We feared they were right, but we didn't know what to do. Discrimination against women and minorities was still a fact of life, and Clinton had always supported affirmative action, but reforming its excesses and eliminating some flawed programs seemed essential. Our opponents were already circulating killer anecdotes, like the story of the “minority tax certificate” administered by the Federal Communications Commission that amounted to a no-risk, multimillion-dollar windfall for a group of affluent African American lawyers fronting for white billionaire Sumner Redstone of Viacom. Try defending that in a legislative or presidential debate. Early in the year, Senator Dole had asked the Congressional Research Service to compile a list of all affirmative action efforts administered by the federal government, and we suspected it would uncover other programs that were functioning more like illegal quotas than legitimate equal opportunity outreach. Our challenge was to find a way to neutralize the Republican threat without abandoning our core principles, defending indefensible programs, or dividing the Democratic Party.
I wrote a memo to Leon volunteering for the job. Although it smacked of a no-win situation — another gays in the military that would end with everyone on all sides upset — I felt that I had nothing to lose. With my services as a general strategist to the president no longer in high demand, I needed something to do, and I still had enough self-assurance to believe that I was the person best equipped in the White House to balance the competing pressures at play. But I had another motivation too. From his Little Rock announcement speech, in which he had promised to stop the Republicans from stealing another presidential election by playing the race card; to his sermons in Memphis and Macomb County, in which he had appealed to black and white audiences alike without pandering to their prejudices; to his meditative campaign interview with Bill Moyers, in which he had vowed that race was the one issue that he would never compromise for political gain, Bill Clinton inspired me most when he spoke about race. Now his words and his principles would be put to a fierce political test. This could be a defining moment for him and our party. I had to be part of it.
Leon scrawled “Set up” across the top of my memo, so I convened a group of about twenty senior staffers from the White House and the Justice Department to begin the process of preparing a recommendation for the president. Although this was a preliminary staff meeting, the deliberations were fervid. For my African American colleagues around the oblong table in the Roosevelt Room that afternoon — Maggie Williams, the first lady's chief of staff; Alexis Herman, director of public liaison; Thurgood Marshall Jr., senior adviser to the vice president; and Deval Patrick, assistant attorney general for civil rights — this wasn't just another exercise in abstract policy making or political damage control. Each one of them had personally confronted prejudice and experienced affirmative action — both its benefits and its burdens. Affirmative action had opened doors of opportunity for them, and they were determined to use their influence to open other doors for millions more. A righteous presidential defense of affirmative action, they argued, was a political and moral imperative.
Just as passionate, however, were the “New Democrats” — Bill Galston, deputy domestic policy adviser; Joel Klein, deputy counsel; and John Schmidt, Webb Hubbell's replacement as associate attorney general. They argued that affirmative action was a good idea that had gone bad over time: Implemented in a rigid and inflexible manner, it was becoming just another form of discrimination, with severe moral and political costs. Being honest meant that we had to address the legitimate resentments of whites who felt punished for past wrongs that they didn't condone and hadn't committed. Presidential leadership, they insisted, required straight talk about where affirmative action had failed and how it needed to be fixed.
Sympathetic to both sides, I was torn, which made me an appropriate proxy for Clinton. That first meeting was unsettling. The surface debate was charged with suppressed suspicion and hostility, but it was still a relatively mild version of what the president would have to confront in our party and across the country. It was also exhilarating, combining moral urgency and the intellectual energy of a graduate seminar with the intense risk of a high-stakes poker table. We didn't know when, and we didn't know exactly how, but I think we all believed that our deliberations would set the stage for a presidential decision that would matter and be remembered.
All we agreed on that afternoon was the need for a major Clinton speech grounded in his “lifelong commitment to civil rights and equal opportunity.” We just couldn't reach consensus on what else to say. My notepad was filled with far more questions than conclusions: “What constitutes affirmative action now? Where has it worked? Where has it failed? What is the evidence? Have any forms of affirmative action done more harm than good? To whites? To minorities? If there are to be modifications, how should they be done?” Without answers, Clinton would never agree to give a speech; I also knew that getting accurate data from the cabinet departments managing the programs was a Sisyphean task. In my single best decision of the process, I recruited Chris Edley to do the job.
A tenured Harvard Law professor and associate director of the Office of Management and Budget, Chris was a brilliant policy analyst who liked to say he “grooved” on complexity and knew how to shake facts free from the bureaucracy. Though not close friends, we'd met during the Dukakis campaign and had worked well together when our paths had crossed at the White House. That he prided himself on facing hard choices head-on and that he was a black man with a sterling civil rights pedigree (his father, Christopher Edley Sr., had served as president of the United Negro College Fund) made him perfect for the job. Any Clinton recommendation for affirmative action reform, no matter how minor, would inevitably raise suspicions, if not provoke an outcry, in the African American community. Edley's presence would ensure and demonstrate that the process wasn't rigged.
