Congressional Record, Volume 144 Issue 22 (Friday, March 6, 1998)

[Congressional Record Volume 144, Number 22 (Friday, March 6, 1998)]
[Senate]
[Pages S1481-S1498]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

INTERMODAL SURFACE TRANSPORTATION EFFICIENCY ACT OF 1997

The PRESIDING OFFICER. The Chair lays before the Senate S. 1173,
which the clerk will report.
The assistant legislative clerk read as follows:

A bill (S. 1173) to authorize funds for construction of
highways, for highway safety programs, and for mass transit
programs, and for other purposes.

The Senate resumed consideration of the bill with a modified
committee amendment in the nature of a substitute (Amendment No. 1676.)
Pending:

McConnell amendment No. 1708 (to amendment No. 1676), to
require that Federal surface transportation funds be used to
encourage development and outreach to emerging business
enterprises, including those owned by minorities and women,
and to prohibit discrimination and preferential treatment
based on race, color, national origin, or sex, with respect
to use of those funds, in compliance with the equal
protection provisions of the fifth and 14th amendments to the
Constitution.

Amendment No. 1708

The PRESIDING OFFICER. Who yields time?
Mr. CHAFEE. Mr. President, I yield the Senator from Massachusetts 10
minutes.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, the Disadvantaged Business Enterprise
program in ISTEA has given numerous women and minority-owned businesses
the opportunity they deserve to compete for federal highway
construction

[[Page S1482]]

contracts. Since it began in 1982 and was expanded to include women in
1987, the face of the construction industry has changed dramatically--
we still have far to go, but because of this program, we have come a
long way.
Today, however, we are faced with a choice. Do we continue to move
forward or do we turn back, and return to the virtually all-male, all-
white construction industry that we had in the 1970s? Members of the
Senate must consider this question carefully, because we know what will
happen if the program is eliminated.
In 1978--before implementation of the program--women and minorities
received less than 2 percent of all federal contracting dollars. In
1979, the figure was 2.22 percent--and no federal dollars went to
women-owned firms--zero. Clearly, America had to do better, and the
need to give women and minorities a fair opportunity to bid for
contracts led to the implementation and expansion of the program in
1982 and 1987, respectively.
Because of these state and federal initiatives, women and minority-
owned firms made great strides in the construction industry. It wasn't
until the Supreme Court's decision in Richmond versus Croson in 1989,
that this progress began to slow. The Croson decision required
application of the strict scrutiny test to state affirmative action
programs, and, as a result, several states eliminated these measures.
But, contrary to what some have said, the Croson decision was not the
death-knell for these state and local programs. Many of these easily
met the strict scrutiny test--in Denver and King County, Washington,
for example--and other programs were revised to meet the constitutional
requirement.
One of the most important lessons in the wake of the Croson case is
the evidence of what happens when these programs are eliminated. There
has been a shocking disparity in participation levels by minorities and
women in states setting goals under ISTEA for federal dollars, but not
setting goals for state contracting dollars.
In Nebraska, 10.5 percent of federal dollars went to disadvantaged
business enterprises because of ISTEA goals--but only 3.6 percent of
state dollars went to these firms.
In Louisiana, 12.4 percent of federal dollars went to such firms
because of ISTEA goals, but only 0.4 percent of state dollars went to
the same firms.
In Missouri, 15.1 percent of federal dollars went to such firms, but
only 1.7 percent of state dollars did. The trend is the same in every
other state that does not have such a program.
This is not what we want for federal transportation contracts. It
makes no sense to destroy women and minority-owned businesses and wipe
out the 100,000 jobs that they create. That cannot possibly be the goal
of this Republican Senate.
The disadvantaged business enterprise program is essential for the
survival of these firms. Not because they aren't qualified. Not because
they can't compete on merit. But, because too many in the construction
industry are not willing to give qualified firms a chance if they are
owned by women or minorities.
Ask the women and minorities who are certified for this program. Mary
Aguillar-Lancome, president of Coast and Harbor Associates in Boston
told me, ``If there is a goal, prime contractors will call DBEs; if
not, they will not call.'' Other firms have made similar comments. Jack
Bryant, President of Jack Bryant Associates in Massachusetts told me,
``Without goals, most in the construction industry would not make a
good faith effort to work with women and minority-owned businesses. The
elimination of this program would be disastrous.''
Of course, the program doesn't just help women and minorities. It
extends a helping hand to firms owned by white males, as well. They can
be certified to participation if they prove that they have been
disadvantaged. Just ask Randy Pech--the owner of the Adarand
Construction Firm--because he is currently seeking certification.
It is preposterous to argue that the Sultan of Brunei would be
certified, but that an economically disadvantaged white man would not.
That cannot happen, and the new regulations clarify the certification
requirements.
Mr. President, I want to show this chart, which illustrates very
clearly what happens when you have the Federal highway program with the
DBE Program and no DBE Program for State-funded programs.
The red indicates the various States that do not have the DBE
Program. And you can see what happens in terms of women and also
minority construction firms versus those States that are part of the
Federal system. The contrast is so dramatic that I think it makes a
powerful case. What we are talking about is quality programs--those
programs that are going to meet the price competition and also the
other competitive forces.
But this illustrates what the principal problem is. I think it is
incorporated in this statement by Elaine Martin, president of the
MarCon Company in Nampa, ID.

Most companies can point to one or two jobs that made it
possible for those companies to succeed. My essential job
would not have been awarded to me without the DBE program. I
was low bidder on a job in 1987 where the owner told the
estimator to give the job to a larger male-owned firm that
had a higher bid than mine. The estimator told the owner that
the job had DBE, and as the low bidder I should be given the
opportunity to perform.

We have instance after instance.
Dorinda Pounds, President of Midwest Contractors, Inc., in Cedar
Falls, IA:

One of the major reasons that my investors and my banker
was willing to take the risk with my new company was that I
had the opportunity to become certified as a DBE contractor.
Without the DBE program they felt the ``good old boy'' system
would lock me out and would keep me from having a chance to
become successful.

That case has been made hour after hour during the course of this
debate. We know what the issue is. We are talking about simple fairness
and justice for women and minorities in our country to participate in a
program that is being paid for by American taxpayers. The American
taxpayers, women and minorities, are contributing the tax dollars that
go to this program. All we are saying is they shouldn't be excluded
from being able to participate in the program.
Those who are trying to strike this program are effectively doing
that. They may couch that in different kinds of language, but the
record is very clear what the bottom line is going to be and what the
results are going to be. The case couldn't be any clearer.
I urge my colleagues to support this program. A vote for this program
is a vote for fair opportunity for women and minority-owned
construction firms, as well as for many other small businesses around
the country. All these business owners ask is a fair chance to compete.
We cannot and we must not deny them that opportunity.
This is one of the most important civil rights votes of this Congress
and one of the most important civil rights issues of the 1990s. It is
time for the Senate to do the right thing, and stand up for civil
rights and equal opportunities for all.
I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Mr. President, under the time controlled by the
Senator from Kentucky, I yield 5 minutes to my friend from Texas.
The PRESIDING OFFICER. The Senator from Texas.
Mr. GRAMM. Mr. President, I rise in support of equal rights and civil
rights and in support of this amendment.
This program is not an issue about giving people an opportunity. It
is a clear quota. It is a quota in the law that says not less than 10
percent of the $208 billion that will be spent under this bill has to
be spent through contractors who are not necessarily small or
disadvantaged economically. Many of them are quite large, quite
successful. But, what they have to fulfill is a quota based on race and
gender. This is a violation of everything for which America stands. It
is in violation of the Constitution. This specific provision was struck
down in the Adarand case by the Supreme Court of the United States.
I am strongly in support of this amendment.
I want to make a point of expressing my admiration for our colleague
from Kentucky. I have found that on those tough issues when our
constitutional rights are threatened, there is almost

[[Page S1483]]

always one Member of the U.S. Senate who rises in defense of our
freedom, and that is Mitch McConnell from Kentucky. Whether the issue
is campaign finance reform, which is a cloaked effort to deny people
freedom of speech, or whether it is quotas which violate the basic
principle of equal opportunity, there is one man in the Senate who
always stands up for our constitutional rights. I want him to know that
his colleagues admire him and love him for that.

There are two issues I want to address. No. 1, this provision, which
the amendment of the Senator from Kentucky would strike, has been
declared unconstitutional in the Adarand decision and, in fact, the
court has said that section 1003(b) of ISTEA, which is repeated in this
bill, and the regulations promulgated thereunder, are unconstitutional.
I want to remind my colleagues that whether it was 6 years ago, 4
years ago or 2 years ago, we each stood right down there in the well of
the Senate, put our hand on the Bible, and swore to uphold, protect,
and defend the Constitution against all enemies, foreign and domestic.
Sometimes we are the enemies. The issue here is, are we going to uphold
the Constitution or are we not? When it comes to the Constitution, put
me down on the side of the Constitution.
The second issue is fairness. We all want to help people compete. We
all want Americans to have equality of opportunity, but you cannot have
equality of opportunity through a program that clearly discriminates
against people. There is only one fair way to decide who gets a
contract and that is competition based on merit and price.
The General Accounting Office, in a 1994 study, concluded that
ISTEA's racial preferences over the next 6 years will cost the Nation
$1.1 billion in unnecessary construction costs. The GAO also concluded
that the program in this bill is not an avenue for contractors to
become competitive. Less than 1 percent of the contractors who get
special privileges under this bill graduate to become competitive
contractors in the marketplace.
Finally, let me note that the amendment by the Senator from Kentucky
strikes down the unconstitutional provision on ``disadvantaged business
enterprises''--which has nothing to do with disadvantaged business
enterprises--and substitutes a new provision on emerging business
enterprises, which is clearly constitutional. This provision includes
outreach programs to help small businesses, no matter if the head of
the business is a man or a woman, no matter what their ethnic
background is. It helps people compete. It helps them find bonding. It
helps them do the very complicated and expensive work of applying for a
Federal contract. And, in fact, it is a better, more fair way because
it is based on the American system.
I believe in merit. If there is one principle on which America is
established, it is the principle of equal opportunity. It is not
equality to exclude people from competing based on race, color,
national origin or sex.
I yield the floor and thank the Chair.
The PRESIDING OFFICER (Mr. Enzi). The time of the Senator has
expired. The Senator from Kentucky.
Mr. McCONNELL. I thank my good friend from Texas for his overly kind
observations about my work. I thank him for his support for this
important amendment.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. CHAFEE. Before the distinguished Senator from Texas leaves, I
want to say I always appreciate the opportunity to hear him debate on
the floor because he is very good. In his admiration for the efforts
that the Senator from Kentucky is making to defend our Constitution, as
he outlines, I hope we can enlist the support of the Senator from Texas
against an amendment that is clearly against the Constitution and
restricting efforts there, and that is the so-called ``burning of the
flag'' amendment. We would be glad to have him sign up against that
pernicious proposed addition--I hope it never passes here--in
connection with the Constitution.
Mr. GRAMM. Will the Senator yield?
Mr. CHAFEE. Yes.
Mr. GRAMM. I do not think I will be attending any flag-burning
parties. I think it is important to note that when you are dealing with
a constitutional amendment, it is a question of whether you want to
make that provision part of the Constitution, not whether or not it is
constitutional now.
If Senator Kennedy wanted to amend the Constitution to say that we
have privileged Americans who are going to be treated differently than
everybody else, and that we are going to discriminate against others in
their favor, he would have a perfect right to do that. That provision,
if it became part of the Constitution, would be the law of the land.
The point is he would be up against a much bigger opponent than he
would like people to believe, and that opponent is the Constitution of
the United States, Jefferson, Washington, Lincoln, and every serious
thinker about economic and political freedom in the history of this
country.
I yield the floor.
Mr. CHAFEE. I am delighted that he has had a roll call of heroes of
the country, but before he leaves I would point out one thing. It is
not often that he is inaccurate, but I am afraid that he went overboard
a little bit today when he suggested that the Supreme Court in the
Adarand decision had struck down as unconstitutional the provisions of
the affirmative action program. What the Supreme Court said in the 5 to
4 decision--I am talking about the Supreme Court. I like to deal with
the Supreme Court. What it did is remanded that case. It did not say it
was unconstitutional. Any talk of unconstitutionality came by the lower
court which then examined whether the provisions in the Adarand
situation conformed to the restrictions that the Supreme Court was
applying.
I just want to say to the distinguished Senator from Massachusetts--
and by the way, I am on my time now, Mr. President--I think he is
exactly right when he points out the difference between what happens
when you have a State program with no admonitions in it, or
requirements as far as minority contractors go, and what happens when
you have the Federal program when the efforts are made. I might say
these, the goals, are voluntary in the States. In Kentucky--I was
pleased to see that Kentucky is considerably above the 10 percent.
Kentucky itself is at 11.5 percent. In my own State, when we have the
State programs with none of the Federal requirements in them--with the
Federal requirements we are at 12.1 percent to minority contractors;
when we do it with the State's money, we are at zero. That is my State,
at zero when we deal with the State handing out its money. But when we
deal with the Federal Government's requirements, then we go up to 12.1
percent. So it shows the difference that the Federal Government's
requirements make. Therefore, I am very much in favor of the language
that is currently in the law and am in opposition to the McConnell
amendment.
Again, I would point out to everybody, if those who are against these
preferences want to come out with a bill that deals with it
generically--as we pointed out before, there are some 60 different
programs--bring it out on the floor and let's debate it. But let's not
do it one by one in individual programs such as this, and particularly
this one where we have, as I pointed out yesterday, a letter from the
Secretary of Transportation saying that he could not recommend the
President sign this measure if the McConnell amendment should pass.
Mr. KENNEDY. Will the Senator yield for a brief question?
Mr. CHAFEE. I will.
Mr. KENNEDY. Since the Senator has referred to Rhode Island, I am
wondering, as the manager of this legislation dealing with the surface
transportation, whether you have complaints from the contractors about
the inefficiency or the poor quality of work, or the failure of being
on time? Or the fact that here in Rhode Island, when they are using the
Federal funds, it is 12.1 percent?
Generally speaking, I have not, in the course of this debate, heard
complaints that the work that is being done with the DBE has been not
of first-rate quality, on time, and effective work. I am just wondering
if the Senator from Rhode Island is receiving a lot of complaints
because the DBE Program is in effect in his State?

