Tuesday, August 31, 2010

The Big Mac Attack Continues

Yesterday’s news brought gales of laughter in law offices and courthouses across Alabama. Word hit the state about midday that the Supreme Court campaign of Democratic Judge Mac Parsons of Jefferson County had gotten a $5,000.00 contribution. As I lamented in last Friday’s post, such contributions are neither unusual nor intrinsically noteworthy. What catapulted this particular subvention into the headlines was its donor: Republican Supreme Court Justice Tom Woodall.

Only last week, Judge Parsons, always one of Alabama’s most quotable politicians, had garnered statewide headlines with the pleasingly indecorous pronouncement that Republican Justice Tom Parker, the incumbent whom he is challenging, is “lazy.” In a world where the usual judicial campaign consists of touting how conservative one is, and how liberal one’s opponent, this was a bracing, fresh approach to judicial campaigning. Those who have never experienced Parsons’s wit - which is often as not self-deprecating - would do well to watch his brief remarks earlier this year to the Over the Mountain Democrats:

Both Parsons’s jab at Parker, and the likely motivation behind Woodall’s donation (Woodall refused to comment further) come from Parker’s clear unfamiliarity with the Protestant Work Ethic. Or, for that matter, the work ethic of any other faith or sect. When Parker first went on the Supreme Court in 2005, he was assigned the usual stack of pending cases, most of which had been previously assigned to his predecessor, the unlamented Justice Jean Brown, whom he had ousted in the GOP primary. Within months, whispers were being heard that no opinions had emerged from Parker’s outbox. His reputation for low output has continued throughout his term on the Court.

Probably in anticipation that his output would become a re-election issue, Parker has produced published opinions at (what is for him) a blistering pace this year: 6 since January 1, 2010. But a comparison of the current Justices’ output bears review at this point. Since January 1, 2008, the Court’s current justices have each produced the following number of published opinions of the Court:


Maybe Parker indulged a little too liberally (pun intended) at Winter Carnival while at Dartmouth, to be able to put in a full work day. Whatever the cause, he is clearly not pulling his weight on the high court. A number of his cases have, under the leadership of Chief Justice Cobb, been re-assigned to other members of the Court. Normally an insular and collegiate lot, even if ideologically divided, the Court is rumored to be ready to replace Parker. The Woodall contribution may only be the first of several cracks in the partisan edifice.

In large part, this post has been a continuation of last Friday’s, with a special emphasis on the peculiar circumstances of one race. I noted the press given Parsons’s “lazy” comment in passing, but there is an object lesson there for the rest of our judicial candidates, and indeed all our nominees. The Republicans aren’t ten feet tall. They have vulnerabilities. Those weaknesses are usually not hard to find. (In the parlance of political pros, oppo research ain’t rocket science.) And if you take nothing else from either post, please note this - the media love an effective attack! When we dare to land a punch and draw blood, it will be covered! And whether you like or dislike this aspect of American politics, it is this sort of gamesmanship that reaches undecided voters. Unfortunately, if unanswered, it even works when there’s no basis to it. (Remember Willie Horton?) But when it is based on fact, it’s a game-changer.

So by all means, when you email your letter to the editor about the Supreme Court races, don’t forget to tell the reader about how little of his paycheck Republican Justice Parker is earning. More importantly, when you’re planning any other campaign, or ringing the doorbell of an undecided voter, don’t forget that the side that wants to win the most, usually does. Coach Steve Sloan will be remembered by most as a good quarterback, and a nice guy. He was the sort of warm, empathic individual you want calling on friends at the funeral home visitation. He never really showed anger as a coach. He also retired from college coaching with a 68-86-3 record. Nick Saban may not be the teddy Bear (another groaner, I know) type, but ... you get the point.

¹ Following the practice of Chief Justices of both parties for decades, Chief Justice Cobb only takes a half-load of opinions to draft, due to the duties of the Chief Justice as both the head of the Supreme Court, and administrative head of the entire Judicial Branch. Please note that if her total were doubled, she would have produced more published opinions than 5 of the 8 Republicans.

² Justice Shaw only came onto the Supreme Court in January of 2009, yet he is already on track to pass Justice Parker in published opinions released before the end of this year.

Friday, August 27, 2010

Judicial Selection - Curing the GOP Infection of the Appellate Courts

Awhile back, I had the opportunity to make a rather focused post on the sad state of racial diversity in Alabama’s appellate court system. Of course, that continues to be an overarching problem. All the justice in the world at the trial level doesn’t do any good, if it can be vacated on appeal. But the news this week has shown that much more remains broken in Alabama’s judicial selection process.

Granted, the imbroglio at the State Democratic Executive Committee (and the Alabama State Bar) over the nomination of Kenya Lavender Marshall is something of a one-off situation. It isn’t often that someone with that sort of matter pending ventures a judicial race, and the mix of politics, bar proceedings, and the law of replacing a disqualified judicial nominee had SDEC members, lawyers, and the occasional blogger all reaching for their copies of the party bylaws and other references.

What concerns me today is the wide range of problems with judicial elections in Alabama generally. And unlike many reform-minded writers, I am not engaged in some altruistic venture to produce enlightened philosopher-kings (or queens) in black robes. I am more concerned with the strong Republican bent the judicial branch has taken, especially at the appellate level. This Republican domination has permitted the ridiculous larceny of hundreds of millions of dollars from Alabama taxpayers by corporate behemoths like Exxon and pharmaceutical giant GlaxoSmithKlein.

The Exxon case would have any Alabama voter mad, who knew about the facts. Simply put, Exxon (now ExxonMobil), which has to pay the state royalties on natural gas it extracts from the waters of Mobile Bay, lied to the State of Alabama about how much it had gotten from the wells at issue. After a jury trial in 1999, a jury found that Exxon had lied to the State officers responsible for collecting the royalties, and assessed punitive damages of $3.5 billion. The Alabama Supreme Court, which by 2002 had a Republican majority, threw out that verdict on the specious grounds that some Exxon documents were “privileged” and should not have been shown to the jury. (I wonder what the result would have been if a Democratic officeholder had claimed his documents were “privileged”?) The case was tried again in 2003, and this time the jury really saw the extent of Exxon’s lies. The second jury rendered a verdict against Exxon - and for the people of Alabama - in the amount of $11.2 billion. Following U.S. Supreme Court rulings about punitive damages, the trial judge reduced the award to the same $3.5 billion that had been awarded in the earlier case. No matter, said our GOP court in 2007, the State should have been psychic and known the figures provided by Exxon were lies. It threw out the entire punitive damages award, and ordered Exxon to pay only the actual shortfall in its royalties. (It had “only” ripped us - the taxpayers of Alabama - off for over $51 million.) Exxon laughed all the way to the bank, making $40.6 billion in profits in 2007, and $45.2 billion in 2008.

Last year, in another Supreme Court decision (the only dissenting vote was Democratic Chief Justice Sue Bell Cobb), the Court reversed $328 million in fraud verdicts against GlaxoSmithKlein and other big pharmaceutical companies, who had been caught fraudulently overcharging the State for prescriptions paid for by taxpayers through Medicaid. Again, it’s fair to say that the Supreme Court ruled that the State’s employees should have had psychic powers and known the numbers were cooked. (Memo to Future Governor Sparks: make Miss Cleo your Finance Director.)

How did Alabama’s highest courts get to be such a sanctuary for Fortune 500 thieves? The best place to trace this mess is to 1994, when the Business Council of Alabama brought Karl Rove to Alabama to run Republican judicial campaigns. With the help of ethically questionable rulings from Reagan and Bush appointees to the Federal courts, Rove was able to oust Democratic Chief Justice Sonny Hornsby. In following cycles, the GOP began to chip away at the appellate courts, ousting experienced judges with decades of service and high regard in the legal community. Some were replaced by Republican Party hacks, whose resumes were so thin, you would have hesitated to hire them to defend a speeding ticket.

Of course, the “genius” of Rove so acclaimed by the punditry was nothing of the sort. It was just a preview of his modus operandi in the two presidential campaigns of George W. Bush: dump tons of Wall Street money and forget ethical scruples.

