At the end of September, the multi-billion dollar program authorizing federal spending on transportation projects expired after six years. Known inside the Beltway as “ice tea,” the Intermodal Surface Transportation Efficiency Act (ISTEA) is the Mecca of all bills for transportation lobbyists. A few months ago, it seemed things would proceed according to the standard pork process. Then a funny thing happened. A few members of Congress, led by Senator McConnell (R-KY) and Representatives Canady (R-Fla.) and Hutchinson (R-Ark.), introduced a bill that would actually comply with the Equal Protection Clause and recent Supreme Court precedent. It seems these members chose to take their oaths to uphold the U.S. Constitution seriously.

The U.S. Supreme Court ruled that blanket affirmative action programs that grant preferences to contractors based on race or sex are unconstitutional, clarifying that such programs must be narrowly tailored to meet a specific and compelling state interest. The old ISTEA law contains a provision that mandates at least 10 percent of the contract dollars in ISTEA projects (which covers everything from highway maintenance to mass transit) go to businesses designated as Disadvantaged Business Enterprises (DBEs). This is where the set-aside shenanigans start.

An inquiry into what it means to be a DBE refers one to the Small Business Act. According to the SBA, to qualify as a DBE, you must meet two requirements: you must be economically and socially disadvantaged. The economic threshold is straightforward, though perhaps ripe for subterfuge; a business owner must have less than $750,000 in assets, not including those he may have invested in the business. More troubling is the second provision, the socially disadvantaged component.

It turns out that if you fall into one of almost any ethnic or racial category you can think of – except white – or you’re a female, you are presumed socially disadvantaged. Administrators at the Department of Transportation and the SBA are quick to reassure that if one does not fall into a listed category, individuals are welcome to come before state contracting agencies and present a case of personal historic disadvantage. Protests of open-mindedness aside, backdoor acceptance to DBE status is extremely rare. This statute-buried trail to the real and divisive facts of the program is typical of all affirmative action programs – the devil is always in the details.

The presumption of social disadvantage based on race and sex is the same mentality that gave us two-tiered admissions systems at state universities. It’s also the very principle that the Supreme Court ruled a violation of the Constitution’s Equal Protection Clause in Adarand. For if one group is favored over another – all rhetorical flourishes aside – we violate a fundamental moral principle, and real people get hurt. As Ward Connerly often says, moral principle trumps social idealism every time.

Debate in the Senate over ISTEA is slated to begin October 7, and Senator McConnell will introduce an amendment to strike the 10 percent set aside. He will hear cries of “foul” from groups like WomenFirst (a consortium of women-owned businesses in the highway and transit industries who are apparently afraid to compete in an open market process where the lowest bid prevails). Remember, all of us as taxpayers – men and women – are the ones paying when a contract goes to a higher bid. But Senator McConnell should prevail, because this amendment is not ultimately about guardrails or contract dollars. It is about how we want to define ourselves as Americans. The Senator is right to move us back to the principles of individual rights established by the U.S. Constitution.

– Katherine Post

Director of the Center for Enterprise and Opportunity