Tag Archives: National Review

Governors Are Doing All Kinds Of Things Out There

James L. Rosica at Miami Herald:

Gov. Rick Scott and the Florida Cabinet have ended the automatic restoration of voting and other civil rights to nonviolent felons once their sentences are up.

Sitting as the Board of Executive Clemency, they voted 4-0 on Wednesday to change the panel’s rules and require at least a five-year waiting period before ex-convicts can apply to get their rights back.

“If you’re convicted … you lost those rights,” Scott said at a news conference later in the day. “There ought to be a process to get those rights back.”

Law enforcement officials and state prosecutors favored the change, saying people who have broken the law need a waiting period to prove themselves.

Civil rights advocates called the new rule a step backward, tantamount to double punishment.

The change is effective immediately and potentially affects anywhere from 100,000 to 300,000 felons, experts said.

Now felons will have to wait five years after completing a sentence to apply for rights restoration. This will return Florida to the Jim Crow era, when such hurdles were created to prevent blacks from voting.

Make no mistake: This proposal has racial and partisan implications.

A disproportionate number of Florida’s felons are African American, and in this state, blacks overwhelmingly vote Democratic. The Cabinet has further alienated black voters by adopting these more-stringent restoration rules. What purpose does that serve the state or the Republican Party?

In the last decade, more than 20 states have eased the restoration process for people convicted of crimes. Florida should remain in this group of enlightened states. Instead it has gone back a century. It now has joined only two other states — Kentucky and Virginia — in requiring waiting periods and hearings before felons can get their rights restored.

If anything, the Cabinet should have considered more streamlining measures for clemency. The Florida Parole Commission investigates clemency applications, and it has always struggled with huge backlogs. For a time the Corrections Department even loaned some staffers to tackle the backlog.

Clemency application reviews still move at a snail’s pace, delaying justice for felons who have paid their debt to society. The Commission recently told the Legislature that it has a growing backlog of more than 100,000 cases.

Making felons who have served their time wait years to regain their rights has nothing to do with being tough on crime. By embracing this regressive proposal, the governor and Cabinet have sent Florida back to a shameful time of blatant racial prejudice.

Mansfield Frazier at The Daily Beast:

Cleveland State University Urban Studies Associate Professor Ronnie Dunn has written extensively on how, since the advent of the Jim Crow era, unfair laws have been enacted— particularly in Southern states—to deny blacks the right to vote. Writing in a soon-to-be-released handbook on prisoner reentry, he describes how poll taxes, literacy tests, and property ownership were devices routinely used to suppress the black vote and unfairly affect election outcomes.

Florida now joins two other states, Kentucky and Virginia, in having the most severe restrictions on former felons voting and other rights, such as serving on juries and holding certain professional licenses. Five black Florida lawmakers joined a chorus of civil-rights advocates in objecting to the rule changes, saying no evidence existed that the abandoned process, which was approved by former Gov. Charlie Crist and the former cabinet in 2007, was not working.

“It’s really not about what’s right or fair,” said Ken Lumpkin, an attorney and political activist in Cleveland. “This is about stealing elections and hurting an individual’s chances of starting over after prison. If felons had had the franchise in Florida back in 2000, over a million more people would have been eligible to vote, and the election would not have been close enough for the Supreme Court to give it to Bush. What this new governor is doing is rolling back the clock on minority rights. And with Republican governors and legislative majorities in states like Ohio and Wisconsin, no one should be surprised if they try to change the rules in those states also. If that happens, a Democratic candidate for president won’t stand a chance.”

Indeed, incoming Ohio Secretary of State Jon Husted, among other changes, wants to stop county boards of elections from mailing unsolicited absentee ballots to voters and limit the window of time they have to cast them. Democrats, however, charge that Husted’s proposals are designed to discourage voting, especially in big urban counties.

Ohio State Rep. Michael Stinziano (D-Columbus), the former director of the Franklin County Board of Elections, said it would be “bad public policy” to prevent county boards from soliciting and paying postage for absentee ballots. The service, he said, alleviated long lines at polling places (such as those that marred the county’s 2004 presidential election) that caused some elderly voters to walk away without voting.

Back in Florida, state NAACP Vice Chairman Dale Landry said that individuals who have completed their sentences have paid their debt to society in full and should be allowed to vote. “Why do we come back and impose a further penalty?” he asked. “What we’re saying is that… the state wants to impose further sentencing, an additional penalty. That’s exactly what was done here.”

Greta Van Susteren at Fox News on the Daily Beast story above:

This posting is about the HEADLINE (not whether you agree or disagree with the underlying law.  People can differ on whether the law is a good one or not, appropriate or not.)

Headlines are to grab attention — but there is a point when they are simply irresponsible and trying to stir up hate and problems.   I think the headline below “FLORIDA’S RACIST NEW LAW” is exactly that – irresponsible and trying to stir up problems and hate.  The headline DID catch my attention since for many, many, many years prior to TV, I represented a lot of poor African Americans and often in issues involving civil rights.

