Thursday, July 26, 2012

The Case for Impeaching Federal Judge Mark Fuller

Suppose that you were having to sue someone. A car wreck, perhaps; or maybe you needed them evicted from the house you were renting them. You know you’re in the right, and you go to the courthouse on the day of the trial, confident that, with the facts and the law both on your side, the judge will render a proper judgment in your favor.

Then, when you lose the case, you are dumbfounded. You file an appeal, but you can’t figure out how you could have lost.
Only after the trial, while the appeals court is considering your case, do you find out that the judge who ruled against you has extensive business dealings with the party you were suing in front of him. Not only that, your opponent’s lawyer also represents your opponent in his business dealings with the judge.

If you picture yourself being outraged, then you have a pretty good idea how former Governor Don Siegelman felt about his 2006 kangaroo-court conviction before George W. Bush-appointed U.S. District Court Judge Mark Fuller.

At every turn of Siegelman’s trial, Fuller improperly ruled against Siegelman and co-defendant Richard Scrushy, and for the prosecution. He failed to take action when the Government failed to disclose evidence favorable to Siegelman, as he should have done under the rule of Brady v. Maryland, 373 U.S. 83 (1963). He silenced Siegelman’s
attorneys from making relevant and legal arguments to the jury. He let charges go to the jury which were later ruled improper by the U.S. Supreme Court. Not only that, Fuller failed to notify defense attorneys that a female juror, by the name of Katie Langer, had been passing notes through Judge Fuller’s bailiff, asking if the FBI agent sitting at the prosecution table was single. I can’t imagine how her not wanting Mr. Potential FBI Dream Date to be angry about an acquittal could have influenced her vote on the jury. (“In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial  is ... deemed presumptively prejudicial, United States v. Khanani, 502 F.3d 1281, 1291 (11th Cir. 2007)).

Fuller’s conduct in the trial (I have only named a handful of his pro-Government rulings) gave Siegelman’s attorneys lots of ammunition in his partially-successful appeal, and is doubtless going to provide them more fodder in the § 2255 proceeding that is likely going to be filed, now that the direct appeals are playing out.

But what do those violations of Siegelman’s rights have to do with the hypothetical case I described in the first paragraphs? To understand that, you have to know a little something about Judge Fuller. Even while serving as a district attorney for several years before being appointed a federal judge, Fuller found time to be a full-time businessman. His extensive business activity did not miss a beat when he took the presumably full-time job of federal judge.

Fuller was for years, including during the Siegelman trial, a principal of Doss Aviation, Inc.; some reports made him a 43% owner.¹ He was listed on corporate reports as the company’s CEO, even after becoming a federal judge. Doss Aviation’s 2002 Annual Report on file with the Alabama Secretary of State² shows Fuller as the corporate president, with his office listed as 1 Church Street in Montgomery. That just happens to be the United States Courthouse, where Fuller’s court sits.³ In his 2010 financial disclosure form as a federal judge, Fuller valued his interest in Doss at between $5,000,000.00 and $25,000,000.00; with an additional $500,000.00 t0 $1,000,000.00 in the affiliated Doss of Alabama, Inc. That’s enough coin to get even Mitt Romney’s attention.

So what does Doss Aviation do? I will let the homepage of its website speak to that: 
Founded in 1970, Doss Aviation, Inc. enjoys over 40 years [sic] experience in supporting the U.S. Government in flight training, aircraft maintenance, maintenance training, into-plane aircraft fuels and bulk fuels management, transient aircraft support services, air traffic control, and other airfield management/logistics services. The company built an enviable reputation in over 50 contracts performing a variety of services for the U.S. Army, U.S. Navy, U.S. Air Force, Defense Logistics Agency - Energy (DLA-E), NASA, FBI, and Department of Homeland Security.
In other words, Doss Aviation is extremely, if not exclusively, dependent on government contracts, many of them no-bid, that can disappear if the Air Force - or the administration in power - decides it isn’t happy with, say, the rulings of a leading shareholder. (Remember, at the time of the Siegelman trial, the administration was Republican.) The conflict of interest is obvious to even a layman. Despite this, Fuller has, throughout his career as a federal judge, regularly decided cases involving the Air Force.  A summary of the reported cases follows:
  • Webster v. Wynne, 2010 WL 5394752 (M.D. Ala. 2010). Civil employee of the Air Force alleged employment discrimination against the Air Force. Summary judgment granted to Air Force. 
  • United States v. 22.58 Acres of Land, 2010 WL 431254 (M.D. Ala. 2010). Action seeking condemnation of certain real property located in Montgomery County at the request of the Air Force. Landowner’s motion to dismiss denied.
  • OSI, Inc. v. United States, 510 F.Supp.2d 531 (M.D. Ala. 2007). Owner of property adjoining Air Force base sued United States government and officials, stemming from alleged dumping of Air Force hazardous wastes into landfill on property. Summary judgment granted to Air Force.
  • Waid v. United States, 2006 WL 1766808 (M.D. Ala. 2006). Driver of automobile injured in accident with Air Force vehicle sued for injuries. Claim against Air Force dismissed.
  • Keel v. U.S. Dept. of Air Force, 256 F.Supp.2d 1269 (M.D. Ala. 2003). Plaintiff, a white male, claimed that defendants terminated him on the basis of his race and sex in violation of Title VII, and retaliated against him by barring his access to Air Force base. Summary judgment entered for Air Force.
In another questionable case where the Air Force was not a party, Houston v. Army Fleet Services, L.L.C., 509 F.Supp.2d 1033 (M.D. Ala. 2007), Fuller denied summary judgment to an employment discrimination defendant - which is a competitor of Fuller’s company. I did not find one reported opinion in which Fuller was the judge, in which the Air Force lost the case.

