Pigford Bounces Around The Blogosphere

Daniel Foster at NRO:

On Jan. 5, 1999, a federal district court in Washington, D.C., approved a preliminary consent decree — essentially a seal of approval for a settlement — granting class-action relief for a wide swath of black farmers. Give or take an unseemly lawyer, it looked like the angels had won. It was a victory bipartisan in the making: Speaker Newt Gingrich had helped push through legislation waiving the statute of limitations for discrimination complaints, allowing the suit to clear a crucial legal hurdle. But the story was far from over, and Pigford v. Glickman would prove the settlement that launched a hundred thousand frauds.

The “Pigford class” — the range of individuals eligible to claim settlement money — originally was defined as

all African-American farmers who (1) farmed between January 1, 1983, and Feb. 21, 1997; and (2) applied, during that time period, for participation in a federal farm program with USDA, and as a direct result of a determination by USDA in response to said application, believed that they were discriminated against on the basis of race, and filed a written discrimination complaint with USDA in that time period.

Both sides acknowledged that the class size wasn’t likely to exceed 2,500. But the seeds of abuse were already sown. Despite the fact that the class was at first strictly limited to those who had “filed a written discrimination complaint” with the USDA, the settlement crucially allowed that most members of the class lacked any documentation of these complaints, purportedly owing to poor record-keeping by the USDA. So the resolution mechanism offered potential claimants two “tracks” toward settlement money. Track B required a higher bar for evidence — the “preponderance” standard traditional in civil actions, demonstrated during one-day “mini-trials” before court-appointed arbitrators — but it came with no cap on potential awards. Track A provided, in the words of the case’s judge, “those class members with little or no documentary evidence with a virtually automatic cash payment of $50,000, and forgiveness of debt owed to the USDA.” Track A claimants would also get their taxes on that debt paid directly to the IRS for them, and priority consideration on their next USDA loan application.

To get their checks, Track A claimants were required to show court-appointed facilitators “substantial evidence” that they had had “communication” with the USDA, a member of Congress, the White House, or any federal, state, county, or local official regarding a discrimination complaint. How “substantial”? According to the consent decree, “something more than a ‘mere scintilla’” — in practice, as little as the corroboration of one’s story by a single individual who was not immediate family. The definitions of “communication” and “complaint” were stretched as well: Under the agreement, even participating in a “listening session” with USDA officials was as good as filing a discrimination complaint. And in cases where there was no documentary evidence whatsoever of communication with the USDA, a popular defense was for claimants to explain that USDA officers would not even give them the forms and applications they requested — in one fell swoop both demonstrating the discrimination and accounting for the lack of a paper trail. Thus could blacks who had never cultivated land they’d owned or rented — who in point of fact might never have mown a lawn or tended to a shrub — claim that systemic racism thwarted their farming careers before they ever started. Such claimants came to be known as the “attempted to farm” class, and by some estimates as many as 92 percent of all Pigford filers marched under their banner.

Conor Friedersdorf at Sullivan’s place:

In the current issue of National Review, Daniel Foster has a long piece on Pigford vs. Glickman. As Wikipedia notes, the Pigford case is “a class action lawsuit against the United States Department of Agriculture (USDA), alleging racial discrimination in its allocation of farm loans and assistance between 1983 and 1997. The lawsuit ended with a settlement in which the U.S. government agreed to pay African American farmers US$50,000 each if they had attempted to get USDA help but failed. To date, almost US$1 billion has been paid or credited to the farmers under the settlement’s consent decree.”

As Salonexplains, the case is a matter of public controversy largely because Andrew Breitbart has become obsessed with it. His allegation is that the payout is rife with fraud and political corruption. I haven’t mentioned the matter before because having witnessed Breitbart’s carelessness with facts, the egregiously sloppy journalism he publishes on a daily basis, and his hubristic, immoral, “ends justify the means” approach to activism, I have serious doubts about his integrity and a strong conviction that his ethical compass is broken. More to the point, I just can’t trust a damn thing he publishes, and having discredited himself on a national scale in the Shirley Sherrod case, a lot of others agree.

But I’ve enjoyed Foster’s work for awhile now, and critical as I’ve been of a couple colleagues he works with at NR, the publication retains the ability to publish solid pieces, especially the ones prepped for print.