Upon reading the explosive (I think it explosive) headline, I wanted to know more about “FLORIDA’S RACIST NEW LAW”  — and so I read the article.  I bet many just read the article and stop there — thus left with the impression that Florida is racist (or those who support the law are.)   In actually reading the article, I see that the author writes “[b]ut whether the move was simply tough-on-crime posturing or something more nefarious remains an open question.

You have to dig deep into the article for the “open question” while the RACISM was in bigger, bolder letters in the headline. So what was a PRONOUNCEMENT of FACT in the headline of RACISM (and sure to cause many people to be deeply disturbed) now remains “AN OPEN QUESTION” as to whether the law was a “tough on crime posturing or something more nefarious” (eg racism.)  There is a big difference between being “tough on crime” and being a racist.

Roger Clegg at The Corner:

Florida governor Rick Scott and his cabinet have ended the policy of his predecessor, Charlie Crist, of automatically reenfranchising felons upon their release from prison. The ACLU et al. are outraged, but it’s the right decision: Those who have demonstrated that they won’t follow the law shouldn’t be allowed automatically to make the law for everyone else; rather, they should have that right reinstated only after they’ve shown that they have indeed turned over a new leaf, as I’ve discussed on NRO many times — for example, here. Kudos to Governor Scott.

Alex Massie:

Given the scale of the injustices and barbarism that characterise large parts of the criminal justice system in many, perhaps even most, American states denying former felons the right to vote once they have been returned to society may seem a minor concern. Nevertheless it is a telling one and something that should shame those states that still bar ex-cons from voting.I’d have thought it an obvious principle of natural justice that we take the view that once released a prisoner should be considered a free man or woman. True, there are certain limited caveats to this (sex offender registries being the most glaring) and some jobs may reasonably (or reasonably in many cases) be considered unsuitable for former felons but none of that has any bearing on the question of whether released prisoners should be permitted to vote.

Clegg links to a piece he wrote elaborating upon this view that ex-cons shouldn’t be permitted one of the most fundamental rights we have to grant. But this is all he has to say:

It is frequently asserted that felons released from prison should be able to vote because they have “paid their debt to society.” But the felon-vote movement will, if pressed, admit that they think felons in prison should be allowed to vote, too. And society is not obliged to ignore someone’s criminal record just because he has been released from prison. Felons are barred by federal law from possessing firearms, for example.

Is that it? Apparently so. Ex-cons can’t be permitted to vote because that’s the slippery slope to letting serving inmates vote too. Colour me unpersuaded. This argument, however, leads one to wonder whether it is in fact possible for felons to “pay their debt to society”? And if they have not done so – as the denial of voting rights suggests they must not have done – then why are they being released in the first place? That, at any rate, would seem to be the logic of this matter. It’s a grim and pitiless worldview.Of course there’s the possibility that other motives are at play, namely that for a number of reasons ex-cons may be more likely to vote Democratic than Republican. But let us put that unworthy thought to one side and simply note that denying ex-felons the franchise is a further punishment that’s above and beyond and entirely unrelated to the crimes which led to their incarceration. I’m amazed, actually, that it’s Constitutional to do so.

No, it’s just one more example of a criminal justice system that, alas, should shame the United States. This is not a question of liberalism or conservatism but of decency. There are many things the Americans do better than us but thank god we don’t have their criminal justice or prison systems.

Incidentally, anyone with any interest in these matters should follow Radley Balko’s work. (And actually the New York Times should have given him an op-ed column years ago.)

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Filed under Crime, The Constitution

Updates On The Cheeseheads

Andrew Sullivan rounds up reacts

Christian Schneider at The Corner:

On Wednesday night, Wisconsin Senate Republicans did what most people thought impossible — they passed Governor Scott Walker’s budget-repair bill virtually intact, without having to split out controversial provisions that limited the ability for government employees to collectively bargain.

A letter Democrat Senate Minority Leader Mark Miller sent the governor today, indicating Miller’s unwillingness to further negotiate any details of the bill, was what prompted the GOP’s decision to take the bill to the floor.

“It was like, ‘I’m in the minority, and I’m going to dictate to you what your options are,’” said one GOP source about Miller’s letter. It was just three days ago that Miller had sent Fitzgerald a letter urging more negotiations, despite the fact that Governor Walker had been negotiating with at least two Democrat senators for nearly a week. “With his recent letter, it became clear that all he wanted to do was stall,” said the GOP source.

Another action that provoked the GOP senators to act was Democrat Senator Lena Taylor’s very public decision to have a spring election absentee ballot sent to her in Illinois. The spring election is scheduled for April 5th, which indicated Taylor’s desire to stay out of the state for another month. “That sure didn’t help,” said one GOP source.