Mr. CHAFEE. No. I want to report that we have not received
complaints. Indeed, as I pointed out, my State has

[[Page S1484]]

gone beyond the 10 percent. We are up to 12.1 percent. It is impressive
how many States have gone considerably beyond. Our neighboring State,
Connecticut, is at 15.7 percent. The suggestion that these are onerous
restrictions that cause chaos amongst the States in dealing with these
preferences just plain isn't true.
Mr. KENNEDY. I thank the Senator. I yield.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. I momentarily am going to yield 10 minutes to the
Senator from Ohio. We had extensive discussion yesterday about what the
Adarand case did and didn't do. What it did do was lay out a standard
which this provision of the bill couldn't possibly meet and sent it
back to the district court in Colorado, which found that this section
of ISTEA was unconstitutional.
We could argue this round and round and round, and we have argued it
round and round and round. But I don't think there are serious
constitutional scholars who believe that the Adarand case didn't set up
a standard that this section of the bill could not possibly meet.
I yield 10 minutes to the distinguished Senator from Ohio.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. I thank my friend and colleague from Kentucky.
Mr. President, I would like to offer a few thoughts on the pending
amendment offered by my good friend from Kentucky, Senator McConnell.
I intend to vote for the Senator's amendment. A new approach from the
current set-aside is clearly needed--a new approach is needed because
the current system, the current law, violates the United States
Constitution.
The United States Supreme Court, in Adarand Constructors v. Pena, 515
U.S. 200 (1995), ruled that racial classifications are unconstitutional
unless narrowly tailored to further a compelling government interest.
The federal district court in Colorado in the case of Adarand
Constructors, Inc. v. Pena, 965 F. Supp. 1556 (1997)--following the
guidelines set by the Supreme Court--found that the current racial set-
aside for federal highway contracts is unconstitutional. The district
court found that the 10% set-aside for federal highway contracts and
the race-based presumptions contained in the implementing regulations
were not narrowly tailored--they excluded certain unlisted minority
groups who may very well have been socially and economically
disadvantaged, while presuming that all minorities in the listed groups
were economically disadvantaged, and in some cases, socially
disadvantaged.
Other federal courts, in applying the same strict scrutiny test to
other federal, state, and local race-based laws and regulations, have
consistently found that these racial preferences are not
constitutional. In Ohio, a case is pending before the Ohio Supreme
Court (Ritchey Produce Company v. Ohio Department Of Administrative
Services, Supreme Court of Ohio, 1998 Ohio LEXIS 495). A Lebanese-
American did not fall within the listed minority groups who received
preferential treatment under the Ohio set-aside program, so he was
denied certification as a minority contractor. Even if the majority of
his workforce consisted of the listed minority groups--that company
would still not be eligible to receive minority certification under the
current standards.
Thus, given the constitutional guidelines that have been clearly
established by the Supreme Court, we in the Congress face a fundamental
choice--we can stand aside and watch federal courts dismantle race-
based set aside programs one-by-one, or we can exercise leadership and
meet the challenge head on--by initiating a new approach that targets
our resources to economically disadvantaged individuals in depressed
areas who want a shot at the American dream. To his credit, the Senator
from Kentucky has shown leadership by offering such an innovative,
constitutional approach. His ideas are not totally new.
In 1980, New York Mayor Ed Koch inaugurated a race-neutral
affirmative action program targeted at the economically disadvantaged--
providing a 10% set-aside for small firms that did at least 25% of
their business in disadvantaged neighborhoods, or employed
disadvantaged workers as at least 25% of their workforce. This program
has served as a model for other cities nationwide.
In several respects, the Senator from Kentucky's amendment borrows
from the Koch program. His amendment would target opportunity
assistance programs toward businesses based not on the owner of the
business exclusively, but on who's working for the business and just as
important, who the business is serving. Specifically, the McConnell
amendment targets assistance toward new businesses located in
economically disadvantaged areas, or has a workforce half of which are
employees from economically disadvantaged areas.
This direction--to reach out to the economically disadvantaged,
including minorities and women--will do much to promote the interests
of minorities and the country as a whole. By reaching out to businesses
that employ the disadvantaged or that are located in depressed areas,
we are doing more than just helping disadvantaged businesses, we're
uplifting entire communities.
It's more than affirmative action--it's community empowerment.
I would also like to point out that my friend from Michigan, Senator
Abraham, was instrumental in the drafting of this specific provision. I
commend him for working with the Senator from Kentucky--it reflects
their strong interest and support for innovative approaches to
community renewal.

I also commend the Senator from Kentucky for placing a time limit on
assistance. Assistance under this program would be offered to firms
that have been in existence for less than nine years. That just makes
sense. The best business development programs are those that help new,
disadvantaged businesses stand on their feet and compete.
That's exactly what the McConnell amendment would do. Specifically,
the McConnell amendment provides a host of services for eligible
businesses--services ranging from financial counseling, business
management, and technical assistance for eligible businesses seeking
contracts under federal transportation programs.
Taken together, these provisions in the McConnell amendment represent
a positive approach that is consistent with the Constitution and with
the wisdom and intent of those who first championed the idea of
affirmative action--action to provide equality of opportunity for
individuals.
Now Mr. President, let me be candid--if given the opportunity, I
would have taken the McConnell amendment one step further. I would have
maintained the set-aside program--one that would have been acceptable
under our Constitution. I believe we can and should have race-neutral
set-aside programs for new, economically disadvantaged businesses. The
fundamental problem with the existing program is not the set-aside
itself--but who receives it and how they are defined. The current
program gives an advantage to those who may not need it--individuals
who were given a chance based solely on race or racial goals. That's
why the federal courts have found this and other set-aside programs to
be unconstitutional. Therefore, I would support a set-aside program
that provides time-limited business opportunities to businesses who
employ or serve the truly disadvantaged--a program that goes beyond
outreach and recruitment, and gives disadvantaged businesses a chance
to do business--much like Mayor Koch did in New York a decade ago.
Unfortunately, such a program is not before us today. We do not have
that option. The choice today is between an unconstitutional law or a
new constitutional plan that will provide hope and opportunity for the
disadvantaged. While the McConnell amendment does not go as far as I
would like or as far as I would go, it is clearly constitutional and it
is clearly an effective way to help the disadvantaged. It is a
significant improvement over the status quo.
This amendment represents a positive, imaginative step in the right
direction--one that is true to our Constitution and to our commitment
to equal opportunity. I therefore urge my colleagues to vote in favor
of this amendment.
Mr. McCONNELL addressed the Chair.

[[Page S1485]]

The PRESIDING OFFICER. The Chair recognizes the Senator from
Kentucky.
Mr. McCONNELL. Mr. President, I thank the distinguished Senator from
Ohio for his contribution to this important and sensitive debate. I
thank him very, very much for his support.
Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 26 minutes 15 seconds.
Mr. McCONNELL. I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. BAUCUS. How much time do we have left, Mr. President?
The PRESIDING OFFICER. Twenty-six minutes 49 seconds.
Mr. CHAFEE. I yield 12 minutes to the Senator from Pennsylvania.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Pennsylvania.
Mr. SPECTER. Mr. President, I thank my distinguished colleague from
Rhode Island for yielding me 12 minutes. Perhaps I shall not need it
all.
I have sought recognition to speak in opposition to the pending
amendment, because I think the statute, as it is presently drawn, is
constitutional.
The most recent articulation of the guiding legal principles were set
forth in Adarand, and Justice O'Connor for the Court said that strict
scrutiny does not require the elimination of a program designed to
protect those who have been discriminated against as long as there is
the requisite narrow tailoring.
She noted the underlying factual basis which does persist to this
day:

The unhappy persistence of both the practice and the
lingering effects of racial discrimination against minority
groups in this country is an unfortunate reality, and
government is not disqualified from acting in response to it.

That is precisely what is being done in the statute at hand.
Justice O'Connor noted that as recently as 1987, every Justice on the
Supreme Court of the United States agreed that the Alabama Department
of Public Safety's ``pervasive, systematic and obstinate discriminatory
conduct'' justified a remedy, and it was upheld in the case of United
States v. Paradise.
Even Justice Scalia, in his concurrence in the City of Richmond v.
Croson, noted that there was at least one circumstance where the State
may act to ``undo the effects of past discrimination.''
When we deal with this area, it is an extraordinarily complicated
matter and it is very fact-sensitive. I think it is important to note
that the statute in question here does not involve the same underlying
law which was at issue in Adarand.
In Adarand, the issue involved the Department of Transportation's use
in its own direct contracts of Federal compensation to encourage
Federal prime contractors. This issue involves the constitutionality of
section 1003(b)(3) of ISTEA, which sets a 10-percent goal for
expenditures of authorized funds for disadvantaged business
enterprises.
The effort has been made in a very strenuous and, I think, successful
way to accomplish the kind of narrow tailoring which was called for in
Adarand and which is constitutionally mandated.
I ask unanimous consent, Mr. President, to have printed in the Record
at the conclusion of my remarks the specification as to how the new
Department of Transportation regulations are narrowly tailored.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. SPECTER. Mr. President, the cases in this area have been very
complicated, very fact-sensitive, customarily decided, or frequently
decided, on a 5-4 basis. There are very, very important objectives in
the pending statute. There is a general agreement that quotas are wrong
for America, and I believe, beyond that, it is inappropriate to give an
applicant a position where the applicant is less well-qualified than
some other applicant.

I am convinced that if we take the applications for Yale or Harvard
or Duke or Cornell or any other fine educational institution, that if
there was to be sufficient outreach, we would find minorities who would
be well-qualified to take positions in those institutions and that they
would not, in fact, be displacing someone who was better qualified. It
is a matter of outreach. What the legislation at hand seeks to do is to
implement that concept of outreach.
There has been a glass ceiling as to women, which is very well known.
The glass ceiling is at ground zero. It is very hard to break into the
kind of construction trades which are at issue in this ISTEA
legislation. There is no doubt about the problems that other minorities
have had. This is a plan to provide that outreach and that opportunity
without displacing better qualified individuals or better qualified
firms.
For the argument to be made that this act is unconstitutional and
that Members of the Senate are sworn to uphold the Constitution,
drawing the suggested inference that we are violating our oaths of
office in supporting the legislation as is currently written, I think
is far, far beyond the mark, to put it in a very, very diplomatic
context.
This is an important provision. I believe that it is constitutional
as applied with the narrow tailoring of the Department of
Transportation regulations and that it meets the obligations of strict
scrutiny under the U.S. Constitution. As a matter of public policy, it
moves in the right direction.
This is only one of many efforts by the Government to open the door
on outreach, and I believe that is a very, very sound proposition.
In my own personal experience as district attorney of Philadelphia,
when I had hiring of a great many people as my responsibility, I got
the list of all the African American lawyers in the city when I took
office and made a systematic effort to call them on a matter of
outreach and found that I could locate very well-qualified people to
take the positions, not giving them any preference, not giving them any
affirmative action in the sense of having people take those jobs who
are less well-qualified than others who apply for them.
The same thing followed in the detective branch where the detectives,
men and women, were selected from the Philadelphia Police Department.
It was a matter of outreach. It did take a little more effort to
interview more people to find those in the minority who were well-
qualified and that they did not displace better qualified people to
accomplish that result.
As long as we have a system which does not discriminate against the
better qualified, I think we have a system which is sound and is a
matter of outreach, which is very important in this country today.
I intend to oppose the pending amendment, and I urge my colleagues to
oppose the pending amendment.
I thank my colleague from Rhode Island. I yield back the remainder of
my time.

Exhibit 1

The New DOT Regulations--How Are They Narrowly Tailored?

calculation of overall goals

Old rules: State recipients take into account the maximum
amount of work they can obtain from DBEs available to them,
and their past performance in meeting their overall goals.
New rules: States must ask themselves: absent
discrimination, how much would DBEs participate in DOT-
assisted contracts? and then look for that level of
participation as the goal. DOT has asked for comment on three
specific means of estimating this participation and setting
the goal, based on this concept.

meeting of overall goals

Old rules: States believed they should put goals on every
contract.
New rules: No requirement of setting a goal for each
contract. State's first effort should be race/gender neutral
efforts, such as outreach and technical assistance. If that
is insufficient, then states may consider race/gender
conscious measures, such as contract goals. More intrusive
mechanisms, such as set-asides, may only be used if the state
has legal authority outside of the DOT regulations, and has
made a finding that the other means had not worked. Finally,
once a state finds that the effects of discrimination had
been addressed effectively, the use of race/gender measures
must be reassessed.

good faith efforts

Old rules: There was general guidance from DOT on the
granting of good faith waivers, but enforcement was not
strong.
New rules: DOT emphasizes to states that they must take
seriously their obligation to award a contract to a bidder
who has made a good faith effort, and that doing otherwise

[[Page S1486]]

would be a de facto quota. In addition, states must provide a
mechanism for reconsideration to bidders who are denied
contracts on the basis of lack of good faith. The mechanism
must allow contractors to make oral/written submissions about
the denial, and must provide for a review of the decision by
a neutral body before the contract is awarded.

dbe diversification

Old rules: No provision.
New rules: DOT requested comment on how to diversify the
types of work in which DBEs are involved, and reduce
concentration of DBEs in certain areas. The intent to promote
competition in non-traditional DBE areas, as well as reduce
pressure for non-DBEs in areas of typically heavily DBE
involvement. After receiving comments, DOT is now looking at
new ways to achieve that diversification goal, focusing on
the reasons for that concentration.

added flexibility for recipients

Old rules: There were some waivers granted, and some
flexibility in the program.
New rules: States with goal setting programs different than
the DOT program can submit to their program to DOT for
review; and if their program appears to be more effective
than the DOT program, the state can implement it. DOT will
grant broad program waivers for states who think they can do
it better their way.

