in substance. Up to the time it was handed down, every decision ever handed down so far as I can find in any Anglo-American jurisdiction held that corporations could not practice law through attorneys chosen and controlled by them. In the Button case, the Supreme Court of the United States laid down the novel doctrine that under the provisions of the first amendment the NAACP and its subsidiary corporations can practice law in racial matters through attorneys chosen and controlled by them; that such attorneys are not subject to disciplinary action under rules which prohibit members of the bar from soliciting legal business; and that such attorneys cannot be punished criminally under State laws relating to barratry and champerty. Three of the Justices joined in a vigorous dissent. Would not subsection (b) of section 204 of this bill be a bonzana for the attorneys authorized to solicit business by the decision in the Button case? They could solicit legal business from plaintiffs and have their fees paid by the NAACP and its subsidiary corporations if they lost such cases, and by the defendants if they won them.

Attorney General KENNEDY. I don't think it would be, Senator. Senator ERVIN. As I construe the decision in the Button case, these attorneys would be authorized to solicit employment to bring cases under the public accommodations provisions of this bill. If they happen to win such cases, they would have their fees paid by the defendants, wouldn't they?

Attorney General KENNEDY. What is the question, Senator?
Senator ERVIN. I can restate it.

These attorneys have the special benefit from which all other attorneys are excluded of soliciting business in racial matters. The more cases they solicit and win under the public accommodations provision of this bill, the greater their earnings would be, wouldn't they? Attorney General KENNEDY. I expect if they won, they would be paid in any case.

Senator ERVIN. Under this bill, though, they would be paid by losing defendants.

Attorney General KENNEDY. Yes, but I expect any time a lawyer takes a case, he expects to win it and he expects to get paid, so I don't think this is going to add anything.

I might point out, Senator, that this provision, this same provision, exists in the Sherman Act, exists in the Clayton Act, and exists in a number of securities acts. So it is nothing unusual.

Senator ERVIN. I am not asking you about those acts. I am asking you if lawyers authorized by the decision in the Button case to solicit

business in this area would not have an added incentive under this bill to go out and solicit business. They could look to the defendant rather than the plaintiff for compensation?

Attorney General KENNEDY. I don't think it would have that effect. As I say, it has existed before in laws passed by Congress in other fields. This is not a precedent. Because of the particularly difficult position that Negroes have in the United States at the present time, we felt it would be helpful, Senator.

Now, if the committee, after consultation and considering all the facts, would rather leave it up to the court, that is satisfactory to us. But I think we felt that this kind of provision would be helpful. Senator KEATING. Would the Senator yield on that, please? Senator ERVIN. Yes.

Senator KEATING. Is there anything general in that section to which Senator Ervin has been referring which authorizes lawyers to go out and solicit business?

Attorney General KENNEDY. No, there is not.

Senator KEATING. I think it is well covered by the Canon of Ethics, that solicitation of business by lawyers is frowned upon and nothing in here, any more than in the Clayton or Sherman Act. changes that.

Senator ERVIN. If my good friend, the able and distinguished Senator from New York, will read the opinion in the Button case, he will find that the Supreme Court of the United States has held that under the provisions of the first amendment, lawyers chosen and controlled by the NAACP and its subsidiary corporations are exempt from disciplinary action under the Canons of Ethics for soliciting legal business if they confine their soliciting to racial cases of the type under consideration in that decision.

Senator KEATING. Do I understand the Senator to mean that because a successful plaintiff in a Sherman Act or Clayton Act case can recover attorney's fees, it is acceptable practice under the Canon of Ethics for lawyers to go out and solicit those cases?

Senator ERVIN. If I may inform the Senator, I have never mentioned the Clayton Act or the Sherman Act. I was talking about the decision of the Supreme Court of the United States in the case of NAACP v. Button, and what it held there. But I say again that what is sauce for the legal goose ought to be sauce for the legal gander, and that laws should apply in like manner to all people in like circumstances. In my judgment, the provision of this bill which says that a winning plaintiff is going to have the court costs taxed one way and a winning defendant is going to have them taxed another way, is a negation of the principle which I consider the most salutary principle of our law, that laws should apply alike to all people in like circumstances.

Attorney General KENNEDY. As I say, Senator, I do not understand why there is all this concern when there has not been any concern about the Clayton Act and the Sherman Act.

Senator ERVIN. I was not a Member of the Congress which enacted the Sherman Act or of the Congress which enacted the Clayton Act. If I had been, I would certainly have taken the position that any rules enacted by any act for taxing court costs should apply in like manner to a winning plaintiff or a winning defendant on the one