There has been a lot of reformist talk across the nation about spending on popular-election judicial races, and Alabama has been one of the foci of that comment. To be fair, some of the talk has come from across the political spectrum, and Republican Justice Champ Lyons of the Alabama Supreme Court has called for reform of judicial selection and campaign finance. (Which is easier to do, I suppose, when you are age-limited to your final term in office, as he is.) Recently, a signal study was released by the Brennan Center for Justice at NYU, and other groups, calling for reform of judicial selection and campaign finance. In the foreword, former Supreme Court Justice Sandra Day O’Connor said:
We all expect judges to be accountable to the law rather than political supporters or special interests. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not these contributions actually tilt the scales of justice, three out of every four Americans believe that campaign contributions affect courtroom decisions.
More telling for our present purpose were the state-by-state analyses, which broke out the largest contributors from each state holding judicial elections. The report on Alabama noted that:
One of the first states to experience the new politics of judicial elections, Alabama also has been the most expensive. Of the $40.9 million raised by Alabama Supreme Court candidates from 2000 through 2009, $22 million, or 53.7 percent, came from just 20 groups. Eight of the 10 biggest spenders were business or conservative groups, led by the Business Council of Alabama (No. 2, at $4,633,534) and the Alabama Civil Justice Reform Committee (No. 3, at $2,699,568), which was the leading funder of 2008 winner Greg Shaw. (emphasis added)
The report went on to note that the two anti-consumer, anti-worker groups named, by themselves, outspent the Alabama Democratic Party’s efforts on behalf of our judicial nominees - even before the other six of the top eight kicked in.

So what do we, as Democrats, do about this tidal wave of corporate cash? Is there any way to counter it, or are we doomed to see the laws enacted by a Democratic Legislature “interpreted” into nothingness by a Republican Supreme Court? Are we doomed, time and again, to have a Supreme Court that rubber-stamps Bob Riley’s War on [Bingo] Employment, or that steals elections for GOP candidates (as it did by blocking Siegelman’s 2002 recounts)?

Even though we are late in this cycle, and the three Supreme Court seats up this time make it an important year, it’s not too late to take some positive steps this round. In fact, there’s no reason we shouldn’t expect to do well in this year’s judicial elections. The careful reader will have already seen the prescription in the analysis above. For the benefit of those who missed it, I will repeat myself:
The Exxon case would have any Alabama voter mad, who knew about the facts.
Simply put, the key to winning these judicial races is putting the facts of Republican rulings into the minds of voters, and to do so with the sort of repetition and simplicity that assures the facts will stick there. This is something we simply haven’t been doing in judicial races. One key example of this was the negative run against current Justice Shaw by the campaign of Judge Deborah Bell Paseur in 2008. This was the principal ad that was run to point out Shaw’s funding by the oil industry:

This ad violates some of the “Negative 101” rules of running negative. First and foremost, it’s too vague and unfocused. While its vaguely menacing visuals make a good backdrop, there’s no simple message that can be digested by a semi-attentive voter. Connected with that is that there is no mention whatever of the Exxon decision, which had been handed down just a year earlier. (Keep in mind, the record-high gas prices of 2007 were still on voters’ minds in 2008, as well.) The ad should have featured the Exxon logo, and text mentioning the words “Republican,” “fraud,” and “taxpayers.” Never mind that Shaw wasn’t on the Supreme Court when that decision came down - does anyone really think that would have stopped a Republican ad from attacking Judge Paseur about a supposedly “liberal” decision? Shaw is part and parcel of the same movement, and it would have been totally fair to tar him with the same brush. Finally, the ad made a tactical error by coming out of Judge Paseur’s committee. That gave Shaw an excuse to go negative on Paseur, and to whine about her “firing the first shot.” Negative always works better when it’s put up by “The Committee for Mom and Apple Pie,” or, in this case, “Committee Against Big Oil” or some such. Witness the effectiveness of the “True Republican PAC” in derailing the Bradley Byrne campaign this year. (I don’t want to sound like I am picking on Judge Paseur. Her campaign is simply the most recent, and her positives - like the “Amazing Grace” ads - were brilliant.)

Alabama is home to some of the best plaintiff’s lawyers in the country. I sometimes stand in awe of their ability to persuade 12 men and women in a jury box to award the sums they do for fraud and wrongdoing, despite the constant media hogwash about “excessive verdicts.” Somehow, those persuasive gifts haven’t found their way to the ballot box. Although the plaintiff’s bar has historically been the largest contributor to Democratic judicial candidates, and their support has been generous in terms of dollars spent - well, 19 Republican appellate judges to 1 Democrat is a track record that speaks for itself.

A few things make this year’s campaign different from the Paseur-Shaw race in 2008, the first being that we have three Supreme Court seats up, not one. This will require us to choose our weapon carefully. When you’re being charged by a thick-skinned rhino, you don’t want a shotgun whose pellets will bounce off his hide. You want a carefully aimed rifle that will penetrate. If we spend our limited resources on limited GRP buys attacking each Republican nominee individually, we will be swamped by the overwhelming financial resources of the Business Council and its allies. Our negative should accordingly focus on the concept of “Republican judges,” in line with some of my earlier preaching on the issue of Selling the Party Brand. It’s going to be hard for our two (very well qualified, but still) rookie candidates, Rhonda Chambers and Tom Edwards, to gain traction against well-funded GOP opponents otherwise. And thank goodness, we have Judge Paseur running for Civil Appeals, and she will benefit from those efforts, too.

In passing, I do want to note that Judge Parsons has done a good job of getting free media in commenting on Justice Parker as “lazy.” Many lawyers, even those with Republican clients, have grown tired of the interminable delays in getting decisions in cases that are assigned to Parker to write the Court’s opinion.

At the end of the day, it comes down to this. I know that some people don’t like to run negative. But negative works, and no matter how moderate, or how Christian, or how ethical a Democratic candidate is, the GOP will continue to call him or her a “liberal,” “gay-loving,” “anti-gun,” “pro-high-tax” candidate, along with our entire Party. If we do not tell the truth about them, their lies will win. Nor should we be dissuaded from the fight by the size of their money bag. When the 180-pound cornerback wants a tackle more than the 230-pound running back wants another yard, my money is on the cornerback every time.

Friday, August 20, 2010

The Constitution of 1901: Lesser of Two Evils?

It is widely accepted among many Alabamians who count themselves as progressives, or good Democrats, or whatever similar label you prefer, that one hallmark of membership in their number is support for a convention to replace the Alabama Constitution of 1901. This charter has been controversial since its proclamation of effectiveness by Governor William Dorsey Jelks on Thanksgiving Day, 1901.

The litany of complaints about this instrument is now familiar. One of the more succinct restatements of the principal ones comes from the leading advocacy group for constitutional reform, the Alabama Citizens for Constitutional Reform. They have summarized their beefs as follows:

  1. It restricts local democracy.
  2. It locks in an unfair tax system.
  3. It hinders economic development.
  4. It limits budget flexbility [sic].
  5. It is the longest known constitution in the world.
  6. It has undemocratic origins.
The fifth point is certainly valid. In addition to the moderately detailed, long original text, amendments to the Constitution now number - let’s see, if it’s Friday, there must be 827 Amendments by now. (As compared to 27 for the U.S. Constitution since 1789.) To be fair, our Georgia neighbors seem determined to pass us in the long haul. After revising their constitution in 1983, they have already, through 2008, added 87 amendments. This renders it, at best, difficult to determine the controlling constitutional rule on a given issue, when any section of the original document may be the subject of successive, and contradictory, amendments. The Legislature’s band-aid on this issue, an “Official Recompilation,” is the product of the mind of some Goat Hill staffer with a mail-order diploma, who does not understand that a Legislature may not alter the text of a constitution in derogation of its specified amendatory process.

Likewise, the sixth point is quite true. By far, the most useful resource in studying the 1901 Constitution is the late Malcolm C. McMillan’s Constitutional Development in Alabama, 1798-1901: A Study in Politics, the Negro, and Sectionalism (Chapel Hill, University of North Carolina Press 1955)(available in reprint). (As a matter of coincidence, this month marks the centennial of McMillan’s birth.) McMillan meticulously traces the roots of the 1901 Constitution to the successful domination of the Convention that year by Black Belt Bourbon planters, with secondary support from nationally-owned mining and railroad interests. In addition, of course, one key goal of the 1901 Constitution was enshrining segregation and black disenfranchisement. These latter goals were successfully maintained until overturned by Federal courts and civil rights laws in the 1950’s and 1960’s. Much of the racist language of the 1901 Constitution is an embarrassment, even if it is rendered inoperable by Federal law or subsequent amendment.

Of course, the biggest problem with the 1901 Constitution, from the perspective of any Democrat, is its absurd plutocratic shackles on the state’s tax structure. It places such low ceilings on ad valorem and income taxes, that the state is forced to impose sales and other excise taxes, and still remains one of the lowest taxed states in America, if not the lowest taxed. As McMillan put it:

Tax limitations, first written into the Alabama Constitution of 1875 as a safeguard of the re-occurrence of the extravagance and mismanagement of the Reconstruction era, hampered the growth of cities, all kinds of internal improvements, and educational development during the last quarter of the Nineteenth Century. The demand for relief from their “strait-jacket” effects, especially strong in urban areas, was one of the reasons for calling the Convention of 1901. A convention controlled by the non-urban Black Belt, the railroads, and industrialists, who were generally conservative and wished tax protection for themselves, denied any adequate relief. McMillan, p. 329.
These capped taxes are the main forms that can be made progressive, so that their heaviest burden falls on the wealthy, who can afford the expense. Sales and other excise taxes, on which we are now dependent, are by their nature regressive. They also suffer from the fault of lower thresholds of counterproductivity. If you can raise taxes a notch on an acre of International Paper’s forest land in South Alabama, they aren’t able to pick it up and move it to Mississippi - they will pay the tax. At some relatively low level of sales taxation, consumers, especially in border cities like Mobile and Dothan, begin crossing state lines to shop. Thus, this structure keeps Alabama’s overall tax rate too low for it to compete with the package of public goods - schools, roads, public safety, public health - offered by more progressive states.