The Wisconsin Constitution requires a quorum of three-fifths of the Senate in order to pass a bill that “imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state.” For weeks, it had been known that Republican senators could separate the fiscal provisions of the bill from the proposed collective-bargaining changes, which were seen as non-fiscal. However, there was speculation that, if a bill was brought to the Senate floor that contained only the collective bargaining changes, it might not have the votes to pass.

On Wednesday night, the bill passed with a number of provisions that could be considered “fiscal,” such as the requirement that many government employees contribute 5.8 percent of their salaries to their pensions and pay 12.6 percent towards their health-insurance premiums.

Conn Carroll at Heritage:

The courage of the Wisconsin Senate conservatives cannot be understated. Before the vote, lawmakers were threatened with death and physical violence. After the vote, thousands of protestersstormed into the capitol building, ignoring announcements from police that the building was closed. Once inside, and at great risk to the public welfare, activists handcuffed some doors to the capitol shut. When security escorted the Senators to another building, a Democrat tipped off the mob, which then surrounded their cars and tried to break their windows as Senators returned home.

Senate Democrats, who are still hiding in Illinois, are now claiming that the majority’s committee meeting that broke up the budget-repair bill violated Wisconsin’s Open Meetings Law. But the Open Meeting Compliance Guide clearly states that when there is “good cause,” only two hours’ notice is required. The Senate majority did provide the two hours’ notice. If the Senate Democrats’ 19-day refusal to show up for work wasn’t “good cause” enough, certainly minimizing the opportunity for union mob violence is.

The passion coming from liberal activists is understandable only if one believes in their apocalyptic rhetoric. Democratic Senator Timothy Cullen said the bill will “destroy public unions.” And Senator Chris Larson has said, “collective bargaining is a civil right” that if removed will “kill the middle class.” This is all false. First of all, since unions care more about seniority than good government, public-sector unions kill middle-class jobs; they do not protect them. Second, collective bargaining is not a right. And finally, Walker’s bill will in no way “destroy public unions.” Government unions are still perfectly free to practice their First Amendment rights to freedom of association, and in fact still retain more bargaining power than all unionized federal employees. They only difference is that now they will have to actively recruit members instead of forcing government employees to join them, and they will have to collect their own dues instead of getting the state government to take them directly out of workers’ paychecks. And there are many more benefits as well. Governor Walker writes in today’s Wall Street Journal:

When Gov. Mitch Daniels repealed collective bargaining in Indiana six years ago, it helped government become more efficient and responsive. The average pay for Indiana state employees has actually increased, and high-performing employees are rewarded with pay increases or bonuses when they do something exceptional.

Passing our budget-repair bill will help put similar reforms into place in Wisconsin. This will be good for the Badger State’s hard-working taxpayers. It will also be good for state and local government employees who overwhelmingly want to do their jobs well.

Even in good economic times, the case for government subsidies for radio stations, cowboy poetry, and union dues is very weak. But in a time of fiscal crisis, all of these subsidies are patently absurd. Taxpayers throughout the country should be inspired by Walker’s stand for common sense. We need more leadership like this in every state capitol and here in Washington.

E.D. Kain at Forbes:

And now conservatives have chosen public-sector workers and teachers as their hill to die on. They have followed the most radical voices in the party and the movement, and elected Scott Walker, Rick Scott, and various other Tea Party candidates. Heavily funded by big campaign donors like the Koch brothers and other corporate interests, the Republican party has made a concerted effort across the country to take on unions, public pensions, and social services for the poor.

Enabled by a strong school-reform movement within the Democratic party, emboldened Republicans have waged an all-out assault on teachers, public education, and public unions and masked it all in the language of school choice and accountability. And now, in Wisconsin, they have side-stepped the Democratic process and ended collective bargaining rights for public sector employees, even amidst huge protests and popular condemnation.

Republicans have a long history of union-busting and anti-labor rhetoric, but taking on teachers and cops is a big mistake. This blatant effort to weaken the Democratic party will have precisely the opposite effect.

The healthcare debate gave Republicans a chance to capture the narrative, spin the entire debate into one about fiscal ruin and deficits. Now Scott Walker has given progressives their chance. This is the Democrats chance to recapture that narrative, to turn the discussion back to the dignity of the middle class, to the importance of policies that do not simply push power and capital ever upward. This is the Republican’s Waterloo.

Nate Silver:

The quality of polling on the Wisconsin dispute has not been terrific. But there’s a general consensus — including in some polls sponsored by conservative groups — that the Republican position was unpopular, probably about as unpopular as the Democrats’ position on health care. And the most unpopular part of their position — limiting collective bargaining rights — was the one that Republicans passed last night.

Nor is the bill likely to become any more popular given the circumstances under which it passed. Yes, there’s some hypocrisy in claims by Democrats that the Wisconsin Republicans used trickery to pass the bill — they did, after all, approve it with an elected majority, just as Democrats did on the Affordable Care Act. Nevertheless, polling suggested that Wisconsinites, by a two to one majority, expected a compromise on the bill, which this decidedly was not.

