The Structure and Pathologies of Local Selective Procurement Ordinances: A Study of the Apartheid-Era South Africa Ordinances

Abstract

The wisdom and legality of city participation in the foreign affairs of the United States has been long debated and studied. In the past few years, this debate has centered on actions taken by local governments to express their concerns regarding the human rights practices of Myanmar, formerly referred to as Burma. The proceedings in Crosby v. National Foreign Trade Council provided a focal point for this debate as it wound it way upwards through the courts. During the 1980s, a similar debate had centered on the actions of cities who took roughly the same set of actions to express their concerns with the system of apartheid then in place in South Africa. In the case of local governmental action regarding South Africa (and Burma also) there were two main types of action. First, there were ordinances requiring the divestment of public holdings of stocks in firms related in specified ways to the South Africa. Second, and less present in practice or literature, there were ordinances restricting the procurement of goods and services where, for example, the bidder for a city contract had a specified relationship with South Africa. Much has been written about the role of municipalities in the foreign affairs of the United States. But although the Constitution places the conduct of foreign relations in the hands of the Executive and Congress, the day to day reality is not so clear. In writing about the actions of local governments concerning South African, many assumptions are made about what the ordinances provide, how they might bring about change in South Africa, how they are an expression of a truer democracy, how they are harmful to business, and how they interfered with the foreign affairs power of the federal government. But, there is little analysis of what the local actions precisely prescribed and what impact they had on bidders, the local municipality, the foreign affairs of the United States or the policies of the target country. This project undertakes to find out more about the selective procurement ordinances adopted with regard to Apartheid-era South Africa: what they provided and how they operated in practice. The project is not about the Constitution, but rather the ordinances themselves. Part I sets forth the facts. I describe the method I employed and the set of ordinances this study reviews. The structures of thirty-six ordinances are compared with particular attention to patterns apparent in those structures. First, the study examines the circumstances which trigger application of a selective purchasing regime vis a vis a particular bidder or transaction. Second, the study compares the nature and degree of the resulting prohibition on procurement. Third, the study examines the mechanisms employed by the various ordinances to identify whether a bidder or transaction had the specified relationship to South Africa which would trigger application of the ordinance. Finally, the study compares the degree to which the ordinances examined the relationships to South Africa of not only the bidder, but possibly also the bidder's parent company, subsidiaries, affiliates, subcontractors or suppliers. Part II offers seven observations about the ordinances described in Part I. First, one must distinguish between reality and image. It is crucial to recognize that all parties have an interest in overstating both the number of ordinances and their potential impact. Second, it need be seen that such ordinances in practice are not a decentralized expression of the American people, but rather an expression of a rather small number of subnational entities. Third, it is not only the larger municipalities that have the purchasing power to count, it likely is only the larger municipalities that can afford to count. Fourth, the wording of the ordinances confirms a common observation; networks must exist to explain the repeating patterns in these ordinances and, for the most part, this coordinating network was supplied by nongovernmental organizations. Fifth, this study suggests several ways in which selective procurement ordinances are more symbolic than might be thought. Sixth, it should not be a surprise that the debate accompanying adoption of one such ordinances explicitly included, what is likely a factor more widely present, namely, such an ordinance would likely benefit small local business, which unlike the large corporate bidders would be unlikely to have any relationship with South Africa. Seventh, the most popular mechanism employed to identify tainted placed the cost of identification on all bidders.

Part III offer three reflections on Crosby. First, if the question is how a State may restore, even if selectively, its primacy; of how it might seek to control the behavior of individuals, corporations, and political subdivisions it views as in conflict with its efforts as a unitary actor, then Crosby makes clear that if the State or private plaintiff in a particular instance cares enough to seek to reassert federal control, it is possible. Second, the State statute concerning Burma at issue in Crosby indicates that the inclination of some cities to act in foreign affairs is deep and resilient but also forces us to ask why there was not a plaintiff as regards the sanctions adopted regarding South Africa. This yields an important insight into a dynamic between politics and law. It may be that the intrusion of certain municipal action would be found to impermissibly intrude on the foreign affairs of the United States, but if the political support for the cause underlying such actions is sufficiently deep and widespread that fact will militate against any legal challenge. The significance of the intrusion on foreign affairs and the depth of political support for action on the underlying issue will be weighed before the government moves to challenge the municipal action. The proof of whether it is a truer expression of democracy is whether any plaintiff would risk the wrath of those denied their view. Third, it should not be assumed that these ordinances are strongly endorsed by all members of the city government that adopts them.

The reality which emerges from this study is that there were two basic groups of ordinances. First, there were the serious selective procurement ordinances which potentially intruded on the foreign affairs of the United States, which in the case of South Africa were probably no more than one quarter of the ordinances adopted. Second, there were the selective procurement ordinances which I term "costly symbols." This is not to say symbols are without value. But neither is it to say that these symbols were without costs.