The Other Side of Shirley Sherrod
By RON WILKINS
Imagine farm workers doing back breaking labor in the sweltering sun, sprayed with pesticides and paid less than minimum wage. Imagine the United Farm Workers called in to defend these laborers against such exploitation by management. Now imagine that the farm workers are black children and adults and that the managers are Shirley Sherrod, her husband Rev. Charles Sherrod, and a host of others. But it’s no illusion; this is fact.
The swirling controversy over the racist dismissal of Shirley Sherrod from her USDA post has obscured her profoundly oppositional behavior toward black agricultural workers in the 1970s. What most of Mrs. Sherrod’s supporters are not aware of is the elitist and anti-black-labor role that she and fellow managers of New Communities Inc. (NCI) played. These individuals under-paid, mistreated and fired black laborers–many of them less than 16 years of age–in the same fields of southwest Georgia where their ancestors suffered under chattel slavery.
When I first noticed the story of her firing and the association of Shirley Sherrod’s name with the rural black poor and concern for “black land-loss”, I wondered if the person being praised was the same Shirley Sherrod whom I knew. One piece posted on the July 23rd Alternet and captioned “Shirley Sherrod and the black Land Struggle” even claimed that she “devoted her entire life to economic justice”. The mistreatment of black workers at NCI under the Sherrods is a matter of record that contradicts this claim.
If confession is good for the soul, then Mrs. Sherrod took a first step toward her redemption by admitting the error of her ways in her earlier attitudes toward poor white farmers. Mrs. Sherrod says she began to see poverty as more central than race. So, should indigent black child farm laborers warrant less reflection by Mrs. Sherrod? What lessons does she have to share from her tenure as management when she had power over her own people working under deplorable conditions at the same New Communities, Inc.(NCI) identified in the current issue? Shirley Sherrod could have included this chapter of her history in the same confession speech. Justice and integrity require at least as much accountability from Mrs. Sherrod to the poor black farm workers of NCI as to the white farmers she came to befriend. This lack of full disclosure of the whole truth is a “sin of omission” that trivializes the suffering of poor black farm workers and exacerbates the offenses of NCI.
Shirley Sherrod was New Communities Inc. store manager during the 1970s. As such, Mrs. Sherrod was a key member of the NCI administrative team, which exploited and abused the workforce in the field. The 6,000 acre New Communities Inc. in Lee County promoted itself during the latter part of the 1960s and throughout the 70s as a land trust committed to improving the lives of the rural black poor. Underneath this facade, the young and old worked long hours with few breaks, the pay averaged sixty-seven cents an hour, fieldwork behind equipment spraying pesticides was commonplace and workers expressing dissatisfaction were fired without recourse.
The unfortunate story of Mrs. Annie Hawkins and her family in particular is instructive. Persuaded by NCI that their lot would be improved, the Hawkins family stole away from the Georgia plantation that they had called home. After suffering abuse meted out to them and others at NCI, Mrs. Hawkins sadly stated that, “We stole away from one plantation, but just ended up on another.” For her courageous role in demonstrations against the Sherrods and NCI management, Annie Hawkins and her family were fired and kicked out of the house that they were promised. My last encounter with an ailing Mrs. Hawkins took place several years ago in a nursing home where she resided.
Worker protest at New Communities eventually garnered some assistance from the United Farm Workers Union in nearby Florida in the person of one of its most formidable organizers, black State Director, the late Mack Lyons. The September 28, 1974 UFW newspaper El Malcriado, page two, reported on the worker’s strike (“Children Farm Workers Strike Black Co-op” www.farmworkermovement.org/ufwarchives) and the UFW stepped in to protect black farm workers from exploitation by NCI. Fearful of both UFW efforts to unionize NCI’s labor force and scrutiny by the Georgia State Wage and Hour Division, the Sherrods and NCI management hastily issued checks in varying amounts to strikers to makeup ostensibly for minimum wage differentials. It is bitter irony that the Sherrods have succeeded in being awarded $300,000 following a discrimination lawsuit, while Mrs. Hawkins and other impoverished NCI black laborers whom NCI exploited were never adequately compensated for their “pain and suffering”.
While it is true that loan discrimination and relentless creditors can be cited for the eventual demise of New Communities Inc. in 1985, NCI’s unfair labor practices and poor leadership, were equally, if not more, to blame. Ask Shirley Sherrod about this part of her history. I know this story well, for I was one of those workers at NCI.
Ron Wilkins is a former organizer in the Student Nonviolent Coordinating Committee. In 1974, under an assumed name, he hired-on at New Communities Inc. The Emergency Land Fund, an Atlanta-based black land retention organization, which shared oversight responsibility for NCI’s progress, wanted to know the basis for NCI’s continued poor performance. The author’s secondary purpose was to develop agricultural skills. For his role in organizing NCI’s workers, management eventually fired him from his $40 per week position, evicted him from the rent-free shack on NCI property and orchestrated his arrest, on bogus charges, by FBI agents and Lee County, Georgia Sheriff’s deputies in the midst of an NCI labor protest. The charges were later dropped. Presently he is an Africana Studies professor at California State University, Dominguez Hills.
Sunday, September 12, 2010
Wednesday, September 1, 2010
Audacity
OBAMA: "Tonight, I am announcing that the American combat mission in Iraq has ended."
THE FACTS: Peril remains for the tens of thousands of U.S. troops still in Iraq, who are likely if not certain to engage violent foes. Counterterrorism is chief among their continuing missions, pitting them against a lethal enemy. Several thousand special operations forces, including Army Green Berets and Navy SEALs, will continue to hunt and attempt to kill al-Qaida and other terrorist fighters - working closely with Iraqi forces. Obama said, "Of course, violence will not end with our combat mission," while stopping short of a full accounting of the hazards ahead for U.S. troops.
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OBAMA: "We have met our responsibility."
THE FACTS: That depends entirely on how the U.S. responsibility is defined.
Sectarian division - the danger that Obama said as a presidential candidate had to be addressed before Iraq could succeed - continues to deprive the country of a fully functioning government. U.S. goals for reconstruction are unmet. And although the U.S. says Iraqi forces can handle the insurgency largely on their own, Iraq is expected to need U.S. air power and other military support for years to control its own air space and to deter a possible attack by a neighboring state.
It was the U.S. that invaded Iraq, overthrew its government, disbanded its security forces and failed in the early phases of the conflict to understand the depth of Iraq's sectarian and ethnic divisions and its political paralysis. The U.S. in some minds is responsible for putting Iraq back together again, yet today Iraq has no permanent government and its security forces arguably are not fully prepared to defend the country's skies and borders.
In inheriting a war he opposed from the start, Obama did not accept U.S. responsibilities so broadly.
It will take time to see if his more limited view of success bears out. In May, he said: "This is what success looks like: an Iraq that provides no haven to terrorists; a democratic Iraq that is sovereign and stable and self-reliant."
Al-Qaida terrorists are "not gone" from Iraq, Defense Secretary Robert Gates said Tuesday. But he hailed "an important victory against transnational terror" because "al-Qaida in Iraq has been largely cut from its masters abroad."
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OBAMA: "Unfortunately, over the last decade, we have not done what is necessary to shore up the foundation of our own prosperity. We have spent over a trillion dollars at war, often financed by borrowing from overseas. This, in turn, has shortchanged investments in our own people, and contributed to record deficits."
THE FACTS: This is partly true. For sure, the costly Iraq and Afghanistan wars have contributed to the nation's budget deficit - but not by as much as Obama suggests. The current annual deficit is now an estimated $1.5 trillion. But as recently as 2007, the budget deficit was just $161.5 billion. And that was years after war expenses were in place for both the Afghanistan and Iraq conflicts.
Most of the current deficit is due to the longest recession since the 1930s. It has seriously depressed tax revenues while increasing costs to the government - including social safety-net programs such as unemployment insurance and spending by both the outgoing Bush and incoming Obama administrations on stimulus programs and on bailouts of banks and automakers.
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OBAMA: "This was my pledge to the American people as a candidate for this office."
THE FACTS: At one stage of the presidential campaign, Obama spoke of an earlier departure of troops than he ultimately achieved. "I have put forward a plan that will get our troops out by the end of 2009," he said in a January 2008 Democratic candidates debate. But his pledge for most of the campaign was to withdraw combat troops within 16 months, a promise essentially kept.
THE FACTS: At one stage of the presidential campaign, Obama spoke of an earlier departure of troops than he ultimately achieved. "I have put forward a plan that will get our troops out by the end of 2009," he said in a January 2008 Democratic candidates debate. But his pledge for most of the campaign was to withdraw combat troops within 16 months, a target missed just by a few months.