Truly, this Constitution is a wretched document, and it is going to find few defenders. Yet, the concept of a constitutional convention, completely rewriting the state’s charter, calls to mind the observation of Sir Winston Churchill about democracy: “democracy is the worst form of Government except all those other forms that have been tried from time to time.” Or, to adapt it to the current topic, “the Constitution of 1901 is the worst possible constitution - except what could, and probably would, emerge from a new Convention.”

Democrats and progressives are, by nature, optimistic. Except in Alabama, where any progressive of a certain age, duration and perception is almost bound to be somewhat pessimistic. ACCR, and other forces pushing for a new convention, tend to be of the brie-and-Chablis form of progressivism, and are invariably of the optimistic variety. They imagine that not only will a convention produce a clean, brief document devoid of racist or religious bigotry, it will contain such enlightened provisions as would emerge from a convention in Vermont or Oregon.

In 1955, a bill was introduced in the Senate to call a constitutional convention, limited to amendments pertaining to legislative apportionment. The Legislature sought an advisory opinion of the Alabama Supreme Court as to whether the convention provisions of the 1901 Constitution allowed such a limit on the authority of a convention. The Supreme Court said no:
The obvious policy of the Constitutional Convention of 1901 was to give a constitutional convention full power to do what it might consider necessary for the purpose of altering, revising or amending the existing constitution. Opinion of the Justices, 263 Ala. 141, 144, 81 So.2d 678, 681 (1955).
In short, once we call a constitutional convention, it can do whatever it wants, and whatever comes out of that convention, upon receiving one more vote than the “no” vote on ratification, that will be our Constitution until we can get another convention called. Which might, as with the current document, be another century or more.

If the NRA types get a complete ban on gun regulation in, so that current laws regarding the insane and felons owning guns are invalid, too bad. If the home schooling movement wins a proviso banning the Legislature from enacting compulsory education, then they don’t even have to pretend little Johnny is studying any more - until, of course, it’s time for him to go football practice under the new constitution’s “Tim Tebow” provision. (Talk about a constitution that “hinders economic development,” beef #3, supra!) And taxation? What if the Tea Partiers are the ones writing that part of the new document? Not only might we find the new state government even more cash-strapped than the current version, a convention holding carte blanche would be free to ban the state from such “invasions of liberty” as, oh, Medicaid, to bring the new regime in with a balanced budget. You can bet your sweet bippy that the Constitution of 2012 is going to define marriage as between a man and a woman, enshrine the “right” to school prayer, and who knows what else? Handing the keys to the Constitution to an electorate that gives Jefferson Beauregard Sessions III a 63.4%-36.6% win in 2008 is like handing the car keys to your cousin Rupert right after his fourth DUI arrest.

Granted, the harm a right-wing-dominated convention could do would be limited by the Bill of Rights, Due Process, and Equal Protection provisions of the U.S. Constitution, and various Federal statutes. But in many areas, those provisions serve as restrictions on what states can do, not as mandates that they act in a humane or sensible manner. Medicaid, as only one example, is purely optional on the part of states.

For all of its many abominable features, the 1901 Constitution has some redeeming qualities - mostly holdover provisions from Alabama’s early Jacksonian democracy - that would be unlikely to survive a convention dominated by the “Big Mules” and their Christian Coalition allies. These include, but are not limited to:

  • A due process clause that the Alabama Supreme Court has long held to afford broader, and more comprehensive, protection than its U.S. Constitution counterpart.
  • Explicit rights to access to the courts, to a legal remedy, and to a civil jury trial, that are not present in the U.S. Constitution. Loss of these rights, which the Business Council and its allies would doubtless try to remove, would seriously injure consumers injured by recklessly designed products, workers wrongly fired by bosses, and victims of fraud and other wrongdoing.
  • A right to privacy, in the form of restrictions on search and seizure, that has at times been held to be greater than that afforded by the Federal Fourth Amendment.

In short, in an environment where the loony right could easily dominate low-turnout special elections to pick a convention, and could likewise control the ratification referendum, there is a substantial danger of Democrats waking up the day after ratification to feel nostalgic for the 1901 Constitution. One of the great lessons of Tocqueville’s Democracy in America was that the institutions of representative democracy sank such deep roots in American soil not because of the intrinsic genius of their designers - though they did get most of it right. Rather, those institutions succeeded because their seed was sown on soil that had been prepared for over a century and a half by slowly emerging democratic institutions, from the Virginia House of Burgesses to the town meetings of New England. Democracy, Tocqueville taught, depends for its success upon an accepted recognition that taxes must be paid, majority rule must be tempered by the recognition of individual rights, civic rent must be rendered, and the right of the community to act collectively recognized. A half-century of an Alabama where the primary objectives of the educational system have been maintaining some semblance of segregation, and the winning of football games, may not be the right atmosphere in which to undertake such fundamental reform. Americans are learning today in Iraq and Afghanistan, as the British and French did in Africa in the 1960’s, that holding an election and striking the colors does not a democracy make. If we want an enlightened Alabama, we may need to work on the foundation before erecting a new frame.

Then again, suppose that more enlightened forces prevailed at a convention. Suppose the optimists were right, and we actually got a Constitution that would require out-of-state timber barons, conglomerates, and mining interests to pay their fair share of a modern public infrastructure. I respectfully submit that, until we have improved the political environment in Alabama - the work of a decade, starting now - such a proposed Constitution would be a dead letter at the ratification vote.

Ratification of a positively reformed constitution would not be our first lap around the track. In 2003, Bob Riley proposed his famous “Amendment One” package. This combination of tax measures, scholarship programs, and various financial and educational reforms, would have in fact ameliorated many of the regressive-tax and inadequate tax base shortcomings of the 1901 Constitution. The package was backed by a wide range of odd bedfellows, including AEA and the Business Council. It garnered almost universal support from the editorial pages of all Alabama newspapers, both conservative and progressive. Typical was the election-eve admonition of The Montgomery Advertiser:

Having the lowest tax burden in the nation comes at a cost -- poor schools, low standards of living and low per capita incomes. Other states recognize the linkage. If Alabama is ever going to catch the rest of the South, Alabamians have to see it as well.
Amendment One was as close as we can come to a test run for constitutional reform in Alabama, short of a convention. The result was a disaster. A coalition formed against the Amendment, which was largely financed by ALFA and the Alabama Forestry Association, whose out-of-state corporate bankrollers would have been forced to pay fair taxes under it. The substance of Amendment One - which was actually a package of constitutional amendments regarding taxes, and statutory enactments that only took effect if the constitutional provisions passed - would have provided substantial tax relief to working-class and poor Alabamians. It paid for this by increasing taxes, mostly on the wealthiest Alabamians and absentee corporate interests, but also by a package of nickel-and-dime minor tax increases that would have been more broadly based.

Opponents seized on these relatively minor provisions, which had a minimal aggregate fiscal effect, in a vigorous ad campaign. Such lines as “they’s even gonna tax it when you git your oil changed!” left many Alabamians incorrectly thinking the package would raise their taxes. Despite the fact accounting experts and economists determined that well over two-thirds of Alabamians would have paid overall lower taxes under Amendment One, nearly three quarters of Alabama voters told pollsters they thought the proposal would raise their personal taxes. Although the Business Council and others put money into the “pro” campaign, most of the ads run by it were of the ineffective “Kumbayah” variety - the campaign slogan “Do the Right Thing” being a regular line. No serious effort was made to run negative against opponents, pointing out to voters how little out-of-state landowners pay on their billions of dollars of holdings in Alabama. Predictably, Amendment One failed, by a 67.5%-32.5% margin; the county results are reflected in the map to the right. (The map also shows how poor blacks were better at figuring the proposal out than poor whites.) For myself, not exactly trusting the integrity of either Riley or the Business Council, I have always wondered if Amendment One wasn’t designed to fail. The nickel-and-dime taxes (such as on lubricants, see “oil change,” supra) were sold on the premise that “everyone needs to give up something,” but they seemed designed to hand opponents their bullet points. As it was, the failure let the air out of the tires of serious revenue reform in the Legislature for a decade, if not a generation.

