Exclusionary Rule

Something's not kosher about Davis-Bacon.

(Page 3 of 3)

Another way to launch a legal attack on Davis-Bacon is to argue that repealing the law would be a race-neutral way to encourage minority participation in government construction contracts. Ralph C. Thomas III, executive director of the National Association of Minority Contractors, says Davis-Bacon hurts minority contractors in several ways. Most minority-owned construction businesses are small and nonunion, so their manpower structures don’t follow Davis-Bacon requirements, which are based on union structures. They also cannot afford the staff that would be required to meet Davis-Bacon’s cumbersome record-keeping rules.

Race-conscious construction set-asides—the usual way of making room for minorities on government projects-have been among the most controversial issues to come before the Supreme Court. In various decisions, both upholding and striking down such set-asides, the Court has said repeatedly that race-neutral remedies are constitutionally preferable to race-conscious remedies. Most recently, the Court made this point in the 1989 case City of Richmond v. Croson. The U.S. Court of Appeals for the Ninth Circuit, in an opinion written by Judge Alex Kozinski, has gone even further, holding that race-neutral remedies must be tried before race-conscious remedies are resorted to.

Based on Kozinski’s version of the “least restrictive means” test, Congress must try eliminating Davis-Bacon as a race-neutral way to promote minority contracts. Only if repealing Davis-Bacon fails to improve the lot of black contractors can Congress adopt a set-aside program. An attack on Davis-Bacon could come from a white plaintiff challenging construction set-asides. Or a black plaintiff could argue that as long as the set-aside law stands, all racially neutral remedies must also be in place to minimize the need for quotas and the stigma they impose.

If Davis-Bacon is overturned, however, about 30 states and many localities will retain prevailing-wage laws, even though those laws have the same pernicious effects on minority workers and businesses as Davis-Bacon. Some of those laws could, of course, be subject to the same legal challenges as Davis-Bacon. Even without such a challenge, these statutes are becoming rarer. Constrained by tight budgets and lobbied by the fast-growing nonunion construction sector and local minority activists, a dozen states have repealed their prevailing-wage laws. The decline of construction unions’ economic and political power explains their desperate bid to extend prevailing wage laws to private construction in jurisdictions where unions still have clout. Legal challenges have been filed everywhere such legislation has passed.

In the long run, whatever the outcome of the court challenges, few places are likely to extend prevailing-wage requirements to the private sector. While these laws help unionized construction workers, they ultimately drive away businesses that employ other local residents. Meanwhile, the existence of such rules is a testament to the continued willingness of unions to play on prejudices against minorities and the poor in order to benefit their members.

David Bernstein is a recent graduate of Yale Law School.

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