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OBAMA: "Our dedicated civilians - diplomats, aid workers, and advisers - are moving into the lead to support Iraq as it strengthens its government, resolves political disputes, resettles those displaced by war, and builds ties with the region and the world."
THE FACTS: Although Obama said the U.S. commitment to Iraq's future does not end with the combat mission, he made no mention of an emerging debate in Congress over paying for the diplomatic mission the State Department says is necessary. Plans for U.S. diplomatic posts in Iraq already are being scaled back as Congress sees the winding down of the war as a signal to invest elsewhere.
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OBAMA: "Within Afghanistan, I have ordered the deployment of additional troops who - under the command of Gen. David Petraeus - are fighting to break the Taliban's momentum. As with the surge in Iraq, these forces will be in place for a limited time to provide space for the Afghans to build their capacity and secure their own future."
THE FACTS: Obama is reciting almost the exact language of the Bush administration's rationale for the Iraq surge: to buy time and space for the Iraqis to reach political accommodations and to strengthen their own security forces. That's quite a change from Obama's stand as a presidential candidate, when he criticized it. Obama seems to be embracing the troop surge logic now, even though it's clear that the Iraqis have yet to achieve the necessary level of reconciliation to form an enduring government.
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Wednesday, August 25, 2010
The Mosque and religion in general.
"That they have the right to build a Mosque near ground zero says everything you need to know about the USA. That they are going to build it anyways, says everything
you need to know about Islam." Dennis Miller
It really does not get any simpler then that. I believe they absolutely have a right
to build that 'Community Center' right there. It just seems like a douchebag thing
to do. IF they would come out and say 'You know what? In the name of being sensitive,
were going to not put that Mosque there' they would be heroes and ALL of us would love them. This is the country of the 'second chance' after all. But, they wont, and the 'rest' of the 'moderate' Muslims will not condemn them for it.
I liken this to the Catholic Church. They have a 'unnatural' relationship within thier ranks. It is not 'natural' to be Celibate, either way. Nature demands it. But, when you put a culture in there that is 'unnatural', after a time then it damages the religion. When the Vatican hid this problem, it was exposed to the World, and the Catholic Curch rightfully took a hit.
When Southern Christians did not object to the KKK using the Confederate Flag, they lost the right to counter those that are 'offended' by it. They did not work quickly enough to oust the KKK members from thier Protestant Churches. Some of those Deacons wore sheets, and subjectagted Blacks. This unnatural philosophy has made it impossible for anyone to take a person defending the Battle Flag of the Confederacy to a blck person today seriously...
It did the same in Islam. By forcing the subjectation of women, it has damaged it's followers. By taking away a womans image, and hiding it under a sheet, it teaches young men it is okay to think of mommy as 'property'. This, in turn leads to it being easier to convince young desperate men to do unimaginable things.
But, until the 'Moderate' faction of Islam confronts it's wildcard, then they will continue to be viewed like Rednecks who endorse Bigotry, and are undeserving of sympathy. Sometimes, I do hear an impassioned plea from "moderates', but it seems it's always followed by '....but America must be aware of how it has hurt _____'. Screw that.
If the followers of Islam want to be accepted, they must do this.
Monday, August 23, 2010
A Balanced look @ Palin
Anyway, a thin new volume arrived over the transom this week, an offering from Jacob Weisberg called Palinisms: The Accidental Wit and Wisdom of Sarah Palin. There are a few nuggets here, but it would seem from this little paperback that Sarah Palin is not the dimwit liberals make her out to be. Palinisms made me miss George W. Bush -- and Ronald Reagan, too. It also implicitly raises the question of where the comparable volume is for Joe Biden, the gaffe-prone pol who actually holds the job Sarah Palin sought in 2008.
Weisberg's critics have long complained that he's a liberal with an obvious partisan agenda, and while I can't speak to that, it's apparent than in modern political writing a point of view can be a shrewd marketing technique. My father, Lou Cannon, pioneered the literary conceit of the "Reaganism of the Week," ending each Reagan & Co. column with one of them, but those were an eclectic compilation, catering neither solely to Reagan lovers nor Reagan haters.
Some "Reaganisms" made The Gipper sound foolish, as when he mused about his "suspicion" that the Mount St. Helens volcano released more sulfur dioxide into the atmosphere than 10 years' worth of automobile driving. Others Reaganisms were clever. "I'm not worried about the deficit -- it's big enough to take care of itself." The best Reaganisms rendered his listeners speechless, which is how the leader of the free world left Mikhail Gorbachev in 1985 when Reagan sought to establish common ground by telling the Soviet premier that if Earth was attacked by aliens, the Russians and American would fight the extraterrestrial invaders together. And some of the most memorable Reaganisms were statesmanlike -- as when Reagan stood at the Brandenburg Gate in Berlin and declared: "Mr. Gorbachev, tear down this wall!"
The most endearing Reaganisms were self-deprecating: "It's true hard work never killed anybody," Reagan liked to quip, "but I figure why take the chance?" When a wire service reporter Reagan knew asked him to autograph a photo from Bedtime for Bonzo, the 1951 screwball comedy starring Ronald Reagan, the president signed it, "I'm the one with the watch."
Unfortunately, it's a different era now; we're supposed to laugh mirthlessly at those we voted against, and to use verbal misfires as proof of their idiocy -- whether or not they are laughing along with us at their own fallibility.
While giving the commencement speech at his alma mater, Yale, President George W. Bush said: "And to you 'C' students, -- you too can be president of the United States." Another time, while campaigning for reelection at a town hall in Ohio in 2004, one of Dubya's questioners identified himself as an operator of air compressor stations – a man who sells air. Bush retorted quickly: "You and I are in the same business. Is it hot air, by any chance?"
Such cleverness could be quickly negated, by George W. Bush's own hand -- or rather his tongue. The same day as the Ohio rally -- at a bill-signing ceremony, no less – the president uttered one of his most famous Bushisms: "Our enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we."
Everyone has their favorite Bushism. "Rarely is the question asked: Is our children learning?" he said while discussing education in South Carolina on Jan. 11, 2000. "I know the human being and the fish can co-exist peacefully," was his contribution to environmental thought. His economic theory? "We ought to make the pie higher."
The Texan's saving grace -- at least to some -- was that he was in on the joke, something that Jacob Weisberg himself explained. "People often assume that because I've spent the past nine years collecting Bushisms, I must despise George W. Bush," Weisberg wrote at the end of Bush's tenure in the White House. "To the contrary, Bushisms fill me with affection for the man -- and not just because of the income stream they've generated..."
Less than two years into a new administration, we're in a political environment that is even more polarized and poisonous. Into this milieu comes Palinisms. Two things can be said about the woman nicknamed in high school "Sarah Barracuda" and who calls her political allies "mama grizzlies." The first is that barracudas and grizzlies don't laugh, they bite. In other words, Sarah Palin doesn't easily laugh at herself -- not in public, anyway. The second point is that she's not all that funny, which helps explain why Palinisms is so thin.
The book is tiny -- 5-by-7 inches -- and fits in a back pocket. It's 95 pages, but the preface goes to page 13. And though the pages are small, the type is big -- and double-spaced with a picture on about half the pages. You can read the whole thing in five minutes. Worse, you've heard much of this stuff before, although Tina Fey said it better: "I can see Russia from my house!" is hilarious. But what Palin actually said in her infamous interviews with Katie Couric was: "They're our next door neighbors, and you can actually see Russia from land here in Alaska, from an island in Alaska." Not that funny.
Scanning this booklet, something else occurs to a discerning reader: Sarah Palin may be more careful than people think. She has given numerous interviews, talks, and campaign speeches since John McCain plucked her out of obscurity two years ago, and yet of the 116 Palinisms in Palinisms, eight are from her (ghost-written) autobiography Rogue. Another seven are from a single talk she made while speaking about her faith at Wassilla Assembly of God church; six are from those Katie Couric interviews; five from a speech she made in Ontario, Canada last April to raise money for Charity of Hope, which helps needy children; four came from her resignation as governor; three from an interview with Charlie Gibson.
The Palin material from the Gibson interview certainly isn't elegant, but it's simply not in Bush's league for being off-kilter or entertaining. "You are a cynic," she told Gibson (page 50), "because show me where I have ever said that there's absolute proof that nothing that man has ever conducted or engaged in has had any effect -- or no effect -- on climate change." Maybe I'm cynical, too, but that clunky prose sounds to me like the mind-numbing obfuscation that is a politician's stock-in-trade.