The lesson here for constitutional reformers is that Alabamians have deep seated opinions about taxation, many of which are erroneous. But their error in no way weakens their political effect. We can count on any proposed constitution which effectively remedies the state’s tax inequities drawing the same attacks against the same weakness in electoral information. At a minimum, a proposed new constitution would require clean, easy-to-explain progressive tax provisions. And the out-of-state interests behind them will need to be subjected to the same merciless fire of negative media to which Democratic nominees are subjected every cycle.

First, however, we must decide if the game is worth the candle. Until K-B.S. educational standards are raised in Alabama, any effort at constitutional reform is risky. Even though I have never visited a casino, I support our gubernatorial nominee’s efforts to regulate and tax gaming in Alabama. But I am much less sanguine about rolling the dice on a constitution that may be with us for over a century.

Tuesday, August 17, 2010

If You Can’t Stand the Heat ...

... stay off the State Democratic Executive Committee.
Lasciate ogne speranza, voi ch’intrate.
Queste parole di colore oscuro

vid’io scritte al sommo d’una porta ...
D. Alighieri, Il Inferno, III, 9-11.
Years from now, when the issues debated with such fury and intensity at Saturday’s meeting of the State Democratic Executive Committee are forgotten by all but those most immediately touched by them, the one thing that will be recalled by those in attendance will be the dangerously stifling heat in the basement meeting room of the Madison Hotel in Montgomery. Combine outside temperatures in the upper 90’s, the humidity and body heat of over 350 attendees, and a broken-down air conditioning system, and you feel fortunate that no one succumbed to the heat. My earliest memory of that same room is dancing in it at the YMCA Youth Legislature. I am not sure exactly when the Madison was built, but suffice it to say, the dance tunes at the time of my first visit weren’t from Saturday Night Fever, which hadn’t been filmed yet. The only argument I can make for not demolishing the Madison, is that citizens of the late 21st Century may want to see what passed for avant-garde in the mid-20th. But the Madison will never be Montgomery’s version of Mobile’s Battle House.

The heat, however, was not the only reason I was grateful for the absence of television cameras and their attendant Frezzi lights. The Republicans would have loved to have had those proceedings on the evening news. Not as much for what was done - the arcana of bylaws changes are not the stuff of which television news is made - but for the prospect that the Republicans would have used the visuals to reinforce their übermessage to white, working-class Alabamians that the Democratic Party is dominated by black “bosses” whose sole objective is to rig the political, legal and economic systems of the state to the benefit of their constituency, and to the detriment of whites. Simply put, the success of the Republican Party in Alabama is dependent on this racist message gaining traction among white working-class voters whose actual economic interests are much better represented by Democratic positions on progressive taxation, education, health, and a host of other issues.

Reports of a 3.1 magnitude earthquake epicentered in Arlington, Virginia during Saturday’s meeting were later confirmed to be Brig. Gen. Henry Martyn Robert, spinning in his grave at Arlington National Cemetery. More than for his service in the Pig War and the Civil War, Gen. Robert is known for being the author of the first several editions of his Pocket Manual of Rules of Order for Deliberative Assemblies - better known as Robert’s Rules of Order. If none of the precepts of that classic work were exactly broken, a handful were badly bent. I am of two minds about that. With one possible, minor exception, I doubt that any of the parliamentary sleight of hand changed any result of what would have been obtained with more lengthy roll call or standing tally votes. There were legitimate reasons to conclude the meeting as rapidly as possible. The heat in that room was truly at a hazardous level. Prolonging it for no different result would have posed a greater risk to the portly, infirm or elderly there. At least two centenarians - Fuller Kimbrell, finance director for Big Jim Folsom, and longtime DNC member Ruth Johnson Owens of Birmingham - were present to be recognized at the meeting. Speeding the meeting was more than a matter of convenience or political advantage.

That said, there was visible (and audible) discontent about some of the actions of the Chair. At least one call for division of the house was “overlooked,” and other rulings of the Chair were debatable. Had any of these actions changed a result, or had the exigent circumstance of the extreme heat not been present, I would be critical of the short-circuiting. I do not expect that they will be repeated at future meetings, where the air conditioning will hopefully be functional. Further, those persons who were complaining about procedural issues often did not timely or properly raise their objections, and seemed unfamiliar with the provisions of Robert’s work, as well as the Party Bylaws. If we are going to have vigorously contested matters before the Committee - and Saturday shows that is likely - we would be best served if the parties on both sides of the divides took time to bone up on their parliamentary procedure. The rules may appear overly formal, and boring, and old-fashioned (all of which they are), but they do tend to ensure a fair proceeding for both sides, and they do help keep tempers in check. Most importantly, they make it less likely that someone will leave the meeting disgruntled enough to be discouraged. I also note, for what it’s worth, that at least two members of the Legislature, Sen. Vivian Figures of Mobile and Rep. Patricia Todd of Birmingham (both of whom are high on my list of favorite legislators), were present in their capacities as SDEC members. Both were generally opposed to the merits of the positions taken, both have solid credentials as opponents of Vice Chair Joe Reed (who was pushing the disputed positions), and both are necessarily familiar with parliamentary procedure as legislators. Yet neither chose to prolong the meeting with points of order and other maneuvers they clearly know how to make.

[Oops! Correction in the preceding paragraph: A kind reader has brought to my attention that the SDEC Bylaws provide that its authority for parliamentary procedure is not Roberts, but the Rules of the Alabama House of Representatives. I am not sure when that changed, but based on my familiarity with both, I frankly think Roberts would be the better fit. Its still worth mastering, as it could be pointed to regarding an issue on which the House rules are silent.]

The matters actually taken up in this inferno largely pertained to the structure and governance of the SDEC itself. Other than the uncontroversial filling of some vacant nominations, the matters addressed at the meeting were:

  • A Bylaws amendment to move the election of officers from January after the SDEC elections in the primary, to August. This proposal (which passed) shortened the incumbents’ terms, and elections were held immediately after it passed.
  • A Bylaws amendment to increase black representation on the SDEC, so that its membership would reflect the percentage of black voters among those voting Democratic (passed).
  • A Bylaws amendment to make the chair of the Alabama Federation of Democratic Women an automatically-elected member of the SDEC Executive Board (tabled).
  • An appeal of a subcommittee ruling stripping Kenya Lavender Marshall of a Jefferson County Circuit Judgeship nomination (deferred).
The move of officer elections from January to August was really little more than a return to the historic practice of the SDEC. For many years, the SDEC organized itself immediately after the primary (since SDEC elections are won by the primary leader; they are not subject to a runoff). There are accusations circling that this change was designed to protect the current officers from the Committee’s wrath after some speculative Democratic massacre in November. Suffice it to say that some of these so-called Democrats sound like they would like nothing better than to see the Party suffer an electoral Götterdämmerung, since the primary voters had the audacity to reject their chosen messiah. Regardless of their motives, this is not a likely explanation for the move. First, to the extent there are factional alignments in the SDEC, there aren’t that many “swing” votes that would change, even if such an unlikely catastrophe occurred. Perhaps more important is the word I have heard for months, that Joe Turnham wants to leave the Chair after the 2010 elections anyway. In any event, I am uncertain that the Committee’s action in giving the change immediate effect (by electing new officers Saturday, right after the change was adopted) was legal. The SDEC has numerous “public electoral functions,” Fortune v. Kings County Democratic County Comm., 598 F. Supp. 761, 765 (E.D. N.Y. 1984), so its Bylaws are a “standard, practice, or procedure with respect to voting,” within the ambit of § 5 of the Voting Rights Act of 1965. Unless and until this amendment is precleared, it cannot be legally implemented. The election of officers was therefore legally void.

There is no doubt that the base structure of the SDEC, based on one popularly elected member of each gender from each State House district, underrepresents black voters within the Democratic Party. The equal representation of State House and Congressional districts, which did obtain substantial intra-party racial parity in the era of one-party politics, does not do so in a time when many such districts have negligible Democratic votes. For those seats selected by Congressional districts, the 6th, which is 11% black and in which McCain got 74% of the vote, has the same representation as the racially-diverse 3rd, which is 32% black and in which McCain only got 56% of the vote, and the black-majority 6th, which is 63% black, and in which Obama got 71% of the vote. (The Obama vote was probably much lower in certain overwhelmingly white State House districts, but such data is more onerous to derive.) There has been a mechanism in place to compensate for this, adjusting membership to reflect the Democratic portion of the gubernatorial vote, which has an attenuated racially equalizing effect. The amendment substituted presidential results for gubernatorial. Opponents of the change pointed out, with some merit, that racial polarization in the Obama elections in 2008 would result in overcompensation for the “white bias” inherent in the geographical seats. This amendment was pushed by Dr. Joe Reed, and was largely opposed by his critics as a power play on his part. There are numerous problems with the proposal that was adopted, perhaps none so serious as the difficulty in determining what the “Democratic vote” was in the 2008 election. I hope this amendment is revisited, and I would personally prefer some definition of “Democratic vote” that includes the aggregate vote, so that overcompensation doesn’t occur. Like the term change, this amendment will require preclearance, and there may be comments opposing it when it is submitted.