Although I can’t personally vouch for the facts in his Pigford story, having never reported on the matter myself, it reads like a solid piece – one that raises serious questions worthy of scrutiny. Alas, it is behind National Review’s paywall, and that presents a problem: As press coverage of the Pigford case increases – Breitbart is touting it singlemindedly at CPAC, and the stories are inevitable – the conversation is starting to focus is on the man whose heat-to-light ratio detracts from a cool-headed assessment of facts more than anyone in America. One purpose of this post is to suggest that we’d all be better off focusing the discussion on the NR piece, paywall or no. Certainly, liberal bloggers writing about the matter should acquire access to it. I’d be curious to see if they have a persuasive rebuttal. If so, I’ll air it here. And if not – if the Foster piece has everything right – the story definitely merits attention.

Here’s a very brief summary:

– Everyone agrees that between 1983 and 1997, the USDA discriminated against black farmers.

– The class action lawsuit made eligible for compensation farmers or aspiring farmers whose interests were harmed due to USDA discrimination. (There were other requirements too, but forget that for a moment.)

– According to Foster’s piece, a 1997 census study found a total of 18,500 black farmers nationwide.

– Yet there are nearly 100,000 claimants in the Pigford case.

There’s a lot more to Foster’s story, and this matter generally. But that gap between the number of claiments and the total number of black farmers in America is what struck me. If accurate it suggests widespread fraud.

A word about the bigger picture.

There are conservative bloggers expressing outrage that Americans haven’t been told more about this story. It’s worth pondering that reaction. It’s understandable: the misuse of public funds is always a legitimate story, and I hope this one gets reported out if that’s what has happened. But the fact that Americans have never heard of the Pigford case before now is most damning because it means we were utterly ignorant of the fact that the federal government was discriminating against thousands of blacks for almost 15 years, and as recently as the late 1990s! That is far more troubling than the possibility that private citizens perpetrated fraud on a poorly conceived settlement (though it doesn’t excuse it).

One narrative taking hold is that the Pigford case is about political correctness – that the fraud is “reparations in disguise,” and is enabled by a mainstream media willing to look the other way rather than inform the public about an injustice. Anyone spreading that narrative ought to remember that although the federal government’s racism against some Pigford claimants has been written about some in the media, it remains an obscure story known to very few people – and most of them didn’t show any interest in the story until it fit into the narrative of PC excess and the left buying off votes.

There’s nothing wrong or unnatural about political adversaries tuning into a story when their opponents may be guilty of corruption. A rare benefit of partisanship is that it creates an incentive to expose bad behavior. And the rest of us shouldn’t care about their motives insofar as it affects how we go forward– if fraud has been perpetrated on a large scale, better that we learn about it if only to prevent the same sort of thing in the future. Had the federal government discriminated for years against black farmers, however, then paid them off efficiently and without fraud, the vast majority of people in the conservative movement – and most of America along with them  – would’ve ignored the whole Pigford matter entirely. Is that the mark of a society overrun by political correctness?

Surely outrage is warranted for the initial discrimination.

Ta-Nehisi Coates:

This is where you see “conservative” effectively becoming a synonym for “white populist.” You would think that the government discriminating against a class of farmers over 15 years, under three different presidential administrations, from two different parties, not in the distant, but recently, would be a pet cause for people disturbed by the overreach of government. In fact those who claim that banner, are disturbed by the remedy applied–not the problem, itself.

I’m reminded of David Brooks, lamenting the fact that Sonia Sotamayor didn’t go to school in the ’50s, while neglecting to mention that her alma mater (Princeton) didn’t even admit women until a decade later. The opportunistic rush to elide hard problems, in order to disparage imperfect, and perhaps even wrongheaded, solutions is an essential feature of modern conservative. In regards to blacks it shows itself in this sense that racism–even government-sponsored racism–isn’t actually a problem, people trying to fix it are a problem.