None of the Palinisms in this booklet are lifted from her 2008 debate with Joe Biden. And there's the rub: In that debate, Biden said numerous things, which, had Palin uttered them, would have generated pressure for John McCain to drop her from the ticket the following day. Palin wasn't perfect. Twice she referred to the top U.S. military officer in Afghanistan as "General McClellan." (His name is David McKiernan), she claimed that McCain's $5,000 tax credit for health coverage was some how "budget-neutral," and she combined the last names of the Democratic ticket when she called opponent "Senator O'Biden," reminiscent of Biden's gaffe of introducing Obama to a crowd as "Barack America."
But Biden's performance that October night in 2008 wasn't characterized by slips of the tongue so much as wildly inaccurate claims about everything from the basics of the Afghanistan war to Constitutional provisions of the office he was seeking.
Joe Biden claimed that McCain voted against a nuclear test ban treaty "that every Republican has supported" (McCain actually voted with 50 other Republicans to kill the treaty), credited Pakistan with having intercontinental nuclear-armed ballistic missiles (it doesn't), and asserted that he had opposed Bush's support for holding elections on the West Bank (Biden actually gave a spirited defense of this policy). He also maintained -- while prefacing his point with the statement "facts matter" -- that the United States spends "more money in three weeks on combat in Iraq than we spend on the entirety of the last seven years that we have been in Afghanistan." Biden was so taken with this statement that he repeated this ludicrous claim, which was off by 2,000 percent.
Biden tried to establish his common-man bona fides by inviting voters to walk down Union Street in Wilmington and talk to regular folks at "Katie's Restaurant," which would have been hard to do because the diner (actually located on Scott Street) had been closed for 20 years. More substantively, Biden excoriated Dick Cheney for his "bizarre notion" about Article I of the Constitution (Cheney was correct) in a confused riff that reminded one commentator of John Belushi's famous rant in Animal House: "Was it over when the Germans bombed Pearl Harbor?"
Biden has continued in this vein as vice president. No less an aficionado of the official gaffe than Jacob Weisberg oversaw their collection for Slate. Weisberg explained to me that they didn't get a big response. Perhaps this is because Slate's readership trends liberal. Or, as Weisberg says, the problem might be that Biden's goofiness is so situational it doesn't translate well to print -- you have to be there to really appreciate the outlandishness -- which was often the case with John Kerry's verbal blunders.
Maybe the moral of the story is that employment is not the only thing in short-supply -- these aren't great days for political humor, either. Of course, there's always Twitter, and this may be the saving grace for collectors of Palinisms. A post-script to Palinisms pays homage to this truism with a "top 10 tweets" postscript. These are pretty good, and many of which have already been topped since the book went to press. My favorite: "Research is your friend, News Media," Palin tweeted on May 15. "Try it sometime."
Monday, August 9, 2010
Media Endgame.
For a year, a small number of conservative media outlets have been reporting on the New Black Panther Party scandal – a slam-dunk voter-intimidation case documented on videotape, which the government won by default but that Obama administration appointees ordered career lawyers to dismiss against the NBPP and two individual defendants. (The injunction against a third individual was drastically curtailed.) On the web at CONTENTIONS, Hot Air.com, and National Review Online, and on the pages of the Weekly Standard and the Washington Times, readers could watch the story unfold as bit by bit an extraordinary tale came into focus and the stone wall erected by the Holder Justice Department crumbled.
The liberal media, meanwhile, ignored the story even though the allegations were explosive. Had the Obama team, in concert with the NAACP, quashed the case because of an ideological aversion to filing cases against minorities? Did the head of Obama’s Civil Rights division provide misleading testimony under oath when he said he had never heard of such a sentiment? Was there a new Obama policy to file only civil rights cases against white defendants? Had the Justice Department acted illegally in preventing its attorneys from testifying pursuant to a subpoena?
These and other issues, including the potential involvement of Attorney General Eric Holder (whom the Justice Department admitted in written responses was briefed on the matter), were explored on the pages of conservative print outlets and on right-leaning blogs. From the liberal media? Silence.
Congressmen Frank Wolf (R-Va.) and Lamar Smith (R-Texas) dueled with the Justice Department, seeking answers about the case for a year. Thomas Perez, assistant attorney general for civil rights, was grilled by House Republicans before the House Judiciary Committee as to why the case had been dismissed and whether his attorneys were hostile to claims that didn’t support the “traditional” civil rights model (i.e., bigoted whites vs. minority victims). The U.S. Commission on Civil Rights launched an investigation. The Justice Department’s Office of Professional Responsibility (whose investigation — botched, it turned out — of John Yoo and Jay Bybee was breathlessly reported by every newspaper and TV news network) did as well, although it didn’t bother to question the NBPP trial-team attorneys. None of this raised any eyebrows in the newsrooms of the broadcast networks or liberal news magazines. (During this period, Newsweek did, however, run a great many stories on Rush Limbaugh and Sarah Palin.)
In June, a whistleblower, J. Christian Adams, a former Justice Department lawyer who worked on the case, stepped forward to give public testimony before the U.S. Commission on Civil Rights. Fox News drilled down on the story, and cautiously CBS, the New York Times, and the Washington Post gave brief accounts.
Finally, last weekend the Post’s ombudsman, Andy Alexander, and Howard Kurtz on CNN’s Reliable Sources raised the question that conservative reporters and columnists have been asking for a year: where have the mainstream media been? Bob Schieffer, under Kurtz’s questioning, said that had he known about the story, he would have questioned Holder on Face the Nation the prior week. He acknowledged it was a real story that he now “cared” about. Alexander forthrightly chastised his own paper for missing the boat. And finally this Tuesday, NBC Nightly News ran a segment on the story but eliminated any reference to the most explosive allegation, namely that the dismissal of the case stemmed from an aversion to a color-blind application of the law.
So what happened here, and will the mainstream media atone for their yearlong sin of omission?
As to the “why,” one could chalk up the liberal media’s sloth to a busy news year (“we had bigger stories to cover”) were it not for the fact that the non-coverage of the NBPP scandal fits a pattern. This isn’t the first time liberal outlets ignored a story harmful to the Obama administration that was covered almost exclusively by conservative media until the incident was virtually over. Chas Freeman, who had expressed radical views about China, 9/11, and Israel, was appointed and forced to withdraw from a national-security advisory role before the mainstream media caught up. The controversy over Van Jones, the radical “9/11 truther” working as the administration’s “Green Czar,” was ignored by the mainstream media until he resigned.
These episodes repeatedly place the liberal media in an uncomfortable position. When the news can no longer be ignored, they must catch up their readers and viewers on stories they haven’t covered while delicately sidestepping how their crack investigators missed a significant controversy. At times, the op-ed pages of these outlets slip in news to their readers that their reporters have ignored. (The Washington Post editorial page provided that service on the Chas Freeman debacle.)
The easiest explanation may be correct: these outlets don’t want to report “bad news” that might harm the Democratic agenda. Really, when was the last negative story about conservatives that the New York Times “missed”? If the missed news stories were evenly distributed between those “bad for conservatives” and those “bad for liberals,” the evidence of bias would not be so strong.
Such bias, however, need not be as conscious or blatant as the most aggrieved of the conservative critics claim. Liberal outlets have, in essence, insulated themselves from a whole segment of the news. Campaign-donation records and polling reveal that liberal news outlets don’t have many (in some cases, any) conservative-leaning staff members. It’s not hard to conclude that they therefore have few, if any sources, inclined to provide information harmful to liberals. They have, for example, plenty of contacts with the NAACP, but how many of them have Justice Department sources who object to a race-conscious enforcement of civil rights laws? I’m going out on a limb: none.
Moreover, the reporters and columnists who populate the New York Times or the Washington Post and broadcast-news networks are not inclined to follow, let alone take seriously, reporting from conservative outlets. Would the network news anchors have missed a year of the NBPP scandal if they or a single person on their staff read some of the right-leaning blogs or print publications? It would have been hard. If the reporters, producers, and editors of liberal media only read each other’s publications and watch each other’s programs — and they all have exactly the same narrow news “judgment” — a lot is going to slip by.
We shouldn’t be too optimistic that the liberal media outlets will correct their errors, hire more ideologically diverse staff, cast a wider net on investigative reporting, and be on the lookout for Obama scandals. Even in its mea culpa mode, the delinquent media did not exactly come clean. Schieffer claimed in his interview that he “missed” the NBPP story because he was away on vacation the week that Adams testified. Presumably he was not on vacation for a year. There was no hint that his network (and his competitors) not only missed the story but was also beaten to it -- for a year. To have acknowledged that would have been to confess that they were not simply busy but blinded to a big story that conservative reporters spied very early on.