Mr. CHAFEE addressed the Chair.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. CHAFEE. I thank the distinguished Senator from Pennsylvania for
those very fine comments. We certainly appreciate his support in this
effort.
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Kentucky.
Mr. McCONNELL. Mr. President, I rise today to speak on behalf of my
amendment to bring the federal highway bill into compliance with the
equal protection clause of the Constitution and with various federal
court rulings, including two landmark Supreme Court cases.
The question for the Senate this morning is this: Is it fair, prudent
and constitutional for the Federal Government to set-aside a fixed
percentage of public highway contracts for a preferred group of
citizens--until the year 2004, mind you--based on the immutable traits
of race and gender?
Or let me phrase it another way: Should U.S. Senators, all of whom
have sworn an oath to uphold the Constitution, reauthorize a law that
has been reviewed by the United States Supreme Court and subsequently
struck down by a Federal court in Colorado?
Mr. President, I say the answer to this question must be a firm and
resounding ``no.''
We must stand up for the Constitution. We must guarantee the equal
protection of the laws to every citizen of our country, without regard
to race and gender.
We must follow the clear decisions of the Supreme Court, including
Adarand and Croson, and the decisions of the court of appeals for the
third circuit, the fourth circuit, the fifth circuit, the sixth
circuit, the seventh circuit, the ninth circuit, the eleventh circuit
and the DC circuit. All of them have struck down race-based programs in
the past few years--all of them.
We must take heed of unambiguous rulings of lower courts in Georgia,
Connecticut, Ohio, Louisiana, Michigan, and, most importantly, in
Colorado.
Let me remind my colleagues that less than 9 months ago the Federal
district court in Colorado followed the Supreme Court's lead in Adarand
and Croson and ruled--and I quote:

Section 1003(b) of ISTEA and the regulations promulgated
thereunder are unconstitutional.

I do not know when this body will ever have a clearer decision than
this one. The administration and the Department of Transportation have
tried to obscure this clarity with three or four predictable
diversionary tactics.
Diversionary tactic No. 1: Ignore the court decisions. The first
diversionary tactic is simply to ignore all the cases I have just
cited, claim that Adarand never happened or simply claim that Adarand
was wrongly decided or that it is just one decision by one court.
Well, I have quoted Adarand directly and pointed out, with great
detail, that Adarand is not an aberration--not an aberration, Mr.
President. Again, I quote the Congressional Research Service. The
Adarand decision--this is from CRS--``largely conforms to a pattern of
federal rulings which have invalidated state and local governmental
programs to promote minority contracting--in: Richmond, San Francisco,
San Diego, Dade County, Fla., Atlanta, New Orleans, Columbus, Ohio,
[the State of] Louisiana, and Michigan, among others--and new
challenges continue to be filed [probably as we speak].''
For those who say that Adarand is just not enough for us to go on,
let me cite yet another Supreme Court case, Richmond v. Croson from
1989. In that case, the Government decided that minorities were
underrepresented in the public construction arena. So the Government
enacted a law like ISTEA that said: not less than 30 percent of
construction dollars must be allocated to officially preferred--this is
officially preferred--minority groups.
And you know what the Supreme Court said about the so-called ``30
percent goal''? The Supreme Court said that this ``goal'' was ``an
unyielding racial quota.'' It was a quota, even though the Government
plan had a waiver process to supposedly let you out of the quota in
certain circumstances.
Let me quote the United States Supreme Court when it applied the
``strict scrutiny'' test to a set-aside that is virtually identical to
the DBE that we have been talking about the last 2 days, the DBE set-
aside in ISTEA. The Court said:

We, therefore, hold that the city has failed to demonstrate
a compelling interest in apportioning public contracting
opportunities on the basis of race. To accept the city's
claim that past societal discrimination alone can serve as
the basis for rigid racial preferences would be to open the
door to competing claims for `remedial relief' for every
disadvantaged group. The dream of a Nation of equal citizens
in a society where race is irrelevant to personal opportunity
and achievement would be lost in a mosaic of shifting
preferences based on inherently unmeasurable claims of past
wrongs. . . . We think such a result would be contrary to
both the letter and spirit of a constitutional provision
whose central command is equality.

Diversionary tactic No. 2: ``We've changed the law,'' they say, ``by
tinkering with the regulations.''
When ignoring the Court fails, then someone suggests and the
administration claims that they have simply changed an unconstitutional
statute by simply tinkering with the regulations. But let me point out
that the DOT has no new regulations. All we have from DOT is a promise
to do better. And the Senate is apparently going to turn a blind eye to
the equal protection clause of the Constitution and authorize a $17
billion quota on the mere promise--the mere promise--of cleaning up the
program.
Does that fact not strike any other Member of this Senate as being a
bit odd? I hope it does.
These new regulations are only in the ``proposal'' stage. We do not
know what they will end up looking like. We do not know if they will
make the program better or worse, constitutional or unconstitutional.
Even DOT does not know what the new regs will look like.
For example, my colleagues argued yesterday that the proposed
regulations would narrowly tailor the program because they would
include an economic cap on DBEs. My colleague from Montana argued
yesterday that our problems are solved because the new regulations will
exclude the Sultan of Brunei--the wealthiest monarch in the world--from
the Disadvantaged Business Program. The sultan will not be anywhere
near the DBE program, my good friends argue.
Well, last night I took a close look at the proposed regulations to
see what the economic cap would be. And you know what I found? Let me
read to you word for word the exact language of the so-called narrowly
tailoring economic cap.

You may require the individual whose disadvantage is being
questioned to provide information about his or her personal
net worth.

But the proposed rule goes on to say:

You may require only such information as is necessary to
establish whether the individual's personal worth exceeds
[blank].

They have not decided yet how poor you have to be.
So what is the economic cap? We have no idea. Will there be an
economic cap at all? We are told there will be, but it has not been
provided yet. DOT apparently does not know. So let me say, I do not
know whether the Sultan of Brunei will be excluded or not.

[[Page S1487]]

The proposed regs do not tell where this narrowly tailored economic
cutoff is.
But, Mr. President, even if the cap excludes the sultan--and this is
what I hope everybody will remember--even if the cap excludes the
sultan, it still will not solve the narrowly tailored problem. You know
why? Because even if you solve the ``economic'' problem, you have still
not solved the ``race'' problem. The Supreme Court and the district
court did not focus on the ``economic,'' but rather the ``race'' issue.
Changing the economic guidelines does not change the fact that the
DOT will still presume that all members of certain races are ``socially
disadvantaged'' and need preferences. In other words, the proposed
regulations do nothing to solve the most serious problem, which is that
ISTEA will continue to make presumptions and decisions based on race,
without any particular findings of discrimination against particular
individuals or even particular groups in the highway contracting area.

So even if the new regs exclude the sultan economically, everyone
will be relieved to know that other persons from Brunei will still be
``presumed'' to be socially disadvantaged and get preferences, even
though no State DOT agency has ever engaged in a pervasive pattern of
discrimination against persons from Brunei or from Tonga or Micronesia
or the Maldive Islands. Never heard of such a case, but these people
are all, by Government fiat, put into the class for preferential
treatment.
In the words of the district court in Adarand:

It [is] difficult to envisage a race-based classification
that is narrowly tailored. By its very nature, such a program
is both underinclusive and overinclusive. This seemingly
contradictory result suggests that the criteria are lacking
in substance as well as in reason.

Or as the Supreme Court held in Croson, a program is unconstitutional
where ``a successful black, Hispanic, or Oriental entrepreneur from
anywhere in the country enjoys an absolute preference over other
citizens based solely on their race. We think it obvious that such a
program is not narrowly tailored to remedy the effects of prior
discrimination.''
Mr. President, let me conclude this particular point by reminding
every Senator that Adarand and Croson are landmark Supreme Court
decisions that are now the law of the land. The administration's
attempt to comply with the law of the land has been to merely do a
little DOT song-and-dance by playing with transportation regulations,
not changing any regulations, mind you, but simply proposing them--
proposing them.
Mr. President, complying with a landmark Supreme Court case requires
much more than a mere ``tinkering'' with the regs.
Professor George LaNoue is a constitutional law expert who has
testified in numerous minority contracting cases. Professor LaNoue has
explained in great detail how the DOT's proposed regulations fail to
bring the DBE program into compliance with the constitution. I ask
unanimous consent that a letter from Professor George LaNoue that
details the substantial shortcomings of the proposed regulations be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

University of California, Berkeley Institute of
Governmental Studies,
Berkeley, CA, October 17, 1997.
Hon. Mitch McConnell,
U.S. Senate,
Washington, DC.
Dear Senator McConnell: It is being asserted that various
alterations in proposed regulations for Intermodel Surface
Transportation Efficiency Act (ISTEA) solve the
constitutional problems created by the use of race, ethnic,
and gender preferences in awarding of contracts under that
program. That assertion is incorrect for two reasons.
First, the regulatory alterations go only to the issue of
narrow tailoring, not to the constitutional requirement that
a compelling basis of remedying identified discrimination be
established before any for the use of preferences be
considered.
None of the fundamental evidentiary requirements necessary
to support the preferences in this legislation have been
established either by the administration or by Congress.
For example,
1. There has been no determination about whether there has
been any discrimination by any federal agency in the
contemporary procurement process.
2. There has been no determination about whether any state
DOT agency or any other state agency has discriminated in the
award of federal contract dollars.
3. There has been no determination about whether there has
been any underutilization of qualified, willing and able MBE
contractors in federal procurement or federally assisted
procurement as prime contractors or subcontractors. The
federal government has completed no disparity study that
could create the ``proper findings'' the judiciary requires
of governments before they employ race conscious measures.
4. There has been no determination about whether, when MBEs
bid on contracts, they are proportionately successful. No
study of who bids on federal contracts has been released.
As the Eleventh Circuit said unanimously on September 2,
1997 in striking down a preferential procurement program: . .
. if a [race conscious] program is not grounded on a proper
evidentiary basis, than all of the contract measures go down
with the ship, irrespective of any narrow tailoring or
substantial relationship analysis.'' (Engineering Contractors
Association of South Florida v. Metropolitan Dade County,
1997 WL 535626, *7, (11th Cir. (Fla.))).
Second, even if a compelling interest has been established,
the proposed regulations do not meet narrowly tailoring
requirements.
1. There has been no statistical analysis of whether the
particular racial and ethnic groups granted presumptive
eligibility are in fact economically or socially
disadvantaged because of patterns of discrimination in recent
years. The current list of presumptive eligible groups is a
polyglot of designations by racial group (African Americans),
culture (Hispanic), country of origin (Asian Americans) and
lineage (Native Americans). Some of the groups on the
presumptively eligible list have been in this country since
its beginning; some are very recent arrivals. Some are
relatively poor; some are relatively affluent. Some have very
high rates of business formation; some very low. Some have
well-documented histories of discrimination; some are
virtually invisible. These groups have nothing in common at
all.
The district court in the remand of Adarand v. Pena found
that the use of race and ethnic based presumptive eligibility
was unconstitutional because:
``. . . it [is] difficult to envisage a race based
classification that is narrowly tailored. By it's very
nature, such a program is both underinclusive and
overinclusive. This seemingly contradictory results suggests
that the criteria are lacking in substance as well as in
reason.'' (at 59-60).
2. There has been no post-Adarand evaluation of the
effectiveness of existing federal race neutral programs or
the possibility of creating new ones. The utility of race
neutral programs must be established before race conscious
remedies are employed. The Eleventh Circuit citing Croson
recently said:
``. . . we flatly reject the County's assertion that
``given a strong basis in evidence of a race-based problem, a
race-based remedy is necessary.'' That is simply not the law.
If a race-neutral remedy is sufficient to cure a race-based
problem, then a race conscious remedy can never be narrowly
tailored to the problem.'' See, Croson, 488 U.S. at 509).
(Engineering Contractors Association of South Florida v.
Metropolitan Dade County, 1997 WL 535626, *34, (11th Cir.
(Fla.))).
Race conscious measures can only be used as narrowly
tailored remedies for identified discrimination. Race based
means can not be used, as the DOT regulations provide,
whenever an arbitrary set-aside or goal percentage is not
reached in a particular state during a particular period.
3. There has been no fulfillment of the Administration's
promise to create goals specific to various industries. On
May 23, 1996, the Justice Department proposed ``benchmark
limits'' for each industry intended to represent the ``level
of minority contracting that one would reasonably expect to
find in a market absent discrimination or its effects'' and
to control the decision of whether race conscious means were
necessary in federal procurement related to that industry.
(61 Fed. Reg. 26042, 26045, 1996). These benchmark limits
still have not been produced.
The Department apparently thought such benchmark limits
were essential to narrow tailoring and stated:
``Application of the benchmark limits ensures that any
reliance on race is closely tied to the best available
analysis of the relative capacity of minority firms to
perform the work in question--or what their capacity would be
in the absence of discrimination.'' (61 Fed. Reg. 26042,
26049, 1996)
Given this premise, the failure to develop the benchmark
limits strongly suggests federal goals in ISTEA are not
narrowly tailored.
In short, the record does not support the conclusion that a
compelling basis for the use of Race conscious remedies
exists with regard to the ISTEA program. The proposed
regulations are either irrelevant or incomplete to the major
requirements of narrowly tailoring and they do not begin to
supply a compelling basis for the use of preferences.
Sincerely,
George R. La Noue,

[[Page S1488]]

Professor of Political Science, Policy Sciences Graduate
Program, University of Maryland Graduate School
Baltimore, Visiting Scholar, IGS, University of
California, Berkeley.

