| There are several basic modes of
"Clinton Competition" under this DBE program: [1-Outright Set-Aside]
[2-Subcontracts]
[3-NEW Moving Target]
| METHOD 1: The outright set-aside and
so-called limited competition. This method of "Clinton
Competition" reserves a percentage of the DOT budget exclusively for minorities and
women (DBE's) without the DBE having to compete against those evil, nasty,
oppressive white males. Frequently, the DBE does not have to compete against
anybody and is simply given the contract! |
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White, male-owned businesses are specifically excluded even from the possibility of
competing for these DOT contract funds. Under some circumstances, one minority firm
(or DBE) may have to compete against another DBE. (White-male owned firms enjoy no
such protected "competition" -- DBEs are free to compete for the other,
non-set-aside contracts as well while white guys are prohibited from bidding on the
set-aside contracts).
Previously, most of the government's racial set-aside contract programs were administered
under a statutory provision of the federal regulations governing the U.S. Small Business
Administration. The federal regulation is known as Section 8(a), after its
designation in the U.S. Code of Federal Regulations. The Section 8(a) program (still
alive and well), specifies that if a minority-owned business could demonstrate that it
cannot win a contract in competitive bidding because of its inexperience, it is de facto
qualified to be given that contract without competition!
Clinton and DOT (as advised by Bill Lann Lee and DOJ) have been quietly reducing the
number of outright set-asides because they pose so many Constitutional and legal issues,
and because so many of them have been overturned upon judicial review! (Up until the
early 90's, this form of minority set-aside was the dominant, most popular form.)
The Clinton administration has also mounted a "diversionary" strategy to embed
racial quota programs in ALL federal agencies instead of in one central agency like the
SBA. This makes the existence of such programs harder to track down and more
difficult to publicize. Clinton's DOT initiative is a prime example of this
diversionary strategy.
[1-Outright
Set-Aside] [2-Subcontracts]
[3-NEW Moving Target]
| METHOD 2: The White Contractor - DBE
Subcontractor Guarantee. This method of "Clinton
Competition" means a nasty, evil white-male owned business may actually hold
the prime contract for a DOT project, but they can do so only with the proviso that
(a) a certain percentage of that work be subcontracted to government-certified DBE's;
and/or (b) the evil, white-male owned business has to hire on its staff a certain number
of minorities and women. |
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Method 2 has the appearance of not being as blatant as Method 1, and the legal challenges
tend to occur less frequently because, hey, the white guy is actually making some
money on the deal, even if he has to submit to federally imposed racial quotas! As
with most of Clinton's initiatives, it is an effective vote-buying gambit, or at least an
effective means of economically extorting acquiescence.
[1-Outright
Set-Aside] [2-Subcontracts]
[3-NEW Moving Target]
| METHOD 3: The "Moving Target Minority
Goal". Method 3 actually embodies what Clinton later
refers to in his press release as "constitutional" race-based DOT set-aside
programs. |
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In an attempt to avoid judicial scrutiny of these set-aside programs, Clinton and DOT
(indeed, the entire federal government at Clinton's direction) have (allegedly) examined
every business category and industry classification in the country to determine whether
"there are lingering effects of past discrimination within specific industries"
and / or to determine "if DBE's within specific industries are 'participating' in
proportion to their numbers in the general marketplace". The result of this
not-very-objective analysis provides the basis for Clinton's "moving target minority
goal". The beauty of it is that it can change day-to-day and year-to-year, and
from city to city! If, for example, DOT is successfully challenged on use of these
racial set-asides in court, they can say: "Oops, Judge, we guess that industry
segment / city doesn't have as much lingering discrimination as we previously
thought. We will correct our numbers and won't do it again." It is
actually a very clever idea if you think like Bill Clinton does.
It is Clinton and his Justice Department's vain hope that this method will establish a
so-called "compelling government interest" in imposing racial quotas or
'participation goals' for DBEs. In this way the Clinton administration hopes to use
statistical sleight of hand in order to have the appearance of meeting the Supreme
Court's extremely demanding "strict scrutiny test" for race-based
programs.
Note on the Strict Scrutiny Test:
In the landmark Croson and Adarand decisions, both of which dealt with
government-imposed reverse discrimination and racial set-asides, the Supreme Court
established a "strict scrutiny test" which requires that any government program
that makes racial distinctions must be "narrowly tailored"—using the means
that are the least intrusive necessary—to achieve a
"compelling" governmental interest.
It should be noted that since the 1940s, not one legislatively or administratively created
racial preference program like Clinton's (as opposed to a judicially created remedy) has
been upheld by the Supreme Court. The only racially discriminatory action ever
upheld under the the high court's strict scrutiny test has been the Court’s shameful
acceptance of the internment of Japanese Americans during World War II.
[1-Outright
Set-Aside] [2-Subcontracts]
[3-NEW
Moving Target]
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