Fairness to Veterans for Infrastructure Investment Act of 2015

Floor Speech

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Ms. NORTON. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, flags throughout the Nation are at half staff, and, coincidentally, we have just celebrated our own Veterans Day. We particularly feel that celebration here in the District of Columbia where we have served our country since it was created and still have no vote on this floor, even though the residents of the city I represent pay the highest taxes per capita of any residents anywhere in the United States, including our veterans, who continue to go to war without a vote.

But this afternoon, Mr. Speaker, in the wake of Veterans Day, the House is considering several bills that will benefit the Nation's veterans. I strongly support much of this legislation. I believe that many of these bills will pass the House without a single dissenting vote.

Regrettably, that is not the case, Mr. Speaker, for H.R. 1694, which I cannot support because, as currently drafted, it may cause destructive harm to the Department of Transportation's Disadvantaged Business Enterprise, or DBE, program, which helps combat historic discrimination against women and minority-owned small businesses.

The DBE program helps level the playing field and provides an opportunity for these small businesses to fairly compete for highway and transit construction contracts. Regrettably, this bill could destroy the entire program, taking everything down with it, including the veterans it purports to add.

The U.S. Supreme Court has been very clear in determining that the DBE program must be subject to the highest standard of constitutional review by the courts, known as the strict scrutiny test, to be constitutional. Under the strict scrutiny test established by the U.S. Supreme Court, the DBE program must be narrowly tailored to serve a compelling governmental interest.

To meet these objectives, State Departments of Transportation and public transit agencies must certify individual DBE businesses and conduct extensive disparity studies to determine the appropriate goal for awarding contracts to the small businesses owned by women and minorities in a particular community or State. That is a very rigorous standard.

The bill before us today, however, adds all veteran-owned businesses without the constitutionally mandated study. I emphasize that service-connected disabled veterans are and always have been included. They are a narrowly tailored group of veterans. However, the change offered today threatens the constitutionality of the existing DBE program because it would no longer clearly meet one of the two essential elements of the Supreme Court test.

The most important is that the program be narrowly tailored to address the continued effects of discrimination, which the disparity study must have already shown. Thus, although the bill has a worthy objective, it has an unintended consequence of threatening the very program designed to help level the playing field for small businesses owned by women and minorities and, as would happen, veterans as well. It just would blow up the whole program.

The gentleman from Maryland (Mr. Cummings) and I have met extensively with the gentleman from Pennsylvania (Mr. Fitzpatrick) to outline these concerns. Mr. Cummings and I, in response, developed an alternative approach to create a veteran-owned business enterprise program within the Department of Transportation. Under that program, there would be a national goal to ensure that veteran-owned small businesses receive highway and transit construction contracts. Moreover, this program would not undermine the constitutionality of the existing DBE program.

Mr. Cummings and I introduced that bill earlier today, and I had hoped, in the spirit of compromise that is necessary to save the program at this point, we could proceed with that compromise proposal that would achieve all of our objectives: Mr. Fitzpatrick's objectives and the objectives that have been in the bill since the 1980s. Regrettably, we have not yet reached any such agreement on this approach with the gentleman from Pennsylvania prior to today's consideration of H.R. 1694.

I urge my colleagues to join me in opposing the bill.

Mr. Speaker, I reserve the balance of my time.

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Ms. NORTON. Mr. Speaker, I do want to note that the gentleman is correct that women are covered. They are already covered. One-third of those covered under the DBE category of minority and ethnic groups are minorities. So we do have large numbers of women and minorities covered, and the disparity studies have been done as to them.

No disparity studies have been done as to veterans as a whole. If the gentleman wants to do such a study, we invite him to work with us in doing a disparity study on veterans rather than blowing up the whole program.

I now yield 4 minutes to the gentleman from Maryland (Mr. Cummings), a member of the committee and my good friend.

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Ms. NORTON. Mr. Speaker, I yield myself such time as I may consume.

The gentleman said there haven't been enough meetings. I met with the gentleman more than once and then wrote an extensive memo on the problems with the bill.

You just can't divide veterans the day after Veterans Day. You can't divide this House on the question of veterans, not when we have offered an entire program for veterans.

So I don't know what is so sacred about being in this particular program. In fact, the gentleman mentioned that minorities and women were not, in fact, meeting all of their goals. Therefore, some of those goals are left on the table.