One question is how much this might hurt Republicans at the state level. As David Dayen notes, Democrats will have opportunities to fight back almost immediately, including in an April 5 election that could swing the balance of the Wisconsin Supreme Court, as well as in efforts to recall Republican state senators. Essentially all of Wisconsin outside of the Madison and Milwaukee metropolitan areas is very evenly divided between Democrats and Republicans, so there could be a multiplier on even relatively small shifts in turnout or public opinion.

Andrew Samwick:

I refer to the passage of this bill as the end of the beginning — the opening salvo was to write the bill and find a way to pass it.  The next phase is to see if it can withstand legal challenges and recall efforts to change the legislative balance.  There will be some drama in that phase, but that’s not what really interests me.  The real issue comes in the next phase, assuming the law survives.  There will be two important questions:First, what will the strike that follows the implementation of the law look like?  Narrow or general?  How much support will the public sector unions get from other unions and non-union workers?  Will the disruptions to commerce be enough to get taxpayers and their representatives to fold?  Now that’s drama.

Second, what will happen in specific cases of local public sector employers negotiating with a stronger position?  Governor Walker defends his efforts partly as follows:

Local governments can’t pass budgets on a hope and a prayer. Beyond balancing budgets, our reforms give schools—as well as state and local governments—the tools to reward productive workers and improve their operations. Most crucially, our reforms confront the barriers of collective bargaining that currently block innovation and reform.

Suppose his intentions are borne out — teachers regarded as ineffective are not renewed, teachers regarded as effective are rewarded, or some combination of higher quality and lower cost emerges for people to see.  I am a strong believer that in a well functioning market, workers are protected by their ability to take their talents to another employer (Free to Choose, Chapter 8).  The key question will be whether the markets for public services at the local level function well enough for this to happen.  For an economist, that’s even more dramatic.

mistermix:

If the Wisconsin Republicans’ plan was to jam through the defeat of collective bargaining with a sketchy parliamentary move, they should have done it the minute that Democrats vacated the state. If that had happened, the howls would have been loud but fairly short-lived, since it’s easier to energize people when they’re trying to prevent something from happening, rather than complaining after the fact.

Instead, we have today’s trainwreck. Walker got his number one item, but he paid a huge price. He’s almost certainly a one-term governor. There’s a dissenting Republican in the Senate, and presumably we’ll hear more from him. If there’s a general strike, the union’s side of the case is now clearly outlined in the public mind. If the unions don’t strike, they look like paragons of restraint. And what about the recalls? No matter the outcome, they’ll occupy the press and public attention for the next few months.

The Democrats and unions took a sad song and made it better, as far as I can tell. One of the side-effects of our distraction-oriented media and low-information voters is that only one issue can be front-and-center in the public debate. Unions haven’t had much attention recently, so the slippery lies that blame them for all of our many ills have gone unchallenged. In Wisconsin, that’s not going to be the case for the next year or so.

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Filed under Economics, Legislation Pending

“Here I Am. Tell Me I Didn’t Do The Things That I Did.”

Sharyl Attkisson at CBS News:

Federal agent John Dodson says what he was asked to do was beyond belief.

He was intentionally letting guns go to Mexico?

“Yes ma’am,” Dodson told CBS News. “The agency was.”

An Alcohol, Tobacco and Firearms senior agent assigned to the Phoenix office in 2010, Dodson’s job is to stop gun trafficking across the border. Instead, he says he was ordered to sit by and watch it happen.

Investigators call the tactic letting guns “walk.” In this case, walking into the hands of criminals who would use them in Mexico and the United States.

Dodson’s bosses say that never happened. Now, he’s risking his job to go public.

“I’m boots on the ground in Phoenix, telling you we’ve been doing it every day since I’ve been here,” he said. “Here I am. Tell me I didn’t do the things that I did. Tell me you didn’t order me to do the things I did. Tell me it didn’t happen. Now you have a name on it. You have a face to put with it. Here I am. Someone now, tell me it didn’t happen.”

Agent Dodson and other sources say the gun walking strategy was approved all the way up to the Justice Department. The idea was to see where the guns ended up, build a big case and take down a cartel. And it was all kept secret from Mexico.

ATF named the case “Fast and Furious.”

[…]

On Dec. 14, 2010, Border Patrol Agent Brian Terry was gunned down. Dodson got the bad news from a colleague.

According to Dodson, “They said, ‘Did you hear about the border patrol agent?’ And I said, ‘Yeah.’ And they said ‘Well it was one of the Fast and Furious guns.’ There’s not really much you can say after that.”

Two assault rifles ATF had let go nearly a year before were found at Terry’s murder.

Dodson said, “I felt guilty. I mean it’s crushing. I don’t know how to explain it.”