Nor did NBC fess up that the case had implications far beyond a single investigation. Again, it would involve dredging up much explosive news that had gone unreported for a very long time.
The problem is cumulative, and the pattern has a self-fulfilling quality to it. Whistleblowers in a liberal administration (who are often conservative, just as those in a conservative one may very well be liberal) are not going to beat a path to liberal outlets that they suspect will bury or distort their accounts. So even if they wanted to, at this point, liberal news organizations are seriously handicapped in uncovering such stories, no matter how important or intriguing. Once you forfeit your journalistic credibility, it is very hard to get sources – and readers – back.
The liberal media, meanwhile, ignored the story even though the allegations were explosive. Had the Obama team, in concert with the NAACP, quashed the case because of an ideological aversion to filing cases against minorities? Did the head of Obama’s Civil Rights division provide misleading testimony under oath when he said he had never heard of such a sentiment? Was there a new Obama policy to file only civil rights cases against white defendants? Had the Justice Department acted illegally in preventing its attorneys from testifying pursuant to a subpoena?
These and other issues, including the potential involvement of Attorney General Eric Holder (whom the Justice Department admitted in written responses was briefed on the matter), were explored on the pages of conservative print outlets and on right-leaning blogs. From the liberal media? Silence.
Congressmen Frank Wolf (R-Va.) and Lamar Smith (R-Texas) dueled with the Justice Department, seeking answers about the case for a year. Thomas Perez, assistant attorney general for civil rights, was grilled by House Republicans before the House Judiciary Committee as to why the case had been dismissed and whether his attorneys were hostile to claims that didn’t support the “traditional” civil rights model (i.e., bigoted whites vs. minority victims). The U.S. Commission on Civil Rights launched an investigation. The Justice Department’s Office of Professional Responsibility (whose investigation — botched, it turned out — of John Yoo and Jay Bybee was breathlessly reported by every newspaper and TV news network) did as well, although it didn’t bother to question the NBPP trial-team attorneys. None of this raised any eyebrows in the newsrooms of the broadcast networks or liberal news magazines. (During this period, Newsweek did, however, run a great many stories on Rush Limbaugh and Sarah Palin.)
In June, a whistleblower, J. Christian Adams, a former Justice Department lawyer who worked on the case, stepped forward to give public testimony before the U.S. Commission on Civil Rights. Fox News drilled down on the story, and cautiously CBS, the New York Times, and the Washington Post gave brief accounts.
Finally, last weekend the Post’s ombudsman, Andy Alexander, and Howard Kurtz on CNN’s Reliable Sources raised the question that conservative reporters and columnists have been asking for a year: where have the mainstream media been? Bob Schieffer, under Kurtz’s questioning, said that had he known about the story, he would have questioned Holder on Face the Nation the prior week. He acknowledged it was a real story that he now “cared” about. Alexander forthrightly chastised his own paper for missing the boat. And finally this Tuesday, NBC Nightly News ran a segment on the story but eliminated any reference to the most explosive allegation, namely that the dismissal of the case stemmed from an aversion to a color-blind application of the law.
So what happened here, and will the mainstream media atone for their yearlong sin of omission?
As to the “why,” one could chalk up the liberal media’s sloth to a busy news year (“we had bigger stories to cover”) were it not for the fact that the non-coverage of the NBPP scandal fits a pattern. This isn’t the first time liberal outlets ignored a story harmful to the Obama administration that was covered almost exclusively by conservative media until the incident was virtually over. Chas Freeman, who had expressed radical views about China, 9/11, and Israel, was appointed and forced to withdraw from a national-security advisory role before the mainstream media caught up. The controversy over Van Jones, the radical “9/11 truther” working as the administration’s “Green Czar,” was ignored by the mainstream media until he resigned.
These episodes repeatedly place the liberal media in an uncomfortable position. When the news can no longer be ignored, they must catch up their readers and viewers on stories they haven’t covered while delicately sidestepping how their crack investigators missed a significant controversy. At times, the op-ed pages of these outlets slip in news to their readers that their reporters have ignored. (The Washington Post editorial page provided that service on the Chas Freeman debacle.)
The easiest explanation may be correct: these outlets don’t want to report “bad news” that might harm the Democratic agenda. Really, when was the last negative story about conservatives that the New York Times “missed”? If the missed news stories were evenly distributed between those “bad for conservatives” and those “bad for liberals,” the evidence of bias would not be so strong.
Such bias, however, need not be as conscious or blatant as the most aggrieved of the conservative critics claim. Liberal outlets have, in essence, insulated themselves from a whole segment of the news. Campaign-donation records and polling reveal that liberal news outlets don’t have many (in some cases, any) conservative-leaning staff members. It’s not hard to conclude that they therefore have few, if any sources, inclined to provide information harmful to liberals. They have, for example, plenty of contacts with the NAACP, but how many of them have Justice Department sources who object to a race-conscious enforcement of civil rights laws? I’m going out on a limb: none.
Moreover, the reporters and columnists who populate the New York Times or the Washington Post and broadcast-news networks are not inclined to follow, let alone take seriously, reporting from conservative outlets. Would the network news anchors have missed a year of the NBPP scandal if they or a single person on their staff read some of the right-leaning blogs or print publications? It would have been hard. If the reporters, producers, and editors of liberal media only read each other’s publications and watch each other’s programs — and they all have exactly the same narrow news “judgment” — a lot is going to slip by.
We shouldn’t be too optimistic that the liberal media outlets will correct their errors, hire more ideologically diverse staff, cast a wider net on investigative reporting, and be on the lookout for Obama scandals. Even in its mea culpa mode, the delinquent media did not exactly come clean. Schieffer claimed in his interview that he “missed” the NBPP story because he was away on vacation the week that Adams testified. Presumably he was not on vacation for a year. There was no hint that his network (and his competitors) not only missed the story but was also beaten to it -- for a year. To have acknowledged that would have been to confess that they were not simply busy but blinded to a big story that conservative reporters spied very early on.
Nor did NBC fess up that the case had implications far beyond a single investigation. Again, it would involve dredging up much explosive news that had gone unreported for a very long time.
The problem is cumulative, and the pattern has a self-fulfilling quality to it. Whistleblowers in a liberal administration (who are often conservative, just as those in a conservative one may very well be liberal) are not going to beat a path to liberal outlets that they suspect will bury or distort their accounts. So even if they wanted to, at this point, liberal news organizations are seriously handicapped in uncovering such stories, no matter how important or intriguing. Once you forfeit your journalistic credibility, it is very hard to get sources – and readers – back.
Wednesday, August 4, 2010
Pandora's Box
here is the problem with sites like 'Snopes' and "Crooksandliars' on the left.
Look at this snopes page about Barry's famous gaffe, '57 states':
http://www.snopes.com/politics/obama/57states.asp
Now, it's very clever but transparent attempt to sideline this obvious gaffe by stating that 'Obama meant to say 57 Islamic States' does 2 things. First, it covers for the awful fact that without a teleprompter, the Great One with the Golden Tongue is pretty on par with the former gaffe-machine, W. Obama did not have his prompter, and he MEANT 57 United States. Which is, pretty 'W' or 'Sarah Palin' -like ( *wink*) It also uses a classic 'strawman argument', which is something the left screams about ad nauseum. If I was a staffer during the campaign, and my candidate did something this dumb, I would create an even DUMBER 'internet rumour' so Snopes would have to print 'mixture of true and false information', thereby diluting a Snopes reference as 'true' to a weaker 'maybe'. Get it?
Look at this snopes page about Barry's famous gaffe, '57 states':
http://www.snopes.com/politics/obama/57states.asp
Now, it's very clever but transparent attempt to sideline this obvious gaffe by stating that 'Obama meant to say 57 Islamic States' does 2 things. First, it covers for the awful fact that without a teleprompter, the Great One with the Golden Tongue is pretty on par with the former gaffe-machine, W. Obama did not have his prompter, and he MEANT 57 United States. Which is, pretty 'W' or 'Sarah Palin' -like ( *wink*) It also uses a classic 'strawman argument', which is something the left screams about ad nauseum. If I was a staffer during the campaign, and my candidate did something this dumb, I would create an even DUMBER 'internet rumour' so Snopes would have to print 'mixture of true and false information', thereby diluting a Snopes reference as 'true' to a weaker 'maybe'. Get it?
