The kind of laws that get enacted when conservatives stay home

During the 2006 congressional elections, we heard a lot of conservatives throwing up their hands in disgust at the Republicans' inept control of Congress and President' Bush's leadership. Many pledged to just stay home in the theory that a good bracing lost would be more beneficial in the long run for the Republicans. The theory went that they needed a good loss to come to Jesus, so to speak on conservative principles. The bums would lose and they'd emerge tougher and stronger from their time in the wilderness. Well, after a year of Pelosi-Reid leadership, how's that working out for those who espoused that idea? Some are resolving to sit out this November's election out of their disgust at McCain. And what do you think will happen after four or eight years of Obama or Clinton?

Even beyond issues like the war and taxes, there are hundreds of other laws and regulations that can be put into effect if we're facing a Democratic Congress working with a Democratic president. Roger Clegg reports on some of the bills, supported by both Obama and Clinton, that have been proposed in Congress.

There are actually two versions of comparable worth legislation, the Fair Pay Act and the Paycheck Fairness Act. The former is co-sponsored by Sen. Barack Obama; the principal sponsor of the latter is Sen. Hillary Clinton (Mr. Obama is a co-sponsor). Both would push companies to set wages based not on supply and demand -- that is the free market -- but on some notion of social utility. The goal is to ensure that jobs performed mostly by men (say, truck drivers) are not paid more than those performed mostly by women (paralegals, perhaps).

President Ronald Reagan correctly called comparable worth "a cockamamie idea." A great lesson of economic theory, not to mention historical experience, is that government-set wages and prices not only curtail freedom, but lead to shortages, surpluses and market disruptions.

The second bill, the Employment Non-Discrimination Act, passed the House of Representatives last fall. It would prohibit discrimination on the basis of "sexual orientation." In short, private-sector employers who have religious or other objections to homosexuality would be told their moral views lack legitimacy.

The Bush administration has announced its opposition, noting that the bill raises constitutional problems and "turns on imprecise and subjective terms that would make interpretation, compliance, and enforcement extremely difficult" and is "virtually certain to encourage burdensome litigation." Sen. John McCain is opposed to such legislation; Sens. Obama and Clinton are supporters. Sen. Edward Kennedy is expected to introduce the bill later this year in the Senate.

The third measure -- the Civil Rights Act of 2008, introduced on Jan. 24 by Sen. Kennedy (co-sponsored by Sens. Clinton and Obama) -- is the plaintiffs' bar wish list. It would, among other provisions, eliminate existing damage caps on lawsuits brought under Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act; add compensatory and punitive damages to the Fair Labor Standards Act; and push states into waiving sovereign immunity in individual claims involving monetary damages. It would also give authority to the National Labor Relations Board to award back pay to undocumented workers.

In addition, this bill would make it easier to bring and win "disparate impact" lawsuits under a variety of statutes, including Title VI of the 1964 Civil Rights Act and the Age Discrimination in Employment Act. Disparate impact claims need not allege that the criteria an employer uses to hire workers are discriminatory on their face, or discriminatorily applied, or adopted with discriminatory intent. Disproportionate results are enough.

The threat of such lawsuits not only decreases productivity by pressuring private (and public) entities to abandon perfectly legitimate selection criteria, but also encourages the use of surreptitious quotas. Both of these outcomes, needless to say, are perfectly fine with the civil rights lobby and its lawyers.

If John McCain truly opposes such bills, one way he could help conservatives warm up to him by coming out full-throatedly against such pernicious ideas and vow to veto them. Gosh, we don't need to return to such discredited concepts as comparable worth and disparate impact. But those are the types of laws that could get enacted if the Democrats can get enough new Senate seats and one of their own in the White House. It's a scary thought. Conservatives need to think about that.