Sen. Grassley began investigating after his office spoke to Dodson and a dozen other ATF sources — all telling the same story.

Mark Krikorian at The Corner:

When Border Patrol Agent Brian Terry was murdered by drug smugglers in Arizona last December, Tom Tancredo revealed that Terry’s BORTAC unit (the Border Patrol’s equivalent of a SWAT team) were armed with bean-bag rounds in their weapons:

Here’s the part Homeland Security Secretary Janet Napolitano and Border Patrol management are trying to hide: Border Patrol Agent Terry and the BORTAC team were under standing orders to always use (“non-lethal”) bean-bag rounds first before using live ammunition. When the smugglers heard the first rounds, they returned fire with real bullets, and Agent Terry was killed in that exchange. Real bullets outperform bean bags every time.

At the time, the government denied such “bizarre Internet-fueled rumors”:

“There was no order given to CBP law enforcement personnel – now or in the past – that dictates the use of less-than-lethal devices before using deadly force,” stated CBP’s Southwest Border Field Branch Office of Public Affairs.

Oops:

Records show agents fired beanbags in fatal border gunfight
Brady McCombs Arizona Daily Star | Posted: Thursday, March 3, 2011 12:00 am

Border Patrol agents shot beanbags at a group of suspected bandits before the men returned fire during a confrontation in a remote canyon, killing agent Brian Terry with a single gunshot, records show.

And an illegal immigrant wounded in the gunbattle who is now the only person in custody linked to the slaying contends he never fired a shot, according to FBI search warrant requests filed in the U.S. District Court in Tucson.

The documents provide the most detailed version yet of what happened in the deadly gunbattle Dec. 14 in Peck Canyon, northwest of Nogales.

The documents say the group of illegal border entrants refused commands to drop their weapons after agents confronted them at about 11:15 p.m. Two agents fired beanbags at the migrants, who responded with gunfire. Two agents returned fire, one with a long gun and one with a pistol, but Terry was mortally wounded in the gunfight.

Border Patrol officials declined to answer questions about protocol for use of force, citing the ongoing investigation.

Bryan Preston at PJ Tatler:

It seems highly unlikely that officers would choose to load beanbags instead of live rounds. That’s not the kind of thing field agents come up with. It’s a policy that’s so stupid it had to come from Washington.

And even worse than Washington’s policy stupidity: No one will be held to account for the killing of BP agent Brian Terry

The Jawa Report

Brian Doherty at Reason:

Presented as an interesting case study in the way law enforcement actually thinks–not to say that it is an essential task of U.S. law enforcement to “keep guns out of Mexico.” Our real culpability in Mexican gun violence lies, of course, in our drug prohibition, as see Jacob Sullum from earlier today.

Patterico at Patterico’s Pontifications:

How were they tracing the guns across the border? Was this murder also the result of guns that the Obama administration deliberately allowed into Mexico?

Keep a close eye on this one.

Regardless of whether that is the case, it is clear that this was a stupid idea in any event. Who knows how much violence has increased due to the new availability of thousands of assault rifles and other powerful weapons?

Jim Hoft at Gateway Pundit:

But, don’t worry.
Barack Obama says the border is as safe today as it’s ever been.

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Filed under Crime, War On Drugs

Cheddar Revolution: Moldy Yet?

Kris Maher and Amy Merrick at WSJ:

Playing a game of political chicken, Democratic senators who fled Wisconsin to stymie restrictions on public-employee unions said Sunday they planned to come back from exile soon, betting that even though their return will allow the bill to pass, the curbs are so unpopular they’ll taint the state’s Republican governor and legislators.

The Republicans rejected the idea that the legislation would hurt the GOP. “If you think this is a bad bill for Republicans, why didn’t you stand up in the chamber and debate us about it three weeks ago?” said Senate Majority Leader Scott Fitzgerald. “People think it’s absolutely ridiculous that these 14 senators have not been in Wisconsin for three weeks.”

The Wisconsin standoff, which drew thousands of demonstrators to occupy the capitol in Madison for days at a time, has come to highlight efforts in other states to address budget problems in part by limiting the powers and benefits accorded public-sector unions.

Sen. Mark Miller said he and his fellow Democrats intend to let the full Senate vote on Gov. Scott Walker’s “budget-repair” bill, which includes the proposed limits on public unions’ collective-bargaining rights. The bill, which had been blocked because the missing Democrats were needed for the Senate to have enough members present to vote on it, is expected to pass the Republican-controlled chamber.

Eric Kleefeld at Talking Points Memo:

A return to Wisconsin at this juncture would appear to give the green light for Walker’s legislation to pass — that is, a win for Walker’s efforts to pass legislation when numerous polls show the state disapproving of Walker, and saying he should compromise. However, at this juncture it is unclear just what is going on.