The legal standard for a judge to recuse himself is simple, straightforward, and clearly reaches Fuller:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). 
What person wouldn’t reasonably question the impartiality of a judge whose (at least) $5,000,000.00 investment could become worthless overnight if one of the parties is unhappy with his rulings? Yet, even after Siegelman’s and Scrushy’s attorneys learned of the Doss Aviation link (after the trial), Fuller repeatedly refused to recuse himself.

You don’t have to take my word that there was a clear ethical mandate for recusal. Judicial ethics expert, and Georgetown University Law Center Professor, David Luban had this to say:
This one is a politically charged case involving a former governor in which political leaders in Washington, D.C., who ultimately exercise tremendous control over the process of military procurement contracts, are likely to take great interest. Given the amount of money Judge Fuller’s company gets from government contracts, any reasonable person would question how impartial he could be. He should not have taken this case, and with a recusal motion made, he had no option but to drop out.
So, we have established that Mark Fuller is an unethical
sleaze who flaunts his legal duty to recuse himself. Sadly, it doesn’t end there. In Don Siegelman’s case, there is an added Doss Aviation issue. One of the prosecutors at the table in the Siegelman trial was Assistant U.S. Attorney Stephen Feaga. Feaga’s smiling face may be seen in the photograph to the right. What’s that, you say? Feaga doesn’t look like a federal prosecutor? He looks like some sort of Air Force officer?? Well, that’s because he was an Air Force officer (he retired in 2011) - of the weekend warrior reserve variety. But not just of any sort; he was a Colonel in the Judge Advocate General Corps - the Air Force’s legal arm. And at the time of the Siegelman trial, he was in a unit that reviewed, and had to approve, Doss Aviation contracts.

In the words of a Great American, Whoa, Nellie!” 

Put aside the fact that Mark Fuller was appointed as a judge because of his Republican activism, and a Siegelman conviction was a Republican political priority. As Fuller presided over Siegelman’s trial, he knew that the George W. Bush administration could wipe out $5,000,000.00 (or more) of his personal wealth if it was unhappy with his rulings. But he also knew that one of the prosecuting attorneys probably could, too. Only Choctaw Bob Riley or Dick Cheney would deny that Fuller’s impartiality might reasonably be questioned.

If any member of Congress needs further reason to impeach Fuller, the hapless part-time judge is more than willing to provide it. It seems that, if the United States Congress and the Judicial Council of the Eleventh Circuit haven’t had enough of Mark Fuller, his wife, Lisa Boyd Fuller, has. In April, she filed for divorce after 30 years of marriage. While Mark Fuller’s lawyers promptly got the divorce file sealed, what emerged before then was serious enough to merit the investigation of any federal judge. Discovery requests served on Mark Fuller covered such judicially unbecoming topics as prescription drug addiction, driving under the influence, an extramarital affair with a Court employee whom he supervises, and domestic violence. Normally, such accusations are best viewed with a gimlet eye in a divorce case. But Ms. Fuller’s lawyers have listed the pharmacies whose records they want to subpoena, and the very number of different pharmacies sends up Limbaugh-like addiction warnings. There’s every reason to believe Ms. Fuller will settle the divorce case for a large chunk of Mark Fuller’s wealth before lots of judicial mud is made public, and it’s hard to blame her. But that doesn’t mean she can’t - or shouldn’t - be interviewed, and subpoenaed if necessary, by Congressional investigators.

As regular readers of my posts know, I always strive to provide them with some positive action to take. In this case, that action involves getting Congressional investigators talking to Lisa Fuller, and otherwise looking into Mark Fuller, and the Siegelman case generally. If this is going to happen, we are going to have to be the squeaky wheel that demands its grease. His Majesty, Barack the Appeaser I, has shown that his administration has its collective head inserted all the way to its collective hepatic flexure on any matter of interest to the Alabama Democratic Party. What I propose is that we do what we can to garner the attention of Democratic members of Congress who might be willing to do the right thing. I urge Alabama Democrats to contact the following members of Congress by the means indicated:

  • Congressman John Conyers (D-Michigan). Conyers is the ranking Democrat on the House Judiciary Committee, which would have jurisdiction over any impeachment or investigative proceedings regarding Fuller or the Siegelman case. You can leave a message on his office website here.
  • Congressman  Steve Cohen (D-Tennessee). Our neighbor from Memphis, Cohen is a lawyer, and has never worried about stepping on GOP toes. He is also on the House Judiciary Committee. You can leave a message on his website here.
  • Senator Pat Leahy (D-Vermont). Leahy is the chair of the Senate Judiciary Committee, which has the corresponding jurisdiction in the Senate. He is a former prosecutor, so he’ll get his head around the issues in a heartbeat. You can leave a message on his Senate website here.
  • Senator Amy Klobuchar (D-Minnesota). She is not only on the Senate Judiciary Committee, she chairs the Subcommittee on Administrative Oversight and the Courts, which would have primary jurisdiction at the subcommittee level. You can reach Senator Klobuchar on her office website here.
  • Senator Bernie Sanders (I-Vermont). Although an independent, Sanders caucuses with the Democrats. He is also the most willing member of the Senate to call out Republicans on issues of greed, injustice, and corruption. Because of his state relationship with Leahy, his support could be invaluable. You can message Senator Sanders on his office website here.
  • Senator Al Franken (D-Minnesota). We all know how courageous and outspoken Franken is. He is one of the few non-lawyers on the Senate Judiciary Committee. You can leave a message on his Senate website here.
  • Congresswoman Terri Sewell (D-Alabama). Sewell is a lawyer who understands both the legal and political issues involved. She’s also the only Alabama Democrat in either house of Congress, thanks to the Obama Administration allowing Fuller to judicially defame the Alabama Democratic Party. I haven’t been thrilled with her silence on these issues to this point, but maybe if she realizes they are important enough to us, that will change. You can contact her Washington office at 202-225-2665, fax it at 202-226-9567, or write it at 1133 Longworth HOB, Washington, DC 20515. Or if you prefer to contact her online, she will take your message here.
Please include a link to this blog post in your message to these members of Congress. That will save you the effort of having to write in great detail about the underlying facts.

There is much at stake here. If Fuller isn’t stopped and discredited, and the Alabama Democratic Party allowed to start rebuilding, Alabama minorities will continue to suffer from political irrelevance they haven’t known since the days of Jim Crow. From a purely political angle, bringing Fuller’s sordid record to light will help remind Democratic and independent voters nationwide this fall how important it is to keep judicial selection out of GOP hands. And I wouldn’t be myself if I didn’t put on my Machiavellian hat and say to each of these members of Congress: Fuller is so dirty, that whoever comes after him first is going to look like a cross between Mother Freaking Teresa and Clarence Darrow. Happy hunting, and post a comment below or email me here if you need further help; I’ll get back in touch.

¹ Doss Aviation was acquired in December 2011 by J.F. Lehman and Company. It is unclear whether Fuller received cash, or Lehman securities, for his shares in Doss Aviation. Lehman is itself a defense contractor, so if Fuller is now a shareholder of it, the conflict of interest issues remain.
² For some mysterious reason, Doss Aviation’s Annual Reports for subsequent years - including those during which Fuller presided over the Siegelman case - are no longer available online on the website of Secretary of State Beth Chapman, a heavyweight Republican partisan. Since the company is still in good standing, it has obviously been filing those reports. I personally had previously viewed those reports online, and noted that they showed the registered office for service of process on Doss Aviation as c/o Mark Fuller, at his Courthouse address of 1 Church Street in Montgomery.
³ Misuse of federal funds and equipment and the time of federal employees may be grounds for criminal convictions. United States v. Wilson, 636 F.2d 225, 227 (8th Cir. 1980). Another basis for Fuller’s removal from office.
⁴ Besides not reporting the Katie Langer jury tampering to defense counsel, Feaga also failed to turn over conflicting statements of former Siegelman aide Nick Bailey, the Government’s sole witness who claimed that he witnessed Siegelman make the deal that was the basis of the Government’s case. Had Siegelman’s lawyers had those statements, Bailey’s credibility would have been destroyed. Alabama Rule of Professional Conduct 3.8 states that a prosecutor shall not willfully fail to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused. Despite the fact his actions were well-documented, widely reported in the media, and not disputed by the Government, Feaga has not been publicly disciplined for this violation. After his partisan Republican protector, former U.S. Attorney Leura Canary, was finally replaced by the dilatory Obama administration, Feaga left the U.S. Attorney’s office for a staff job at the Alabama Securities Commission in February 2012.

Friday, March 16, 2012

Commitment Issues

Yes, commitment is a wonderful thing.

Alabama Primary 2012 has come and gone. The financial boon enjoyed by broadcasters, hoteliers and restaurateurs catering to the media, and attention-seeking middle-level Republican leaders being solicited for endorsements has passed, not to be repeated until 2016. Because Alabama will be deemed one of the least competitive states in this November’s election, the attention paid to our politics will enjoy a similar slumber. The national media’s terminal case of ADHD will compel it to focus on Illinois, until it’s some other unfortunate state’s turn.

The inability of the national media to analyze the results in any state for more than a couple of hours on its primary night often leads it to miss critically important facts about what happened on the ground that day. Even the pampered caucus-goers of Iowa don’t get any meaningful post-caucus analysis, and it would be foolhardy for Alabama to expect any better. When you combine these facts with the media’s obsession with the Republican Kill-Thy-Neighbor primary, it’s not surprising that something amazing in the Democratic primary could be overlooked.

I am referring to the relatively high number of Alabama Democrats who declined to vote for President Obama in our primary, and instead cast a vote for “uncommitted.” While total results are not available on the Secretary of State’s website, in those counties currently reporting, 16.8% of Democratic primary voters declined to vote for Obama, and voted “uncommitted.” Among those reporting counties, “uncommitted” actually beat Obama in at least seven counties.