Wednesday, July 28, 2010
Wine spode ohtee
Despite the flagging economy and historic unemployment rates, in Washington, D.C., it’s business as usual. Efforts to promote real economic growth may flounder, but the cronyism typified by the Wall Street bailout continues unabated, and it seems no special interest is too small or trivial. A bill currently moving through the U.S. House of Representatives provides a sobering tutorial on how money drives politics in the nation’s capital. Introduced by Rep. William Delahunt (D-Mass.), the Comprehensive Alcohol Regulatory Effectiveness (CARE) Act of 2010 is a clear example of economic protectionism designed to shore up the monopoly profits of beer, wine, and spirits wholesalers, much to detriment of vintners, craft brewers, small distillers, and consumers, who will face higher prices and fewer choices.
Sheep in Wolf’s Clothing
According to the official summary, the Care Act:
Amends the Webb-Kenyon Act to: (1) state that it is the policy of Congress that each state or territory shall continue to have the primary authority to regulate alcoholic beverages; (2) prohibit unjustified discrimination against out-of-state producers of alcoholic beverages in favor of in-state producers; and (3) establish higher evidentiary standards for legal actions challenging the authority of states or territories to regulate alcoholic beverages.
Amends the Wilson Act to eliminate the requirement that a state or territory regulate the importation of all fermented, distilled, or other intoxicating liquors or liquids to the same extent and in the same manner as such liquors or liquids produced in such state or territory.
Taken at face value, the legislation appears innocuous; a simple clarification of existing law. However, the legislation is a direct response to the growing number of legal challenges to the monopolistic powers wielded by wholesalers and distributors in many states. The actual impact of the CARE Act would be particularly devastating to small craft brewers, independent wineries, and small distillers who are typically underrepresented by wholesalers but have made some inroads to consumers through direct shipping. For example, a medium sized winery in California, Cakebread Cellars, estimates that direct shipments make up roughly 10 percent of their business.[1]
More specifically, the CARE Act, H.R. 5034, does two things. First, it seeks to strengthen state regulation of alcohol by clarifying the primacy of the state’s authority. Second it proposes new evidentiary standards that would make it more difficult for anyone to challenge specific state regulations in the courts. And by amending the Wilson Act of 1890, the legislation makes clear that states have no obligation to treat out-of-state alcohol products in the same manner as those produced within the state.[2]
In clarifying the state’s authority, the proposed legislation makes a simple but powerful change that swings the pendulum hard toward state regulation with the requirement that states may not engage in “unjustified discrimination” of out-of-state products. While sounding like a check on discriminatory activity, the legislation actually proposes a much tougher standard than current law that would allow the state far greater leeway to claim their form of discrimination is “justified.”
This new authority is solidified by the new evidentiary standard included in the legislation, which raises the bar for anyone challenging a state law. Under the proposed legislation, the state would be “accorded a strong presumption of validity.” Moreover, the legal hurdle for anyone challenging a state regulation is much higher, putting the burden on the challenger to provide “clear and convincing evidence” that the law is discriminatory[3]. Under the CARE Act, a state would have no duty to justify its laws on alcohol sales; it is up to the individual to demonstrate that the state is wrong, and doing so requires a significant burden of proof.
In Search of Balance
The Founding Fathers were acutely aware of the lure of economic protectionism and deliberately sought to prohibit states from imposing economic restrictions or regulations on one another. James Madison sought to eliminate the "existing and injurious retaliations among the States" that economic protectionism created. A broader market, with the free flow of goods and services throughout the states, was critical to the development of the nation. To address such problems, the Commerce Clause of the U.S. Constitution placed authority over interstate commerce exclusively at the federal level.[4] Through history and precedent, a “dormant commerce clause” has emerged, which is interpreted as clarifying that if Congress has not regulated a particular issue in interstate commerce, then Congress meant that area not to be regulated and states should forbear from doing so as well.[5]
With respect to the sale of alcohol, however, there is a constitutional wrinkle. To repeal Prohibition, the Constitution was amended in 1933. The 21st Amendment allowed states to enact laws with respect to temperance—the trade, possession, or importation of alcohol was required to comply with state laws. Since that time, the states have played the dominant role in regulating the sale of alcoholic beverages, something made emphatically clear in the 21st Amendment: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.[6] (Emphasis added.) However, this authority has always been tempered by the courts, which must balance the regulatory authority provided to states by the 21st Amendment with concerns over the Commerce Clause and interstate commerce.
Indeed, the courts have played a key role in the evolution of the marketplace, tackling tough questions that guide state policy on interstate shipments of wine, beer, or spirits. Perhaps most importantly, in 2005, the Supreme Court ruled in Granholm v. Heald that state regulations on direct shipping must treat in-state shippers the same as out-of-state shippers. [7] The Supreme Court’s action was the culmination of the growing legal challenges to state practices with respect to interstate shipments of alcohol.
The issue was becoming increasingly important as the number of wineries expanded dramatically while the number of wholesalers and distributors dropped significantly due to consolidations within the industry. In testimony in the House Judiciary Committee, Rep. Mike Thompson (D-Calif.) noted that there has been a 500 percent increase in the number of wineries over the last 30 years, while the number of distributors has decreased by 50 percent.[8] These trends were also accompanied by the expansion of e-commerce and the internet, which made new systems of delivery a viable option.
The Granholm decision was followed by another important legal case in 2008, Family Wine Makers of California v. Jenkins, where a federal court clarified that a law that appeared neutral on its face yet had a discriminatory effect on out-of-state producers was unconstitutional. The courts rejected an appeal of this decision by Massachusetts in 2010.[9] As acknowledged by the courts, direct shipment has become more important; today, 37 states plus the District of Columbia currently allow some form of direct shipments. The CARE Act threatens to overturn these legal precedents and limit the ability to file lawsuits challenging harsh and unfair state regulations.
The Three-Tier System
In the wake of Prohibition’s repeal, states predominantly adopted some form of the “Three-Tier System” as a means of regulating alcohol sales. Under this system, purportedly adopted to limit the influence of organized crime in the market for alcohol, producers never sell directly to retailers. There is always a three step process of producers selling to wholesalers and distributors who then sell to retailers who sell to the final customers. Vertical integration between the tiers is typically prohibited by states; however, a number of states allow small vintners and craft brewers to self-distribute as a means of competing in a marketplace where they might otherwise be ignored by distributors.
This system has defined the market for over 75 years, creating substantial benefits for those fortunate enough to be wholesalers and distributors. Over time and through changes in state laws, the three tier system created a system of government-protected monopolists who ultimately control the market by determining which producers eventually make it into the market and which products consumers see on the shelves of retailers.
It is difficult for a small vineyard in California to convince a wholesaler across the continent to purchase its wine, because the wholesaler does not make much money carrying it. As a result, consumers enjoy fewer choices in the marketplace. As one trade publication for professional brewers noted, “First and foremost, these distributors are selling their primary brand and are therefore often unwilling to provide much attention to the smaller brands in their portfolio.”[10]
Due to franchise laws imposed in most states, it is often very difficult to terminate an agreement with the wholesaler. Franchise laws protect the wholesalers, and impose significant costs on producers seeking to terminate a contract.[11] Further, franchise laws in many states provide exclusive territory for wholesalers, reducing competition and allowing wholesalers to increase profits through their state-protected monopolies. Such practices are anti-competitive and harmful to consumers. As the Federal Trade Commission noted in its comments on a California law to implement more restrictive franchise laws, “if enacted, the Proposed Franchise Act is likely to lead to higher beer prices for California consumers, and may reduce the variety of beers from which California consumers can choose.”[12]
This is not to say that wholesalers provide no benefits to the economy. In fact, wholesalers are active in many sectors of the economy and have been a part of the American economy since the colonial era. Wholesalers are specialists with important information about local markets that provide producers an opportunity to get their products to retailers efficiently. Wholesalers also allow small retailers access to products that allow them to compete with larger competitors. Their presence on the ground provides point of sales contacts to supplement any advertising or promotions by producers as well as ensuring an adequate inventory of products is available.
Yet as Nathanael H. Engle noted back in 1933, throughout the economy there always has been a tension between wholesalers and retailers: “Long the dominant factor in the distribution of merchandise, as has been pointed out, he [the wholesaler] gradually came to accept his position as a ‘divine right,’ and has been slow to adjust himself to the irresistible changes taking place around him.”[13] With respect to alcohol, not only have wholesalers been slow to adjust, they have actively pursued legislation to protect the status quo and avoid any need for change.