Chris was wary of being used but unable to resist the challenge. Legal pad in hand, he prodded our group to ignore the politics, examine first principles, and ground our deliberations in “values and vision.” By now, that wasn't my natural inclination. Conditioned in a way I wasn't always proud of, I saw policy debates as political time bombs. My job was to disarm them before they destroyed us; it didn't much matter how. But Edley's academic rigor blew the dust off neglected parts of my brain, and I soon understood that, paradoxically, Chris's wonky idealism was also the most pragmatic approach. The two wings of the Democratic Party were flying in different directions, with Jesse Jackson threatening a primary challenge if Clinton didn't “stand firm” on affirmative action, and Senator Joe Lieber-man of the Democratic Leadership Committee declaring that racial preferences were “patently unfair.” Whatever the president decided, friends and allies would feel alienated, and critics and enemies would be armed with fresh ammunition. We had to make a plausible case to all sides that Clinton was acting for the right reasons. Affirmative action would be perceived as a test of the president's political character. To pass it he would need to prove that he was being true to the beliefs he had articulated and acted on all his life, and that his conclusions were based not on crass calculation but on principled analysis.
Opaque with both political anxiety and honest intellectual uncertainty, Clinton was in no hurry to address the issue. Since our relations were distant in early 1995, I wasn't even sure if he knew that I was managing the review. So I summarized our first Roosevelt Room meeting in a memo (“As you may know, we have established a working group …”) and attached a packet of his previous statements on civil rights, race, and affirmative action. The memo closed with a request for “more direction” for our strategy group. But I didn't hear anything back right away.
So, like the rest of the world, I plumbed his public statements for clues to his thinking. The message was clear: He wanted to keep his options open. At an early-March press conference, after surprising me by announcing that our nascent review was “almost done,” Clinton sent a shock wave through affirmative action supporters by suggesting that
we should move to an “alternative” based on economic need rather than race. But in other appearances he would proudly proclaim to be a “relentless practitioner of affirmative action” and declare that his goal was “to build support” for the programs. At the April convention of the California Democratic Party, he argued both sides in a single speech: “We need to defend, without apology … anything we're doing that is right and decent and just that lifts people up,” he declared, but he added that we Democrats must also empathize with the “so-called angry white males” and “have to ask ourselves: Are they [affirmative action programs] all working? Are they all fair?”
Unready to answer his own rhetorical questions, Clinton resorted to a relatively noble stalling tactic — study. He became more engaged over the course of the review. As I fed him a steady stream of position papers, monographs, and opinion pieces from various sides of the debate, he'd check them off and ask for more. Our core group would meet with him every week or so, and he seemed to enjoy the Socratic dialogues, asking the right questions (“What are the legitimate worries of those who don't get affirmative action?”), making pithy observations (“The definition makes all the difference: Preferences we lose; affirmative action we win”), and pondering the politics (“The Republicans think this is a silver bullet to destroy Democrats, a bird's nest on the ground. They think they gain either way — win or lose”). But even as he engaged in the internal debate, he was still equivocating. The decision memos stayed on his desk.
As frustrating as it was, I understood his hesitation. By May, the basic draft of our review was done, but the final presidential call was difficult. We were prepared to conclude that affirmative action was an effective tool to fight discrimination and promote diversity, and that the federal programs that focused on education and employment were generally implemented in a fair way. We had not found as many horror stories as we first feared, so rather than advocating wholesale changes, we recommended that the president issue a directive reasserting the “right way” to do affirmative action: no quotas, no reverse discrimination, no preferences for unqualified people. Our ideal model was the military, which aggressively recruited and trained minorities for advancement without sacrificing standards or resorting to quotas. When people thought about affirmative action, we wanted them to see General Colin Powell.
But we found problems with federal “set-aside” programs, which reserved a percentage of government procurement contracts for minority businesses. These programs had “worked” — in the sense that they had dramatically increased opportunities for minority-and women-owned businesses — and the overwhelming majority of government contracts — 97 percent — still went to nonminority firms. But the programs were often abused by scam artists who won the contracts by “fronting” for nonminority firms. In addition, as we wrote in our decision memo for the president, they were arguably unfair because “the practical effect of a set-aside is to take a contract and hang out a shingle saying, ‘Whites need not apply.’”The question was: Could the programs be reformed in a way that made them less like quotas or did they have to be eliminated? Our hope was that showing a principled willingness to jettison flawed programs would strengthen our defense of affirmative action in education and employment.
Just raising the idea of killing some programs created an uproar. In late May, an “administration official” leaked a draft of our review to the Times, along with the spectacularly unhelpful (and inaccurate) comment that “we want black businessmen to scream enough to let angry white males understand that we've done something for them.” Dozens of people had read the draft by then, and while I was surprised that we had survived so long without a serious leak, I was also furious. Now our efforts to put principle above politics looked like a lie. I figured the leaker was a clever bureaucrat executing a defensive maneuver against our threatened reforms, but the next day I found myself in a conference room of the OEOB with a group of successful black entrepreneurs who were blaming me.