Once upon a time - before the presidential campaigns of George Wallace - uncommitted delegates were quite common in Alabama presidential primaries. Sending uncommitted delegates to a convention gave the state bargaining leverage. A number of loyalist Democrats continued the tradition into the Wallace era, providing Wallace foes a voting option in the primary. Since the election of Jimmy Carter, however, the phenomenon has faded into disuse, although remaining a legal option. Until now.

Obviously, a significant number of Alabama Democrats felt compelled to register unwillingness to support the President. One caveat is in order about the 16.8% figure: as the map shows, a number of the counties not yet reporting in the Secretary of State’s system are in the Black Belt. Those counties will undoubtedly lower the 16.8% figure when full results are officially canvassed. But the figure will still be significant; those counties don’t account for enough of the state’s vote to lower it much. And the fact remains that “uncommitted” carried a number of counties.

Several explanations offer themselves for this phenomenon. The most obvious is that of race. Many of the counties carried by “uncommitted” are overwhelmingly white, and were carried by Hillary Clinton in the 2008 presidential primary. Obama got a mere 10% of the white vote in the 2008 general election. But there is at least one county where race isn’t such an easy explanation, and that is Washington County. Washington County is 26.2% black. Common sense tells us that the Democratic primary electorate is going to have a much larger percentage of black voters than that. Compounding the complexity of analyzing Washington returns is the fact that white voters have not, for the most part, abandoned the Democratic primary for the Republican. Only 16% of the total votes cast for President in the Washington County primary were cast in the GOP contest. The Democratic primary is still, apparently, a white-majority affair. Even so, in picking through the precinct results for Washington County, I noted at least a couple of precincts where Obama’s total fell below the black percentage of the population reported by the Census. In sum, race may be the explanation, but the data isn’t good enough to draw any conclusions. If only the media had exit-polled the Democratic primary.

The alternative explanation - and the two can coexist - is residual discontent among Democrats with the incompetent messaging of the Obama administration, which, as I have noted, has had disastrous effects on the Alabama Democratic Party. More serious are continuing concerns - which I also previously noted - that Obama’s team made a conscious decision to allow the Alabama GOP to torpedo the Democratic Party by leaving corrupt Bush U.S. Attorney Leura Canary in place in Montgomery, where her politically-motivated sham indictments contributed greatly to 2010 GOP gains. (Please sue me for defamation, Leura. I’d love to have subpoena power to take depositions and unearth bank records. You’d love Tallahassee. And congratulations to Milton McGregor, the other victims, and their legal teams.)

A look at the map above, and a passing familiarity with the 2010 Democratic casualty list, reveals that several of the “uncommitted” counties were represented in the Legislature by Democrats who lost their seats, or their leadership positions. Those Party leaders certainly weren’t motivated to support Obama in the primary, and it would take a very short leap of the imagination to see them, and their supporters, exacting a measure of revenge.

Yet another fact that should be considered is that many of the “uncommitted” counties still have Democratic courthouses. Voters must vote in the Democratic primary to have a meaningful voice in the election of their local officials. Among the “uncommitted” counties, for example, Jackson had contested races for probate judge, circuit clerk, superintendent of education, and commission president. Neighboring DeKalb, which Obama carried, had only a single local race for superintendent to draw voters. A larger primary cohort could well have brought in voters more likely to express racial bias in their votes.

Those counties carried by “uncommitted” are, for the most part, the foundation of the historic Democratic base in Alabama. A problem in those counties, whatever its etiology, signals a problem the Obama campaign badly needs to address. While solving the problem might not make Alabama competitive in November, Obama has “reach” states in the South - Virginia, North Carolina, and maybe Georgia - where every vote will count. In those states, Obama can’t afford to leave base Democrats off the bus.

Having entered the White House like the fortunate prince of whom Machiavelli said, “Coloro e’ quali solamente per fortuna diventano di privati principi, con poca fatica diventono, ma con assai si mantengono; e non hanno alcuna difficultà fra via, perché vi volano: ma tutte le difficultà nascono quando e’ sono posti,” Obama had better hope that the sage was wrong in noting that “E chi crede che ne’ personaggi grandi e’ benifizi nuovi faccino sdimenticare le iniurie vecchie, s’inganna.” (Il Principe, Chapter VII. The quotes are the first and the penultimate sentences of the chapter. )

Sunday, March 11, 2012

The Battle for the Republican Soul ... and Other Oxymorons

This Tuesday is the occasion for the Alabama 2012 primary, moved to its early date in the 2011 legislative session in an effort to make Alabama more relevant to the presidential nominating process. In a further effort to save money (it does cost a lot to run an election), the Legislature also moved the primary for downballot races to the March date.

The media, as it is wont to do, has put a laserlike focus on the presidential primary. This is not wholly irrational. Alabama will indeed be the focus of the nation’s attention Tuesday night, especially as Newt Gingrich and Rick Santorum (I am not going where his tie choice leads!) try furtively to push each other out of the Republican race. As only one example of this focus, The Washington Post offers this catchy graphic showing the race’s importance. Mitt Romney, in an effort to secure a win in the Deep South that would contribute substantially to his “inevitable” theme, has expressed a newfound affection for grits and other Southern culture, that is certainly as genuine and sincere as his commitment to freedom of reproductive choice and universal health insurance. The Alabama GOP presidential primary is worth watching, and it will be worthwhile to pick over the numbers starting Wednesday.