Money and Politics
As in all markets, technology and innovation have altered the underlying market for alcohol sales, expanding the market for both producers and consumers. New shipping and transportation technologies, along with new internet technologies, allow producers to reach a much larger group of potential customers. At the same time, consumers can both find new wineries or craft brewers that have been ignored by local wholesalers. In response to these trends, wholesalers have turned to government to protect their bottom line.
Wholesalers are political creatures and they defend their interests vigorously. Many states have enacted franchise laws on their behalf that guarantee a stream of monopoly profits. Purportedly, this is to keep producers from switching wholesalers after the wholesaler had invested heavily in marketing the producer’s products. Yet it is not intuitively obvious why this is more problematic for alcoholic beverages than for other merchandise where wholesalers and producers are left to come to terms through contractual negotiations in an open market.
Rather than a negotiation, the debate over direct shipment bears all the markings of such a political firefight. Technology is chipping away at the cozy relationship that the wholesalers and distributors have created with their regulators and they are fighting back, turning to the government to protect their profits in a changing marketplace.
Wholesalers are working feverishly to protect their highly prized state-protected franchises. The largest, Southern Wine and Spirits, generated annual revenues of more than $8.5 billion in 2009, and the top ten wholesalers in alcohol generated revenues of more than $25 billion and controlled 56 percent of the market.[14] And alcohol wholesalers are far more profitable than the typical wholesaler, earning 66 percent to 83 percent more in profits than the typical wholesaler over a 10 year period.[15]
To ensure these impressive returns, wholesalers maintain a significant presence in state capitals and Washington, D.C. The National Beer Wholesalers Association, for example, ranks number 26 on the Center for Responsive Politics list of “Heavy Hitters,” giving a total of $21 million to politicians, both Democrats and Republicans, from 1989 to 2010.[16] An investigation by Wine Spectator found that “in the five years since the Supreme Court decided Granholm v. Heald, both the NBWA [National Beer Wholesalers Association] and the WSWA [Wine and Spirits Wholesalers Association] have dramatically increased spending on federal campaign initiatives.”[17]
Of course, when discussing H.R. 5034, the legislation is swathed in noble public goals to disguise the naked economic self-interests at play. Wholesalers cling to two arguments when supporting the legislation. Specifically, they have been quick to point out the possibility of a loss of state revenue on such direct sales, as well as the potential for illegal sales to minors. Yet state regulators already have the authority to address these issues and will continue to do so with or without the CARE Act.
There is nothing unique or novel to the direct shipment of alcohol with respect to state revenues. Catalog and mail order sales have existed for some time, and are a major component of commerce. States face the same issue for orders from L.L. Bean, and there is no reason revenue from beer or wine sales should be addressed any differently. Internet tax questions are much broader than beer and wine sales, and they have been addressed as an issue of national tax policy. Direct shipping of wine comprised roughly 1 percent of total wine sales, which suggests the revenue question is trivial.[18] Shipping is expensive and will naturally limit the scope of the market; the vast majority of sales will be in-state and therefore subject to revenue remittance. Wine shipments are relatively insignificant in terms of e-commerce, making it odd to propose singling them out for special tax consideration.
Concern over underage sales, an issue bound to capture a regulator’s attention, is also a questionable reason to oppose the direct shipment of beer and wine. While it is unlikely that underage drinkers will order expensive wines and craft beers and wait for delivery, safeguards have been established to address such concerns. A simple signature at delivery goes a long way towards eliminating abuse. States have the authority to control underage drinking without banning direct shipments. And if underage drinking were a concern, it is hard to understand why states such as Virginia allowed in-state shipping from vineyards while banning out-of-state shipments.
That wholesalers would play the public safety card is particularly ironic. For a group whose income is a function of the volume of alcohol sales to be suddenly claiming that “unregulated” direct shipments of alcohol may promote underage drinking or other irresponsible acts lacks credibility, especially considering that direct shipments comprise such a small percentage of the market. Promoting responsibility in the vast majority of the market they control may be a better use for the millions spent on lobbying by the wholesalers.
Conclusion
Many argue that the 21st amendment provided an exemption from the Commerce Clause, which meant states were free to regulate as they saw fit—even if that meant engaging in economic protectionism. Yet the courts made clear that the 21st Amendment does not trump the Commerce Clause. States have the authority to regulate alcohol sales, but this must be balanced against constitutional protections of interstate trade.
Laws that protect local monopolies from out-of-state competition not only harm consumers, but violate the U.S. Constitution as well. As the Supreme Court noted in Granholm v. Heald: “The Twenty-first Amendment’s aim was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. It did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they never enjoyed. The 21st Amendment allows states to regulate issues of temperance; it does not allow them to treat out-of-state suppliers any different from in-state suppliers.” [19]
Alcohol regulations are certainly outdated and need reforming. Unfortunately, H.R. 5034 would ensure that no meaningful reforms are even considered, leaving producers and consumers trapped in a regulatory model created in a bygone era. The CARE Act is a simple piece of economic protectionism, designed to shore up the monopoly earnings of wholesalers at the expense of everyone else. The bill already has 124 co-sponsors in the House, a tribute to the lobbying muscle displayed by the wholesalers.
Ultimately, consumers pay the price for such economic protectionism. Choice is restricted and prices are higher. The Internet provides a greater degree of economic integration that makes Prohibition-era laws on the distribution of beer and wine horribly outdated. A similar debate over clothing or CD sales would be farcical. Yet temperance laws continue to provide opportunities to wring out more profits from the regulatory system. Arguing from pure economic greed is less appealing than framing the issue in broader concerns about temperance and the welfare of the state, but the ultimate outcome of H.R. 5034 remains the same—an extension of monopoly power to a profitable and politically well-connected special interest.
Sheep in Wolf’s Clothing
According to the official summary, the Care Act:
Amends the Webb-Kenyon Act to: (1) state that it is the policy of Congress that each state or territory shall continue to have the primary authority to regulate alcoholic beverages; (2) prohibit unjustified discrimination against out-of-state producers of alcoholic beverages in favor of in-state producers; and (3) establish higher evidentiary standards for legal actions challenging the authority of states or territories to regulate alcoholic beverages.
Amends the Wilson Act to eliminate the requirement that a state or territory regulate the importation of all fermented, distilled, or other intoxicating liquors or liquids to the same extent and in the same manner as such liquors or liquids produced in such state or territory.
Taken at face value, the legislation appears innocuous; a simple clarification of existing law. However, the legislation is a direct response to the growing number of legal challenges to the monopolistic powers wielded by wholesalers and distributors in many states. The actual impact of the CARE Act would be particularly devastating to small craft brewers, independent wineries, and small distillers who are typically underrepresented by wholesalers but have made some inroads to consumers through direct shipping. For example, a medium sized winery in California, Cakebread Cellars, estimates that direct shipments make up roughly 10 percent of their business.[1]
More specifically, the CARE Act, H.R. 5034, does two things. First, it seeks to strengthen state regulation of alcohol by clarifying the primacy of the state’s authority. Second it proposes new evidentiary standards that would make it more difficult for anyone to challenge specific state regulations in the courts. And by amending the Wilson Act of 1890, the legislation makes clear that states have no obligation to treat out-of-state alcohol products in the same manner as those produced within the state.[2]
In clarifying the state’s authority, the proposed legislation makes a simple but powerful change that swings the pendulum hard toward state regulation with the requirement that states may not engage in “unjustified discrimination” of out-of-state products. While sounding like a check on discriminatory activity, the legislation actually proposes a much tougher standard than current law that would allow the state far greater leeway to claim their form of discrimination is “justified.”
This new authority is solidified by the new evidentiary standard included in the legislation, which raises the bar for anyone challenging a state law. Under the proposed legislation, the state would be “accorded a strong presumption of validity.” Moreover, the legal hurdle for anyone challenging a state regulation is much higher, putting the burden on the challenger to provide “clear and convincing evidence” that the law is discriminatory[3]. Under the CARE Act, a state would have no duty to justify its laws on alcohol sales; it is up to the individual to demonstrate that the state is wrong, and doing so requires a significant burden of proof.