Mark Thompson at The League:

These concerns are poppycock – it is simply not the case that the discrepancy between the number of claimants and the number of black farmers in 1997 “suggests widespread fraud.”  As mistermix correctly points out, some very rudimentary fact-checking provides the answers to a lot of these concerns.*

For starters, this reporting elides the extreme severity of discrimination against black farmer, especially as perpetrated by the USDA: the average market value of a farm operated by a black farmer is only about 20% of the market value of an average farm operated by a white farmer, and even in 2007 black farmers applying for federal loans were able to receive loans of only about 1/3 of the amount of the average federal loan provided to white farmers.  Notably, in its settlement agreement in Pigford I, the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs.

Second, using the number of black-owned farms extant in 1997 as the sole baseline for comparison is absurd on its face, particularly in light of the fact that the number of black-owned farms declined by almost 50% between 1983 and 1997, and in light of the fact that the settlements cover discrimination over a 15 year period.  At the very least, then, the far more appropriate benchmark would need to be 33,250, the number of black-owned farms existing in 1983.

Third, the settlement quite appropriately covers not only actual farmers but also people who sought to acquire or start a farm and applied for a loan from the USDA.  These persons would never appear in statistics of “black farmers” since, by definition, they needed the loans to become farmers.

Fourth, until 2002, no statistical distinction was made between “black farmers” and “black-owned farms,” which is important in light of the fact that any farmer would have been eligible to apply for one of these loans.  We do know that when this distinction started to be made, in 2002, there were at least 50% more “black farmers” than “black-0wned farms.”  Assuming these statistics would have been similar in 1982, then the number of “black farmers” in 1983 would have been at least 50,000.

Fifth, these claims ignore the possibility of farms changing ownership during that 15 year period, thus creating multiple possible claimants.

Sixth, nowhere in Conor’s post or Breitbart’s original reporting is there a mention of the fact that just because a claim is made does not mean it will be granted; instead, both seem to believe that claims will be rubber stamped once made.  But to the contrary, 30% of claims that were made under Pigford I were ultimately denied, and there’s no reason to believe that the rate will be any lower under Pigford II; this is an abnormally high rate of denial for a class action settlement, suggesting that the USDA is in fact reviewing claims quite carefully.

Lastly, there are certainly going to be other legitimate claimants who would not fall into the categories outlined above.  But even if there are not, a quick look at the numbers I’ve put together here quickly reveals that we are well within the realm of reasonableness: if the remaining claims are all approved at the same rate as the Pigford I claims, there will be a total of between 60,000 and 65,000 approved claims.  We know that, at a minimum, there were 50,000 black farmers in 1983 who were eligible to apply for these loans.  Given that, is it conceivable that there were at least an additional 10-15,000 people who attempted to become farmers but were denied the needed loans from the USDA or who simply obtained their farms (whether through inheritance or otherwise) subsequent to 1983?  I think the answer to that is “absolutely.”

None of this is to say that there hasn’t been and will not be successful fraudulent abuse of these settlements.  Where such fraud is discovered, clearly it should be prosecuted.  And no doubt, given the stakes involved, it should not be a surprise if these settlements turn out to be more prone to fraud than most – we are talking about large sums of money readily available with a relatively low burden of proof.  Unfortunately, such a low burden of proof is probably necessary here – unless the overwhelming majority of claims are in fact fraudulent, it’s safe to assume that forcing them to be tried under a higher standard of proof would impose far more costs than they would save.

What is appalling here is the ease with which the information I’ve noted above is readily available, and the utter failure of both Breitbart and Conor (and, I assume, Foster) to cite any of it.  Increasingly, it seems that the role of more high-brow political journalism is simply to, consciously or not, provide intellectual cover for the base’s ill-supported memes rather than seeking truth or attempting to challenge the base.  Instead of talking to the base, they merely parrot it.**

[UPDATE: 1.  In the comments below, Conor acknowledges his error, for which he certainly deserves credit, and which is something that is certainly all-too-rare in the blogosphere.

Mistermix:

After Conor Friedersdorf was thoroughly “fisked”—to use a word he can understand—for pimping an error-filled National Review article that supported Andrew Breitbart’s attempt to start a race war out of a settled case of discrimination, he responded with a little humility:

All I can say is that it was an honest mistake, and while I wish I would’ve raised it in my initial post, I am at least glad that I blogged about this issue because a lot of folks who were wrong in the same way I was now have the benefit of understanding this controversy better. I’ll certainly deploy your arguments as this case gets covered elsewhere.

