All Too Human: A Political Education (57 page)

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 president,” 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.

“What are you, nuts?”

“No, I polled it,” he replied. “If Jesse runs it will cost us three points with blacks but open up fifteen percent of white voters” who would never even consider voting for Clinton without Jackson in the race.

Thankfully, the president dismissed this Morris brainstorm. He'd had his fill of triangulation for a while. “I hope the Court decision will make this a less virulent issue,” Clinton said a few days later; and he finally authorized us to finish the report and prepare a speech that would say: “Here are my principles …” and “Here's what works …” We scheduled it for July 19. While Edley polished our official report, I devoted the final month to getting the politics right. In the wake of the double assault of
Adarand
and Clinton's balanced-budget speech, unifying the Democrats was not only politically prudent, but, at least to me, had become a matter of principle — solidarity. I wanted the president to demonstrate fidelity to long-held beliefs and loyalty to longtime friends, and I wanted to be on the side of the underdogs; I wanted the Democrats to praise Clinton, not rage at him — to feel inspired, not betrayed.

I also wanted Clinton to be reelected. Remembering the rule that primary challenges almost always cripple incumbent presidents, I was convinced we'd lose if Jackson ran. To feel him out, Harold and I paid Jesse a courtesy call at the Rainbow Coalition headquarters near K Street. Maybe it was the daylight hour and the downtown offices; or the numbing rush of intervening events and the fact that I was four years older, a little jaded, and more of a principal; but that first Clinton-Jackson summit now seemed like a scene from another life. This session was cordially corporate, less dramatic but far more direct. Sitting beneath a huge wall map of the United States marked with each state's filing deadline for an Independent slot on the presidential ballot, Jesse rehearsed speech riffs (“If we can use goals, targets, and timetables to get fair trade with Japan, we can use goals, targets, and timetables to get a fair shake for our own folks. That's what affirmative action is all about”), and he delivered his bottom line (“I'm not moving one inch on set-asides”). If we went beyond the
Adarand
decision, he'd be calling Bob Johnson and Earl Graves to finance his presidential run. Dick might get his wish after all.

From there I made the rounds, giving briefings on our review and getting suggestions for the president's speech. Emulating the style of my old boss Dick Gephardt (who had earned the admiring nickname Iron Butt for his ability to sit through as many meetings for as many hours as it took to reach a consensus with his colleagues), I visited all the House caucuses — blacks, women, Hispanics, Asians, and the “Blue Dog” conservatives. I had small group sessions with cabinet secretaries and one-on-one discussions with influential senators like Bill Bradley and Pat Moynihan (who told me how he'd helped draft Lyndon Johnson's famous Howard University speech on affirmative action back in 1965). Outside the government, I balanced our running contacts with the liberal civil rights community by reaching out to my old adversaries in the DLC. In each meeting, my message was the same: The president would defend affirmative action;
Adarand
would do the job of reform.