In Search of Balance
The Founding Fathers were acutely aware of the lure of economic protectionism and deliberately sought to prohibit states from imposing economic restrictions or regulations on one another. James Madison sought to eliminate the "existing and injurious retaliations among the States" that economic protectionism created. A broader market, with the free flow of goods and services throughout the states, was critical to the development of the nation. To address such problems, the Commerce Clause of the U.S. Constitution placed authority over interstate commerce exclusively at the federal level.[4] Through history and precedent, a “dormant commerce clause” has emerged, which is interpreted as clarifying that if Congress has not regulated a particular issue in interstate commerce, then Congress meant that area not to be regulated and states should forbear from doing so as well.[5]
With respect to the sale of alcohol, however, there is a constitutional wrinkle. To repeal Prohibition, the Constitution was amended in 1933. The 21st Amendment allowed states to enact laws with respect to temperance—the trade, possession, or importation of alcohol was required to comply with state laws. Since that time, the states have played the dominant role in regulating the sale of alcoholic beverages, something made emphatically clear in the 21st Amendment: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.[6] (Emphasis added.) However, this authority has always been tempered by the courts, which must balance the regulatory authority provided to states by the 21st Amendment with concerns over the Commerce Clause and interstate commerce.
Indeed, the courts have played a key role in the evolution of the marketplace, tackling tough questions that guide state policy on interstate shipments of wine, beer, or spirits. Perhaps most importantly, in 2005, the Supreme Court ruled in Granholm v. Heald that state regulations on direct shipping must treat in-state shippers the same as out-of-state shippers. [7] The Supreme Court’s action was the culmination of the growing legal challenges to state practices with respect to interstate shipments of alcohol.
The issue was becoming increasingly important as the number of wineries expanded dramatically while the number of wholesalers and distributors dropped significantly due to consolidations within the industry. In testimony in the House Judiciary Committee, Rep. Mike Thompson (D-Calif.) noted that there has been a 500 percent increase in the number of wineries over the last 30 years, while the number of distributors has decreased by 50 percent.[8] These trends were also accompanied by the expansion of e-commerce and the internet, which made new systems of delivery a viable option.
The Granholm decision was followed by another important legal case in 2008, Family Wine Makers of California v. Jenkins, where a federal court clarified that a law that appeared neutral on its face yet had a discriminatory effect on out-of-state producers was unconstitutional. The courts rejected an appeal of this decision by Massachusetts in 2010.[9] As acknowledged by the courts, direct shipment has become more important; today, 37 states plus the District of Columbia currently allow some form of direct shipments. The CARE Act threatens to overturn these legal precedents and limit the ability to file lawsuits challenging harsh and unfair state regulations.
The Three-Tier System
In the wake of Prohibition’s repeal, states predominantly adopted some form of the “Three-Tier System” as a means of regulating alcohol sales. Under this system, purportedly adopted to limit the influence of organized crime in the market for alcohol, producers never sell directly to retailers. There is always a three step process of producers selling to wholesalers and distributors who then sell to retailers who sell to the final customers. Vertical integration between the tiers is typically prohibited by states; however, a number of states allow small vintners and craft brewers to self-distribute as a means of competing in a marketplace where they might otherwise be ignored by distributors.
This system has defined the market for over 75 years, creating substantial benefits for those fortunate enough to be wholesalers and distributors. Over time and through changes in state laws, the three tier system created a system of government-protected monopolists who ultimately control the market by determining which producers eventually make it into the market and which products consumers see on the shelves of retailers.
It is difficult for a small vineyard in California to convince a wholesaler across the continent to purchase its wine, because the wholesaler does not make much money carrying it. As a result, consumers enjoy fewer choices in the marketplace. As one trade publication for professional brewers noted, “First and foremost, these distributors are selling their primary brand and are therefore often unwilling to provide much attention to the smaller brands in their portfolio.”[10]
Due to franchise laws imposed in most states, it is often very difficult to terminate an agreement with the wholesaler. Franchise laws protect the wholesalers, and impose significant costs on producers seeking to terminate a contract.[11] Further, franchise laws in many states provide exclusive territory for wholesalers, reducing competition and allowing wholesalers to increase profits through their state-protected monopolies. Such practices are anti-competitive and harmful to consumers. As the Federal Trade Commission noted in its comments on a California law to implement more restrictive franchise laws, “if enacted, the Proposed Franchise Act is likely to lead to higher beer prices for California consumers, and may reduce the variety of beers from which California consumers can choose.”[12]
This is not to say that wholesalers provide no benefits to the economy. In fact, wholesalers are active in many sectors of the economy and have been a part of the American economy since the colonial era. Wholesalers are specialists with important information about local markets that provide producers an opportunity to get their products to retailers efficiently. Wholesalers also allow small retailers access to products that allow them to compete with larger competitors. Their presence on the ground provides point of sales contacts to supplement any advertising or promotions by producers as well as ensuring an adequate inventory of products is available.
Yet as Nathanael H. Engle noted back in 1933, throughout the economy there always has been a tension between wholesalers and retailers: “Long the dominant factor in the distribution of merchandise, as has been pointed out, he [the wholesaler] gradually came to accept his position as a ‘divine right,’ and has been slow to adjust himself to the irresistible changes taking place around him.”[13] With respect to alcohol, not only have wholesalers been slow to adjust, they have actively pursued legislation to protect the status quo and avoid any need for change.
Money and Politics
As in all markets, technology and innovation have altered the underlying market for alcohol sales, expanding the market for both producers and consumers. New shipping and transportation technologies, along with new internet technologies, allow producers to reach a much larger group of potential customers. At the same time, consumers can both find new wineries or craft brewers that have been ignored by local wholesalers. In response to these trends, wholesalers have turned to government to protect their bottom line.
Wholesalers are political creatures and they defend their interests vigorously. Many states have enacted franchise laws on their behalf that guarantee a stream of monopoly profits. Purportedly, this is to keep producers from switching wholesalers after the wholesaler had invested heavily in marketing the producer’s products. Yet it is not intuitively obvious why this is more problematic for alcoholic beverages than for other merchandise where wholesalers and producers are left to come to terms through contractual negotiations in an open market.
Rather than a negotiation, the debate over direct shipment bears all the markings of such a political firefight. Technology is chipping away at the cozy relationship that the wholesalers and distributors have created with their regulators and they are fighting back, turning to the government to protect their profits in a changing marketplace.
Wholesalers are working feverishly to protect their highly prized state-protected franchises. The largest, Southern Wine and Spirits, generated annual revenues of more than $8.5 billion in 2009, and the top ten wholesalers in alcohol generated revenues of more than $25 billion and controlled 56 percent of the market.[14] And alcohol wholesalers are far more profitable than the typical wholesaler, earning 66 percent to 83 percent more in profits than the typical wholesaler over a 10 year period.[15]
To ensure these impressive returns, wholesalers maintain a significant presence in state capitals and Washington, D.C. The National Beer Wholesalers Association, for example, ranks number 26 on the Center for Responsive Politics list of “Heavy Hitters,” giving a total of $21 million to politicians, both Democrats and Republicans, from 1989 to 2010.[16] An investigation by Wine Spectator found that “in the five years since the Supreme Court decided Granholm v. Heald, both the NBWA [National Beer Wholesalers Association] and the WSWA [Wine and Spirits Wholesalers Association] have dramatically increased spending on federal campaign initiatives.”[17]
Of course, when discussing H.R. 5034, the legislation is swathed in noble public goals to disguise the naked economic self-interests at play. Wholesalers cling to two arguments when supporting the legislation. Specifically, they have been quick to point out the possibility of a loss of state revenue on such direct sales, as well as the potential for illegal sales to minors. Yet state regulators already have the authority to address these issues and will continue to do so with or without the CARE Act.
There is nothing unique or novel to the direct shipment of alcohol with respect to state revenues. Catalog and mail order sales have existed for some time, and are a major component of commerce. States face the same issue for orders from L.L. Bean, and there is no reason revenue from beer or wine sales should be addressed any differently. Internet tax questions are much broader than beer and wine sales, and they have been addressed as an issue of national tax policy. Direct shipping of wine comprised roughly 1 percent of total wine sales, which suggests the revenue question is trivial.[18] Shipping is expensive and will naturally limit the scope of the market; the vast majority of sales will be in-state and therefore subject to revenue remittance. Wine shipments are relatively insignificant in terms of e-commerce, making it odd to propose singling them out for special tax consideration.
Concern over underage sales, an issue bound to capture a regulator’s attention, is also a questionable reason to oppose the direct shipment of beer and wine. While it is unlikely that underage drinkers will order expensive wines and craft beers and wait for delivery, safeguards have been established to address such concerns. A simple signature at delivery goes a long way towards eliminating abuse. States have the authority to control underage drinking without banning direct shipments. And if underage drinking were a concern, it is hard to understand why states such as Virginia allowed in-state shipping from vineyards while banning out-of-state shipments.