That lasted about as long as it took the author of the original National Review, Dan Foster, to put up a lengthy defense of his original piece:

The main thing you need to know about that defense is that, at many key points, Foster cites either Andrew Breitbart or Breitbart’s helper, Lee Stranahan, for factual evidence. He many have done independent reporting on his own, but when it comes down to the important facts, he’s citing a person Conor has acknowledged that he can’t trust. But Conor’s more than willing to pimp Breitbart’s story through an intermediary. How is that anything but useful idiocy?

Daniel Foster at National Review:

I think my piece largely speaks for itself (although there was certainly some stuff that had to be cut: the original draft was twice as long as what ended up in the mag), and so I hope Coates and Thompson will read it. But let me briefly try to answer their criticisms, in order. (Apologies: if you haven’t read it, some of this will lack context).Thompson has seven points. Here’s one:

. . . this reporting elides the extreme severity of discrimination against black farmer, especially as perpetrated by the USDA: the average market value of a farm operated by a black farmer is only about 20% of the market value of an average farm operated by a white farmer, and even in 2007 black farmers applying for federal loans were able to receive loans of only about 1/3 of the amount of the average federal loan provided to white farmers.  Notably, in its settlement agreement in Pigford I, the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs.

Okay, the story fully grants that there is statistical evidence of discrimination against black farmers in the relevant time period, so we’re not in disagreement there. To say, though, that “the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs” in the settlement is a bit off. It’s sort of a “when did you stop beating your wife?” question. The settlement meant that the USDA didn’t have to admit, in the legal sense, to discrimination (though we’ll see later that they fell all over themselves to admit it in the moral sense), and that they could avoid the messy process of investigating and adjudicating it. Like many (most, all?) settlements, the USDA traded cash for the risk of legal liability.

Here’s two, four, and five, and seven, which are related:

Second, using the number of black-owned farms extant in 1997 as the sole baseline for comparison is absurd on its face, particularly in light of the fact that the number of black-owned farms declined by almost 50% between 1983 and 1997, and in light of the fact that the settlements cover discrimination over a 15 year period.  At the very least, then, the far more appropriate benchmark would need to be 33,250, the number of black-owned farms existing in 1983.

[. . . ]

Fourth, until 2002, no statistical distinction was made between “black farmers” and “black-owned farms,” which is important in light of the fact that any farmer would have been eligible to apply for one of these loans.  We do know that when this distinction started to be made, in 2002, there were at least 50% more “black farmers” than “black-0wned farms.”  Assuming these statistics would have been similar in 1982, then the number of “black farmers” in 1983 would have been at least 50,000.

Fifth, these claims ignore the possibility of farms changing ownership during that 15 year period, thus creating multiple possible claimants.

[. . .]

Lastly, there are certainly going to be other legitimate claimants who would not fall into the categories outlined above.  But even if there are not, a quick look at the numbers I’ve put together here quickly reveals that we are well within the realm of reasonableness: if the remaining claims are all approved at the same rate as the Pigford I claims, there will be a total of between 60,000 and 65,000 approved claims.  We know that, at a minimum, there were 50,000 black farmers in 1983 who were eligible to apply for these loans.  Given that, is it conceivable that there were at least an additional 10-15,000 people who attempted to become farmers but were denied the needed loans from the USDA or who simply obtained their farms (whether through inheritance or otherwise) subsequent to 1983?  I think the answer to that is “absolutely.”

As to the number of black farmers, I mention both the 18,500 and 33,000 numbers in my piece; neither jibes with the number of claims that have poured in. The point about the difference between black-owned farms and black farmers isn’t really true either. Take a look at this table from the 1992/1997 Ag census. It does in fact distinguish between black-owned farms and black-leased or -rented farms, and it provides numbers for black tenant farmers. They hew closely to the 18,500 figure. But even if we take the biggest number that Thompson’s multi-step statistical conjecture produces — 50,000 black farmers — we’re still missing half the claimants. It’s also worth noting that the type of loans and assistance the USDA is alleged to have withheld from blacks were for farm operators, not agricultural workers broadly construed. So if that’s what Thompson had in mind in making his distinction then it’s not clearly relevant. Look, I — and parties on both sides of the case — yield that USDA record-keeping makes it difficult to pin down how many black farmers there were at any given time. In fact, much of my article is basically an argument that that problem is what opened the case up to fraud.