The only proposed amendment that was not approved was the one giving the AFDW President (currently Limestone County Democratic Chair Pam Wallace) an ex officio seat on the SDEC Executive Board. That amendment was tabled on the motion of former Secretary of State Nancy Worley, who currently sits as First Vice Chair of the SDEC. She is elected to that post, pursuant to the Bylaws, by the SDEC membership as a whole, and that position is required to be held by a person of different gender than the Chair. The AFDW had sought to have its membership afforded the same privilege as the minority caucus of the SDEC, which alone elects the Vice Chair for Minority Affairs. While one opponent of this amendment pointed out to me that it would provide for the possibility of two “automatic” female members of the Executive Board, I don’t find that persuasive. There is no proviso for eliminating the Vice Chair for Minority Affairs when (hopefully someday) we have a black Chair. This organization does incredible work for the Party, and its efforts clearly merit a seat at the table. While Worley was correct to point out that this change could await a needed comprehensive review of the Bylaws and the SDEC structure, I don’t see the harm in putting this provision into effect until then. (Disclosure: my cousin is married to an AFDW officer. As he was at the meeting, I gave him my sympathy on having to listen to the venting about this vote for the lengthy ride home.)

The matter regarding Kenya Lavender Marshall (granddaughter of Birmingham civil rights pioneer Simmie Lavender, who died in 2007 and whom it was my pleasure to meet before then) took by far the most time on the agenda. Marshall is a Birmingham lawyer who defeated Riley appointee Nikki Still in the July 13 runoff for a Birmingham judgeship; there is no GOP nominee for the position. I had the chance to speak briefly with her lawyer, Emory Anthony, after the meeting. From that chat, and his remarks to the Committee, some interesting facts came out. The basis for the subcommittee’s stripping Marshall of the nomination was her “interim suspension” as a lawyer by the Alabama Bar Association. This, in turn, was based on an accusation that she had collected something over $30,000 for a client in an automobile accident case, and gone shopping with the proceeds, rather than pay it to the client. The Bar has apparently been investigating this client’s complaint since March. Marshall’s license was suspended, without notice or a hearing, on August 5.

The problem with the Bar’s action seems not to be its merits, but its timing. According to one lawyer I spoke to after the meeting, who has represented other lawyers before the Bar, the Bar can only do an “interim suspension” without a prior hearing when the Bar has reason to believe the lawyer is doing something right then to damage a client, like wiring the client’s money to a Caymans bank. Not months ago, but right then. According to the claims of both sides at the meeting, the misappropriation, if it occurred, took place before March. According to that lawyer, the lack of an “emergency” like that renders the Bar’s “interim suspension” void for a “lack of subject matter jurisdiction.” He thinks the Supreme Court would rule that way if Marshall asked for a “writ of mandamus.” If it’s void, she is clearly eligible to be elected judge, and should be on the ballot. Whether the SDEC has the legal power to rule that it’s void is a question for the courts, but the argument makes sense to me. It seems the matter is headed for the appeals courts, no matter what happens.

A bigger “timing” issue comes from the Bar’s delay of its “interim suspension” until right before the “drop dead” date for replacing a nominee, which Party ED Jim Spearman says is August 27. If they have had this case since March, why wait until this deadline to act? For that matter, why not act before the primary or runoff? I was seated next to a Marshall supporter, who told me Marshall’s supporters believe the timing was designed to deprive Marshall of time to get a Bar hearing before the “drop dead” date for replacing a nominee. This, they believe, was designed to leave the Democrats without a nominee, which would open the door for a write-in Republican more amenable to the “Big Mule” Birmingham law firms. At Dr. Reed’s suggestion, the Committee postponed acting on the matter until a called meeting on August 26, to see if Marshall can get her license reinstated. If she does, the presumption is that she remains the nominee. If not, the Committee would name a replacement on that date.

The whole thing would make good fodder for a TV legal drama. On the one hand, if the charges are true, Marshall would clearly not be judicial material. But the timing is not the only thing that raises issues about those charges. For one thing, although the charges have been made for months, the Jefferson County DA has not charged Marshall with anything. That in itself makes me wonder if there’s really evidence of wrongdoing. You try embezzling $30,000 and see if you haven’t been arrested six months after it’s discovered. But what really makes me wonder is this: if I were a lawyer who’d gotten caught stealing $30,000, and knew (or even worried) the authorities could prove it, would I spend my remaining days of freedom (and as a non-disbarred lawyer) spending day and night campaigning for a judgeship, knowing I would probably be in jail six months into it? Would I spend tons of money and days of fighting, to keep the nomination for it? Hell, no. I’d be setting the record for the most consecutive hours at the Flora-Bama until the Sheriff came for me. Marshall isn’t acting like a woman who thinks there’s any proof of wrongdoing. I am betting the ten days left won’t be enough time for her to overturn the Bar, and keep the nomination. But if I were a gambler, I’d bet she’s still a licensed lawyer a year from now. And that ticked-off Birmingham voters are going to throw some Judge out to make room for her in 2012. Stay tuned.

All in all, one of the most interesting SDEC meetings in years. And it showed that the Alabama Constitution of 1901, for all its racist Jim Crow provisions, Big Mule accommodations, and structural inefficiencies, got one thing right. It provided for the Legislature to meet in Montgomery - in January.

Friday, August 13, 2010

This Week in the Governor’s Race

By and large, it’s been a quiet week in Alabama politics. Most campaigns have apparently decided to give things a break until closer to Labor Day, a decision not entirely unreasonable in this non-global-warming weather.

But that doesn’t mean nothing has happened. And what has happened had a distinct Democratic tilt.

First came the reports out of Houston County that robocalls were being made, accusing GOP gubernatorial nominee Robert Bentley of accepting $100,000 in campaign cash, supposedly for his commitment to continue the Riley policy of shutting down all gaming in Alabama, everywhere. Riley, of course, led the efforts that have, in recent months, shut down bingo operations at Greenetrack in Greene County, VictoryLand in Macon County, and Country Crossing in Houston County.

Then came reports - too big for even the Newhouse outlets to ignore - that Tuscaloosa businessman Stan Pate was claiming that Bentley was approached by operatives for Riley, offering to make sure that substantial sums of campaign money were raised for Bentley if the good Doctor would promise to “look after” Riley’s son Rob and daughter Minda Riley Campbell as governor. (Pate’s allegations have been vehemently denied not only by Riley, but also by Bentley.) Those with long memories - say, back to the GOP dinner before the runoff - will recall Bentley made a big issue of the Riley children’s alleged benefit from Daddy’s position. As Bentley said at the state Republican dinner in late June, before the runoff:

We are going to clean up Montgomery and it’s going to start in the Governor’s office. No longer are we going to have lobbyists in this state that will take kickbacks. We’re not going to have that. I will not benefit from my office. Not any of my children will benefit from my office. We are going to have an ethical administration.

Bentley echoed these remarks in a meeting with the editorial board of the Mobile Press-Register.

These sharp-elbow references refer to allegations made by Riley critics that the law firms employing Riley’s children have been awarded millions of dollars in no-bid contracts for legal work for the State by Riley’s administration, including some of the legal work involved in Riley’s anti-bingo campaign.

What makes the Pate allegations troubling for the GOP is that Pate has been one of Bentley’s biggest boosters since the days when Bentley was viewed as an afterthought in the GOP primary field. Besides the fact that both hail from Tuscaloosa, Bentley was the Republican most willing to distance himself from Riley, and Pate is an avowed Riley-hater. My personal favorite memory of the Alabama win in the BCS Championship Game was Pate’s national-attention-getting stunt of hiring a banner airplane to circle the Rose Bowl before the game, trailing a banner calling for Riley’s impeachment. Since Riley and his family were at the game, one can only imagine what the Commander in Thief was thinking as the plane droned overhead, and national media cameras rolled.

Pate is about as far from a shrinking violet as you can get. In a 2009 incident, Pate, a commercial real estate developer, was convicted of holding a shotgun on the manager of a restaurant which was in the process of closing on one of his Tuscaloosa properties. (He has appealed the conviction.) Just this year, upset with Riley, and Riley’s handpicked candidate for attorney general, Luther Strange, Pate paid for the production and airing of an ad pointing out Strange’s extensive lobbying and business ties to the oil industry, and asked how Strange could be expected to effectively prosecute Alabama’s claims against BP for the Gulf oil disaster. The Pate ad hit such a nerve that Strange’s campaign issued a cease and desist letter to Alabama TV stations (most did not desist). This is not the sort of man you want to have (1) holding a grudge against you, and (2) millions of dollars he doesn’t hesitate to spend venting his grudges.

