Affirmative Action Special Report
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Republicans Mix Signals on Affirmative Action
Strains Emerge as Lawmakers Wrestle With Hard Choices Involved in Rewriting Laws

By Helen Dewar
Washington Post Staff Writer
Sunday, December 14, 1997; Page A18

Republicans sent a strong signal about where they stand on affirmative action when the Senate Judiciary Committee refused last month to approve Bill Lann Lee as the nation's civil rights enforcer because he did not disavow use of racial preferences. A week before, Republicans sent an equally strong signal when the House Judiciary Committee killed a bill to ban such preferences.

The problem is that the signals flash green, red and yellow, all at the same time. Green: It's all right to criticize President Clinton's embrace of preferences. Red: The Republicans shouldn't appear to oppose all forms of affirmative action. And the cautionary yellow is for everything in between.

While Republicans in both chambers want to force votes on the issue next year, others approach these showdowns with misgivings, underscoring the GOP's angst over the politics of affirmative action.

This ambivalence points to continuing strains within the party as it attempts to rewrite laws, starting with a proposal from Sen. Mitch McConnell (R-Ky.) to scrap race- and gender-based "set-asides" in highway and transit construction contracts, which is likely to come up soon after Congress reconvenes in late January.

But the issue will flare before then. White House officials have said Clinton plans to announce early this week that he will bypass the Senate and use his executive powers to give Lee the civil rights job, ensuring loud protests from GOP leaders.

"There's a pretty schizophrenic approach to the whole issue. . . . There's a lot of uneasiness about appearing to be insensitive to inequities," said Sen. Olympia J. Snowe (R-Maine).

Snowe, a moderate, represents a minority within her party in that she opposes legislation to overturn existing laws that sanction preferences for minorities and women.

But even many who want to outlaw preferences worry that a high-profile attack on these laws – especially if not accompanied by a credible alternative – could boomerang.

For instance, Rep. Elton Gallegly (R-Calif.) co-sponsored the House bill to get rid of racial and gender preferences in federal hiring and contracting but then voted to block it in committee. He wanted more time, he said later, to make sure "people feel they're being protected."

Rep. Anne Northup (R-Ky.) also opposes preferences, but she, too, urged caution during a Republican caucus on the issue. She wants Rep. J. C. Watts (Okla.), the GOP's only black lawmaker, and Rep. Henry Bonilla (Tex.), its only Mexican American, to help make the decisions.

"It appalls me that we do this without sitting down and talking with J. C. Watts and Henry Bonilla," she said. "It's the kind of thing that makes us look insensitive." Watts and Bonilla have expressed misgivings about the pending bill.

Still others worry about exacerbating the party's troublesome gender gap. Snowe tells about women in Maine who contend they never would have gotten a government contract without set-asides. Democrats chuckle over GOP fretting about the possible political fallout among women. "You can see their eyes roll toward the back of their heads on that one," said a House Democratic aide.

"There's no question that some members are afraid they will be attacked viciously if they move forward," said Rep. Charles T. Canady (R-Fla.), chief sponsor of the bill to ban preferences in government programs. "They do not relish being on the receiving end of those kinds of attacks."

Sen. Arlen Specter (Pa.), the only Republican on the Judiciary Committee to support Lee's nomination, tried to make a more straight-to-the-jugular political point. The committee might have been dealing with a nominee from "President [Robert J.] Dole" if Dole had not taken positions to appease conservatives to win the GOP nomination, only to pay the consequences when he faced Clinton, Specter observed.

The stakes for the party on the issue were laid out vividly in a recent study by GOP pollster Frank Luntz. "If communicated effectively, affirmative action has the potential to be one of the best issues for conservatives across America," he wrote in an excerpt from his "Language of the 21st Century" study that was handed out at the House Judiciary Committee meeting.

But "talking about the evils of affirmative action is not enough" and can be dangerous if it is seen as minimizing the effects of discrimination, he said. "Any discussion about affirmative action must begin with an acknowledgment of the problem and include alternatives to affirmative action."

Moreover, Luntz acknowledged that the words "affirmative action" strike a responsive chord among voters and urged that lawmakers concentrate their fire instead on "government-sponsored quotas and preferences" – a distinction that goes to the heart of the politics of affirmative action.

Voters in California last year and Houston last month made the same point, with Californians rejecting "preferences" while Houston voters opted to keep "affirmative action."

In what was one of the most detailed surveys on the subject, a 1995 Gallup Poll showed that 53 percent of whites along with 72 percent of blacks supported "affirmative action programs," while 86 percent of whites and 68 percent of blacks opposed favoring a "less qualified" minority job applicant over a white applicant. But the choice was less clear-cut on issues such as awarding a percentage of government contracts to businesses owned by minorities and women, which was strongly supported by blacks and only narrowly opposed by whites.

Luntz's advice was welcomed in the House Judiciary Committee, where anxiety was building. Rep. George W. Gekas (R-Pa.) had told a Republican caucus he would block the Canady bill on grounds that it was too late in the session for serious consideration and that it needed more work. He was joined by GOP Reps. Steve Buyer (Ind.), Ed Pease (Ind.) and Gallegly, and 13 Democrats. The bill went down, 17 to 9.

After the vote, Canady sent Gekas a note suggesting they work together on a strategy for next year. As a result, Canady said he is looking at the possibility of ordering federal agencies to make special efforts to recruit women and minorities. Such "outreach" would have been permitted but not mandated by his earlier bill. "People support positive steps that help people to compete," he said.

Others have suggested additional steps, and there does not yet appear to be a consensus on how to proceed.

For example, Rep. Tom Campbell (R-Calif.) would criminalize intentional discrimination. He would drop any references to race and gender and instead allow preferences for "obstacles that a person has overcome," including income, education and what he calls "actual instances of discrimination." Watts also wants jail sentences for discrimination along with better recruitment, procurement reforms and "a good education for every child," possibly through tax-financed vouchers for private schools. Northup, too, is drawn to education, along with apprenticeship programs, possibly tying contracts to agreement to train apprentices.

House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) argues that Republicans can make the case that they are "facing up to the real problems we were sent here to address," so long as they are careful to "send the right message" about their intentions. But "it's like abortion, it's hard to deal with . . . emotional, tough, unpleasant, difficult," he added.

By contrast, Republicans had a relatively easy time marshaling enough Senate Judiciary Committee votes to block Lee's nomination as assistant attorney general for civil rights from going to the Senate floor.

"It may be easier to address the issue on a nomination than it is head-on," said Snowe. Sen. Patrick J. Leahy (Vt.), ranking Democrat on the committee, put it less diplomatically: "They couldn't pass legislation . . . so they took a scalp . . . Bill Lann Lee's scalp."

Not so, argues Hatch, who contends that GOP opposition to Lee stems from his espousal of preferences that have been declared unconstitutional in most cases by recent federal court rulings and from allegations he pressured employers to accept settlements that include quotas and preferences to avoid costly trials.

Regardless of the outcome for Lee, prospects for passage of legislation are dim.

McConnell acknowledges his proposal to ban highway construction "set-asides" would probably be defeated by a Democratic-led filibuster. Even if passed by the House, Canady's broader bill to ban preferences government-wide would face a filibuster in the Senate. And Clinton could veto anything that did pass.

© Copyright 1997 The Washington Post Company

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