Doubling back now to Thompson’s third point:

Third, the settlement quite appropriately covers not only actual farmers but also people who sought to acquire or start a farm and applied for a loan from the USDA.  These persons would never appear in statistics of “black farmers” since, by definition, they needed the loans to become farmers.

Aye, there’s the rub. The original Pigford class contained a few hundred farmers, and while the settlement was being negotiated, both sides agreed that when it was all said and done, there would likely be no more than 2,500 or so potential claimants. But trial lawyers and a sympathetic judge wrote the claims process in such a way that almost no proof was required to collect $50,000. Not only did you not have to prove that you were actually discriminated against by the USDA — you didn’t have to prove by a preponderance of evidence that you had even applied for a loan. Again, this is all in the piece and I won’t rehearse it here. But ask whistle-blower Pigford claimants and even advocates for Pigford II about the category of “attempting to farm” claimants, which by some measures account for the vast majority of outstanding claims.

And lastly Thompson’s sixth point:

Sixth, nowhere in Conor’s post or Breitbart’s original reporting is there a mention of the fact that just because a claim is made does not mean it will be granted; instead, both seem to believe that claims will be rubber stamped once made.  But to the contrary, 30% of claims that were made under Pigford Iwere ultimately denied, and there’s no reason to believe that the rate will be any lower under Pigford II; this is an abnormally high rate of denial for a class action settlement, suggesting that the USDA is in fact reviewing claims quite carefully.

Once you’ve read the bit in my piece about the standards of evidence required to collect $50,000 under the settlement you’ll laugh out loud at that last sentence. And if you read Andrew Breitbart’s report, in which he interviews USDA workers who actually rubber-stamped the claims, you’ll see that approval was nearly automatic in a number of jurisdictions.

Now let’s deal with Coates. Here’s the meat of his criticism:

This is where you see “conservative” effectively becoming a synonym for “white populist.” You would think that the government discriminating against a class of farmers over 15 years, under three different presidential administrations, from two different parties, not in the distant, but recently, would be a pet cause for people disturbed by the overreach of government. In fact those who claim that banner, are disturbed by the remedy applied–not the problem, itself.

Indeed it would be extremely worrisome if the federal government under three different presidents and two different parties had discriminated wholesale against black farmers. But the queer thing about the USDA programs at the heart of the Pigford case is that they were locally administered. The USDA bankrolled these loan programs, but they were actually run by hundreds or thousands of county boards in dozens of states, virtually all of them elected by the local farmers. Centralized, top-down, discrimination by the federal government would be awful but plausible; the sheer number and geographic scope of the claims suggests a remarkable universality. Maybe it is the case that a thousand different county boards, independently, thought blacks didn’t deserve farm operating loans. But there are also anecdotes about claims coming out of the Washington, D.C., suburbs; out of Chicago; out of a county in Arkansas where the entire loan board was black. . . .

As to his point about what this case, and my story, says about racial politics in America, I can only reiterate: There was discrimination against black farmers, and it was shameful. But so too is the race-hustling, trial-lawyer greed and fraud that has come out of the settlements. I didn’t even include in the piece stuff about reparations activists and unsavory Nation of Islam types glomming onto Pigford as a proxy for their own goals. E.g. Gary Grant, President of the Black Farmers & Agriculturalist Association (BFAA), which played a pivotal role in expanding Pigford settlements, went so far as to tell Fox News in 2001 that he doesn’t care if all the claimants are really farmers. “If you are an African-American, you deserve $50,000 because your roots are in farming and your folks have already been cheated,” he said. “You are collecting what your grandparents didn’t have the opportunity to.” In 2003, BFAA vice-president Ridgely Muhammad, who moonlights as “minister of agriculture” in the Nation of Islam, wrote on a black nationalist web site that the Pigford settlement illustrated both promise and peril for the reparations movement: the promise of showing how to navigate the “legal flaws in current reparations lawsuits” and the peril of allowing “white ‘do gooder’ lawyers’” to profit from the proceedings. Faya Ora Rose Touré (Rose Sanders until she elected to step away from her “slave name”) is a Selma, Alabama civil-rights lawyer who won an appellate court ruling to extend the filing deadline for Pigford claimants. She has also long been a dogged fighter for reparations, having once gone to court alongside Johnny Cochran to seek compensation from corporations that profited from slavery. Today, she is Shirley Sherrod’s lawyer. And then there is Dorothy Tillman, a former (Obama endorsed) Chicago alderman who during her tenure in public life has made reparations her signature political issue, and who has been recognized by Rep. John Conyers (D., Mich.), Congress’s greatest champion of reparations, for her work for “Black farmers and for justice.” The list goes on.