That wholesalers would play the public safety card is particularly ironic. For a group whose income is a function of the volume of alcohol sales to be suddenly claiming that “unregulated” direct shipments of alcohol may promote underage drinking or other irresponsible acts lacks credibility, especially considering that direct shipments comprise such a small percentage of the market. Promoting responsibility in the vast majority of the market they control may be a better use for the millions spent on lobbying by the wholesalers.
Conclusion
Many argue that the 21st amendment provided an exemption from the Commerce Clause, which meant states were free to regulate as they saw fit—even if that meant engaging in economic protectionism. Yet the courts made clear that the 21st Amendment does not trump the Commerce Clause. States have the authority to regulate alcohol sales, but this must be balanced against constitutional protections of interstate trade.
Laws that protect local monopolies from out-of-state competition not only harm consumers, but violate the U.S. Constitution as well. As the Supreme Court noted in Granholm v. Heald: “The Twenty-first Amendment’s aim was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. It did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they never enjoyed. The 21st Amendment allows states to regulate issues of temperance; it does not allow them to treat out-of-state suppliers any different from in-state suppliers.” [19]
Alcohol regulations are certainly outdated and need reforming. Unfortunately, H.R. 5034 would ensure that no meaningful reforms are even considered, leaving producers and consumers trapped in a regulatory model created in a bygone era. The CARE Act is a simple piece of economic protectionism, designed to shore up the monopoly earnings of wholesalers at the expense of everyone else. The bill already has 124 co-sponsors in the House, a tribute to the lobbying muscle displayed by the wholesalers.
Ultimately, consumers pay the price for such economic protectionism. Choice is restricted and prices are higher. The Internet provides a greater degree of economic integration that makes Prohibition-era laws on the distribution of beer and wine horribly outdated. A similar debate over clothing or CD sales would be farcical. Yet temperance laws continue to provide opportunities to wring out more profits from the regulatory system. Arguing from pure economic greed is less appealing than framing the issue in broader concerns about temperance and the welfare of the state, but the ultimate outcome of H.R. 5034 remains the same—an extension of monopoly power to a profitable and politically well-connected special interest.
Thursday, July 22, 2010
Buckhead Brett
Yeah, I know it's a but and paste, but damn if this sportswriter didn't nail it:
As NFL training camps open this week with Cleveland and Dallas taking the field first, Brett Favre stands alone as the only player in the league who's happy with his contract but who may not show up for workouts.
Unlike guys who may hold out in an attempt to get more money, he seems fine with the $13 million the Vikings are offering him in 2010. And even though Favre is supposedly still deciding whether he wants to play a 20th season in the NFL, the prevailing school of thought is that he'll be back. So what's the deal with possibly skipping training camp?
The Favre apologists are quick to point out that he has earned this type of special treatment based upon his status and longevity in the league. If that's the case, didn't Jerry Rice earn it as well? Or Emmitt Smith? Not to mention offensive linemen who played into their 40s, like Bruce Matthews and Jackie Slater. I'm pretty sure they all earned the right not to attend the worst three or four weeks of the year without facing the possibility of being fined, but I don't remember them skipping out on their teammates. Sure, their reps were measured and they were given practices off here and there, but they showed up year after year, even in the twilight of their careers. And they all played positions that are much more physically demanding during training camp than quarterback.
For a present day example, I don't see Ray Lewis staying away from camp, even though he too has earned that kind of preferential treatment with the Ravens. That's because he, like the retired players I mentioned, knows that being with his teammates is the right thing to do, for so many reasons, including team-building. I mean, there's a reason it's called teamwork, Brett.
And yet, Favre isn't likely to report until mid- to late-August, shortly after the Vikings have packed up their training camp bags in Mankato, Minn., and headed back to the Twin Cities.
Is he worried about the intense practices? Sorry, but as a former offensive lineman I am not going to let a quarterback who wears a red jersey in practice attempt to get away with that excuse. That red jersey he wears means he is not allowed to even be touched, so Favre's gotta come up with something better than that.
Maybe he doesn't want to wear out his arm? Seems reasonable until you consider exactly how much clout and control Favre has in this situation. Does anyone honestly think head coach Brad Childress would ask Favre to throw one more football than he wants to? Didn't think so. Favre could easily be on a pitch count if he wanted. Heck, it could be the exact same number of throws he makes every day at Oak Grove High in Mississippi.
So if he can't get hit and he can make as few throws as he wants, why exactly does he not want to be there, like the rest of his teammates? Is it sunburn? I'm sure they can find him a hat. Doesn't like the beds in Mankato? I'll bet they'd be willing to bring in a king size Tempur-Pedic for the 40-year-old grandfather. Maybe it's the food, but I always loved the myriad of culinary options available at training camp, so I find that one hard to believe too.
My point is not that Favre's desire to skip training camp will have an adverse effect on the Vikings season, because clearly, based on their success last year, that isn't the concern. My point is that Favre is not deserving of being a team leader if he misses training camp this year. There doesn't appear to be any good reason for him to not be there, other than he can get away with it. But that means it's all about him again, as, sadly, it usually is.
As NFL training camps open this week with Cleveland and Dallas taking the field first, Brett Favre stands alone as the only player in the league who's happy with his contract but who may not show up for workouts.
Unlike guys who may hold out in an attempt to get more money, he seems fine with the $13 million the Vikings are offering him in 2010. And even though Favre is supposedly still deciding whether he wants to play a 20th season in the NFL, the prevailing school of thought is that he'll be back. So what's the deal with possibly skipping training camp?
The Favre apologists are quick to point out that he has earned this type of special treatment based upon his status and longevity in the league. If that's the case, didn't Jerry Rice earn it as well? Or Emmitt Smith? Not to mention offensive linemen who played into their 40s, like Bruce Matthews and Jackie Slater. I'm pretty sure they all earned the right not to attend the worst three or four weeks of the year without facing the possibility of being fined, but I don't remember them skipping out on their teammates. Sure, their reps were measured and they were given practices off here and there, but they showed up year after year, even in the twilight of their careers. And they all played positions that are much more physically demanding during training camp than quarterback.
For a present day example, I don't see Ray Lewis staying away from camp, even though he too has earned that kind of preferential treatment with the Ravens. That's because he, like the retired players I mentioned, knows that being with his teammates is the right thing to do, for so many reasons, including team-building. I mean, there's a reason it's called teamwork, Brett.
And yet, Favre isn't likely to report until mid- to late-August, shortly after the Vikings have packed up their training camp bags in Mankato, Minn., and headed back to the Twin Cities.
Is he worried about the intense practices? Sorry, but as a former offensive lineman I am not going to let a quarterback who wears a red jersey in practice attempt to get away with that excuse. That red jersey he wears means he is not allowed to even be touched, so Favre's gotta come up with something better than that.
Maybe he doesn't want to wear out his arm? Seems reasonable until you consider exactly how much clout and control Favre has in this situation. Does anyone honestly think head coach Brad Childress would ask Favre to throw one more football than he wants to? Didn't think so. Favre could easily be on a pitch count if he wanted. Heck, it could be the exact same number of throws he makes every day at Oak Grove High in Mississippi.
So if he can't get hit and he can make as few throws as he wants, why exactly does he not want to be there, like the rest of his teammates? Is it sunburn? I'm sure they can find him a hat. Doesn't like the beds in Mankato? I'll bet they'd be willing to bring in a king size Tempur-Pedic for the 40-year-old grandfather. Maybe it's the food, but I always loved the myriad of culinary options available at training camp, so I find that one hard to believe too.
My point is not that Favre's desire to skip training camp will have an adverse effect on the Vikings season, because clearly, based on their success last year, that isn't the concern. My point is that Favre is not deserving of being a team leader if he misses training camp this year. There doesn't appear to be any good reason for him to not be there, other than he can get away with it. But that means it's all about him again, as, sadly, it usually is.
Monday, July 19, 2010
Wednesday, July 14, 2010
portable a/c in the pop up
cheap solutions for a/c @ Disney's Fort Wilderness in the pop up. It was the 2nd week of July and during an East Coast heatwave....I used a portable number I already had ( about 250$), vented it out the bunk end, and put a pair of jeans around the tube..When gone, I covered it up and turned it off. By day 2, I let it run all day and fashioned a vent cover out of a styrofoam cooler. I used a 1$ 'emergency blanket' and clothespins pirchased at the Dollar General to help reflect the sun away from the bunkened over the a/c.
I didn't need to empty it until the end of our 6 day trip, and it had a good amount in the reservior...I think if I could get a tube attached to the drain and empty it in the sink, it would be better. But, it actually made this trip livable.
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