The Pate dustup reveals a serious, potentially fatal, structural defect in the Bentley game plan, that goes beyond the potential defection of Pate’s critical financial support, and the threat of a Pate media vendetta. Bentley was the beneficiary of a certain number of Republican and independent voters who are genuinely tired of the patent Mississippi (See? I spell better than the folks at the University of Alabama) casino corruption in the Riley regime. Those voters will likely become, at best, indifferent to Bentley if it becomes apparent as November approaches that he has sold out to the Riley-Business Council contingent of the GOP.

On the other hand, if Bentley holds a grudge for the Business Council’s prodigal spending on Byrne, and sticks to his reformist guns, he risks a cutoff of the sort of Business Council financial aid that it’s impossible for a Republican candidate to do without. It is not safe to assume that the Business Council will heartily support Bentley as the “lesser of two evils.” The Alabama Republican Party reminds me, in one amusing aspect, of the Soviet-era Communist Party. There was a school of thought in the Dr. Strangelove crowd during the Cold War, that we should aggressively confront the Soviets at every chance. This argument was based on the premise that the Soviet leaders were Marxist ideologues who presumed that history was on their side, and that dialectic materialism dictated the eventual victory of communism. The thought was that they would always back down, presuming that capitalism would eventually fall of its own accord. Like the octogenarians atop Lenin’s tomb, the current crop of Alabama Republican leaders presume that history is on their side, and that Alabama’s descent into the abyss of ignorance is inevitable. (We know better, don’t we?) It may well be that they are willing to cut off support to Bentley, confident that Sparks would be a one-term governor, and worried that they would lose substantial control over the GOP in the interim.

Though less amusing than the eruptions of Mount Pate, more telling may be the Houston County robocalls and the efforts they suggest are underway. It appears that the supporters of the Country Crossing development (who have tens of millions of dollars invested) have decided that Bentley has picked the “sellout” option outlined above. They are not taking the Good Doctor at his word that he will allow the people a fair vote on legal gaming, and are pushing back hard. The GOP servitude to Mississippi casinos has wiped out over 2,000 jobs in the Dothan area, not an easy loss to absorb in this economic environment. The potential for political blowback was demonstrated by Bentley’s 63.7%-36.3% shellacking of Byrne in Houston County in the GOP runoff. Even Republicans in Dothan are upset about Country Crossing.

So how important is the Wiregrass to a GOP statewide candidate? Very. Recent years have given us two photo-finish gubernatorial races, and the Wiregrass vote was critical to the GOP in both. In 1994 and 2002, the total Republican margins in the three core Wiregrass counties are shown in this table:

County2002 Gubernatorial GOP Margin1994 Gubernatorial GOP Margin
Total Wiregrass10,5699,273

This table reflects what has been - until now - a growing Republican trend in the Wiregrass, and its centrality to GOP prospects. More important has been its role in how both parties approach a general election campaign. The working paradigm both employ is that we Democrats have a base - the Black Belt, the city of Birmingham, the Shoals, and a few other pockets. The GOP has Baldwin County, over-the-mountain Birmingham (including Shelby County) - and the Wiregrass. The parties then struggle for the swing vote in places like Madison, Cullman and DeKalb Counties. You take part of a party’s base out of this picture, and that party is in big trouble. Republicans are already nervous about how the BP disaster will impact their margin in Baldwin County, and the loss of overwhelming margins there and in the Wiregrass would almost certainly doom Bentley. At a minimum, they are going to have to devote resources to such things as media buys in the Dothan TV market, that they have grown unaccustomed to spending there.

All in all, not a good week for folks from Tuscaloosa. Bentley sees his runoff momentum losing steam, and remember, all you Alabama alumni and fans - it’s “humpback-humpback-I.”

Tuesday, August 10, 2010

The Battle(s) of Goat Hill - Part II

A few weeks ago, I took a detailed look at a handful of local races for seats in the Alabama Legislature, with a view to dispelling the GOP line that they will certainly be in control of Goat Hill come January. Once again, the Republican Party has issued press releases, announcing the inevitability of its takeover of the Alabama Legislature in 2010. Once again, its obedient friends in certain editorial offices have dutifully repeated their masters’ story line for thousands of readers. A recent headline in The Birmingham News informed readers that “Alabama GOP Sets Sights on Taking Control of State Legislature” - not the most neutral headline, and the article has some neutrality issues on its own. In referring to the race in Senate District 13, it said:
... if Dial, a longtime senator who is well-known in his community, can’t beat newcomer Varner in what is now a Republican-leaning district, chances are Republicans don’t have much of a chance to win the Senate.
OK, exactly who said it’s a “Republican-leaning district”? Looking at the map, a lot of that district consists of hard-line Democratic counties, represented in the House by the likes of Rep. Richard Lindsey (D-Centre). The courthouses in that district are overwhelmingly Democratic. It may be a GOP pickup chance, it may not. Former Democratic Senator Gerald Dial - who lost the Democratic primary in 2006 - is making a comeback try as a Republican. He will be well known, but his last outing in this district was an “L.” But out there as unquestioned, if unsupported, news, is that it’s a “Republican-leaning district.”

The article meets the de minimis balance test, in that it quotes Democratic Chair Joe Turnham and other Democrats, but their quotes are not the best points that could be made. They are not quoted pointing out several prime Democratic pickup opportunities that are likely to offset any GOP gains, and may exceed them. I don’t blame these leaders for not being quoted saying these things, because I know from personal experience the most telling points you make often get edited out of a news story. But there are a few salient points that need to be made about the lay of the land, and they don’t bode well for the Republicans.

Statewide trends and considerations. But first, a word from our sponsor. Well, not really. But if you read my first post on legislative races, you recall that the linchpin of the GOP strategy collapsed when Artur Davis did not win the gubernatorial primary. The GOP had counted on him to pull several white Democratic nominees to defeat with himself in November. A second shell landed in the GOP legislative foxhole on the day of the runoff, when Bradley Byrne went down to defeat. That is when our “sponsor” - AEA, so says the GOP itself - attained its foremost electoral goal of the cycle. The cha-ching! you just heard was something, probably at least two million dollars, that AEA would have spent attacking Byrne in the general, landing in the coffers of Democratic legislative nominees everywhere.

On the other side of the coin, the Republican National Bank, sometimes known by its legal name, the “Business Council of Alabama,” maxed its credit card trying to nominate Bradley Byrne for the governor’s mansion. The Business Council isn’t used to having to contest the GOP nomination, and their lack of spending discipline showed. While Alabama Power and other Big Mules will never run out of money, they will be playing hurt in the Big Game in November. Another self-inflicted Republican injury is political. The bruising GOP runoff between Bentley on one side, and Byrne, Hubbard, and the GOP establishment on the other, has left cracks and fractures all over the Republican edifice. Yes, everyone kissed and made nice in public this last weekend, and the peaceful reunification of the GOP was dutifully reported in The Birmingham News. But don’t you believe it. The wounding of Mike Hubbard in the gubernatorial race has already led him to renounce another term as Republican State Chairman. Despite the Marcus Welby figure Dr. Bentley has managed to cut so far this year, people around Tuscaloosa tell me he has a vindictive side. He isn’t likely to forget Hubbard’s barely-concealed support of Byrne, and if he gets a chance to plunge the dagger into Hubbard’s hopes for the Speaker’s chair, he will. With Hubbard wounded, others have been rumored to be quietly sounding out Republican House members about the possibility of replacing him, whether as Speaker or Minority Leader. The upshot of all this is that there will continue to be distraction inside the GOP ranks as November approaches, and Hubbard will be tempted to overspend in safe districts to shore up his leadership support. Given the known character of Mike Hubbard, we can probably count on him to short-change his party for his personal benefit.

And for the local news from across Alabama. Again, this topic wouldn’t be complete without looking at a few districts time, space and the lack of runoff results kept me from writing about earlier.

Senate District 5. This district is centered on Walker County, a Democratic stronghold. It takes in the one sparsely-populated corner of Jefferson County in the Birmingport area, and parts of Tuscaloosa County into the fringes of Northport and Tuscaloosa. The Democratic nominee is Jasper lawyer Brett Wadsworth. While this seat has been in Republican hands for the last three terms, there have been extraordinary circumstances contributing to that. Well, there’s not anything particularly extraordinary about a lot of money. But the two Republicans - Curt Lee and Charles “Slugger” Bishop - have both been wealthy candidates who liberally (so to speak) self-financed. Neither of their Democratic opponents has been able to match the money dump. The GOP this time is fielding Greg Reed, a Jasper executive in a mid-small medical equipment company. While he’s not starving, Reed lacks the deep pockets that enabled Lee and Bishop to swamp their Democratic opponents with checks. The fact is, the base voting history of this district is Democratic, and Wadsworth is not obviously outgunned financially. As the photo indicates, he, or someone helping his campaign, has a good eye for snagging voter attention. This district should, at worst for the Democrats, be considered a tossup. A more factually-based evaluation would call it a Democratic leaner.