That is a very important point. Because being a minority or a woman is not enough to qualify you for this--and I don't even want to call it a set-aside for this goal is not a set-aside. So these minorities and women have to show equivalent skills with others who are competing. It is not an easy thing to do.

So it is not a question of whether there are some leftover points to be picked up by veterans. The DBE program has 30 years of history in the United States Supreme Court.

Mr. Speaker, even with that history, every time this bill is passed the DBE program is challenged. Each time the Justice Department, under Democratic and Republican Presidents, have defended it as a narrowly tailored program.

Recognizing that history and the strict, narrowly tailored standard, the gentleman was offered a way for veterans to, in fact, be recognized in transportation and infrastructure programs.

He was offered a way that is probably even better than the program that unites minorities, women, and, I might add, service-disabled veterans, who are a narrowly tailored group that is already included.

But instead of accepting this offer, he has decided he wants to blow up the entire DBE program for veterans and everyone else. We can't agree to such a destructive approach, particularly when we have offered the gentleman a way for veterans to be recognized.

Mr. Speaker, I reserve the balance of my time.

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Ms. NORTON. Mr. Speaker, I yield myself such time as I may consume.

The gentleman mentioned 5 years that he has put into his bill. His party has been in power the past 5 years. As far as I know, he never asked for a hearing so that these issues could be clarified. I am sure that, if he had, we might have been able to iron this out.

Even without a hearing, based on what the Supreme Court has said, we have no choice but to oppose the bill as he has offered it, in not differentiating among the veterans he is speaking about, but putting in a global group, which has never been done or approved.

We have barely been able to get the Supreme Court to agree to let such programs prevail, but we have always succeeded in getting the Court to understand that past discrimination has been shown through disparity studies. Without any disparity studies, the gentleman from Pennsylvania means to march straight up to the Supreme Court and say: We are veterans. Approve us anyway.

Nobody opposes veterans, particularly at this time, following what we have seen in Paris. The way to make sure that veterans are not left out is to sit down with us and figure it out, not to barnstorm the floor in the hope that, since you are in the majority, it will pass.

Mr. Speaker, I reserve the balance of my time.

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Ms. NORTON. Mr. Speaker, I yield myself such time as I may consume.

This is the first time I have ever heard a Member from the majority say that a Member from the minority should have asked for a hearing on his bill. If you are in the majority and you want a hearing on your bill, that is your obligation.

Mr. Speaker, I yield to the gentlewoman from Florida (Ms. Brown), my good friend, for the purpose of a colloquy.

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Ms. NORTON. I thank the gentlewoman for her question.

Unfortunately, there is some very rough history to prove what needs to be done. It is not as if we are speculating on what the constitutional standard is. The constitutional standard has been developed. The States have to do their disparity studies all over again to show that groups should still be included. Some groups may fall out.

This is delicate work, and in our constitutional government, we don't say every worthy group should have a preference. We need to make a showing, and if that showing isn't made, then the matter will not stand.

If you want to give a very, very painful example of that, let's take the Voting Rights Act. The Supreme Court of the United States overturned, about 5 years ago, the Voting Rights Act.

Guess why, Mr. Speaker? They said there had been some changes, and that people of color could now vote, as they couldn't always vote when the Voting Rights Act was passed. And so they threw it back to this Congress, and said: All right, you can have a Voting Rights Act but you must update the Act to show that there is still a disparity in voting. There are pending now three bills in order to do that.

But if the Supreme Court did that on the Voting Rights Act, where the discrimination was perhaps the most apparent, from poll taxes to lynching, you can imagine where we would be on DBE, and we have got 30 years of court history to show it.

We all want to do the best that we possibly can for our veterans. The way to do that is to sit down and design a bill that would, in fact, pass constitutional muster. We know how to do it.

This is not a matter of the ego of whoever introduces the bill. It is a matter of how you make sure that veterans, in fact, are designated, in a constitutional way, for participation in the soon-to-be-signed-by-the-President surface transportation bill.

Mr. Speaker, how much time do I have remaining?

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Ms. NORTON. Mr. Speaker, we have done the best we could for our veterans in speaking for this bill today. We remain open to assuring that the veterans participate in the funds that are about to come from the transportation and infrastructure bill.

I yield back the balance of my time.

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