[Congressional Record Volume 142, Number 123 (Tuesday, September 10, 1996)]
[House]
[Page H10114]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




[[Page H10114]]



 A VOTE FOR H.R. 3539 IS A VOTE IN FAVOR OF RACE AND GENDER PREFERENCES

  The SPEAKER pro tempore. Under the Speaker's announced policy of May 
12, 1995, the gentleman from Florida [Mr. Canady] is recognized during 
morning business for 5 minutes.
  Mr. CANADY of Florida. Mr. Speaker, I rise this afternoon to inform 
Members about an aspect of one of the bills on today's Suspension 
Calendar of which they may not be aware.
  Today the House will consider, and tomorrow we will vote on, H.R. 
3539, the Federal Aviation Authorization Act of 1996. For the most 
part, this bill merely authorizes the appropriation of new funds for 
various programs designed to improve our Nation's airports and airways. 
I have no objection to the funding provisions of this legislation.
  But embedded within the programs we will be reauthorizing a regime of 
race and gender preferences that is both unconstitutional and 
profoundly unwise.
  One of the programs we will be reauthorizing is the Airport 
Improvement Program. Under the AIP, airports applying for Federal funds 
in connection with an airport project must guarantee the Department of 
Transportation that at least 10 percent of all companies doing business 
at that airport will be owned by so-called ``socially and economically 
disadvantaged individuals.'' The statute then proceeds to presume that 
women or members of certain racial minority groups are ``socially and 
economically disadvantaged individuals.''
  Mr. Speaker, I can hardly imagine a more offensive example of 
Government-mandated group preferences. Under this AIP preference 
program, the Government is simply using its Federal dollars to force 
airport authorities to treat concessionaires differently based upon the 
skin color or sex of their ownership. You can have our money, we are 
telling them, but only if you agree to discriminate based on race and 
sex.
  The bill we will vote on tomorrow reauthorizes these preference 
provisions without changing them in any way, so the unfortunate fact is 
that a vote in favor of H.R. 3539 constitutes an endorsement of racial 
and gender preferences.
  To Members who are opposed in principle to group preferences, this is 
truly a troubling development. It was well over 1 year ago now that the 
Supreme Court held in the Adarand case that racial classifications are 
presumptively unconstitutional. The Clinton administration, of course, 
has fought tooth and nail to preserve preference programs, even to the 
point of pursuing a scorched Earth litigation strategy in defense of 
the most offensive racial set-aside schemes.
  But Adarand strongly bolstered the expectation, highlighted by the 
results of the 1994 elections, that Congress would finally begin to 
remove the Federal Government from the business of classifying American 
citizens on the basis of skin color and sex.
  But legislation that would have furthered that objective has stalled 
in Congress, and it now appears obvious that no legislation will move 
this session to repeal even a single Federal preference program.
  It is bad enough, in my opinion, that we have failed to repeal 
existing preferences. But now we are moving in the opposite direction, 
for by voting to reauthorize the AIP preference provisions, we are 
actually extending and endorsing them.
  This is a mistake for at least two powerful reasons. First, the 
preferences contained in the AIP are unconstitutional. In Adarand and 
other cases, the Supreme Court has made it clear that the Equal 
Protection clause prohibits the Government from classifying citizens on 
the basis of race unless the program is narrowly tailored to remedy 
proven instances of racial discrimination by the relevant governmental 
actors. The court has also held that the enacting authority, in this 
case Congress, must have had a strong basis in evidence to conclude 
that remedial action was necessary before it embarks on such race-based 
legislation.

  The AIP preference provisions cannot meet these constitutional 
standards. They were added to the underlying statute during a floor 
debate in 1987. There was thus absolutely no effort to identify any 
discrimination that the requirements were designated to remedy. This 
conclusion is reinforced by the completely arbitrary nature of the 10-
percent quota requirement.
  I am sure the Clinton administration and other proponents of 
preferences will strain to come up with an argument in defense of the 
constitutionality of this program, but the simple fact is this: the AIP 
preference provisions are an example of the Government gratuitously 
requiring Federal grantees to engage in race and sex-conscious 
activity. This the Constitution forbids.
  In the report accompanying H.R. 3539, the Committee on Transportation 
and Infrastructure notes these potential constitutional problems, but 
then states a preference for leaving the issue to the courts to 
resolve. I do not believe such an abdication of responsibility is 
consistent with the oath we have taken as Members of Congress to uphold 
the Constitution. If we believe a program is unconstitutional, as I 
believe this one plainly is, then we should not vote to reauthorize it.
  But even apart from its constitutional flaws, the preference 
provisions of the AIP constitute extremely unwise public policy. Simply 
stated, it is wrong for the Government to grant benefits and impose 
burdens based on skin color and sex. The fact is that Government-
mandated group preferences necessarily send the message that it is both 
permissible and desirable to treat persons differently based on race 
and sex. That is not the sort of message our Federal Government should 
be sending. It is a message that will only reinforce prejudice and 
discrimination in our society.
  Mr. Speaker, I understand that because this bill is on the suspension 
calendar, we will not have an opportunity to vote separately on whether 
to reauthorize these unconstitutional and unwise provisions. We should 
therefore defeat this bill so these offensive provisions will not be 
reenacted.

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