I say this because of the adage in Sun Tzu’s widely-read classic The Art of War, that “if you know your enemies and know yourself, you can win a hundred battles without a single loss.” But if we really want to know our enemy, the GOP presidential race may not be the place to look. That contest has become an exercise in pathological syncretism, as the three non-Paul contenders have devoted their full energies into seeing which can most totally pander to the Tea Party wing of the GOP. (Much to the justified delight of President Obama’s campaign staff.) Because of this, the Republican presidential results are going to tell us little more than which of the three was most effective at deploying this strategy.

The more perceptive analyst will be looking at downballot GOP races, in particular at those for Chief Justice and President of the Public Service Commission.

The race for Chief Justice features incumbent Charles Malone of Tuscaloosa, appointed last year by Governor Bentley; Mobile County Circuit Judge Charlie Graddick, and former Chief Justice Roy Moore. Many write off the latter two as contestants for the Shorty Price Award for Futile Candidacies. Graddick burst on the state political scene in 1978 as the candidate for attorney general whose “fry ‘em til their eyes pop out” TV ads (the posted clip is the only remnant I could find online) brought him to the head of a crowded field in the Democratic primary. After two terms as AG, he ran for governor in 1986, and won the Democratic runoff against Bill Baxley. He was properly, if inartfully, stripped of the nomination by the SDEC for encouraging illegal crossover GOP votes in the runoff. After another unsuccessful statewide run - this as the GOP nominee for lieutenant governor against Don Siegelman in 1994 - he settled into a circuit judgeship in Mobile County, where he had started as district attorney in the 1970’s.

Judge Roy Moore, of course, is widely perceived as a caricatured religious fanatic, whose insistence on placing the Ten Commandments in the Heflin-Torbert Building led to his ouster as chief justice. While Moore’s views on the First Amendment need work, his brief tenure on the Court was somewhat more complex. His fixation on the Ten Commandments, for example, includes the radical concept that “Thou Shalt Not Steal” applies to banks and insurance companies, and “Thou Shalt Not Kill” applies to Fortune 500 companies that knowingly sell dangerous products to consumers. This, more than any tactical retreat in the face of public opinion, explains why the state GOP stood silently by while he was ousted from the Supreme Court. (The Judicial Inquiry Commission that prosecuted him was then chaired by a Democratic stalwart, Circuit Judge Randall Cole of DeKalb County.)

Chief Justice Malone is not only a political protégé of Governor Bentley, he is a fellow Tuscaloosan. Like Bentley as governor, he has disappointed as chief justice in not standing up to Business Council interests, but both have had to look over their shoulders at GOP primary races, and both have doubtless not wanted to become the primary target of Business Council wrath. Whether either can, or will, do better after those primaries remains to be seen, but our corporate masters have to have some residual anxiety about that prospect.

Thus, the race for chief justice gives us a pretty good picture of three competing power centers in the GOP. Moore’s vote will give us a clear picture of the strength - or weakness - of those Republicans for whom the New Testament is the shibboleth. (Pardon the mixed biblical metaphor.) Malone, like Bentley, represents that part of the GOP that would like to see the party appeal to a broader constituency than the Mountain Brook Country Club or the First Baptist Church of Gardendale. (For that reason, this element may be the most dangerous to a Democratic renaissance in Alabama.) Graddick probably represents the quiet wishes of the Business Council element of the party. Although The Birmingham News reports that “Malone has the backing of the state’s business establishment,” take that with a grain of salt. Malone’s support from the business community represents more of a hedge, and a prudent support of a chief justice who will, regardless of the primary outcome, be in office until next January. A careful review of Graddick’s financial disclosures will reveal substantial business support, if only viewed through the prism of the actual weakness of the GOP’s much-ballyhooed PAC-to-PAC transfer ban.

The race for the right to face Lucy Baxley for PSC president this fall provides a sharper picture of the BCA-Tea struggle within the GOP. Associate Commissioner Twinkle Andress Cavanaugh is the consummate Business Council puppet. She is so close to BCA lapdog Bob Riley, that she could avoid conception by giving the former governor her Yaz. Her support is clearly centered on that wing of the GOP.

Her principal opponent in the race is Kathy Peterson of Shelby County.
Peterson is the wife of unsuccessful 2010 agriculture commissioner candidate Dale Peterson, whose YouTube ad continues to bring ironic chuckles. (If only people knew that Dale and Kathy’s “farming” business is based on raising show llamas!) Peterson’s vote is going to give us a good feel for the continuing vitality of the Tea wing of the Republican Party. Her husband’s support of the brief bubble of presidential candidate Herman Cain has been repaid by the salesman of mediocre pizza’s campaigning in Alabama on her behalf.

In many respects, these GOP contests are not between light and darkness, but between darker shades of pitch. We should be as careful of rooting for a “moderate” in these races, as we would be of rooting for a “less extreme” mullah in an Iranian “election.” While I will be watching the presidential returns closely, in the long run, I will be picking apart the returns in these two statewide races more closely. They will tell us much more in the long run about the beast we need to slay. Or, at least, cage.