Breitbart and documentary filmmaker Lee Stranahan, who is working on a Pigford project, tell me they have recently recorded evidence of a black activist giving what Breitbart called a “demented Princeton Review” seminar on how to game the settlement to a packed black church in the South. I haven’t seen the tape so I didn’t run with it and I’ll reserve judgment, but I do know (and again, it’s in the piece) that real black farmers who were really discriminated against are still hurting, because the settlements were structured to spread the money far and wide, and right quick, not to actually bring relief to struggling black farmers who are still working the land.

To paraphrase Coates, the point is this: You would think that a bunch of fraudsters and fringe ideologues using legitimate claims of past discrimination to bilk taxpayer dollars and propagate a divisive program of grievance politics, not in the distant or recent past, but today, would be a pet cause for people interested in overcoming the legacy of racism in this country. In fact those who claim that banner are disturbed by the exposure of that problem — not the problem itself.

Adam Serwer:

Pigford I

As the Congressional Research Service report notes, “as of November 2010, 15,642 (69%) of the 22,721 eligible class members had final adjudications approved.” Foster says you’ll “laugh out loud” at the necessary evidentiary standards for filing under Track A, but someone could have plausibly walked away from reading Foster’s piece believing none of the 94,000 claims would be dismissed, when 31 percent of those in the original settlement were.

The claimants were required to show “substantial evidence” that they were entitled to part of the settlement. This doesn’t fit neatly into an article, so it’s understandable Foster didn’t include it, but I’ll just blockquote it here:

• a copy of the discrimination complaint filed with USDA or a copy of a USDA document referencing the discrimination complaint;

• a declaration by a person who was not a member of the claimant’s family, stating that the declarant had first-hand knowledge that the claimant had filed a discrimination complaint with USDA and describing the manner in which the discrimination complaint was filed;

• a copy of correspondence from the claimant to a member of Congress; the White House; or a state, local or federal official averring that the claimant had been discriminated against (except that, in the event that USDA did not possess a copy of the correspondence, the claimant also was required to submit a declaration stating that he or she sent the correspondence to the person to whom it was addressed);

• a declaration by a non-familial witness stating that the witness had first-hand knowledge that, while attending a USDA listening session or other meeting with a USDA official (or officials), the claimant was explicitly told by a USDA official that the official would investigate that specific claimant’s oral complaint of discrimination.

In his response, Foster alludes to the Big Government report that claims to cite testimony from “USDA workers who rubberstamped the claims.” Adjudicating whether the claims have merit was not handled by the USDA; it’s handled by a court-appointed third party, who is backed up by another court-appointed monitor who double checks the claim. The USDA can provide evidence as to whether or not a particular claim is false, and I’m guessing that might be what he means.

Let me just point out, though, that if 31 percent of the claims are being denied, it literally means they aren’t being rubber-stamped. The reason the terms were so generous was that, as Media Matters points out, folks at the USDA were literally throwing complaints into the trash, making documentation on the government’s end difficult. There’s basically a choice here — you can make it easier to prove a claim and risk that some terrible people will try to defraud the government, or you can make it so difficult that a number of people with legitimate claims won’t be able to prove they were discriminated against. In either case, it’s possible, even likely, that some people who deserve money won’t get it and some who don’t will. But that doesn’t amount to “massive fraud,” nor do I think it discredits the entire process.

Fortunately, if you believe that the old terms were too generous, there are additional fraud protections in the Claims Resolution Act, that further empower the claims adjudicator and gives access to claims information, including the names and address of the claims filers, to the GAO. Not that you’d know that from Foster’s piece. Chances are if/when someone tries to file a fraudulent claim, both we — and Congress — will hear about it.