House District 8. This Morgan County district has been represented by Democrat Bill Dukes, who was noted for being the eldest member of the current Legislature. When health concerns induced him to drop his re-election bid a couple of months ago, the GOP got out their chalk and wrote “House-8” in their “takeaway” column. Not so fast. The Democratic nominee is Drama Breland (who many not have the most notable name in this post - keep reading). Breland is a well known Decatur businesswoman, and the wife of popular retired Judge David Breland. Despite the GOP’s claims to this as a pickup possibility, it’s really a carefully drawn Democratic district, which includes most of the black neighborhoods in Decatur. No Republican bothered to run against Dukes in 2006, and the last time one did in 2002, he handily held the seat, 74.0%-26.0%. There are a lot of GOP voters in Morgan County. They have been carefully quarantined in other districts. Forget the GOP hype, this is at least a Democratic leaner, if not a safe Democratic seat.

House District 26. This district in Marshall and DeKalb Counties is being vacated by longtime Democratic Representative Frank McDaniel. As soon as McDaniel announced his retirement a few months back, GOP mouthpieces immediately wrote this district into their “pickup” list. That may have been premature. The Democratic nominee is Randall White of Boaz. White recently retired after a 37-year career in adult education, and most of the people in this district with a G.E.D. know him and owe that certificate in part to his efforts. That’s a nice base to build from. White is also a deacon at the First Baptist Church of Boaz, and has staked out pro-life and Second Amendment positions that will make it impossible to paint him as Nancy Pelosi. The Republicans have nominated Kerry Rich, who held the other House seat from Marshall County (now held by Democrat Jeff McLaughlin) from 1990-94 before deciding re-election was futile. More importantly, while White was being feted by business and civic groups for his retirement, Rich was undergoing a primary and runoff fight that made Byrne-Bentley-James look like a Sunday School picnic. This was the sort of fight that leaves feelings hurt and coffers empty. One of Rich’s opponents filed a successful complaint with the FCC after Rich failed to take himself off the air of his radio station (as a DJ), or offer opponents equal time. This is at least a tossup race.

House District 38. Right in Mike Hubbard’s back yard, and held by a Republican incumbent, this district is not one the GOP needs to have to divert resources to hold. But divert they must. The Democratic nominee is - some things you just can’t make up - Huey Long, a former Chambers County commissioner. While Lee County, a rural part of which is in this district, has shown regrettable Republican tendencies in recent cycles, Chambers County is historically much more Democratic, and retains a strong local Democratic trend. Perhaps more worrisome for the GOP, in 2006, when Riley held a comfortable lead at the top of the ticket, Republican incumbent Duwayne Bridges only held onto this seat by a 50.7%-49.3% margin. Danny, at Doc’s Political Parlor, observes that “I believe the argument could be made that” Bridges is “as vulnerable as” at least one or two of the Democrats whose seats the GOP tout as “in play.” One subtle point I gleamed in looking at Long’s Facebook page: one of his Likers is former State Representative John Rice of Opelika. That’s Republican former Representative John Rice of Opelika, whose fierce partisan tendencies have long been notorious. While many regard Rice as something of a spent force, he should still be considered as a notable local Republican. If this indicates, as I suspect it does, any sort of split in the Lee County GOP, Bridges is in for a long election night.

Senate District 8. Some of the Republicans’ claimed “in play” seats are simply fantastic. Among them, they count the seat of Senator Lowell Barron (D-Fyffe). Barron’s opponent is one Shadrack McGill, who hails from the isolated mountains of western Jackson County. McGill appears to be a young Tea Party type who has become involved after listening to numerous political sermons at his rural church. Apart from whatever crumbs the state GOP throws his way, his finance will be negligible. Four years ago, when Barron was challenged by a seasoned GOP activist who prodigiously self-financed from his successful business, Barron handily won, 56.6%-43.4%. For the last quadrennium, Barron, undistracted by his previous duties as President Pro Tem of the Senate, has even more assiduously worked to cultivate the volunteer fire departments, high school bands, and Little League ballparks that are the meat and potatoes of legislative campaigns, especially in rural districts. Only this month, Barron again became a hero to every good ole boy in his district, when he brokered a compromise with the National Park Service that should allow continued four-wheeling in the Little River Canyon National Preserve. Among the broken links and jarring grammar of McGill’s website is the observation that “Shadd is pursuing a degree in Political Science.” He’s about to get a serious homework lesson. If the GOP thinks this seat is really in play, Loretta Nall has successfully infiltrated the GOP High Command.

As with my previous review of Legislative seats, my point is not that the Democrats are going to sweep the seats I have named. Even I will admit that’s unlikely. But it’s equally unlikely that the GOP will, either, and therein lies the fallacy of their PR campaign. When they tout their impending takeover of Goat Hill, they are counting every seat I have listed as a likely or solid pickup. That’s simply unrealistic. The problem is, most of the media in Alabama have not really challenged them on this. How can we get them to? Well, a first step is the labor-intensive process of educating first-tier media collectors - that is, reporters - about these individual races, and their impact on the overall numbers. If we don’t do that spadework, no amount of clever turns of phrase will reverse the hostile tenor of the resulting news coverage. As was done with some effect in the piece from The Birmingham News that opened this post, we can also remind the media - and the voters - that this is not the first time the GOP has proclaimed the coming of its Legislative Antichrist. It’s just the latest iteration. Those of us with long memories recall when, as recently as the 1970s, Birmingham’s George Siebels (actually quite moderate, considering his party affiliation), was the default Republican leader in the House, as he was the only Republican in either chamber. While a return to that golden age is unlikely, we need to remind the media that, despite the occasional court-delivered Republican governor, the Alabama voter has trusted the Democratic Party with the Legislature, and for good reason. The only thing more important is to fight to see to it that we continue to deservedly do so. These are tasks not only for the statewide Party leadership, but for each nominee for the Legislature and their local supporters. The links to these candidates’ websites provide another valuable opportunity to work for this worthy goal.

Friday, August 6, 2010

Drip, Drip, Double Dip

If someone were pressed to point to the most recurring theme of the Alabama Republican Party in the last decade, it would have to be their incessant carping about “double dipping” - the practice of, in the case of their whines, an employed educator also serving in the Legislature, hence “double dipping” from the public fisc. And this tinny tone has resonated on the tinny editorial pages of not only Republican-leaning newspapers, but some journals whose editors should know better. Typical of this partisan screed has been this editorial from the Mobile Press-Register in June 2009:

Gov. Bob Riley pushed a sweeping ethics reform proposal this year that included strict financial disclosure rules. But even with scandals swirling around the two-year colleges and “double-dipping” lawmakers, the Legislature refused to clean up its own house.
We all know who the targets of this media crusade are. Career educators who have chosen to exercise their constitutional right to seek public office, and have successfully been elected - and in every case I know, re-elected - to the Legislature. With a couple of exceptions, these are Democrats, and many are members of AEA. Generally, they oppose the education-predatory policies of the Riley Administration. Those singled out by media attention include House Democratic Whip Jack Page of Gadsden, who works at Gadsden State Community College, and Representative Yvonne Kennedy of Mobile, who recently retired as President of Bishop State Community College in Mobile.

The media jihad against educators’ constitutional rights reached its nadir when the Pulitzer committee was snookered into giving the 2007 prize for investigative reporting to Brett Blackledge of The Birmingham News. While his report did contribute to the eventual conviction of Chancellor Roy Johnson for contractor kickbacks, the vast bulk of the “investigative” series consisted of rehashes of the very-public information that a handful of Legislators worked in the community college system. You only had to look as far as the legislators’ own campaign websites or legislative website biographies.

What is particularly objectionable - from a point of view of journalistic ethics - is that Blackledge’s series of articles, which had to be approved at the highest level of the News, were carefully focused on the predominantly Democratic legislators who worked in education. (Though to avoid totally overt partisanship, Blackledge did have to occasionally mention Republicans Todd Greeson and Blaine Galliher, though they got many fewer mentions than Democratic subjects.) What else the Blackledge articles never mentioned - and apparently, unknown to the Pulitzer committee - the educational employment of these legislators had been used by the GOP in campaign material in the 2002 election cycle, but all the legislator-educators were re-elected. If their constituents knew, and didn’t care, why should we - or the Pulitzer committee? (Mercifully, Blackledge decamped, Pulitzer plaque in tow, for Washington shortly afterward. At least one fewer GOP shill with access to a printing press in Alabama, and good riddance.) Perhaps most troubling, Blackledge and the News could just as easily have written a series on “public employees” who serve in the Legislature. Could have, but didn’t.