In response, Miller spokesman Mike Browne released this statement, saying only that they were continuing to negotiate towards an outcome that does not strip the bargaining rights of state workers:

“It is true that negotiations were dealt a setback since last Thursday when Governor Walker responded to a sincere Democratic compromise offer with a press conference. However, Senate Democrats have continued to reach out to the Governor and Republicans through the weekend.

Democrats remain hopeful that Governor Walker and legislative Republicans will, in the near future, listen to the overwhelming majority of Wisconsinites who believe they should come to the negotiating table in good faith to reach an agreement that resolves our fiscal issues without taking away worker rights and without hurting programs that help provide health insurance for working families and prescription drugs for seniors.”

In addition, state Sen. Chris Larson released this statement:

Sen. Miller’s comments are taken out of context in the Wall Street Journal article just released. Dems will return when collective bargaining is off the table. That could be soon based on the growing public opposition to the bill and the recall efforts against Republicans. Unfortunately, the WSJ fished for the quote they wanted, skipping this key step in logic: we won’t come back until worker’s rights are preserved.

State Sen. Jon Erpenbach also told WisPolitics that Democrats are not planning to return. State Sen. Bob Jauch, who has been one of the lead negotiators, also said of Miller’s comments: “I think he’s speaking the truth that at some point – and I don’t know when soon is – at some point we have to say we’ve done all we can.”

Christian Schneider at The Corner:

The Wisconsin politerati is all atwitter today at a WSJ report indicating that senate Democrats might soon end their Illinois exile. In the article, Democratic senate leader Mark Miller says recent polls show Walker’s budget-repair bill to be politically “disastrous” for the governor, which he says will give Democrats more leverage to negotiate portions of the larger budget bill in the weeks to come.

If this is what Miller thinks, it seems like a suspect strategy — a variation on the rarely seen Let’s capitulate to our opponent because the public currently doesn’t like what he’s doing plan. How many congressional Republicans rooted for Obamacare because they thought it would show the public once and for all how unpopular government health care could be? What if Green Bay Packer quarterback Aaron Rodgers said in an interview before the Super Bowl, “Maybe it won’t be so bad if the Steelers win — imagine how sick of Ben Roethlisberger the public will be”? It sounds like Mark Miller, in today’s parlance, has convinced himself that he’s “winning.”

Perhaps Miller’s quote was a trial balloon, meant to gauge the opposition he’ll get from his base, which has spent three weeks screaming itself hoarse on the steps of the state capitol. It would be reasonable to expect some displeasure: If Democrats do return and vote on the bill without any changes — as they had indicated they would never do — cops, firefighters, and teachers are likely to ask, “Why did I just spend three weeks in the capitol pressed up against a hippie?” Indeed, within hours of the story being published, Miller was rebuffed by some members of his own caucus.

On the other hand, it is possible that Scott Walker really has waited them out. (On his last physical, does it say “Blood Type: Tiger”?) In the past three weeks, Democrats and public-sector unions (but I repeat myself) have thrown everything they have at Walker, and he hasn’t budged. (And I do mean everything: They even tried to embarrass him by exposing the fact that in high school he had a mullet and was nicknamed “the Desperado” — unaware that in Wisconsin, this is likely to increase his approval rating.)

It seems a little short-sighted for senate Democrats to believe Walker has damaged himself irreparably. Several polls show Walker’s approval rating to be in the low 40’s, but Walker almost certainly expected to take some kind of public-relations hit when he entered this standoff.

Moe Lane at Redstate:

You see, we tend to forget that politicians are not identical, like potatoes: these fourteen men and women are just that – men and women – and it’s easy to believe that they’re getting tired, sore, and fuming about how they’ve somehow become the surrogate whipping boys for a national debate on public sector unions. Some of them might even be thinking that they didn’t actually sign up for this, that this wasn’t in the job description, and that the people urging them to exile in Illinois might not really give a tinker’s dam about them or their problems. And that this situation that they’re in is getting old. Oh, sure, no doubt a few of the AWOL senators are having a ball… but some of them are not, and the loss of message discipline in the last few days shows that.

And it only takes one AWOL senators to end this nonsense.

Scott Johnson at Powerline

Jason Stein at The Milwaukee Journal Sentinel:

The leader of Senate Democrats hiding out in Illinois is seeking a face-to-face meeting with Gov. Scott Walker and the Senate GOP leader.

Senate Minority Leader Mark Miller (D-Monona) said in a letter sent out Monday that he wants to meet with Republicans “near the Wisconsin-Illinois border to formally resume serious discussions” on Walker’s budget repair bill. Two other Democratic senators met with Senate Majority Leader Scott Fitzgerald (R-Juneau) last week in Kenosha.

Democrats have been holed up south of the state line since last month to block action on Walker’s budget repair bill, which would end most collective bargaining for public employee unions in the state.

“I assure you that Democratic state senators, despite our differences and the vigorous debate we have had, remain ready and willing to find a reasonable compromise,” Miller said in the letter.