Mr. McCONNELL. Diversionary tactic No. 3, Mr. President: It is said
that ``10 percent is a goal, not a quota.''
When all else fails, the final diversionary tactic is to argue that
the DBE program is a program with goals, not quotas. In fact, some of
my colleagues have gone to great lengths to point out that the 10
percent set-aside is merely a goal with no sanctions whatsoever.
Well, let us look at the DBE manual--right out of the manual. This
manual is the DBE law of the land for States that receive ISTEA money.
The DBE manual explains that failure to comply with the requirements
will result in sanctions. Let me quote:

If the [Federal Highway] Administrator determines that a
State has violated or failed to comply with the Federal laws
or the regulations . . . with respect to a project, he may
withhold payment to the State of Federal funds on account of
such project, withhold approval of further projects in the
State, and take such other action that he deems appropriate
under the circumstances, until compliance or remedial action
has been accomplished by the State to the satisfaction of the
Administrator.

In other words, there are sanctions. These same threats appear in the
actual ISTEA contracts and in the Federal transportation regulations.
Now that I have spelled out that the threat of DBE sanctions are
serious and real, I am sure my colleagues will respond by saying, ``OK,
sure we list sanctions, but we never use them. So 10 percent is still
just a goal. It's not a quota.'' The reasoning here is that the
Government must punish someone before the ``goal'' becomes a ``quota''
or a ``requirement.''
Well, first, let me say that the threat of losing millions of Federal
highway dollars is plenty of incentive for the States to enforce the
quota requirement. When the Federal Government is wielding that kind of
weapon from on high, it does not have to punish them. A 10 percent
quota is still a quota, even if States always comply and no one is
formally punished.
Second, if you think the quota is never enforced, just ask two cities
in New Mexico. The Senator from New Mexico and I were having a
discussion about this issue on the floor just yesterday. Both the city
of Rio Rancho and the City of Albuquerque were sued in Federal court
over the use of ISTEA's racial quotas. What did the Federal Department
of Transportation do? Did it simply call Rio Rancho and Albuquerque and
say, ``Hey, don't worry about the whole 10 percent thing. It's just a
goal''?
That is not what happened, Mr. President. Both Rio Rancho and
Albuquerque had to sue the Department of Transportation and Secretary
Slater in Federal court to stop the quota enforcement. In the complaint
that the cities filed they said:

The [Department of Transportation] is placing facially
unconstitutional conditions upon the receipt of discretionary
federal funds to which the City would otherwise be entitled
to, and has caused or is likely to cause irreparable injury
for which the City has no adequate remedy at law.

So both Rio Rancho and Albuquerque sought a court judgment that would
require the Department of Transportation to justify or eliminate the
quotas and pay any and all damages and attorney fees to the cities.
And the Federal judge was perfectly clear in declaring that the race-
based programs were unconstitutional. In the words of the judge:

It doesn't really take a first-year law student to say,
City of Rio Rancho, don't do this again. I mean, you're going
to get sued again.

This is from the court case.
Unfortunately, the city of Rio Rancho, like every other city that
receives any ISTEA funds, has little choice in the matter. ISTEA
requires racial preferences. And if you are going to get out of the
quota requirement, you had better be prepared to go through hell, high
water, and the Federal courts.
Surely, my colleagues would agree that a true ``goal'' would not
require State and local governments to sue the Federal Department of
Transportation in Federal court just to get the ``goal'' fixed.
Let's turn to Houston. If Albuquerque and Rio Rancho don't prove that
10 percent is more than just a goal, then let's go from New Mexico over
to Houston, TX. Let me share with you some comments included in the
ISTEA committee report on the 6-month authorization bill in the House.
These comments were part of a very detailed and astute statement made
by several Republican House Members.

In April 1996, a Federal court in Texas temporarily
enjoined Houston's METRO transit authority from utilizing
race or gender-based preferences in the selection or award of
construction contracts--making it impossible for Houston to
comply with the federally-approved DBE program.
So, in response to the court's ruling, Houston designed a
race-neutral program to provide assistance to economically
disadvantaged small businesses.

Very similar to what the McConnell amendment would provide, an
opportunity for emerging business enterprises.

The US Department of Transportation refused to recognize
this alternative [race-neutral] program and withheld federal
funding from METRO for nearly seventeen months.

Seventeen months without Federal funds, all because Houston was
complying with a court order, Mr. President--Houston was complying with
a court order prohibiting preferences. I don't know about you, Mr.
President, but that sounds like a sanction to me. It sounds like a lot
more than mere goals. It sounds like quota enforcement to any rational
person listening to what happened.
The point here, Mr. President, is simple arithmetic: Goals plus
requirements equal quotas--goals plus requirements equal quotas. The
goals in ISTEA are not merely aspirational. The goals have requirements
and the real threat of sanctions.
Let me spell out a few human examples about how goals in theory are
actually quotas in practice. The first example was mentioned by Senator
Gorton yesterday here on the floor, the insightful story about a man
named Frank Gurney from Spokane, WA.
We have talked a lot about victims over the course of the last 2
days. Let's talk about some of the victims of this program. Just a
couple of months ago, the head of Frank Gurney, Inc. mailed me a copy
of yet another letter explaining how he lost yet another job because of
the 10 percent quota. The rejection letter stated:

I regret to inform you that although yours was the lowest
guardrail quote that I received for the . . . project . . . I
found it necessary to use the third lowest guardrail quote
[the third lowest guardrail quote] in order to meet the DOT
requirement of 10 percent DBE.

Sorry, you are out of luck, even though you had the lowest bid.
The rejection letter was dated October 27, 1997. So this is still
going on. The letters started in 1981, about the time we first
authorized the DBE Program, and are still continuing up to and
including last year. We know these letters will continue being sent
until at least 2004 under this bill, unless my amendment passes, which
will be the next time we will have a chance to revisit this law, Mr.
President.
I will say a word about Michael Cornelius. If you think the ISTEA
quota is only a goal, just ask Michael Cornelius. Mr. Cornelius' firm
was denied a Government contract under ISTEA even though his bid was $3
million lower than the nearest competitor. Mr. Cornelius' bid was
rejected because the Government felt the bid did not use enough
minority- or women-owned contractors. In fact, the Cornelius bid
proposed to subcontract 26.5 percent of the work to firms owned by
minorities and women. Yet 26.5 percent was not enough in the world of
goals.
I listened yesterday to Senator Kennedy's example of women and
minorities who, like Frank Gurney and Michael Cornelius, have been the
victims of discrimination. I was moved by Senator Kennedy's stories,
and with each of the two or three stories of discrimination that
Senator Kennedy told, my instinct and my gut response was, ``That's
discrimination, and it is wrong.''
But, Mr. President, do you know the difference between my stories and
Senator Kennedy's stories? There is a critical difference. In Senator
Kennedy's examples, the discrimination was wrong and the discrimination
is prohibited by title VII and the Civil Rights Act of 1964.
So the examples of discrimination that were being cited are against
the law--now, a law not being contested by

[[Page S1489]]

anyone, a law supported by virtually everyone I know back in the mid-
1960s.
In my examples, the discrimination was wrong but the discrimination
is required. In my examples, the discrimination is wrong but the
discrimination is required, Mr. President--required by Federal law, not
just any Federal law, but the very Federal law that we are about to
reauthorize right here in the U.S. Senate.
How can anyone hear these examples and not conclude that what we are
doing in ISTEA is dead wrong? It is wrong for the Cornelius family, it
is wrong for the Gurney family, it is wrong for the preferred
businesses who get the contracts, and, most importantly, it is wrong
for our country.
I don't care how many times you tinker with the regulations or how
many times you say 10 percent is only a goal, you can't change the
fact, Mr. President, that the Federal Government is requiring States
and prime contractors to pick and choose subcontractors based on the
immutable traits of race and of gender. There is no lawyer in the
Senate and no lawyer anywhere in the United States that will ever
convince me that this racial program is fair, prudent, or--most
importantly--constitutional.
In closing, let me say, regardless of the outcome of this morning's
vote, I firmly believe that the principle underlying the 5th and 14th
amendments will ultimately carry the day. It obviously will take a
while. The principle is the simple yet powerful idea that every
American should be seen as equal in the eyes of the law. I firmly
believe, as Justice Scalia explained in Adarand, ``Individuals who have
been wronged by unlawful racial discrimination should be made whole;
but under our Constitution there can be no such thing as either a
creditor or debtor race. . . . In the eyes of the government, we are
just one race here. It is American.''
The courts and the American people understand this principle.
Unfortunately, the Congress may be a bit behind.
Mr. President, I'm greatly appreciative of my colleagues
participating in this important debate on both sides. They are well
meaning Senators who look at the same set of facts and reach a
different conclusion, but the debate has come and gone, the sky has not
fallen, the Capitol dome has not caved in. In fact, it is the opposite.
I think this debate has been very positive and constructive.
I end this debate as I began by asking one simple question: Should we
place the Senate's seal of approval on a law that the Supreme Court has
declared presumptively unconstitutional and the lower court has
specifically struck down, without the Senate or House holding even one
hearing after Adarand to determine if the law is narrowly tailored to
remedy specific and persuasive discrimination?
As a Member of this body, my duty and obligation to the Constitution,
the courts, and individual citizens compels me to declare no, we should
not reauthorize this law. We have had no hearings since Adarand to
determine that this program or any of the 160 Federal programs of
racial preference that have been identified by CRS have met the strict
scrutiny standard. The tactic of the Clinton administration has been to
delay, deny, divert, and obfuscate. The American people deserve better.
Mr. President, I close with the words of the Weekly Standard:

It won't do for a democratic country to lurch its way to
colorblindness courtroom by courtroom, without the clear and
resounding public debate an issue of such moment and
principle demands. It won't do . . . to delay the prize of
colorblindness, even for a moment, by silently ignoring the
battle while it's waged. And, most basically, it won't do . .
. to pretend that we don't understand what the Constitution
says.

Mr. President, How much time remains?
The PRESIDING OFFICER. Forty-five seconds.
Mr. McCONNELL. I reserve the remainder of my time.
Mr. CHAFEE. Mr. President, I ask unanimous consent that calculators
be permitted on the floor during consideration of S. 1173.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CHAFEE. I yield to the Senator from Arizona.
Mr. McCAIN. I thank the Senator from Rhode Island.
Mr. President, I rise in opposition to the amendment to eliminate the
Disadvantaged Business Enterprise Program and establish a new Emerging
Business Enterprise Program.
Mr. President, I'm not a supporter of race-based or gender-based set-
aside programs. This amendment goes too far. It eliminates a program
that, while seriously flawed in its current focus, was designed to
provide opportunities for historically disadvantaged businesses to
compete for Federal highway construction dollars. It establishes a new
program that merely shifts the focus of Government intention and
funding to businesses based on size and length of time in business.
Ironically, Mr. President, if the Emerging Business Enterprise
Program proposed in this amendment had existed in 1975, software
industry giant Microsoft would have qualified. In its first 3 years of
business, Microsoft took in only $420,000, putting it well under the
$25.2 million limit of the new program. Clearly, this business did not
need any Government help nor interference.
I'm a member of the Renewal Alliance, and I listened with interest to
comments made by my colleagues who are also working with this important
project. As I stated earlier, I have serious concerns about the racial
and gender bias of the DBE Program. However, to eliminate it without a
suitable Government-wide replacement program focused on equal
opportunity would be counterproductive and shortsighted.
Mr. President, all Americans--regardless of who they are, where they
live, or their gender or skin color--all Americans deserve the
opportunity to provide for their families, to pursue their aspirations,
and to share fully in the American dream. Our efforts to assist the
truly needy in our Nation should be focused on providing that
opportunity equally. The American dream is based upon equality. History
teaches us that there is no panacea for artificial barriers to
opportunity, but no matter how intractable the problem, it is the
essence of the American character to constantly advance our society so
that social and economic progress of each generation exceeds that of
its predecessor. No American is unimportant, and as a Nation we have an
obligation to help those in need to help themselves.
Our success in that endeavor is bound only by the limits of our
energy and our imagination. We must recognize that poverty and economic
disadvantage do not confine themselves within a certain race, gender,
or ethnic group. Economically disadvantaged people reside in
practically every community. We have an obligation to help these
Americans even if they do not happen to live within areas of the most
severe poverty.
I suggest we target the root of the problem--lack of economic
opportunity, not race, gender, ethnicity, and the like. Current
programs focus on providing Federal assistance in contract preferences
to businesses based on race or ethnicity of a business owner. We should
reorient these programs to provide preferences to economically
disadvantaged Americans, regardless of their race, creed, or color.
A needy American is a needy American, no matter their race, creed,
color, or gender. Certainly the Supreme Court's decision in the Adarand
case emphasizes the reality that, by and large, race-based set-asides
do not comport with the fundamental tenets of equality and equal
protection.
Let me add a few thoughts of my own to the suggestions of other
Members as to a possible focus for solving these problems. In the last
Congress, I introduced a bill which included a section designed to
retarget our efforts and redirect Federal spending goals to assist
economically disadvantaged individuals and businesses regardless of
race, ethnicity, skin color, or gender. There are a number of other
areas where we can, as a Nation, assist our citizens who are less well-
off, particularly providing high-quality educational opportunities and
accessible and affordable health care. Together, these are the kinds of
parameters and programs that I believe would help provide important
economic opportunity.
The fundamental question is, shall our Government as a matter of
policy prefer certain Americans because of their race or ethnicity or
gender over other Americans, regardless of merit or need?