Around 74,000 people filed claims past the deadline, the vast majority of these were dismissed for not meeting the deadline. The large number of late claims prompted the Senate to pass — unanimously, I might add — a second settlement.

Pigford II

$1.15 billion was approved to address the claims that weren’t handled by Pigford I. The total number of dollars anyone has been paid from this is zero. Every single one of the late claimaints who didn’t squeak through under Pigford I will have to refile, and according to the USDA, not a single claim has been filed yet because the court hasn’t assigned an adjudicator. It’ll be another two to three years before any Pigford II claims are adjudicated.

That’s what makes the allegation of “94,000 phantom farmers” are getting payouts inaccurate. Foster never mentions that only around 16,000 have seen any money at all, while around 7,000 other claims were denied (“the gravy train shows no signs of slowing down”). He’s using the total number of claims filed in the past, leaving the reader with the impression that all of them will be approved, even though all the late filers have to refile. His original piece also leaves the impression, both in his discussion of the evidentiary standards being used for Track A, and the use of the 94,000 number in his conclusion, that everyone is just getting handed a check by the USDA. Just get your friend Carl to say you were a black farmer.

Foster finds the USDA’s widespread, systemic discrimination against black farmers to be inconceivable, because of the scale involved. “Centralized, top-down, discrimination by the federal government would be awful but plausible, the sheer number and geographic scope of the claims suggests a remarkable universality.” I find that to be an astonishing argument. Jim Crow was not a “centralized, top-down affair”; it was a matter of “local administration.” “Local administration” is how segregation worked; it’s how Southern Democrats did things like ensure the benefits of the New Deal would be restricted to whites.

I also had a really visceral emotional reaction to Foster’s original conclusion:

At a December 8 signing ceremony, President Obama heralded Pigford II as the close of “a long and unfortunate chapter in our history.” In a way, one hopes the president is right—that the credulity, or perhaps the shame, of the American government and its taxpayers cannot be strained to accommodate the petty greed of more than 94,000 phantom farmers, and that the con will finally have run its course. But that is unlikely. Two Pigford style class-action suits—one for Hispanic farmers, another for women—with the potential to dwarf current settlements are working their way through the courts. Like so many Pigfords to the trough.

Look, the genteel white populism of this paragraph can’t be explained away. Not only have those greedy black frauds stuck their snouts into your wallet, but the Messicans and womens are on their way. There’s simply no way to credibly pivot from a statement like this, which attacks the very idea of financial restitution for past wrongs, to genuine concerns about farmers who deserved money that didn’t receive it because of the settlement terms.

Historically speaking, according to the Congressional Research Service citing an internal USDA report tracking their practices between 1990 and 1995, the crowd at the trough actually looks considerably less diverse:

According to the commissioned study, few appeals were made by minority complainants because of the slowness of the process, the lack of confidence in the decision makers, the lack of knowledge about the rules, and the significant bureaucracy involved in the process. Other findings showed that (1) the largest USDA loans (top 1%) went to corporations (65%) and white male farmers (25%); (2) loans to black males averaged $4,000 (or 25%) less than those given to white males; and (3) 97% of disaster payments went to white farmers, while less than 1% went to black farmers. The study reported that the reasons for discrepancies in treatment between black and white farmers could not be easily determined due to “gross deficiencies” in USDA data collection and handling.

Shortly afterward, Agriculture Secretary Dan Glickman suspended farm foreclosures and ordered an investigation into the matter. Before then, no one had been particularly bothered by it, for obvious reasons. Some snouts are more welcome at the trough than others.

I have no doubt that some people will try to defraud the government out of money here, nor do I discount the possibility that some have. Frankly, I think the bigger worry is that some people who deserve money will be bilked out of it by people posing as agents or lawyers and promising to ensure, for a fee, claimants get their settlement money. A class-action settlement is a juicy target for con artists. Those people deserve to be in jail. The fact that some people will try does not invalidate the government’s effort to rectify past wrongs.