Tuesday, January 17, 2012

Ex Cineribus Non Resurgit - Parker Griffith Tries Again in Alabama’s Fifth District

Friday the 13th has long been noted for scary and unusual happenings. I am not sure how scary they all were, but several eleventh-hour filings (on Friday the 13th) to run in this March’s primaries were certainly surprises. I have already noted some of those in the Sixth Congressional District GOP primary. In this post, I want to gaze north to the Tennessee Valley at the Alabama Fifth District.

Two years ago, party switcher Parker Griffith lost the Republican primary in this district to perennial candidate, then-Madison County Commissioner Mo Brooks, by a resounding 50.8%-33.4% margin, with Herman Cain wannabe Les Phillip getting 15.8%. As I have noted frequently happens to party switchers.

With that kind of walloping, one would have presumed Dr. Griffith would have headed off to Florida, or at least to K Street, and stayed there. But on Friday, he caught everyone off guard by filing to run for his former seat in the GOP primary. Against the same incumbent who beat him by 17.4% less than two years ago.

I am not sure what the overall statistics are for defeated members of Congress attempting to regain their seats, but at least one early scholar of the scenario noted that, “One would tend to assume that a candidate, defeated for Congress in a regular election, would under ordinary circumstances be subject to similar results in running against the same opponent two years later,” and found that the data bore out his supposition.

The specific facts on the ground here do not indicate that we should expect Griffith to come any closer in this primary than he did in the 2010 round. Of course, Brooks has had the last year to work the GOP rubber chicken circuit as an incumbent Congressman. At least in Madison County, he has been known as a Republican activist for nearly 30 years, a fact which helped him defeat Griffith in 2010.

Geography also works against Griffith. In the 2011 GOP-run reapportionment, the Fifth District was stripped of both predominantly Democratic Colbert County, and parts of Lawrence, in an effort to protect Brooks from a Democratic challenge this year. In the 2010 primary, Colbert gave Griffith a 1,947-673 margin over Brooks. Griffith’s 66.5% in Colbert was his best showing in any county in the district. The removal of Colbert was compensated by some population gain in Madison County, and by the addition of that part of Morgan County not previously in the district. In the part of Morgan County that was in the Fifth in 2010, Brooks beat Griffith by a 48.2%-36.6% margin. Because the overall geographic pattern was that Brooks did better in the central part of the district, it’s probably safe to presume the newly-added part of Morgan County would have voted in a similar fashion - and will this time.

Griffith is a retired physician, and has substantial business interests. He has the ability to self-finance to a fair extent, if he’s willing to write the large checks. He reported giving his own campaign $180,000.00, and personally guaranteeing loans to his campaign of an additional $250,000.00, in the 2010 primary. He’s going to need to write himself a much larger check than that this time. His current campaign reports the princely sum of $316.00 cash on hand. No, I didn’t mess up the decimal point. In 2010, Griffith’s pre-primary report showed total contributions of $2,856,969.83, and would need to spend a very large fraction of that this time to challenge an incumbent. But that total was raised not only by an incumbent Congressman, but an incumbent who was aided by a major fundraising visit from now-Speaker John Boehner. I am not looking for either that visit, or that total from contributors, to happen again. Brooks, by comparison, reported $339,965.76 cash on hand at the end of the third quarter in 2011, and presumably was dialing for dollars in the fourth quarter, and is even more diligently doing so now.

Unlike the ethically-challenged Spencer Bachus in the Sixth District, Brooks has done nothing in his half-term in the House that would hurt him politically - at least not in a Republican primary. True, he stated that “I will do anything short of shooting” illegal immigrants; until HB-56 passed, that was Alabama’s best-noted echo of Bull Connor in 2011. He also was forced to withdraw from the record, after a point of order was made, his remark referring to “socialist” Democratic members of Congress. Brooks’s political style has always consisted of sloganeering and bomb throwing. While these remarks are embarrassing to Alabama, are definitely counterproductive to business recruitment, and certainly don’t accumulate Huntsville any brownie points for future budget fights over Redstone Arsenal operations, they are the exact sort of thing the dim lights, bigoted souls, and fossilized minds of the Republican primary electorate love to hear. Don’t look for them to create any problems for Brooks in the primary.

A small corrective is needed for the media-anointed “experts” who have tried to talk up Griffith’s chances a notch, on the rationale that he will not be subjected to the imaginary tidal wave of angry Democrats who supposedly crossed over to vote for Brooks in 2010. While someone may have anecdotal evidence of a few incensed individuals who did so, it simply didn’t happen in statistically significant numbers. There was a quite active Democratic primary that day throughout the district for both the gubernatorial nomination, and the Congressional nomination to oppose Brooks. Most counties in the district also had local Democratic primaries for courthouse offices. None of these Democratic primaries were noted for depressed turnout. As a final nail in this idea’s coffin, Griffith actually did his best in the three most Democratic counties in the district in the 2010 primary; Lauderdale (60.9%), Colbert (66.5%) and Jackson (55.9%).