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An answer in the affirmative seems to contradict our aspirations for
a color-blind society dedicated to the rights of the individual. An
answer in the negative appears indifferent to the gross injustices that
have been inflicted on various racial and ethnic groups who make up the
American tapestry.
The debate over contracting set-asides has focused too narrowly on
either maintaining the status quo, with its inherent unfairness, or
simply abolishing economic opportunity programs despite their potential
to justly assist needy Americans. Fortunately, our options are neither
so stark nor so limited. Rather, we can find the answer in reform.
Reforming federal programs so that they are color-blind and gender-
neutral and focused on assisting needy Americans rather than wealthy
business owners, will help us to address the economic needs of
Americans without pitting one group against another, thereby violating
the dictates of fairness and equality.
Mr. President, we cannot write a bill that will solve the problem of
joblessness and poverty in our nation today. But I believe we can make
significant gains by employing the kinds of incentives I and others of
the Renewal Alliance have described today. I look forward to a future
debate on these ideas to ensure that we craft incentives that will be
as appropriate and cost-effective as possible in ending the cycle of
poverty and dependence.
Mr. President, let me make one suggestion to my colleagues. I believe
the relevant committees should hold field hearings and engage the
Americans who live in the poorest communities in the debate over how
best we can help them to meet the needs of their families and their
neighborhoods. Perhaps it's time we more diligently consult and work
with real people and address their realities as we endeavor to address
the needs of our great nation.
Mr. President, let me close by saying to my fellow Republicans that
our party has much at stake in this debate. As the party of Lincoln,
our heritage and destiny is to be a party of all Americans dedicated to
the principles of democracy, limited but efficient government,
individual freedom and opportunity.
Unfortunately, in discussing the inherent contradictions and
shortcomings of affirmative action programs, the danger exists that our
aspirations and intentions will be misperceived, dividing our country
and harming our party. We must not allow that to happen.
Mr. President, I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. CHAFEE. Mr. President, I thank the Senator for those thoughtful
comments.
Mr. BAUCUS. Mr. President, I see the Senator from New Jersey on the
floor. I yield 4 minutes to the Senator from New Jersey, Mr.
Lautenberg.
The PRESIDING OFFICER. The Chair recognizes the Senator from New
Jersey for 4 minutes.
Mr. LAUTENBERG. I thank the Senator from Montana.
Mr. President, I stand here in opposition to the amendment that is
being offered. I hope that the Senate will reject this amendment
because, despite the best intentions of so many, we still do not have a
level playing field when it comes to Government contracting. There is
still discrimination. Sometimes it's overt, sometimes it's subtle; but
it definitely still exists, and the facts bear this out.
Consider the following: for transportation construction contracts,
minority-owned firms get only 61 cents for every dollar of work that a
white male-owned business receives. Unfortunately, it's even worse for
women-owned businesses--they only receive 48 cents. This amendment will
only exacerbate these numbers.
I have to take 1 minute, Mr. President, to describe a personal
situation. My mother was widowed early in the war. I had already joined
the Army, and she went to work for an insurance company, a large
insurance company, and she did a good job for 3 years. At the end of
that time, they said to her, ``Molly, thank you very much, but Joe is
back from the Army.'' She said, ``Well, give me another territory.''
They worked in territories at the time. They said, ``Well, you know we
don't hire women for these jobs.'' It was shocking. My mother was
shocked, my sister was shocked, and I was shocked, because she did her
job and did it perfectly. They said, ``We don't hire women for these
jobs.'' We are past that stage, thank goodness. But the fact is that
women, whether it is in salaries or in business, are always operating
at a different level than white men.
Mr. President, there are a few more figures I would like to give. Few
are aware that white-owned construction companies receive 50 times as
many loan dollars--and I know this having served for a short time on
the Small Business Committee--as minority-owned construction firms with
the same equity. And women-owned businesses have a lower rate of loan
delinquency, yet still have far greater difficulty in obtaining loans.
The majority of women business owners have to resort to personal
resources, such as maxing out their credit cards, to finance their
business.
Mr. President, we all know what the problems are with the traditional
affirmative action programs. But we ought to work to correct them
because people who don't have the same advantage, whether it's
education or family exposure or a job opportunity, deserve to be able
to come into the mainstream of America's economic and cultural life.
And if they don't, we know what the problems are.
Mr. President, Jim Crow laws were wiped off the books over 30 years
ago. However, their pernicious effects on the construction industry
remain. Transportation construction has historically relied on the old
boy network, which until the last decade, was almost exclusively a
white, old boy network.
I do not imply that the individuals running these white-owned
companies were racist, rather, I blame the discriminatory laws and
practices that shut minorities out of this industry for so many years.
This is an industry that relies heavily on business friendships and
relationships established decades, sometimes generations, ago--years
before minority-owned firms were even permitted to compete. In 1982,
President Reagan signed into law legislation attempting to put an end
to the old boy network.
That legislation, creating the Disadvantaged Business Enterprise
program, or DBE program, has been a success.
Mr. President, let me explain briefly what the DBE program does. The
Secretary of Transportation sets a nationwide goal for participation by
socially and economically disadvantaged businesses in transportation
construction contracts. The program does not contain a quota or create
a set-aside, but merely sets a goal for states to follow as they wish.
To their credit, the overwhelming majority of states have chosen to
follow or exceed the recommended goal of ten percent. Those states that
have opted out of this goal have neither been the recipient of any
retaliation nor have otherwise suffered from any adverse consequence.
Furthermore, states and municipalities are given the flexibility to
adjust their goals to reflect the availability of minority and women-
owned businesses in their area.
Who are the participants in the DBE program? They are hungry small
businesses that are just trying to get a chance at a Federal contract.
These are competitive firms.
As one of my constituents who participates in the DBE program told
me, if a pie is sliced ten times and nine pieces are eaten by a ``big
guy'' and one piece is thrown to ten hungry little guys, you can be
certain that those ten hungry little guys are going scramble, shove,
kick, and scuffle to get that one piece.
Congress and President Reagan were right back in 1982 and the
Chairmen of both the transportation subcommittee and the full committee
were right to continue this program in ISTEA.
Why do we still need an affirmative action program for federal
construction contracts?
Because we know that the private sector looks to the public sector
for leadership on this issue. And we also know that once affirmative
action programs stop, the inclusion of qualified minorities, be it in
education or in business, drops. We have seen this with law school
admissions in California and Texas. We have seen it in state
contracting in Michigan and Louisiana.

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I fear this would occur at the federal level and that it would spill
over into lower levels of government and into the private sector.
Mr. President, it would be a shame to allow this to occur. I urge my
colleagues to oppose the junior Senator from Kentucky's amendment and I
yield the floor.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. McCONNELL. Mr. President, I understand that I have 45 seconds
left, and I yield that to the Senator from Pennsylvania.
The PRESIDING OFFICER. The Senator from Pennsylvania, Mr. Santorum,
is recognized.
Mr. SANTORUM. Mr. President, I support the McConnell amendment. I
believe the constitutional arguments are persuasive. As a member of the
Renewal Alliance, I must say that the substitute or the replacement
program Senator McConnell put forward is a step in the right direction.
I disagree with Senator McCain, who said it is not sufficient. I
believe it is. It is, in fact, a good step.
Also, if we are able to not table the McConnell amendment, I will be
working with Senators Abraham and Coats to see if we can do more, in
fact, to put an agenda in place that really will do something for
economically disadvantaged areas, and particularly urban areas in this
country, so we can in fact create more hope and opportunity in those
neighborhoods. That is really the ultimate goal, and I think the
McConnell amendment begins to go in that direction.
Mr. BOND. Mr. President--I will reluctantly vote against the
McConnell amendment. I am concerned that if this provision is included
in this bill the President will veto the bill or it will cause delay in
enactment of this important legislation that is imperative to saving
lives in this country.
This ISTEA legislation is a matter of life and death to Missourians.
Highway fatalities in the state of Missouri increased 13 percent from
1992-95; 77 percent of the fatal crashes during this time frame
occurred on two-lane roads. In Missouri, 62 percent of the roads on the
National Highway System, excluding the Interstate, are two lanes. I
have had too many friends die on Missouri's highways. We need to make
certain that this legislation is enacted at the earliest possible date!
I want to make clear that since I became chairman of the Senate
Committee on Small Business I have strived to make certain that
government contracting opportunities are available to ALL small
businesses. I know that the engine driving the economic growth of this
country is small businesses. Small businesses and the entrepreneurs of
this country, regardless of race or gender, should be given every
opportunity to succeed.
For example, last year this body passed the HUBZones legislation
which I authored. It passed unanimously and has been signed into law.
The law provides government contract set asides to small businesses
that are located in HUBZones, which are economically distressed
metropolitan areas and poor rural counties. To be eligible for a
contract set aside, 35 percent of a small business' workforce must be
residents of HUBZones. This program is designed to help small
businesses grow, while creating jobs and investment in urban and rural
communities that are suffering from economic neglect.
I do have some concerns that the McConnell amendment could
inadvertently eliminate the HUBZone program.
It is my hope that I can work with my friend and distinguished
colleague, Senator McConnell, on this issue in the future. But, I will
not hold up $3.6 billion for my State of Missouri.
Mr. DURBIN. Mr. President, I rise today to express my support for the
Disadvantaged Business Enterprise (DBE) program and my opposition to
any attempt to weaken or eliminate the program. Under the DBE program
federal transportation trust funds from user fees are distributed by
the Department of Transportation (DoT) through state DoTs and state and
local mass transit agencies. These agencies are required to establish a
10 percent goal for the trust funds they receive, but are afforded
tremendous flexibility in reaching those goals. If a state agency or
prime contractor is unable to find enough qualified subcontractors to
perform the work, they are allowed to apply for a waiver or lower goal.
In short, the DBE program does not establish a quota nor a set-aside
program.
The opponents of the DBE program argue that this sort of flexible,
constitutional affirmative action flies in the face of the American
people's disagreement with affirmative action. This is simply not true.
A Wall Street Journal poll published in November of last year found
that 48 percent of Americans favor affirmative action and only 43
percent oppose. In addition, the voters in Houston last year rejected a
Proposition 209-like initiative by 55 to 45 percent, thus,
demonstrating the people's commitment to affirmative action.
Moreover, since the opponents of affirmative action often offer no
alternative other than the promise of a society free from all prejudice
against women and minorities, they must implicitly believe that
discrimination no longer exists in this country. Either that, or they
are not concerned that there are still very real disparities between
the races and genders. Both alternatives are troubling.
The reality of these disparities is still disturbing. In a recent
Urban Institute study identical black and white college students posed
as test subjects in an experiment designed to measure the extent of
racial discrimination in employment. The subjects were identical in
dress, had the same resumes, and had scripted presentations. The only
variable was race. Whites received job offers 41 percent more often
than blacks. For those who received job offers, the wages whites were
offered were 17 percent higher than the wages offered to blacks.
Another recent study conducted by the Glass Ceiling Commission found
that 96 percent of the senior managers of the Fortune 1000 Industrials
and the Fortune 500 Companies are male; 97 percent are white; 0.6
percent (that is, less than one percent) are black; 0.4 percent are
Latino; and 0.3 percent are Asian.
Sadly, I am concerned that the arguments waged against the DBE
program are not truly criticisms of the program but are merely thinly
veiled attacks on civil rights itself. Although I respect the DBE
program opponents' right to disagree on these issues, I find it
disturbing that the underlying theme of their arguments against the
program boil down to this: ``Minorities and women may have been
discriminated against in the past--they may even still be discriminated
against today--but we, the majority, are no longer going to provide
remedial efforts to counteract this discrimination. Enough is enough.''
This sentiment runs counter to this country's dedication to civil
rights and humanitarianism. To preserve our civil rights and to earn
equal rights for all we must acknowledge the disappointing reality that
we have not yet achieved a color or gender blind society. By attacking
the DBE program, the opponents of the program are also dismantling the
steps of progress we have made toward a nation we all want--a nation
where there will be no reason to debate civil rights and where color
and gender are not determinative of opportunity.
Mr. DOMENICI. I wonder if I might have the attention of the
distinguished chairman and banking member of the Environment and Public
Works Committee, as well as the chairman of the Subcommittee on
Transportation. I want to address a program that is authorized under
Section 1111 of S. 1173, namely, the Disadvantaged Business Enterprise
(DBE) program.
As my colleagues know, in the wake of the Supreme Court's 1995
decision in Adarand v. Pena, all federal agencies undertook a review of
their affirmative action programs with an eye toward ensuring that
those programs met ``strict scrutiny''--the new standard of review set
by the Court.
Toward that end, the Department of Transportation proposed a
revamping of its regulations for the DBE program. D.O.T.'s intent was
to ensure that the DBE program satisfied the two requirements of strict
scrutiny--that the program met a ``compelling government interest,''
and that it was ``narrowly tailored.''
It is my understanding that last May, the Department published
proposed new regulations in the Federal Register for comment. That
comment period closed last September. Since that