Finally, I just want to address Foster’s original nut graf:

And in finally securing justice for himself and the few hundred farmers who first joined his class-action suit, he’d unwittingly set off an injustice greater than the one he sought to rectify: one that would involve the waste of billions of dollars, systemic fraud implicating top federal officials, the unseemly electioneering of two presidential campaigns—even murder.

Maybe I’m missing something here, but I don’t see how Foster has proved that billions were wasted or that there is systemic fraud in the Pigford settlement. It’s only “unseemly electioneering” if you pretend there wasn’t substantial bipartisan support for the settlement, or if you think the president is unmoved by racial injustice and merely spends his entire day thinking about how to get whitey’s money. The idea that the settlement itself is responsible for people who planned to defraud the government by making a false claim and murdered a witness they feared might talk is just stupid.  But this paragraph certainly reflects the ideological disposition of most conservatives — that efforts to rectify past racial injustices always create “more injustice” than the original crime.

Publius at Big Government:

At a press conference at CPAC featuring Rep. Michele Bachmann, Rep. Steve King and Andrew Breitbart, black farmer Eddie Slaughter tells his impassioned story about how the Pigford settlement has actually hurt the original and actual victims of discrimination at the hands of the USDA.

Adam Serwer and Daniel Foster at Bloggingheads

Conor Friedersdorf at The American Scene:

This is going to get complicated quickly. My apologies. If you’ve never heard the word Pigford before this may be a post to skip. In my last stint guestblogging at The Daily Dish, I wrote a post about the Pigford controversy, where I basically argued that since it’s inevitably going to be an ongoing matter of dispute, the best way to talk about it is to focus on the reporting published in National Review by Daniel Foster, a writer whose basic integrity as a person I trust, rather than the stuff published by Andrew Breitbart, whose outspokenness on the matter is clearly outweighed by the numerous instances in which he has brazenly injected egregiously misleading information into public discourse.

So often, stories like this turn into conversational train wrecks. I see one coming – and an opportunity to do better. Let’s treat this like a complicated matter, one where even people writing in good faith can make mistakes, making it a perfect fit for the vetting function that comes from honest back-and-forths in the blogosphere.

The vetting started immediately. I’d noted an aspect of Foster’s piece that seemed particularly persuasive to me. Ta-Nehisi Coates, Adam Serwer, and Mark Thompson pushed back hard. I quickly saw that I’d been mistaken in buying into that particular argument, and said so. As is their wont, the folks at Balloon Juice misunderstood and misrepresented my narrow apology.

Meanwhile, National Review posted Foster’s piece online, so that folks no longer had to rely on my poor summary. Foster pushed back against his critics. Serwer went another round. And then the good people at Bloggingheads arranged for a diavlog between Foster and Serwer, which can be seen here. Some of the conversation is tedious through no fault of the interlocutors. This is a complicated story to talk about, especially for an audience that isn’t initiated. Other parts are riveting. It isn’t often that you see two writers with wildly different takes on race in America willing to confront one another and converse in ways that make both of them uncomfortable.

The exchange that has played out is basically what I hoped for when I wrote that initial post urging engagement with Foster’s piece. I’d wager that Foster, Serwer, Thompson and Coates would all write things a bit differently if they could redo this whole exchange. On the whole, however, I think they’ve all conducted themselves rather well: more precisely, whatever their mistakes, they’ve all argued in good faith, with intellectual honesty and a desire to leave the public better informed about the matter at hand. Put another way, if everyone merely rose to the level of imperfect reporting, analysis and argument displayed here, American public discourse would be greatly improved.

But damn, this is a messy, maddening process. Among the writers I’ve mentioned, there were heated exchanges, hurt feelings, occasional suspicions of bad faith, tedious intervals that didn’t make for particularly entertaining journalism… and as a reader, one had to wade through all of it for the payoff of being a lot better informed on the other end… but even being better informed, there wasn’t the satisfaction of easy answers or resolution to all the disagreements.

What I find so wrongheaded about the Balloon Juice approach to this story – and the approach taken by folks who emailed me insisting that I should have never written my initial post – is the glib insistence that merely wanting a robust exchange was tantamount to being Andrew Breitbart’s useful idiot.

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1 Comment

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One response to “Pigford Bounces Around The Blogosphere

  1. Pingback: update/Asteroids/Nuclear | pounds per square inch | nuclear war 2011

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