Neither Miller nor Walker spokesman Cullen Werwie could be reached immediately for further comment. Fitzgerald spokesman Andrew Welhouse had no immediate comment.

The Wall Street Journal spurred hopes of compromise Sunday with a story citing Miller and saying the Democrats would be back “soon.” But that same night Democrats knocked that down, saying that they hoped to return soon but that there was still no development to make that happen.

Miller spokesman Mike Browne said Monday morning  that he knew of no plans for Democrats to return later in the day. The senators were scheduled to meet later in the morning or early afternoon, he said.

One of the Democratic senators, Tim Cullen of Janesville, said in a phone interview Sunday that there were no developments toward a possible compromise with Republicans and no talks scheduled for this week.

Two other Democratic senators — Jon Erpenbach of Middleton and Chris Larson of Milwaukee — said Sunday their group had no plans to come back to the Capitol until Republicans addressed more of their concerns with the budget-repair bill.

“I can tell you for a fact that nothing has changed down here,” Erpenbach said.

On Monday morning, a small, dedicated group began to chant in protest of Walker’s budget-repair bill in the Capitol rotunda.

Outside the Capitol, there is little or no sign of the mass protests that have engulfed the Capitol square in recent weeks.

On the streets surrounding the Capitol, the number of satellite trucks has dwindled to two. And the only sign of an organized-labor presence is the sight of two Teamsters semi-trailers.

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Filed under Economics, Legislation Pending

The Politician And the Movie Star

Michael D. Shear at NYT:

Mike Huckabee, the former governor of Arkansas and a potential 2012 presidential candidate, has been getting lots of press recently for his comments on radio shows. The latest? This week, as first reported by Politico, he went after Hollywood star Natalie Portman.

“People see a Natalie Portman or some other Hollywood starlet who boasts, ‘we’re not married but we’re having these children and they’re doing just fine,’” Huckabee told conservative radio host Michael Medved Monday. “I think it gives a distorted image. It’s unfortunate that we glorify and glamorize the idea of out-of- wedlock children.”

Katrina Trinko at The Corner:

In framing the question to Huckabee, Medved had noted that Portman had said during her acceptance speech that she wanted to thank the father of her child for giving her “the most wonderful gift,” and argued that Portman’s message was “problematic.”

“I think it gives a distorted image that yes, not everybody hires nannies, and caretakers, and nurses,” Huckabee said. “Most single moms are very poor, uneducated, can’t get a job, and if it weren’t for government assistance, their kids would be starving to death and never have health care. And that’s the story that we’re not seeing, and it’s unfortunate that we glorify and glamorize the idea of out of children wedlock.”

“You know, right now, 75 percent of black kids in this country are born out of wedlock,” he continued. “Sixty-one percent of Hispanic kids — across the board, 41 percent of all live births in America are out of wedlock births. And the cost of that is simply staggering.”

Laura Donovan at Daily Caller:

During Portman’s Oscar acceptance speech Sunday, she thanked Millepied, saying he gave her “the most important role” of her life.

Medved responded that Millepied “didn’t give her the most wonderful gift, which would be a wedding ring!”

People Magazine reported at the end of last year that Portman and Millepied were engaged. Us Weekly revealed Portman’s engagement ring photos at the beginning of this year. They’re currently still engaged.

Tommy Christopher at Mediaite:

Here’s one humble suggestion. Maybe there would be fewer out-of-wedlock pregnancies if there were more sex education, including abstinence and safer sex. Even Bristol knows that.

Also, stop calling it “wedlock.” Sounds like something you get from stepping on a rusty nail.

Steve Benen:

But in the larger context, hearing about Huckabee’s criticism reinforces the notion that we really are stuck in the 1990s. After all, are there any substantive differences between what Huckabee said yesterday about Natalie Portman and what Dan Quayle said about Murphy Brown in 1992? Other than the fact that Brown was a fictional character, the remarks are remarkably similar.

Indeed, I feel like this keeps coming up. What do we see on the political landscape? Republicans are talking about shutting down the government and impeaching the president; Newt Gingrich is talking about running for president; a Democratic president saw his party get slammed in the midterms; the right wants a balanced budget amendment to the Constitution; conservatives are falsely labeling a moderate health care reform plan “socialized medicine”; and some national GOP leaders are preoccupied with Hollywood and out-of-wedlock births.

Andrew Sullivan:

The general point about the importance of two parents and marriage for children in poverty is well taken. But using Portman as an object of scorn? A woman who is in a loving relationship, is engaged to be married, and who publicly called her impending motherhood “the most important role of my life”?

She seems an unlikely culture war target. And a hopelessly tone-deaf one. Huckabee seems unready to me, or unwilling, to enter the race. And if he doesn’t, we all know what that means …

Robert Stacy McCain:

BTW, in case you didn’t notice, Mike Huckabee badmouthed Natalie Portman. Dude. How stupid is that?