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time, Department officials have been poring through the 300-plus
comments received. They hope to have the new regulations finalized
within the next two months.
I believe the DBE program must be implemented in a manner that is
constitutional. I believe that that is critical to the integrity of the
program, and to the Senate's support of that program. Therefore, I
would like to ask the chairman and ranking member--whose committee has
oversight over the DBE program--if it is their intention to press the
Department to ensure that the new regulations pass constitutional
muster.
Mr. CHAFEE. Yes: it is. We have made it clear to the Secretary that
while one can never predict with 100 percent certainty what language
may pass constitutional muster, the Committee expects the Secretary and
his legal staff to do their utmost to make sure that the new
regulations closely follow the guidance set forth by the Court in
Adarand.
Mr. BAUCUS. I concur. It is the committee's intention that his
program be carried out in a manner that is consistent with the
Constitution. We expect no less. Secretary Slater is aware of, and I am
assured agrees with, our views on this matter.
Mr. WARNER. As chair of the subcommittee that sponsored this bill, I
have a particular interest in this matter, and I want to assure the
Senator that adherence to Adarand is our intent.
Mr. DOMENICI. I appreciate the Senators' confirmation on this point.
Let me ask further: Will the committee continue to be in touch with
Department officials as the regulations are readied for release? And
will the Committee scrutinize the new regulations to ensure that the
Department did in fact follow the Court's guidance under Adarand?
Mr. CHAFEE. Yes: we will.
Mr. BAUCUS. I can assure the Senator, and the Senate, that we will
indeed.
Mr. WARNER. We certainly intend to.
Mr. DOMENICI. I am pleased to hear it, and I want to thank the
Senators for taking the time to respond to my concerns.
Mr. ABRAHAM. Mr. President, I rise today to comment briefly on some
remarks made earlier during debate on the McConnell amendment. In this
debate, several of my colleagues noted that the percentage of state-
awarded highway contract dollars realized by minority and woman-owned
firms dropped dramatically in states that abolished their set-aside
programs. Several speakers pointed to what happened in my own state of
Michigan as an example of this phenomenon.
What the speakers did not explain is how Michigan ended its program.
In 1989, the Sixth Circuit Court of Appeals struck Michigan's state DBE
program as being unconstitutional, as a result of which Michigan was
forced to abandon it. What this proves, though, is the opposite of what
my colleagues supporting the tabling motion are claiming. We need to
devise methods that will pass constitutional muster for reaching out to
minority and women-owned firms, rather than reenacting a program that
the courts surely will strike down, leaving us with no mechanism for
aiding disadvantaged businesses.
Mr. DASCHLE. Mr. President, we all believe that America is the land
of opportunity. But the road to opportunity is not always an equal
access road. The highway construction industry in particular has kept
newcomers, like women and minority-business owners, in the slow lane.
There's no reason equal opportunity should be sacrificed when it comes
to road building
That's why I support the Disadvantaged Business Enterprise, or DBE,
program and oppose the McConnell amendment. The DBE program was signed
into law by President Reagan and reaffirmed by President Bush; it has
always enjoyed bipartisan support. Designed to enhance opportunity for
all, and not limit it for any--it's a true equal opportunity program.
Contrary to arguments made by opponents of the DBE program, the
Supreme Court in the Adarand case did not find the DBE program
unconstitutional. The Court held only that strict scrutiny should apply
to federal affirmative action programs as it does to those implemented
by the states. Strict scrutiny requires that there be a compelling
government interest in addressing discrimination and that the means
chosen to address the discrimination be ``narrowly tailored.'' The DBE
program meets both tests.
There is clearly a compelling interest in addressing the pervasive
discrimination that has characterized the highway construction
industry. According to the Supreme Court, ``[t]he unhappy persistence
of both the practice and the lingering effects of racial discrimination
against minority groups is an unfortunate reality, and the government
is not disqualified from acting in response to it.''
The DBE program is also narrowly tailored, meeting the second prong
of the Adarand test. The DBE program does not include quotas or set
asides--it is a ``goals'' program. The individual States set their own
goals that can be above or below the national goal of 10 percent. The
DBE program does not set rigid numerical targets that must be met to
avoid a penalty nor does it set aside contracts or dollars for certain
businesses. Demonstrating conclusively that it is not a quota, the DBE
program has no sanctions for failure to meet a goal.
Working to make the program even stronger, the Department of
Transportation is issuing new regulations that ensure that it is as
narrowly tailored as possible. For example, the new regulations provide
that the program must give priority to race-neutral measures to reach
out to women and minority-owned businesses; must ensure that good faith
efforts are enough, even if the bidder has not achieved the goal; must
ensure that the goal-setting is based on number of qualified DBEs in
the state; and tighten up the certification process so that only
qualified DBEs are in the program.
The DBE program is not only constitutional, but also is effective and
necessary. The program creates jobs--the Department of Transportation
estimates that the program directly or indirectly results in more than
100,000 jobs each year. It also serves as a motor for economic
development in disadvantaged communities, with more than two billion
dollars in construction contracts going to small businesses under the
program. Women too have benefited greatly from the program. Since women
were included as DBEs, their procurement dollars have grown by
approximately 175 percent.
But we should not rest on our laurels. The time has not come to end
the program, since women and minority-owned businesses are still
greatly underrepresented in the highway construction industry.
Minorities make up over twenty percent of the population, but minority
businesses are only nine percent of all construction firms and those
businesses get only five percent of construction receipts. Women own a
third of all small businesses but receive less than three percent of
federal procurement contract dollars.
In my state of South Dakota, there are seven DBEs qualified as prime
contractors and 75 DBE subcontractors. Their contribution to South
Dakota's economy and to their own communities goes beyond just the jobs
they create and the business they generate. They are inspiring a new
generation of small business owners to believe that they, too, will be
able to drive on the road to opportunity.
That's why we need to keep this program--because we need to ensure
that that road to opportunity is the wide open road that America is
known for.
Mr. LIEBERMAN, Mr. President, I rise to express my views on the
Disadvantaged Business Enterprise program, and to explain why I have
decided to vote against Senator McConnell's amendment, which would
eliminate that program. This was not an easy decision for me to make.
In attempting to analyze the constitutionality of the DBE program, we
are dealing with a complicated area of the law, where many issues
remain unsettled. But just as importantly, the outcome of this vote
will affect hundreds of thousands of hard working Americans, of all
races and of both sexes.
I have always opposed laws that establish quotas. I am going to vote
against this amendment because I am convinced that the DBE program does
not create quotas. There is substantial flexibility built into the
program for states to set their own goals based on

[[Page S1493]]

local conditions. If they fail to meet their own goals, there is no
federal sanction or enforcement mechanism. The Secretary of
Transportation may waive the national goal of 10% for any reason, and
presumably would do so if the collective efforts of the states did not
add up to 10% of all ISTEA funds expended. All that convinces me that
the percentage stated, while troubling is a goal not a quota.
But I am still troubled by the fact that this law establishes goals
based on gender and racial classifications. Any law that confers some
benefit based on gender or race can cause unfair results; those who are
not members of the enumerated categories, the non-beneficiaries of the
program, are being denied absolutely equal treatment. We should all
hesitate before enacting such a provision. Indeed, the Supreme Court's
Adarand decision now requires us to engage in a careful analysis before
enacting such a provision. In Adarand the Supreme Court held that
Congress may only enact racial classifications that are narrowly
tailored to further a compelling interest. This standard of review,
known as ``strict scrutiny'', is difficult to meet, but in her opinion
for the Court Justice Sandra Day O'Connor emphasized that federal
affirmative action programs could and would be upheld where Congress
was acting in response to the practice and lingering effects of
discrimination.
I am voting against the McConnell amendment in spite of my
reservations because I am convinced that discrimination persists in the
transportation construction industry and in related industries, and
because I believe that the DBE program is narrowly tailored to attack
the ongoing practice of that discrimination. The program therefore is
both justifiable as sound policy and in compliance with the Supreme
Court's Adarand decision.
We have before us ample evidence of historic and more importantly
ongoing discrimination in the relevant industries, not just the
transportation construction industry but also in the surrounding
economic structure of lenders, suppliers, surety companies, and trade
unions. Much of this evidence appears in the record before Congress;
Congressional committees have received testimony describing this
discrimination, and on many occasions committees of the House and the
Senate have concluded that barriers still remain to equal participation
by women and minorities.
In May of 1996, the Department of Justice published in the Federal
Register an extensive survey of evidence showing how discrimination
works to preclude minorities from obtaining the experience and capital
needed to form and develop a business, and how discriminatory barriers
deprive existing minority firms of full and fair contracting
opportunities. That report found ``powerful and persuasive [evidence]
that the discriminatory barriers facing minority-owned businesses are
not vague and amorphous manifestations of historical and social
discrimination. Rather, they are real and concrete, and reflect ongoing
patterns and practices of exclusion, as well as the tangible, lingering
effects of prior discriminatory conduct.'' Discrimination by trade
unions and private employers has prevented minorities from getting the
requisite experience and opportunity to move on to self-employment.
Dozens of studies and lawsuits cited in the report demonstrate gross
disparities over the years in these sectors of the economy, often
caused by proven racial discrimination. Similarly, minorities have
often been shut out of lending and bonding markets: a recent study in
Denver found that African-Americans were 3 times more likely to be
rejected for business loans than whites, and Hispanics were 1.5 times
as high. Contracting itself too often remains a ``closed network'';
prime contractors maintain their long-standing relationships with their
subcontractors, and the new entrant minority or women-owned firms are
excluded.
In my view, this evidence of discrimination is sufficient to
establish the compelling interest required by the Adarand decision. But
let's move beyond dry statistics for a moment and consider the people
behind these numbers. Earlier I referred to the burdens that gender and
racial classifications can impose on innocent parties. Our decision
today is so difficult because we must compare that inequity to the harm
caused to other, equally innocent people, by discriminatory business
practices. The companies now benefitting from the DBE program are not
inferior; we have heard no complaints about the quality of their work.
Yet without the program many of them never would have received an
opportunity to win contracts. I have met with these small-business
owners, and they are rightfully proud of their accomplishments, and
grateful for the opportunity this program gives them.
Just as I am satisfied that ISTEA's DBE program serves a compelling
interest, so too am I convinced that the program is narrowly tailored
to further that interest, as required by the Adarand decision. My
belief that the DBE program will survive court scrutiny is bolstered by
the new regulations that the Department of Transportation will be
finalizing in several months. From my discussions with the
Transportation Secretary and my staff's discussions with Transportation
Department attorneys, it appears to me that the staff at that agency
have been doing an excellent job poring over court decisions as well as
comments from interested parties. The new regulations will adhere very
strictly to the narrowly tailored test, and the result will be a DBE
program that considers gender and racial characteristics without
becoming quotas.
For example, states will be given a great deal more flexibility in
determining how to calculate their goals, based on the availability of
qualified DBEs in the relevant industries. These formulae are designed
to focus on the extent to which discrimination in the contracting
industry has actually reduced opportunities for DBEs, and to determine
how much DBE participation there would be in the absence of
discrimination.
Under the rules someone who is not himself financially disadvantaged
will not be able to qualify for the DBE program, regardless of how
small his company is. Anyone will be able to start a proceeding to
prove that an individual owning a DBE is not actually socially and
economically disadvantaged. On the other hand, anyone not presumed to
be socially or economically disadvantaged would be able to apply for
DBE status based on special circumstances. Finally, the DBE program
makes extensive use of gender and race-neutral alternatives, as well as
waivers.
I have listed only some of the more important regulations that have
helped convince me that the DBE program will be narrowly tailored to
further a compelling interest when it is implemented. Although I am
satisfied that the DBE program can survive the courts' scrutiny, I
still recognize that innocent people may be burdened by the program's
effect on their livelihoods. Our obligation, and the obligation of the
Executive Branch, is to minimize these unfair results in the design and
implementation of the DBE program, and to strive for a day when we will
not feel the need to incorporate even gender or racial goals into our
laws at all.
Mr. KEMPTHORNE. Mr. President. I rise today to address the issue of
the Disadvantaged Business Enterprise (DBE) program in the Intermodel
Surface Transportation Efficiency Act (ISTEA). This DBE program is a
narrowly tailored program that establishes the goal for states to have
prime contractors use DBE's to do some portion of their federally
assisted construction projects. While the federal goal is 10% of all
projects, states are free to develop their own goal for their level of
participation.
There is much confusion about what the ISTEA DBE program is and what
it is not. It is not a program of federally mandated quotas that
requires states to participate with the threat of financial sanctions
for noncompliance. It is however, a program that allows states to set
their own goals and targeted levels participation and permits annual
renegotiation of these goals. Additionally, states are permitted to
waive their self established goals in a particular contract or for an
entire year if compliance is not possible. In fact in both 1996 and
1997 two states did not meet their goals and no sanctions were imposed.
Mr. President, the national goal for participation is 10% and while
each state can vary from this my state of Idaho has adopted 10% as
their target.