In my previous post on the Sixth District, I noted that the Democratic Party would benefit from the coming knife fight in the GOP primary in that district. This race promises to add to that effect in the northernmost counties of Alabama. These two guys really, really don’t like each other, and both will probably have enough money to go negative. Whatever remote chance Griffith has depends on it. How Griffith can effectively go negative is an interesting question. You can’t outflank Brooks on the right. Griffith’s best strategy will be to argue that you can be firmly conservative without rendering yourself an ineffective member of Congress by keeping your flamethrower on the highest setting all the time. This line of attack will hurt not only Brooks, but also other Tea Party pods in the Huntsville/Decatur and Florence media markets. Griffith, for his part, remains popular with a certain part of Huntsville’s elite Twickenham community, normally a reliable GOP bloc. Attacking him may cost Brooks some support there.

Among other early Christian writers, Saint Isidore of Seville wrote of the mythical Phoenix in his Etymologiarum sive Originum, that “de cineribus suis resurgit.” (L. XII, 22). Many of these writers likened the Phoenix, rising from its own ashes, to the resurrected Christ. While Griffith definitely crashed and burned in 2010, don’t look for him to rise from his own ashes this year. Who knows, maybe the good Doctor’s expectations will be reasonable enough this time, that he can make it to his own election watch party to deliver a concession speech.

Friday, January 13, 2012

The Sixth (District) Sense (UPDATED January 14)

We are now a fortnight into the new year. LSU football coach Les Miles has demonstrated that he is incapable of adjusting a defense, or of giving an experienced quarterback a series or two when the starter is ineffective - both of which are gratifying to hundreds of thousands of Alabama football fans.

In all the hoopla about the BCS game, most Alabamians have failed to notice that today is the filing deadline for the 2012 primaries. That’s right, if you’re going to run for anything from President to Chief Justice to Constable, Friday the 13th is your filing deadline. This decision deadline was imposed when the Legislature decided that the state didn’t have the funds to hold a Presidential primary during the early period in most states, and a regular primary in June (with July runoffs). So, in their infinite wisdom, they cut short everyone’s water-testing period, and doomed scores of unopposed nominees in both parties to a wait of most of the year between the decision deadline and Election Day.

That early filing deadline brings us to the Republican nominating contest in the Sixth Congressional District. As of Thursday morning, January 12, there is a contested GOP primary between incumbent Spencer Bachus, State Senator Scott Beason of Gardendale, and Blount County Probate Judge David Standridge.

Be still, my Democratic heart.

This is not a Democratic-trending district - more about that in due course - but the impending collision is not only going to be fun to watch; it has the potential to benefit the statewide Democratic Party in the long run.

Of course, Beason is probably best known as the sponsor of Alabama’s notorious apartheid law, HB 56. He has also gained fame as the state legislator who has made enemies in both parties by wearing an FBI wire while talking to fellow legislators about gaming legislation. In the course of that adventure, he managed to refer to the black residents of Greene County as “aborigines,” while knowing he was being recorded. Bright fellow, Beason. The Republican Senate caucus stripped Beason of his leadership position as chair of the Rules Committee as a result of that revelation. Beason has also been noted for single-handedly vetoing a bipartisan deal among Jefferson County legislators to enable the County to avoid massive layoffs and curtailments of vital public services. For the latter accomplishment, he has been soundly criticized by Jefferson Republican Sheriff Mike Hale, who has been forced to drastically reduce patrols by Beason’s acts.

A third candidate jumped into the GOP primary this Thursday in the form of Blount County Probate Judge David Standridge. There had been scattered rumors that Standridge’s name was being polled in the district, but his filing caught most of the media, and other observers, by surprise.

Normally, a fool of Beason’s caliber, and a rural courthouse officeholder, wouldn’t be a big concern for a ten-term incumbent Congressman. But we are not living in normal times. Beason is the darling of all the zero-tax, zero-brown-people, zero-compassion knuckle-dragging Neandertals of the Tea Party movement. How far that tsunami of excrement has receded since 2010 remains to be seen, but its impact was strongly felt in GOP primaries in Alabama that year. Several incumbent Republican legislators lost their seats to even more extreme Teabaggers, and the Tea Party was widely credited with Mo Brooks’s overwhelming defeat of party switching Congressman Parker Griffith in the 5th District. Even on fundamentals, Bachus might have a little room for concern.

Perhaps more significant, Bachus has a recent weakness - he’s been tainted by scandal. Bachus has been one of the more recent victims of the adage that “you know it’s going to be a bad day when you get to your office, and 60 Minutes is there to talk to you.” The news program kicked over an anthill last November when it featured the hapless Chairman of the House Financial Services Committee. Bachus, it seems, made some profitable stock trades immediately after a confidential briefing to his Committee by officials from the Treasury Department and the Federal Reserve. This is just the sort of thing that feeds into the general dislike of Congress that every poll with a pulse has been reporting for the last year.

Standridge’s weakness is obvious: he is not known throughout the district, and will not have the name and issue-stance recognition outside Blount County that Beason and Bachus enjoy. On the other hand, as part of the 4th Congressional District in 2008, Blount County cast 23,602 votes in the Congressional race, 19,407 of them for Republican Robert Aderholt. That represents a lot of Republican primary voters who have no history of voting for Bachus, or having been personally treated by his campaigns. (They will have seen his broadcast advertising, to the limited extent he has done it, as Blount is in the Birmingham media market.) That could provide Standridge with a solid base, provided he can build on it with a respectable showing in other parts of the district. Harder to gauge is the impact of the fact that much of Blount County is also in Beason’s Senate district. The addition of the Blount portion of the district replaces large parts of Tuscaloosa and St. Clair Counties, which had previously been part of the district, depriving Bachus of a significant number of voters to whom he is the familiar incumbent.

