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Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users

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Location: Washington, DC


SAFE, ACCOUNTABLE, FLEXIBLE, EFFICIENT TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS -- (Senate - July 29, 2005)

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Mr. KERRY. Mr. President, I would like to take a moment to reiterate my support for the Department of Transportation's Disadvantaged Business Enterprise, DBE Program. This program is an effective tool used by the Department of Transportation to make real the promises of our Founding Fathers and the fundamental values of our Nation: economic opportunity, equal opportunity, a chance to be able to share in the remarkable assets of our Nation.

The DBE Program is a much needed program. It is an essential tool in combating the continuing effects of discrimination in the highway construction industry and in creating a level playing field for all businesses. It accomplishes these goals in a completely constitutional way without establishing quotas and, whenever possible, enhancing contracting opportunities in race and gender neutral ways.

Let me explain how the DBE program works. In past debates, my colleagues in the Senate have criticized the program for lacking flexibility. This is simply not true. Mr. President, this is not a quota it expressly prohibits quotas. This program offers a set-aside of a specific amount of money, but there is no specific direction as to who gets that amount of money. There is no quota of numbers of women, no quotas of numbers of particular races. It is open to any disadvantaged business enterprise. And, while we set aside a very specific sum of money, the money is not allocated with specificity.

This program is intended to help level the playing field for businesses owned by individuals who have historically suffered discrimination in Federal contracting based on their gender, race or ethnicity, and who continue to suffer as a result of that discrimination. To ensure that these firms receive their fair share of Federal contracts, Congress set a national goal. I reaffirm that it is appropriate in this country to set national goals for what we will do to try to break down the walls of discrimination, the barriers against equal opportunity, in order to give people an opportunity to share in the full breadth of the upside of the economy of our Nation. The goal for each agency, including the Department of Transportation, is negotiated on an annual basis, allowing the flexibility that is so desired.

In addition, the DBE Program is very flexible. It allows each State to respond to local conditions. In the implementation of the DBE Program, the Secretary of Transportation has the authority to increase, decrease or even waive the DBE goal where it is not possible to achieve the goal in a particular contract or for a given year.

Many opponents to this and other programs aimed at offering assistance to disadvantaged business owners often argue that it is inconsistent with the Supreme Court's decision in Adarand v. Pena which required that affirmative actions programs, such as this one, be ``narrowly tailored'' to serve the Government's ``compelling interest.'' It is clear that rectifying past discrimination is a compelling Government interest. And, I believe that the flexibility I described above demonstrates that program is narrowly tailored to achieve that interest. In fact, it has been upheld by every court that has reviewed it.

It is the duty of Congress to use whatever means available to this body to enhance competition on federally funded projects by promoting equal opportunity and the full participation of all segments of the community in a marketplace environment that is free from the effects of past or present discrimination. The reality is that those effects, those inequalities and those injustices still exist. Justice Sandra day O'Conner, who penned the Supreme Court's majority opinion in the Adarand decision, stated, ``the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it.''

Many of the firms that have been able to use the program, the women-owned firms or minority-owned businesses, literally would have been excluded from doing so altogether were it not for the DBE Program. Arguments against these programs often point to the possibility of firms being excluded for other reasons such as size, experience or specific qualifications necessary. However, the reality in America's history is that the individuals running these disadvantaged firms often do not meet these standards because they were prevented from doing so by a lack of access to capital, training, or even blatant discriminatory Government policies. As the Congress, and this body in particular, has upheld in numerous debates, the Federal Government has an affirmative obligation, both a statutory one and a moral one, to make certain that we are going to do something very specific to respond to that kind of discrimination.

Mr. President, time has shown that the DBE Program works. It is a program that meets constitutional muster. It is a program that has a rational, national compelling interest. I am happy to reiterate my support for this essential program that has served an enormous benefit to countless minority- and women-owned businesses in the country. Thank you, Mr. President.

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