[[Page S1494]]

The Idaho Department of Transportation informs me that this program is
very popular, it is easy to administer and participation is high. In
fact, the state of Idaho has exceeded their 10% goal every year
including the last three where participation was 11%, 12.4% and 10.7%.
In Idaho the majority of the recipients of these construction contracts
have been women owned businesses. Interestingly enough since the
inclusion of women owned business as an eligible class under the ISTEA
DBE program in 1987 women owned business in my state have increased
104%. While this growth figure includes all types of businesses, I am
confident that the positive impact of this program on the construction
trades cannot be over emphasized.
Mr. President, put quite simply the ISTEA Disadvantaged Business
Enterprise program works. Without federal threats and financial
sanctions this program has encouraged states to set goals that provide
increased opportunities for women and minority owned businesses to
participate in the ISTEA program. This is an excellent example of an
incentive-based program that benefits our nation as a whole. I am
committed to retaining this important program during the
reauthorization of ISTEA.
Mr. BINGAMAN. Mr. President, I want to join my Senate colleagues in
opposition to Senator McConnell's amendment to eliminate the Department
of Transportation's Disadvantaged Businesses Enterprise program. This
program, known as the DBE program, for years has been very successful
in bringing equity and fairness into construction contracting, and I
believe it should be maintained as it is. Most of all, I agree that
this program does not violate the equal protections guaranteed by our
Constitution, and I question the Senator from Kentucky's interpretation
that it does.
In fact, if Senator McConnell is basing his reasons for eliminating
this program on our Supreme Court's decision in Adarand v. Pena, then I
am confused. My reading of Adarand suggests nothing of that sort.
While it is true that the underlying issue in Adarand was whether the
Department of Transportation has infringed on Adarand's constitutional
right to due process and equal protection, the issue the Court actually
addressed and decided in this case was by what standard is an
infringement in this context determined. In other words, how do we
figure out what constitutes a violation of equal protection? Indeed,
the Court reversed long-standing law, and raised the standard for
justifying this program. Typically, the burden to justify the necessity
and the implementation of a program that affects equal protection lays
with the government.
The Court, for the first time, determined that the standard of
``strict scrutiny'' should be applied in a case of this sort.
Specifically, the standard of strict scrutiny requires that if the
government determines to implement a program such as the DBE program,
which ultimately effects an individual's constitutional right to equal
protection, the government first must show a ``compelling interest.''
Basically, the government must have more than a very good reason for
the program. Second, even if the government can show a compelling
interest, the standard requires that the government show that the
program is ``narrowly tailored'' to serve that interest. So the issue
before the Supreme Court in Adarand was which standard to apply, and
the Court held that the standard must be ``strict scrutiny.'' This is a
landmark decision, because it places on the government a very tough
test, a test that often is very difficult to overcome. Of critical
importance here, is that the Court recognized that the standard,
although very tough to meet, is not fatal in fact, it is not impossible
to overcome. And I believe that is where my colleague from Kentucky has
erred.
What I understand Senator McConnell to be saying is that the Court,
in holding that strict scrutiny is the standard to apply in this
context, ultimately held that the DBE was unconstitutional. To the
contrary. The Court simply expounded the standard for making this
determination, nothing more, nothing less.
What does this standard mean to the DBE program? It means that the
Department of Transportation must show that its governmental
``interest,'' its important reason for having this program, is
``compelling.'' In this context, it requires that the government must
show that there is a history of discrimination in the construction
contracting industry, such that minority and women-owned businesses,
although qualified for a contract, continuously are not awarded
contract simply because they are minority- or woman-owned.
Clearly, there long has been a history of discrimination in this
country, and the effects of discrimination still linger. Department of
Transportation can show that although minority-owned businesses are 9
percent of construction firms, they get only 5 percent of construction
receipts. Additionally, DoT can show that women own one-third of all
small businesses, but in 1994, for example, received only 3 percent of
federal procurement contract dollars. Moreover, Department of
Transportation can show that, in the wake of City of Richmond v.
Croson, disadvantaged businesses have been squeezed out from
contracting opportunities. Put simply, in those areas where there is no
DBE program in place, minority-owned businesses received no contracts
at all. So it's clear there is a wide gap in the availability of
qualified minority- and women-owned contractors and the number of
contracts they are in fact awarded. The government's compelling
interest is to remedy discrimination, and I don't think anyone in this
Congress can dispute the government has a compelling interest.
The real issue here, however, is how the government sets out to
remedy that discrimination. The Court explained that strict scrutiny
requires the government must ``narrowly tailor'' whatever is crafted to
address this problem. In other words, the program cannot be too broad,
but must be designed specifically enough to remedy the discrimination
without infringing on anyone else's Constitutional rights.
That is exactly what the Department of Transportation has in the DBE
program. The DBE is designed only to provide a ``goal'' that ten
percent of contracts be awarded to disadvantaged businesses. You may
ask, what is the difference between a ``goal'' and a ``quota'' or a
``set-aside''? I see a clear distinction.
A quota requires that a minimum number of construction contracts be
awarded to disadvantaged business, regardless of the amount or history
of discrimination that has taken place. Right or wrong, it allows no
flexibility. Same is true with a set-aside.
The Department's ``goal'' program, on the other hand, provides broad
flexibility. I read the program to encourage contracting with
disadvantaged businesses up to 10 percent of contracts. That is a very
significant difference, particularly when you consider the strict
considerations that DoT has built into the program.
For instance, the program requires that the goal correspond to the
availability of qualified DBE's in a given market area; it requires the
goal be ``race neutral''; the program cannot be for an unlimited period
of time but only for as long as it takes to address any measured
inequities in contracting; the goal of 10 percent is not required; and
it also provides the flexibility to tailor a program to the
circumstances of the locality.
Mr. President, I am confident that the DoT's DBE program is not
unconstitutional and in full accord with Adarand. But nobody has to
take my word for it. I suggest they examine Adarand for its real
effect. That precisely is what many very esteemed constitutional law
professors did, and they conclude that this program is within
constitutional parameters. Any other conclusion we should leave to our
Supreme Court.
Mr. President, I appreciate Senator McConnell's concern for all the
emerging small businesses in our country, and I agree there should be
fairness, equality for all. I am certain he has only the most genuine
interests in mind for everyone. I have to disagree, however, that
fairness and equality will prevail if the DBE program is eliminated.
Given our history as a nation and the lingering effects of
discrimination, I believe the DBE program is necessary. Moreover, I
believe it is constitutional and should remain

[[Page S1495]]

intact. Therefore, I will oppose the amendment.
Mrs. MURRAY. Mr President, I rise in strong support of the
Disadvantaged Business Enterprise program and in opposition to the
McConnell amendment. This program is the right way for our nation to
provide business opportunities for all Americans.
I believe in the goals of the DBE program: To improve economic
opportunities for qualified, but disadvantaged, business owners, who
most frequently are women and people of color. This program counters
the effects of past discrimination with a flexible and goal-oriented
program that has worked. We have a much more diverse federal
contracting base than we have ever had before. Since 1978, where women-
and minority-owned businesses won only 1.9 percent of the federal
highway construction contracts, they have 14.8 percent. That
demonstrates the tremendous success of this program.
The DBE program does an excellent job of providing sufficient
flexibility to target true disadvantaged businesses. If an African
female-owned business truly is not disadvantaged, it will qualify under
this program. Likewise, if a Caucasian male owns a disadvantaged
business, he has an opportunity to qualify under the DBE program. That
flexibility is why so many of us believe it offers us the best path
forward toward true equality for all business people. It focuses our
attempts to strengthen our economy on those who need our help most; it
forces us to look at economics, not race or gender.
Mr. President, in 1995, the Senate debated this issue as part of the
legislative branch appropriations bill. At that time, members of this
body recognized this type of proposal simply goes too far. I led the
fight to defeat that amendment with bipartisan support, 61-36. As
ranking member of the legislative branch appropriations bill at the
time, I offered a compromise amendment in an attempt to reach middle
ground and deal with this issue in a constructive manner. That
amendment passed 84-13.
I pledge to continue to fight economic, gender and race
discrimination throughout this country. The Disadvantaged Business
Enterprise program is one proven path toward that goal. This is not
about special preferences or arbitrary set asides; this is about
expanding opportunities for business people. I intend to oppose the
McConnell amendment and urge my colleagues to do the same.
Mr. DORGAN. Mr. President, I rise to comment on the debate over the
Disadvantaged Business Enterprise (DBE) program and the McConnell
amendment. First, I want to say that I have some concerns about the DBE
program, at least in its previous structure. I do not doubt the
presence of racial, ethnic, and gender discrimination in this country
and I would be the first to say that we ought to have strong national
policies that are designed to rectify discrimination and provide
assistance to businesses that are disadvantaged because of
discrimination. However, a strict mandate on states to establish quotas
and set asides is not the appropriate means to end discrimination.
Unfortunately, much of the debate over the McConnell amendment has
inaccurately characterized the question in polemic terms. The advocates
of the McConnell amendment would suggest that a vote against his
amendment is a vote for quotas and set asides. That is simply not true.
While I have some concerns about the DBE program, I do not intend to
vote for the McConnell amendment. The Department of Transportation has
made significant changes in the DBE program under the directive of the
President's review of all affirmative action programs. The new
regulations no longer require states to adopt a 10% goal of DBE
contracts for highway projects. The old regulations had that
requirement. I would not support that approach. However, under the new
regulations, the DOT provides states with several specific formula
options with which they can utilize to establish the appropriate goal
for DBE contracts for each particular state. Section 26.41 of the
regulations--which specifies how each state sets their overall DBE
goals--does not contain any specific percentage requirement.
The 10% goal specified in the underlying legislation is a nation-wide
goal. Under the Department's regulations, each state will utilize one
of several formula options specified in the regulations to determine
the appropriate goal for that state. There is no quota mandate. The
only requirement is that states make a good faith effort to determine
how to set an appropriate goal for DBE contracts.
I am not persuaded by the agreements that the DBE program is
unconstitutional. The Adarand decision did not declare the program
unconstitutional. Rather, it required that the program be narrowly
tailored. It appears to me that the Department's new regulations have
been developed in a manner to comply with that requirement. I am
confident that when these new regulations are implemented that the
Department will be flexible and work cooperatively with states to
establish appropriate goals. If the Department had not taken steps to
revise this program, I would be advocating changes with respect to the
ISTEA legislation. However, anyone who has reviewed the proposed new
regulations (49 CFR Parts 23 and 26, May 30, 1997) would conclude that
significant changes have been made and I believe that it is reasonable
to allow the Department to implement those changes, which provide a
great deal more flexibility to the states and will not impose a
specific percentage requirement for DBE contracts.
Notwithstanding the questions about the constitutionality of the DBE
program and whether or not it is a quota program, I am very concerned
about the McConnell amendment because of the new requirements it
imposes on states. The McConnell amendment expands the definition of
what constitutes a ``disadvantaged business,'' duplicating many small
business development programs which are currently administered by the
Small Business Administration (SBA). In addition, the McConnell
amendment imposes a significant financial burden on states to develop
new outreach programs without providing any federal assistance to pay
for these new requirements. Even if one were to conclude that the DBE
program ought to either be changed or eliminated, the McConnell
amendment is certainly not the correct response.
Therefore, Mr. President, I am opposing the McConnell amendment.
However, I urge the Department to implement new regulations that give
the states the flexibility to establish their own goal--as has been
promised.
Mr. BAUCUS. Mr. President, I yield myself such time as I consume. Mr.
President, we had a good debate yesterday. I want to emphasize a couple
of points.
First, with all due respect, the argument that the Supreme Court has
ruled that this program is unconstitutional and that we now have a duty
to expunge the program from the statute books is a red herring. It is a
bogus argument, a diversion, a smokescreen, as was so ably stated by
the Senator from Pennsylvania, Mr. Specter.
If there was any doubt, it should have been dispelled by the letter
that Senator Domenici received yesterday from Attorney General Reno and
Secretary Slater.
I urge my colleagues to read that letter.
In Adarand, the Supreme Court did not hold that the DBE program is
unconstitutional. It held that the program is subject to strict
scrutiny. And it emphasized that this is not equivalent to holding that
the program is unconstitutional.
The case was remanded to the district court. Judge Kane held that the
program furthers a compelling governmental interest. But he also held
that the program was not narrowly tailored.
So we have one district court judge, holding that the program is
unconstitutional. Not the Supreme Court. Not an appeals court. But one
federal district court judge, out of the 647 federal district court
judges in the country.
The Justice Department disagrees with the decision. So do many
others. And the federal government has appealed the decision.
There are, moreover, strong arguments that the program passes the
strict scrutiny standard.
The district court itself held that the DBE program furthers a
compelling governmental interest in overcoming discrimination in the
construction industry.
With respect to narrow tailoring, as the letter to Senator Domenici
explains, the DBE program is not a mandatory set aside or rigid quota.
It's

