Affirmative Action: A New Idea
Eastland, Terry
Affirmative Action: a New Idea by Terry Eastland The House Judiciary Committee is expected to vote shortly along strict party lines in favor of the so-called Equal Opportunity Act, which would end...
...The Clinton administration emphasizes in its support of what it calls "race-conscious procurement" a device known as a "bid preference" or "credit...
...The full House could pass the bill if the leadership finally schedules a floor vote-a very big if...
...Affirmative Action: a New Idea by Terry Eastland The House Judiciary Committee is expected to vote shortly along strict party lines in favor of the so-called Equal Opportunity Act, which would end virtually all of the race- and sex-based preferences now administered by the federal government...
...In no other area is there as much clarity about how the process would work in the absence of minority preferences...
...The minority-owned firm can't lose...
...Participants in the preference program administered by the Small Business Administration may have a net worth of up to $250,000, excluding home and business equity, when a contract is first awarded, and up to $750,000 thereafter...
...But it is not sound as a matter of strategy...
...The bill is sound in principle: When government favors members of one race in the award of limited opportunities, it necessarily discriminates against those of a different race...
...His Justice Department remains busy defending current programs against a series of challenges in federal district courts, and last month the administration announced long-awaited new rules on preferences in contracting that would preserve and even expand much of the status quo...
...Not today...
...In the Senate, even if a majority were to support it, the bill would still be subject to filibuster...
...The fact is, less might well be more...
...It would not deal with the military's affirmative action program, for example, or sex-based classifications in federal employment...
...Case in point: the bill outlawing partial-birth abortions...
...Its sponsors should ask instead whether there might be a smarter way to press the case...
...It's a clear rule that contracting officers can apply and which every interested party-as well as the public at large-can understand...
...Such a bill would reduce the fronts on which congressional opponents of preferences would have to fight...
...Votes were lacking for more ambitious pro-life legislation...
...A year, or even six months, ago, this judgment could not have been rendered...
...It is a fight in which the advantage lies with pro-life forces...
...So the prospects for getting a contracting-only bill out of Congress to the president's desk appear strong...
...The good news for non-discrimination strategists is that Clinton is too deeply and publicly committed to the use of race in contracting to coopt the anti-preference issue by signing such a measure...
...Gary Franks, one of two black Republicans in Congress, opposes the former but might co-sponsor the latter...
...A contracting-only bill also would help explain just what preferential treatment is...
...This would be a bill targeting preferences in contracting-and contracting alone...
...A recent audit by the SBA's inspector general found that 35 of 50 randomly selected participants had net worths of more than $1 million, and that 12 of the 50 received annual compensation in excess of $750,000...
...The argument against a contracting-only bill is that because preferential treatment is such a contentious issue, it is better to deal with it all at once than piecemeal...
...Yet still the bill is being moved toward an inconsequential dead end...
...But to what end...
...There is similar, less-is-more legislation that congressional Republicans might propose to help end federally sponsored discrimination...
...Thus, a $4 million bid by a white-owned firm is treated as a $4.4 million bid, and a bid between $4 million and $4.4 million by a minority-owned firm trumps it...
...In private, no Republican member of Congress who endorses the legislation-sponsored by Florida representative Charles Canady and, before his departure last week, Sen...
...That was a good argument a year ago...
...Under this procedure, contracting officers regard bids from non-minority firms as 10 percent higher in worth than their face value...
...because contracts involve large dollar amounts, minorities and women have been recruited to serve as figureheads for firms owned by whites...
...This is a distinction without a difference: Any time race affects the final decision, it is the deciding factor...
...Bill Bradley and numerous other Democrats voted with Republicans to repeal the FCC's tax certificate policy, an egregious preference scheme that amounted to corporate welfare for the well-to-do and well-connected (O.J...
...Consider that a year ago Sen...
...Facts like these explain why more Republicans would support a contracting-only bill than now endorse the Equal Opportunity Act-Rep...
...And since only contracting would be under discussion, supporters of nondiscrimination would be able to focus attention on the least defensible preferences administered by the federal government...
...It's also likely that a contracting-only bill would draw more Democratic support...
...He vetoed it, and there has been no override...
...Last year, for example, the Defense Department's inspector general reported that the preference contracts for long-distance services over an eight-month period in 1992 cost taxpayers an additional $1.1 million...
...If he vetoed a bill requiring color and sex blindness in contracting, Clinton would have to explain to the country exactly why he believes color and sex should be taken into account...
...Simpson, Mr...
...Bob Dole-would disagree with this assessment...
...Nor as much clarity about the discrimination produced by the current system of preferences-Adarand v. Pena, the big Supreme Court decision last year, dealt with a contractor who spent 15 years battling contracting rules that unfairly penalized him before deciding he had had enough and undertaking a lawsuit...
...Basically, in the normal system of competitive bidding for government contracts, the rule is that the low bid wins...
...Finally, these preferences are manifestly not about giving breaks to young poor people...
...But majorities were available for a measure focused on the least defensible acts of abortion...
...Terry Eastland, editor of Forbes MediaCritic, is the author of Ending Affirmative Action, now available from BasicBooks...
...It seemed then that the first Republican Congress in 40 years probably could produce the votes necessary to pass comprehensive anti-preference legislation and genuinely address this issue of fundamental moral and political principle...
...The low-bid rule also provides a firm basis for calculating the economic cost of preferences-and they are costly...
...Less can be more, and so far, more has meant less than zero...
...T, and Colin Powell, among others...
...But for various reasons, including divisions over the bill within Republican ranks, it has been a low priority in the House, and an even lower one in the Senate...
...The administration likes this device because it uses race as "a factor," not "the sole factor...
...And that's a clear loser for him...
...Now, with the clock running on the current Congress, the legislation is starting to move...
...Worse, preferences in contracting tend to invite fraud...
...The administration now proposes to extend "bid preference" from the Pentagon, where it was first used, to all federal agencies...
...But the bill and the veto together have drawn a clear political line along which the issue of abortion now will be fought in this year's elections and beyond...
...Congress thus was able to send anti-abortion legislation to the president...
...And so this Congress isn't going to pass the Equal Opportunity Act...
Vol. 1 • June 1996 • No. 40