Everybody loves Princess Amidala. Luke Skywalker’s mom, for crying out loud! And why would a conservative trash a woman who just called motherhood “the most important role of my life“?

Oh, wait. I forgot.

Mike Huckabee isn’t a conservative. Just ask Ann Coulter.

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Filed under Families, Movies, Political Figures

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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DOMA Dies A Lawyered Death

 

US Department of Justice:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.   Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.   While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.   In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.   The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.   Given that conclusion, the President has instructed the Department not to defend the statute in such cases.   I fully concur with the President’s determination.

Marc Ambinder at The Atlantic:

The announcement by the Justice Department came just minutes before White House press secretary Jay Carney’s regular briefing. Carney took care to press upon reporters that the president’s personal view about DOMA — that it is unfair to gays and lesbians — is distinct from the decision. The announcement from the administration came because of a court-imposed deadline from the 2nd Circuit.

Carney also said that the U.S. government will still be a party to these cases to allow the courts to make a recommendation about constitutionality and to allow other interested parties, such as Congress, to defend the law if they wish.

“We recognize and respect that there are other points of view,” Carney said.

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

The president has won favor with the gay community recently by pushing for and winning repeal of the “don’t ask, don’t tell” policy for gays serving in the military, which the lame-duck Congress passed in December. At that time, Obama reiterated his support for repealing DOMA but did not take further steps.

Matt Welch at Reason:

The law is still in effect, but probably lost whatever chance it had of surviving a legal challenge. You can read Holder’s letter here.

Reason on DOMA here, including this piece from 1996 by Nick Gillespie. Excerpt:

It is a misguided attempt to define for all time an institution that is constantly, if slowly, evolving. Its supporters may think they can stop social evolution in its tracks and enforce a singular vision of the good society. But such people misunderstand the very nature of a free society and its dependence on choice and change. The Defense of Marriage Act may well have put off state recognition of same-sex marriage for the time being, but such laws can do precious little to keep things as they are. There can be little doubt that, ultimately, the government will be following IBM’s lead, even as IBM has followed its employees’.

William C. Duncan at The Corner:

There is something about the marriage issue that provokes an “any means necessary” approach from its proponents (among whom I believe we can count the president, notwithstanding campaign rhetoric to the contrary).

The president’s strategy, however distasteful, could be successful. In almost every successful same-sex-marriage case so far, the attorneys charged with defending the marriage laws either refused to do so (Iowa, Northern District of California) or made only pro forma defenses while conceding key points to the pro-redefinition side (Connecticut, California Supreme Court). Whether it is a good thing to have key social policies decided by lawyer inaction is an important question.

Presumably Congress can seek to intervene in the DOMA suits in order to defend the law. Maybe the federal courts need a public-defender program for statutes that have fallen out of favor with the elites in power.

Doug Mataconis:

It’s worth noting that when Judge Walker struck down California’s Proposition 8 last year, he used to lower “rational basis” test. Nonethless, Holder’s arguments in the letter are very similar to those Walker used in his opinion, and I won’t be surprised to see parts of this letter show up in appellatte briefs down the line as persuasive authority.

Personally, I think the entire act is unconstitutional, an opinion that is also shared by Bob Barr, who introduced the Act when he was a Member of Congress in the 1990s:

I’ve wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party’s presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.

In effect, DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, “Decisions about marriage should be left to the states.” He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

The other problem with DOMA is that it essentially tells couples living in states where same-sex marriage, or civil unions, are legal that they can only live in states where the law is the same, or where their marriage will be recognized, which at this point constitutes less than 1/4 of the United States. It means a couple married in Iowa cannot move to any state in the American south without giving up all of their legal rights. This is exactly the kind of thing that the Full Faith And Credit Clause was designed to prevent. In fact, under current law, a marriage between a man and a woman that may not be legal in one state — such as a marriage between first cousins — will still be recognized as legal since it was legal under the laws of the state in which it took place. There is no rational reason why the individual liberty of gays and lesbians should be restricted in this manner.

Bryan Preston at PJ Tatler:

Does a president have the power to unilaterally declare laws passed by Congress and signed by his predecessors “unconstitutional?” This strikes me as setting an extremely dangerous precedent.

Kevin Drum:

This, by the way, is a good example why I’ve never joined in the general condemnation of conservatives for “reigniting the culture wars” whenever they introduce an abortion bill or somesuch. I’m on the opposite side of these conservative efforts, of course, but the fact is that liberals started the culture wars in the 60s and it’s something we should be proud of. So while I oppose the conservative side of the culture wars, I approve of the culture wars in general, and I applaud Obama and Holder for reigniting it last year when Congress repealed Don’t Ask Don’t Tell and for reigniting it in the case of DOMA today. Blacks, Hispanics, gays, women, the disabled and millions of others have benefited tremendously from the culture wars, and I’m happy to see it continue until there’s no more war to fight.

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