Such a series would have included Republican Cam Ward of Shelby County, who will be moving from the House to the Senate in the next Legislature, who is the Executive Director of the Industrial Development Board of the City of Alabaster, a public agency. It also would have had to name GOP Senator Larry Dixon of Montgomery, who is retiring from the Legislature, who is the Executive Director of the Alabama Board of Medical Examiners, and who has worn both hats for a couple of decades now. Republican Representative Spencer Collier of Mobile is a former State Trooper, who has been employed by nonprofit agencies with state contracts since leaving the Troopers. Representative Jamie Ison, a Republican of Mobile, did not retire from her position with the Alabama Institute for the Deaf and Blind until after she took her legislative seat (and campaigned while a full time employee). Senator Jim Preuitt of Talladega, who waited until the last day of qualifying this year to announce he was becoming a Republican, is an automotive dealer. While Preuitt is not a government employee, Preuitt’s dealership is a Ford franchise - sellers of the favorite wheels of police departments everywhere - the Crown Vic. (Soon to be replaced by the Ford Police Interceptor, a Taurus variation.) I do understand that Preuitt sells these vehicles to numerous law enforcement agencies, which are, of course, government agencies. The Democrats could all still have been mentioned in such a “public employees/vendors” series, but that would not have served the purpose of creating an impression that “Democratic” and “corrupt” are uniquely synonymous.

But of course, the King Pig Double Dipper is none other than state Republican Chairman, GOP House Minority Leader, and Siamese Twin of Bob Riley, Mike Hubbard of Lee County. Hubbard’s twisted, serpentine path to Alabama political prominence began in Athens, Georgia, where he attended UGA. From there, he landed on the Plains of Auburn in 1983, as the Associate Sports Information Director. In 1990, he left the university, to run the Auburn radio network. In 1994, he essentially became the Auburn radio network, when the company he founded, Auburn Network, Inc., took over the broadcast rights to Auburn sports. (Why Auburn, and “that other school,” can’t run their broadcasts in-house and keep the profits for university purposes, is a good question. Maybe someone should hold hearings.) In 1998, Hubbard was elected to his first term in the Alabama Legislature, and after the 2002 election, he became the GOP House Minority Leader. Meanwhile, however, Hubbard had introduced an amendment in the 2000 Regular Session of the Legislature to S.B. 260, a bill designed to give an advantage of a few percentage points to Alabama businesses trying to bid for state contracts. As I have been told, Hubbard let it be known that Republicans in the Legislature would filibuster the bill if his amendment was not adopted, and the bill’s sponsors relented. That amendment inserted the following language, now part of the Code of Alabama:

Notwithstanding the requirements under Sections 41-16-20, 41-16-21, and this section, contractual services and purchases of personal property regarding the athletic department, food services, and transit services negotiated on behalf of two-year and four-year colleges and universities may be awarded without competitive bidding provided that no state revenues, appropriations, or other state funds are expended or committed and when it is deemed by the respective board that financial benefits will accrue to the institution, except that in the cases where an Alabama business entity as defined by this section is available to supply the product or service they will have preference unless the product or service supplied by a foreign corporation is substantially different or superior to the product or service supplied by the Alabama business entity.

What all this legalese comes down to is, that Hubbard’s contract for Auburn broadcasting is exempt from the bidding law - but Hubbard kept his preference as an “in state” bidder. Shortly after this bill entered the lawbooks, Hubbard’s company was awarded a ten-year, no-bid contract that gave it the rights to all Auburn sports radio broadcasts. A contract worth millions of dollars to its owner. (Remember the 2002 gubernatorial campaign, when Bob Riley said the brimstone of Hell was too good for Don Siegelman because he awarded no-bid contracts? That was before Riley awarded his own ...)

Not only does this deal stink on its merits, it’s entirely likely that Auburn University was short-changed in the process. According to a complaint filed in 2006 with the Alabama State Ethics Commission, Host Communications, Inc., tried to offer more money than Hubbard’s contract with Auburn. According to one report in The Montgomery Independent, Host offered $1,000,000.00 a year more than Hubbard’s contract gives Auburn. (The Ethics Commission dismissed the complaint on the grounds that Hubbard had apparently gotten a bill passed to make what he did legal. Nice work if you can get it.) Hubbard told The Birmingham News at the time that Auburn was justified in spurning the superior Host proposal because Host was a “shaky” company. For the record, Host Communications is the “shaky” company that handles all sports radio for Florida, Kentucky, Texas, Tennessee, Ohio State, Nebraska, and Michigan, among other universities. I should be lucky enough to be so “shaky.”

Of course, Hubbard is ready with a response on the rare occasion he faces a media inquiry about his Auburn contract. In essence, he says “I don’t have a contract with Auburn anymore. I sold Auburn Network, Inc., to an outfit in North Carolina named ISP Sports, LLC. So, there’s no conflict of interest, and I am not making money off Auburn anymore.” Unspoken is the fact that, among its many employees, ISP Sports, LLC, now includes ... Mike Hubbard. Of course, since it’s a privately held outfit, and Auburn sports are officially conducted by a “private” foundation that isn’t subject to sunshine laws, we can’t find out how much of the “sold” contract Hubbard still gets for his “salary,” but I bet endorsing those checks is strenuous work.

The Hubbard/GOP largess with the Auburn contract doesn’t stop there. In addition to getting to keep all its advertising receipts, Hubbard’s employer gets one of the most valuable commodities in Alabama - Auburn football tickets. (Tickets that are physically printed, by the way, by Mike-Hubbard-owned Craftmaster Printers, Inc., as are the game programs.) 547 of them per game, to be exact, some of them of the VIP/skybox variety, in addition to VIP parking passes and other game-day perks. When challenged last year by Democratic Senator Zeb Little to respond to rumors that Hubbard was using these tickets as perks for Republican contributors, Hubbard predictably refused to clearly state that no GOP donors were enjoying these prime seats. In essence, the typical Republican refrain, that what goes on in a “private bidness” doesn’t concern us little people on the outside. Needless to say, when we’re talking about this number of tickets, the annual revenue loss to Auburn University on the free tickets alone is in the tens of thousands of dollars. Maybe not enough to overtake MIT, but it’s enough to provide a scholarship for a couple of future engineers from the rural Black Belt.

This mess ought to upset any Alabama citizen. (Not to mention anyone who is a true supporter of Auburn University!) Yet, has the porcine trough-gouging of Mike Hubbard been the subject of media scrutiny? I ran a Google search for pages containing the terms “Hubbard,” “ISP,” and “contract,” and limited to the site www.al.com - the Newhouse site containing the combined editorial output of The Birmingham News, the Mobile Press-Register, and The Huntsville Times. The search produced exactly two items. One was the story, linked above, from The Montgomery Independent, not one of the broad-circulation Newhouse dailies. The other was this story from The Birmingham News, in the aftermath of the failure of Auburn bigwig Bobby Lowder’s Colonial Bank, quoting Hubbard on the Auburn Network’s efforts to find a replacement sponsor for Auburn football broadcasts. The latter article doesn’t identify Hubbard as a legislator, or as a Republican Party official.

By way of action concerning this scandalous state of affairs for the Democratic Party and its supporters, several items come to mind. Letters to the editor are always a good way to get things before the reading, voting public, and even the Newhouse papers do a creditable job of printing letters adverse to their preferred positions. The trick is, all newspapers print something of a cross-section of letters received, so we need to send several on a topic for every one we get published. These letters should ask why this issue isn’t page one news; even the most biased media - well, maybe not Fox News - are sensitive to such criticism. There are, remember, a few dozen daily newspapers in Alabama, and some of them are moderately progressive. Combined, the non-Newhouse outlets even have wider circulation, and they reach more deeply into swing counties. Perhaps more important than the letters themselves would be their tendency to force the media to balance its “double-dip” issue coverage.

Another prospect that comes to mind is the frequent pairing on a television set of Hubbard with Democratic State Chair Joe Turnham. WSFA in Montgomery and Alabama Public Television seem particularly fond of the matchup. Chairman Turnham, I know Hubbard is your Auburn neighbor (and your Representative; he took your dad’s old seat in the House), and you are an Auburn grad, but part of the job description of party Chair is to step on his toes until we hear the King Pig Squeeeeeal. And bringing up his Auburn double-dip while he’s there for the camera to record his florid complexion is too good an opportunity to miss. Finally, if I were a Democratic nominee for the House, I wouldn’t overlook making, or having a concerted effort made, to publicize this looting of Auburn coffers at the local Auburn football boosters’ meeting. Such an effort wouldn’t have to be formal, but if informed, the potential for a backlash is there. Remember, Tim James’s one joke about firing Nick Saban has taken some blame for keeping him out of the runoff with Byrne. And those Auburn folks might not cotton to someone - a GEORGIA graduate no less! - making all that money that could be supporting Auburn athletics, AND becoming Speaker!

An endnote: lest you think I am taking a cheap shot at the football mill on the eastern border of the state - guess whose radio broadcast rights are also owned (under the same no-bid statute) by Hubbard’s new corporate “employer”?