The leaders of the delegation were Bob Johnson, the head of Black Entertainment Television, and Earl Graves, publisher of Black Enterprise magazine, accompanied by several lawyers who represented minority contractors. One by one, they chastised me for the Times article, and I tried without success to convince them that I was as upset at the leak as they were. But I really couldn't blame them for thinking it was me; after all, I was the “white boy” running the review. I also knew, of course, that their real worry wasn't the article itself but the potential policy change it reported. What really ticked me off, though, was when one of the attorneys, B. J. Cooper, played victim.
“When this is all said and done,” he said, “Chris will go back to Harvard and be a law professor; George will go to Hollywood and make a million dollars.” Cool. “But where will we be?” Oh, I don't know. Graves and Johnson will scrape by on their $100 million fortunes. You don't seem to be starving, either. But what's more important? Your contracts or protecting the rest of affirmative action — the part that helps the kids who really need it go to a good school and get their first job?
I held my tongue, but their distemper was another excuse for delay and deliberation — especially since the Supreme Court was about to decide on a constitutional challenge to minority set-aside programs. Its ruling in the Adarand case would trump Clinton's decision anyway, so why take the political heat now? Being principled was one thing, but there was no need to be reckless. Edley and I joked that the president's new task force on affirmative action was now “nine guys in black robes.”
The June 12 ruling in Adarand wasn't definitive. Although it found that federal minority contracting programs needed to be reviewed and reformed, it didn't explicitly prohibit them. Instead, Justice Sandra Day O'Connor's 5-4 opinion set a tougher constitutional standard, saying that set-asides could survive “strict scrutiny” only if they were “narrowly tailored” and served a “compelling governmental interest.” At first, I thought it was the worst of all worlds: The Court had cast doubt on affirmative action without finding it unconstitutional, and it was throwing the problem back to the other branches of government. Bob Dole and other conservatives cited the decision as “one more reason” to eliminate affirmative action, saying that the programs did not serve a “compelling governmental interest” because they discriminated against nonminorities. But echoing the sentiments of the Congressional Black Caucus and our other allies who supported affirmative action, Jesse Jackson argued that the new constitutional standard could easily be met and called Adarand a “racist” ruling that had to be resisted. Not surprisingly, views inside the White House mirrored that tension.
The day after the ruling, Edley and I were working on the president's statement along with Deval Patrick, Maggie Williams, and Alexis Herman at the conference table in Chris's spacious, high-ceilinged OEOB office. Deval and Chris had penned a draft that coupled an analysis of the decision with some pointed criticism of the majority opinion. Not quite as strong as Jackson's statement, but a little tougher than I thought prudent. From a brief discussion between budget speech drafting sessions earlier in the day, I could tell that Clinton didn't want to go that far. He didn't say much, just gave me a hassled glare while complaining that he needed more time to read and think. To be safe, I toned down the statement. When I looked up, Edley was in my face, his eyes fired with accusation: “At every point in this process,” he seethed, “whenever an African American appointee starts to push for something, George, you take it away.”
Oh, now I'm the racist. If you only knew what I'm dealing with back there. Morris is telling Clinton to praise the damn decision. If we go too far in the other direction, the president will discount our advice. We have to take what we can get.
“Listen,” I shot back, my voice rising for the first time in our partnership. “I'm just trying to protect the president. He's not ready to go that far.” Chris could see that I was stung by his suspicion, and he apologized. Soon we were joking about it. “Every time I bring up affirmative action in front of the pre
sident,” I said, “he develops this sudden urge to go to the bathroom.” “It's true. It's true,” laughed Alexis. The rest of the day, all I had to do to relieve the tension was say the word bathroom.
After consulting with constitutional scholars like Harvard's Laurence Tribe and Walter Dellinger from the Justice Department, we finalized a relatively neutral presidential statement that praised affirmative action when “done the right way” and added that the Adarand opinion “is not inconsistent with that view.” We also came to see that our final decision had been made by the Court. To comply with Adarand, the Justice Department would be required to review all federal affirmative action programs and subject them to a stringent constitutional test; many — maybe most — would not survive. The greater danger now was not affirmative action's excesses, but its potential evisceration. With the Supreme Court mandating sweeping reform of how affirmative action was practiced, the president was now free, indeed obligated, to mount a vigorous defense of its underlying principles. Politically, delay worked — as if Clinton had planned it all along.
Of course Morris wasn't satisfied. High on his budget victory, he saw the Adarand decision as another occasion for triangulation — the second half of a one-two punch. His goal was a presidential speech exactly one week after the budget address. His script would have Clinton leap over the Court's ruling by launching a preemptive presidential strike against set-asides and declaring that affirmative action must be replaced by a system based on “class, not race.” His hope was to draw Jesse Jackson into the 1996 presidential race. “I want Jackson to run for president as an Independent,” he told me.
All Too Human: A Political Education Page 42
