When Attorney General Edwin Meese III took his draft executive order on affirmative action into a Cabinet council meeting Tuesday afternoon, the outcome was supposed to be a foregone conclusion.
But when the meeting ended, the philosophical and political divisionsrumbling through the Republican Party had split the Cabinet, and the whole issue, which had been simmering for months, seemed once again unsettled.
A significant part of the Cabinet sided with Labor Secretary William E. Brock in opposing changes in the longstanding requirement that federal contractors meet numerical goals in hiring minorities and women. The divided Domestic Policy Council agreed to send President Reagan several conflicting options on the politically sensitive issue.
For all the talk about a conservative revolution in Washington, the lineup was revealing. Housing and Urban Development Secretary Samuel R. Pierce Jr., the only black member of the Cabinet, strongly backed Brock's moderate stance. So did Transportation Secretary Elizabeth Hanford Dole, who has aggressively encouraged more minority contracting in highway programs.
Treasury Secretary James A. Baker III, who often opposed Meese when both men were in the White House, was not present, but it is known that he opposed Meese's position again.
Secretary of State George P. Shultz, who was secretary of labor in the Nixon administration when the current rules were drafted, had previously indicated that he, too, supports the continued use of goals and timetables in the hiring of minorities and women.
Meese, one of the Reagan administration's staunchest conservatives, drew support from several like-minded allies. These included two leading black conservatives, Clarence M. Pendleton, chairman of the Civil Rights Commission, and Clarence Thomas, head of the Equal Employment Opportunity Commission; Energy Secretary John S. Herrington, and Education Secretary William J. Bennett, who was represented by his chief deputy.
President Reagan, who has stressed his opposition to racial hiring quotas, can settle the issue in Meese's favor with the stroke of a pen. But the split Cabinet verdict surprised many who thought that longtime Reagan confidant Meese would roll over Brock and the moderate opposition.
A senior Justice Department official disputed the notion that the vote was a setback for Meese, saying that the attorney general intentionally used the session to air differences of opinion and that the outcome -- presenting several options to the president -- was not unusual.
"Around that table, there was consensus on the proposition that the status quo with regard to the executive order and its enforcement needs to be changed," the official said. " . . . From Meese's point of view, that is a significant advance."
From Brock's point of view, however, what looked like a fait accompli two weeks ago was suddenly in question again. This was due in part to deft lobbying by Brock, who discussed the issue with other Cabinet members and Senate Majority Leader Robert J. Dole (R-Kan.), who has frequently opposed the White House on civil rights. Dole publicly endorsed Brock's view hours before the Cabinet session, while his wife, the secretary of transportation, made the case inside.
Meese's original draft of the executive order was leaked in August, while Brock was on an African safari, touching off an uproar among civil rights groups, who said it would gut the 1965 order issued by President Lyndon B. Johnson and severely damage affirmative action by government contractors, who have a total of 73 million employes.
Under regulations adopted by the Labor Department's Office of Federal Contract Compliance Programs (OFCCP), companies are required to meet minority hiring goals or face a cutoff of federal contracts. The Reagan administration has used this power only twice, but advocates say the threat of exercising it provides a strong incentive for compliance.
William Bradford Reynolds, assistant attorney general for civil rights, said yesterday that "the executive order, through administrative interpretation and judicial interpretation, has come to be understood to require a quota system." He called the program "a regulatory regime that's driven by the numbers."
Meese and Reynolds would change the order to say that no contractor could be penalized for failing to meet any statistical goal in hiring minorities and women. Their draft says that businesses can adopt voluntary affirmative action plans but that there is no "legal basis" for any plan that "grants any preference" on the basis of race or gender.
For two months, Reynolds and Brock tried to negotiate a compromise, and both said they were close to agreement. But according to Labor Department sources, Brock recently decided to change the terms of the debate by demanding no changes in the executive order, only in the department's regulations. That became the second option sent to the president.
Brock has said that the hiring rules are too cumbersome and was planning on revising them. But the new tack enabled Brock's allies to support a measured revision, and it became the option that was sent to the president along with the Meese-Reynolds draft.
Other factors also worked in Brock's favor. Sources said White House chief of staff Donald T. Regan, who attended the Cabinet meeting, wanted to retain control of the issue and that his aides wanted to prove that Meese is no longer running the White House.
Nearly 200 members of Congress have expressed support for the current executive order. And some business groups, led by the National Association of Manufacturers, have argued that the order works well.
Reynolds, however, contends that "there are an awful lot of business groups that are saying let's change the executive order." Other companies, he said, are comfortable with the current system because it enables them to meet minimum standards by putting blacks in token positions.
"The business community can use that as a safe harbor, and from then on slam the door in the face of minorities or women that come in and seek to get a job, no matter how qualified they are," he said. "Now that's discrimination."
Reynolds also said the enforcement program has been largely "counterproductive. In the private sector where the OFCCP has not interfered, you have a lot more programs bringing minorities into the work force."