[[Page S1496]]

flexible. It's negotiated with each state. It can be adjusted, lower or
higher. It can be satisfied by good faith efforts. No penalty has ever
been imposed on a state that has not met it's goal.
And the proposed rules would make the program even more flexible and
narrowly tailored.
So I believe that it is very clear that this program is
constitutional.
But there's another question.
What's right? What's the right thing to do here?
We all wish we lived in a world that was free from discrimination
based on gender or race.
We don't. Discrimination is still with us. I think we all know that.
Women earn about 75 percent of what men earn for comparable work.
Women own one-third of all small businesses, but women-owned
businesses only receive 3 percent of federal procurement dollars.
Minorities make up 20 percent of the population, but own only 9
percent of the construction businesses, and those businesses receive
only 4 percent of construction receipts.
So what do we do about it?
Sometimes, Mr. President, equal opportunity means more than outreach.
It means more than mailing out brochures and holding seminars.
It means giving people an opportunity to prove themselves.
It means giving them a seat at the table.
That's what the DBE program is designed to do.
And, as I said yesterday, it works.
In 1978, 1.9 percent of federal highway construction dollars were
going to firms owned by women or minorities.
Today, under the DBE program, it's 14.8 percent.
That's progress.
I, for one, am proud that the percentage of women and minorities
participating in the federal highway program in Montana has risen to 20
percent. That's good news. Not only for women and members of minority
groups. But for all of us. For our communities.
The program has worked. And because it has worked, people are still
counting on it.
About 20,000 companies have qualified as DBEs. They've grown their
companies, taken out loans, hired more employees, in the expectation
that the program would continue.
If we look at the experience of Michigan, Louisiana, and other states
that have repealed their state DBE programs, repeal of the federal DBE
program will result in a sharp drop in the percentage of contracts
going to businesses owned by women and minorities. By half, or more.
If that happens, all across this country, small businesses women and
minority entrepreneurs will be left high and dry.
I, for one, will not vote to let that happen.
Mr. President, the DBE program is constitutional.
It's fair.
It works.
And it builds more inclusive communities and a stronger economy.
It's good for America, and it brings us together. That is what
America is all about.
Again, I urge that the McConnell amendment be defeated.
I reserve the remainder of my time.
The PRESIDING OFFICER. There are 3 minutes remaining.
Who yields time?
Mr. CHAFEE. Mr. President, I have previously made clear my thoughts
on this.
I think the arguments have been very well made in connection with the
opposition to this amendment. I strongly believe that the Congress
should not interfere with the Disadvantaged Business Enterprise Program
at this point. I don't think this is the appropriate time.
As I have also pointed out several times, we have a letter from the
Secretary of Transportation indicating that if this amendment should
prevail, he would not be able to recommend that the President approve
this legislation. What all that means, Mr. President, is that is a
gentle way of saying he would recommend a veto. I suspect there would
be a veto of this legislation. We have come a long way to try to get
this legislation passed. I very much hope that it will not be subject
to any kind of a veto threat, which would result if this amendment
should pass.
Mr. President, we are going to vote at 11 o'clock. We must be very
close.
The PRESIDING OFFICER. All time has expired.
Mr. CHAFEE. Mr. President, I move to table the amendment and ask for
the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
table the amendment. The yeas and nays are ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Vermont (Mr. Bennett),
the Senator from Indiana (Mr. Coats), the Senator from North Carolina
(Mr. Helms), and the Senator from Texas (Mrs. Hutchison) are
necessarily absent.
Mr. FORD. I announce that the Senator from Ohio (Mr. Glenn) is
necessarily absent.
The PRESIDING OFFICER (Mr. Smith of Oregon). Are there any other
Senators in the Chamber desiring to vote?
The result was announced--yeas 58, nays 37, as follows:

[Rollcall Vote No. 23 Leg.]

YEAS--58

Akaka
Baucus
Biden
Bingaman
Bond
Boxer
Breaux
Bryan
Bumpers
Byrd
Campbell
Chafee
Cleland
Collins
Conrad
D'Amato
Daschle
Dodd
Domenici
Dorgan
Durbin
Feingold
Feinstein
Ford
Graham
Harkin
Inouye
Jeffords
Johnson
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
McCain
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Reed
Reid
Robb
Rockefeller
Roth
Sarbanes
Snowe
Specter
Stevens
Torricelli
Warner
Wellstone
Wyden

NAYS--37

Abraham
Allard
Ashcroft
Brownback
Burns
Cochran
Coverdell
Craig
DeWine
Enzi
Faircloth
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Hollings
Hutchinson
Inhofe
Kyl
Lott
Lugar
Mack
McConnell
Nickles
Roberts
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Thomas
Thompson
Thurmond

NOT VOTING--5

Bennett
Coats
Glenn
Helms
Hutchison
The motion to lay on the table the amendment (No. 1708) was agreed
to.
Mr. CHAFEE. Mr. President, I move to reconsider the vote.
Mr. LOTT. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. LOTT. Mr. President, first of all, it has already been announced
informally that that is the last vote of the day. I thank the managers
of the very important surface transportation legislation for their
efforts this week. I think some good progress has been made. Several
amendments have been disposed of. This was one that required some 8
hours, I believe, of debate.
Now that we have voted on that, we want to continue to make progress
to complete this legislation. I think Senators on both sides believe
that good progress has been made. I really appreciate, once again, the
effort of Senator Chafee, Senator Baucus, Senator Byrd, Senator
Domenici, Senator Gramm and others, in coming up with the formula
change that I think generally is agreed to on both sides of the aisle.
But we need to begin to think now about how we conclude this so we can
deal with the other very important issues that are awaiting, including
the NATO enlargement issue and the Coverdell A-plus education issue. We
have a couple other bills we are looking at considering on Monday,
including possibly a resolution with regard to Saddam Hussein being a
war criminal, and an intelligence bill.
But at the request of the chairman and the ranking member of the
Environment Committee, our respective hotlines have asked that all
Senators come forward with their amendments.
We are developing a list and we need to know the ones that are
serious. I know there are a lot of them out there still that Senators
are contemplating

[[Page S1497]]

offering, but we need to begin identifying the ones that really are
serious. For instance, the list we have from the hot line is 250
amendments, with two Members on one side of the aisle having 100
amendments; just two Senators have 100 amendments. I must say, on our
side of the aisle, there are 75 amendments. That is ridiculous. We need
to identify the ones that we really are going to offer. We need
cooperation in order to get that done.
We have been considering the bill really since the last session.
Everybody has had a chance in the committee. Last year, we spent about
2 weeks talking about it. We had four cloture votes. We have had a
total of 14 days on it.
There are several other issues that are important that we are going
to have come up and will vote on, but I think now we need to get
serious about bringing this to a conclusion. After looking at the list
of amendments and consulting with the Democratic leader, I think we do
need to go ahead and get a cloture vote so that we can eliminate the
amendments that are not related directly to this bill and then begin to
narrow the list.

Cloture Motion

Mr. LOTT. Mr. President, I send a cloture motion to the desk to the
committee amendment.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The assistant legislative clerk read as follows:

Cloture Motion

We the undersigned Senators, in accordance with the
provision of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the modified
committee amendment to S. 1173, the Intermodal Surface
transportation Efficiency Act:
Trent Lott, John H. Chafee, John Ashcroft, Larry E.
Craig, D. Nickles, Mike DeWine, Frank Murkowski,
Richard Shelby, Gordon Smith, R.F. Bennett, Craig
Thomas, Pat Roberts, Mitch McConnell, Conrad Burns,
Spencer Abraham, Jesse Helms.

Mr. LOTT. Mr. President, the cloture vote will occur on Monday, March
9, probably around 5:15 or 5:30. Again, we will check with the Members'
schedules and with the Democratic leader, but it will be around that
time. We indicated there would not be a vote before 5. It may be a
little after 5, depending on when planes arrive and when we can get
agreement to have this vote scheduled.

Call of the Roll

Mr. LOTT. Mr. President, I ask unanimous consent that the mandatory
quorum under rule XXII be waived.
Mr. DASCHLE. Mr. President, reserving the right to object, and I do
so to comment on a couple matters raised by the distinguished majority
leader.
First of all, he noted we have spent at least 3 weeks on this bill
already, 2 last fall and 1 last week. He also noted that this has been
a productive week, and I share that view; it has been productive. I
will encourage my colleagues to vote in favor of cloture Monday night
simply because we have to come to closure. There are a lot of good
amendments to be offered yet. We will have that debate, but we can do
that under the strictures which cloture provides, and I am very
supportive of resolving the outstanding questions so we can move on.
I also compliment, as the majority leader did, our two managers. They
have done an outstanding job, to date, in working with Members on both
sides. I hope that we can continue to be responsive to the concerns,
both with the schedule as well as with the legislation. I am sure that
will be the case.
Finally, I thank all of those who voted in favor of tabling the
previous amendment. I commend the leadership on both sides who took the
active interest in enlightening us all about the importance of the
Disadvantaged Business Enterprise Program. I appreciate very much the
overwhelming vote we just had and, hopefully, at long last, it will put
this issue to rest.
Again, Mr. President, I share the sentiment expressed by the leader.
This is the time to move this legislation forward. This cloture vote
will allow us to do that. I am hopeful that we can have a good debate
on other amendments on Monday and have that vote Monday night so we can
complete our work sometime by the middle of next week. I have no
objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. I will note, Mr. President, that the chairman and the
ranking member have asked me to advise Members they are going to be
here for more time today, into the afternoon. They are open for
business. If Senators have amendments, particularly if they think they
will not be controversial and would like to get them considered,
perhaps accepted or get them in line to be considered, I hope Senators
will contact the chairman or the ranking member in the next hour. They
will be off the floor in a meeting for the next few minutes, but they
plan to stay here for several more hours to work on this bill.
I ask unanimous consent now that all first-degree amendments under
rule XXII be filed up to 1 p.m. on Monday and all second-degree
amendments by 5 p.m. on Monday.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. I understand that at 12 noon, approximately, Senator
Brownback will be ready to offer an amendment regarding rail banks. I
hope other Senators will come and be prepared to offer amendments and
have them considered one way or the other this afternoon. Would the
Senator from Iowa like me to yield?
Mr. HARKIN. If the leader will yield for a question. On the highway
bill, I am concerned the Banking Committee has to offer its amendment
on transit. I am concerned about the cloture vote on Monday night. Does
that cover the Banking Committee's provisions on transit, because some
of us who are concerned about rural transit may have an amendment on
rural transit depending on what the Banking Committee's amendment looks
like?
Mr. LOTT. I understand that amendment is being drafted, and we hope
to have that offered Monday. The Senator will have a chance to take a
look at it and be involved in it.
Mr. HARKIN. If the leader will yield further, but if they offer it on
Monday and the cloture vote is at, what time, 5?
Mr. LOTT. At 5:15, 5:30, and it could be even a little later,
depending on what is going on.
Mr. HARKIN. That would cover the Banking Committee provision.
Mr. LOTT. I think what we are saying is we hope to have the banking
issue done before we get to cloture. But if we can't get it worked out,
then we will try to work out an arrangement so the Senator's concerns
will be addressed. We would not want to foreclose that, let's put it
that way.
Mr. HARKIN. I appreciate that. I haven't had any amendments to the
underlying bill. Some of us from rural States may have an amendment
depending on what the Banking Committee comes out with. We won't have a
chance to look at it until Monday. I am concerned about having the
cloture vote without time to look at it and consider it with Members on
both sides of the aisle. That was my only concern on that.
Mr. LOTT. I will just say, again, I think the Senator has legitimate
concerns, and we will have to get an agreement to accommodate those
concerns, and we intend to do that.
Mr. HARKIN. I appreciate that.

amendment no. 1708

Mr. BYRD. Mr. President, I would like to briefly explain my vote on
the motion to table the amendment offered by my distinguished
colleague, Senator McConnell, to S. 1173, the Intermodal Surface
Transportation Efficiency Act. Despite my sympathy with the position of
Mr. McConnell, and despite my reservations about the Disadvantaged
Business Enterprise (DBE) Program, I voted in favor of tabling the
amendment.
Like many of my colleagues, I encourage small businesses--including
those owned by socially and culturally disadvantaged individuals--to
take an active role in bidding for federally funded highway
construction contracts. But, while I understand the goals of the DBE
program, as set forth in Section 1111 of ISTEA, I do not support
preferential treatment for certain businesses on the basis of the race,
ethnicity, or gender of their owners.
I believe that the Constitution, as amended by the 5th, 13th, and
14th Amendments, does not permit the government to discriminate or
differentiate on the basis of race, ethnicity, or

[[Page S1498]]

gender--regardless of whether the government's motive is malicious or
benign. If the precepts of ``equal protection'' and ``due process'' are
to mean anything, then they must ensure that no one in this country is
granted favorable or unfavorable treatment on the basis of some single
differentiating characteristic.
My reading of the Constitution is supported by the Supreme Court's
1995 decision in Adarand versus Pena. In that decision, the Court rules
that the DBE and other race-based affirmative action programs can only
be upheld if they are narrowly tailored to meet a compelling
governmental interest. This test, commonly referred to as ``strict
scrutiny,'' makes it exceedingly difficult for any affirmative action
program to pass constitutional muster. It should come as no surprise,
then, that after the Court remanded the Adarand case, a federal
district court judge found that the DBE program fails strict scrutiny,
and thus is unconstitutional. Indeed, it is worth pointing out that the
last time that the Supreme Court upheld a statute based on a racial- or
national-origin classification under the strict scrutiny test was in
1944.
In my opinion, the correct course of action is to award highway
contracts on the basis of cost, performance, and the most efficient use
of taxpayer's money. This merit-based approach is both fair and
constitutionally appropriate.
Despite these reservations about DBE, I also recognize that the
courts have not yet definitively ruled on the constitutionality of
affirmative action programs. The Adarand district court decision is
currently on appeal, and I look forward to further clarification of the
constitutionality of programs such as DBE.
Furthermore, while I support the McConnell amendment in principle, I
believe that further debate and scrutiny is necessary. This amendment
has not yet been subjected to the committee process, which is so
essential to determining the true merits and flaws of a proposal.
Before we replace the DBE program with an Emerging Business Enterprise
Program, we need to ensure that the replacement does exactly what we
want it to do. Otherwise, we risk hurting some small businesses through
rash, ill-considered action. For these reasons, I voted to table the
McConnell amendment.

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