Jesse Helms and the “quota” ad

Former Senator Jesse Helms, the great anti-Communist, has died. This will prompt Democrats and liberals to decry the famous ad Helms ran during a Senate race in 1990 in which Helms’ opponent was an African-American. The ad showed a white male receiving a rejection letter. The narrator said:

“You needed that job. And you were the best qualified. But they had to give it to a minority because of a racial quota. Is that really fair? Harvey Gantt says it is. Gantt supports Ted Kennedy’s racial quota law that makes the color of your skin more important than your qualifications. You’ll vote on this issue next Tuesday. For racial quotas: Harvey Gantt. Against racial quotas: Jesse Helms.”

Gantt would later say of the ad: “It dealt with people’s worst fears. In one sense, we thought the ad was political genius. In the other sense, we couldn’t believe that someone in 1990 would run an ad like that.”

But the real issue is not whether the ad played on fears, or whether Gantt could believe the ad was run. The real issue is whether Gantt supported legislation that would lead employers in some instances to deny “best qualified” whites a job. If so, then there was nothing wrong in depicting that result in the ad, since the fears the ad “played on” would be legitimate.

This issue turns on the nature of the Kennedy-Hawkins Civil Rights Act to which the ad refers, and whether Gantt supported it. There is no dispute as to the latter point. As I recall, it’s also the case (though this point is not essential) that the legislation failed to pass the Senate by only vote, and thus would have passed if Gantt, not Helms had been representing North Carolina.

As to whether the Kennedy-Hawkins bill is fairly called “a racial quota law,” the issue is a bit more complex. Certainly, nothing in the proposed legislation (which was enacted in substantially modified form as the Civil Rights Act of 1991) expressly called for racial quotas. But there are substantial arguments in favor of viewing the bill as paving the way for quotas. National Review made that case here; the Heritage Foundation here. This was also the view of various organizations that represent businesses.

Kennedy-Hawkins could reasonably be viewed as paving the way for quotas in two ways. First, it proposed to change the standard of proving discrimination, and the burden of proof, in ways that would induce employers to adopt quotas. In essence (and to simplify a bit), under Kennedy-Hawkins evidence of the statistical under-representation of minority group members in an employer’s workforce or a particular job category would create a presumption of discrimination. The employer then would have to meet a higher standard of proof in defending its selection devices than previously existed. This would lead to quotas because some employers would voluntarily balance their workforces along racial lines to avoid lawsuits. I know from having represented employers that some think and act this way. The less rigorous the standard for proving discrimination through numbers, the more often employers will rig their numbers through the use of quotas. When that happens, the color of your skin can indeed be more important than your qualifications.

Second, Kennedy-Hawkins proposed to overturn a Supreme Court decision holding that persons who are not parties to an employment discrimination consent decree containing racial preferences (i.e. quotas) can challenge decisions taken as a result of the decree in a subsequent employment discrimination suit of their own. In other words, whites harmed by a quota contained in a certain form of settlement, would be unable to sue thereafter. These whites would still have the right to object to the quota prior to the entry of the decree, but as a practical matter that’s not likely to happen. Folks like the gentleman depicted in Helms’ ad generally first learn of a quota, if at all, when they get the rejection letter or its equivalent.

In sum, though Helms’ ad cast the Kennedy-Hawkins legislation in a highly inflammatory light, there’s little doubt that its passage would have resulted in some “best qualified” whites being passed over for jobs that, in the absence of the law, they would have been selected for. For better or for worse, inflammatory ads are the norm in tough political contests. One can argue that they should be avoided when the topic is race, but I don’t find that argument persuasive. Race remains a key issue, and debate over it should be no less robust than over other matters.

Liberal Democrats pull no punches when they think they detect discrimination against minorities, and conservatives should pull no punches when they think they detect “reverse discrimination.”

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