Last year congressional Democrats went the last mile in negotiating with the Bush administration on a new civil rights bill. The aim of the bill was to undo what several recent Supreme Court decisions had done to previous laws and court decisions in the field of job discrimination. Still President Bush vetoed the bill on the grounds that it was "a quota bill." We don't think it was. Neither did several moderate Republicans in Congress. However, party loyalty swung enough of those behind the president to uphold the veto.
Democrats in the House of Representatives have re-introduced the old bill without the compromises. Some Democratic senators are said to be working on a bill similar to the House Democrats' version. The administration and congressional Republicans are pushing a bill that doesn't appear to meet Democrats even near halfway. This looks very much like the beginning of a replay of 1990, and as we read the election returns from last year we conclude that the Democrats have no chance of winning this fight.
So surely the time has come to enact whatever law both sides can agree on and continue the fight on what they disagree on another day.
One way to do that would be a bi-partisan bill based on the principles of the Progressive Policy Institute's recent paper by Will Marshall and Bert Brandenburg, "Ending the Deadlock, a Progressive Solution to the Civil Rights Stalemate." The PPI is a sub-unit of the Democratic Leadership Council, an organization of moderate to conservative Democrats. The authors propose legislation based on the following:
Let judges rather than juries award damages to victims of intentional job discrimination. Cap compensatory damage awards. Establish flexible trial guidelines for cases in which employers are accused of discrimination based on statistical disparities. Let challenges go to trial even if based only on a "plausible link" between employment practices and such disparities. Review affirmative action settlements every five years and permit "reverse discrimination" challenges at those times and only at those times.
Such an approach would not solve all the problems the Supreme Court created in this field, but it would probably solve the most serious ones.
The biggest problem promptly enacting such a compromise bill would solve is the political one. As was seen last year, fighting over this sensitive issue can result in heated feelings and inflammatory statements. America feels good about itself right now (in large part thanks to its most racially integrated institutions). Why spoil it with a divisive debate on this issue?
Surely there are some Democratic members of the DLC, some liberal Democrats and some Republicans who are willing to work together on such legislation. We believe it would pass overwhelmingly in the House and the Senate and be signed by the president.