Strike down racism-based wage act - Davis-Bacon Act of 1931, requiring payment of local union wages for federal construction projects, needs to eliminated - Column

Insight on the News, March 8, 1993 by Bruce Fein

President Clinton can strike a blow for civil rights and dent the federal budget deficit by attacking the constitutionality of the 1931 Davis-Bacon Act. Requiring federal construction contractors to pay local prevailing (i.e., union) wages, the act was born in an atmosphere of racism and, more specifically, white union fear of competition from blacks willing to work for free market rewards. Davis-Bacon's discriminatory effects on black construction workers, furthermore, persist. The statute seems clearly unconstitutional under the teaching of the Supreme Court in Hunter vs. Underwood (1985), because racial discrimination was a "substantial" or "motivating" factor behind enactment of the law.

The origins of the Davis-Bacon Act speak volumes. In 1927, an Alabama contractor pursuant to competitive bidding received an award to construct a Veterans' Bureau hospital on New York's Long Island. The contractor brought black construction workers from Alabama to perform the work. That provoked hostility from both white, racist building-trade unions and Rep. Robert Bacon of Long Island. They collaborated in urging federal legislation that would require payment of prevailing union wage scales on federal construction projects. A substantial or motivating factor was the shielding of all-white unions from wage competition from black workers.

In introducing the proposal that became the Davis-Bacon Act four years later, Bacon referred to the Alabama award and emphasized that "the attitude of organized labor . . . is entirely favorable to this bill." In denying that the bill was prompted solely by racial animus, Bacon betrayed at least a partial racial motivation: "The same [undercutting of union wage scales] would be true if you should bring in a lot of Mexican laborers or if you brought in any nonunion laborers from any other State."

As Bacon's bill made its way toward enactment, Rep. John J. Cochran of Missouri pointed to his receipt of "numerous complaints in recent months about Southern contractors employing low-paid colored mechanics getting work and bringing the employees from the South."

Similarly, Rep. Clayton Allgood of Alabama denounced "cheap colored labor . . . in competition with white labor throughout this country." Commissioner of Labor Statistics Ethelbert Stewart, in a submission to Congress, described the problem in part as "gangs of Southern Negro labor carried around from state to state."

The effect, predictably, of the Davis-Bacon Act on black construction workers was devastating, a conclusion confirmed by a recent Cato Institute publication.

As of the late 1920s, most construction unions either excluded or discriminated against blacks. For instance, the plumbers and steam fitters and sheet metal workers unions were all white, and the electrical workers and plasterers unions had but a tiny fraction of black members.

The act offered no economic incentive to hire nonunion labor. Accordingly, federal construction contractors employed generally more highly skilled white unionized workers directly through union locals. Since blacks typically were excluded from building-trade unions, the effect was to deny black workers employment on most federal construction projects. Labor Department regulations made the employment of unskilled black laborers on such projects virtually impossible.

The Davis-Bacon Act was conceived in an era of racism. The Ku Klux Klan was thriving; segregation of blacks in the military and in public life was commonplace; the U.S. Supreme Court had given its blessing to the "separate but equal" doctrine and all-white primary elections; member unions of the American Federation of Labor almost uniformly practiced some type of racial discrimination; and black leader W.E.B. Du Bois lamented in 1929 that "instead of taking the part of the Negro and helping him towards physical and economic freedom, the American labor movement from the beginning has tried to achieve freedom at the expense of the Negro."

In sum, it blinks at reality to deny that racism was a substantial or motivating factor that precipitated the Davis-Bacon Act. Under the Underwood precedent, that tainted factor defeats the constitutionality of the statute.

In that case, the Supreme Court invalidated a 1901 provision of the Alabama Constitution disfranchising people convicted of any crime "involving moral turpitude." Then-Associate Justice William Rehnquist, writing for a unanimous court, conceded that the provision on its face was racially neutral, and that a partial motivation for its adoption was the disfranchisement of lower-class whites. Rehnquist noted, however, that legislative history evinced at least an equally strong motivation - the exclusion of blacks from suffrage. That conclusion was strengthened by the racism rampant in the postreconstruction South.

If racial discrimination is a substantial or motivating reason for a law and if its discriminatory effects persist, Rehnquist explained, it is ordinarily unconstitutional. The law can be saved only by proof that racism was not even a "but for" cause, an exceptionally difficult burden.