Washington. On "Meet the Press" June 2, House Majority Leader Richard Gephardt was denying that the Democratic civil rights bill is TC "quota bill," as President Bush has charged. NBC's Tim Russert pressed him: "if you're a small-business owner, the obligation is on you to prove that you're not discriminating."
This is the rap on the civil rights bill: that it requires employers to justify employment standards that have a "disparate impact" on minorities and women and that employers will simply practice reverse discrimination to avoid the hassle.
Not one television or newspaper discussion in 20 on the "quotas" controversy has troubled to point out that Mr. Bush's alternative bill would also shift the burden of proof to employers. The only difference on this key point -- the crux of the whole "quotas" argument -- is over what the employer is required to prove: "a significant and manifest relationship to . . . job performance" (Democrats) versus "serves in a significant way . . . legitimate employment goals" (Bush).
Yet Mr. Bush has managed to paint this as the difference between vile quotas and noble civil rights.
Two years ago, when the Supreme Court produced the ruling, putting the burden of proof on the complaining employee, that both bills would overturn, conservatives celebrated a victory over reverse discrimination. Yet not one Republican or conservative that I'm aware of has attacked Mr. Bush's bill for promoting quotas. They're enjoying the partisan advantage too much to muddy the waters.
On another noisy difference between the two versions -- punitive damages -- the Republicans argue with perhaps some justice that the Democratic version's generosity will encourage too much litigation. But Republican sincerity is suspect here since, on a different matter, their version would permit endless re-litigation of civil rights court decrees, which the Democrats would not.
More important, this punitive-damages fuss has nothing even arguably to do with quotas, since the disputed provision only applies to cases of purposeful discrimination proved in court, not to statistical disparities. There can't be two citizens in a thousand among those exposed to all the "quota" rhetoric who are aware of this point.
The Republican marketing of the quota issue has been brilliant and despicable. It is Willie Hortonism redux. Not that anyone who prefers one version of a civil rights act to another is necessarily racist. But Hortonism isn't racism. Hortonism is the cynical concoction of a divisive issue in the political laboratory for narrow electoral advantage. Hortonism has certain familiar features.
First, it is inflammatory but essentially beside the point. Prison furloughs? The Pledge of Allegiance? It's absolutely true, as conservatives keep noting, that fiddling with job discrimination law won't solve the real problems of family, education, crime, drugs that ail black America. But the proponents of this mild palliative are not the ones who have made it Topic A on the political agenda. The law would have been enacted without fuss last year if someone hadn't vetoed it with a huge flourish. It is Mr. Bush and company who are out to convince Americans that discrimination in favor of blacks and women is our leading social malady.
A second feature of Hortonism is that complicating details can be counted on to melt away. The press cannot annotate every reference to "[Michael] Dukakis' furlough program for murderers" with the information that it was initiated by his Republican predecessor and 42 other states had one, too. Nor can reporters explain every time Mr. Bush uses the term "quota bill" that the dynamics of his bill and the Democrats' regarding statistical disparities are almost exactly the same.
Third, comfort is available for sophisticates who might otherwise be bothered by the trivia and demagoguery. The narrow controversy is held to be symbolic of larger issues: crime, patriotism, fair play. And there are factual return volleys, turning on the difference between furloughs for murderers sentenced to life with parole and furloughs for murderers sentenced to life without parole; or the different legal implications of the word "significant" and the word "manifest." The lie is that these distinctions are what the issue is really about, or that they even begin to justify the symbolic weight they're given.
Hortonism above all means creating a bogey, a Great Other -- criminals, liberals, the ACLU, Harvard Yard elitists, "beltway interest groups"-- a "them" on the other side of some great divide from "us." For a politician like George Bush, this serves two purposes.
First, it masks some problematic reality: that he is a Yale aristocrat, that he actually has no interest in challenging 95 percent of what postwar liberalism achieved without his help, that the difference between his civil rights bill and the one he disparages is infinitesimal. Second, it plays on the insecurities many people feel these days about their jobs, their families, their middle-class prosperity. And it does so while distracting them from asking who's been running the country since 1980.
TRB wrote this commentary for The New Republic.