Against these weaknesses, Bachus is reasonably well financed. In the most recent reporting period, through September 2011, Bachus had $944,401.00 cash on hand and no debts. A key point to watch will be his fourth quarter/year end report, which will reflect his ability to raise money as rumors of a Beason challenge grew. As the chairman of the Financial Services Committee, he should be able to raise additional cash in a big hurry, though it will be awhile before additional reports are due. Bachus also has the obvious advantage of incumbency and name recognition. He has been in the Congress for 20 years now, and represented a large chunk of this district in the Legislature for a decade before that. An Alabama member of Congress of Bachus’s seniority hasn’t been defeated in an election since the 1964 Goldwater sweep. Since 1964, only the 1980 Republican primary defeat of moderate Congressman John H. Buchanan by religious fundamentalist Albert Lee Smith approximates such a loss by a senior member. And the Buchanan loss has to be a troubling precedent for Bachus to contemplate.

So how does the race handicap at this point? That’s hard to say. Country club, party hack, and courthouse Republicans are apt to stand pat with Bachus. The business community is beginning to realize that the economic costs of 1960’s segregation are being resurrected in the form of Beason’s 2010’s anti-immigrant racism, and are apt to oppose him. Beason is obviously the darling of the racist, religious, and no-government right. His state senate district is fully nested within the Congressional district, giving him a treatment history of over 12 years in the Legislature with the voters in his district. Beason will not be able to match Bachus’s money, but he has shown himself to be adept at getting his message to his voters with free media. Standridge, who lacks a natural financial base, may have to hope for the collapse of either Bachus or Beason, and try to find a way to get into a runoff with the other. In those circumstances, Standridge would have a real shot. I will be waiting for polls, but it’s hard to see how this race resolves without a runoff.

As for the Democratic benefits? This is going to be a very dirty, bloody fight. Look for the negative to go up early, and be a big part of both Bachus’s and Beason’s strategies. Standridge’s smartest play would be to let the other two guys do the cutting. The national GOP leadership may make some Super PAC funds available to Bachus for negative on Beason, just to discourage challenges against incumbents. What is even sweeter, this bloodbath will be taking place in the Birmingham media market, which includes nearly half the state’s voters. One of the state’s most prominent representatives in Washington, and one of its most prominent members of the Legislature, are going to get slandered, cussed, tarred and feathered not only in their own GOP stronghold district, but in swing districts we will be targeting for takeback in the 2014 Legislative elections. Beason will have to attack Bachus on ethics, undercutting the GOP message that it is the sole repository of ethical government. Bachus will have to attack Beason on immigration, reminding bankers, Realtors®, insurance agents, and other historically bedrock Republican voters all over Alabama, that the GOP message of hate is bad for business. This all can only do serious damage to the Republican brand, and perhaps leave this district significantly more competitive in November. To borrow one last reminder of the BCS weekend and its Big Easy location, Permettez les bontemps, comme la Marée, roulez!


After I posted yesterday morning, surprises happened in this race, in the form of not one, but three new candidates.

The biggest splash was made when Tuscaloosa businessman Stan Pate got in the race. Pate is known for ... well, for being Stan Pate. Pate’s personality is somewhere on the scale between “iconoclast,” and “bull in the china shop.” His entry even dovetails nicely with my BCS football references. Those who remember Alabama’s last trip to the Championship in January 2010 will recall that there was an airplane banner circling the Rose Bowl, calling for the impeachment of “corrupt Alabama Governor Bob Riley.” We can thank Mr. Pate for financing that flight; he and Riley have long been at odds, and Pate has also paid for billboards alleging that Riley was paid off by Mississippi Choctaw casinos. That Bob Riley hasn’t sued multimillionaire Pate for defamation (which would require Riley to testify under oath as to his Choctaw ties) speaks volumes. Pate also notoriously, in 2009, confronted a hapless manager of a closing Tuscaloosa steakhouse, of which Pate was the landlord, with a shotgun. Pate claimed the restaurant’s bank, which had a lien on the restaurant’s fixtures, was not entitled to repossess them. Not only did the bank get the fixtures; Pate was convicted of menacing in Tuscaloosa Municipal Court. After being convicted again on appeal and receiving probation in the Tuscaloosa Circuit Court, Pate appealed to the Alabama Court of Criminal Appeals, where the case is reportedly pending.

It should be obvious the impact Pate can have on this race - he is a multimillionaire who can self-finance to an unlimited degree. Whichever of the original candidates is his original target can expect to be pummeled with negative. What is not apparent at this point, is who that target will be. For that matter, the volatile Pate could turn his guns on anyone in the race; he notoriously turned on Governor Bentley during the 2010 gubernatorial campaign when he felt Bentley wasn’t hostile enough to the Riley clique.

Two other surprise candidates jumped in at the eleventh hour. One is Al Mickle, who ran as a write-in candidate in 2010; he will presumably be an asterisk in this race. Another is Birmingham lawyer Justin Barkley, a Harvard graduate who represents businesses in labor and employment law disputes. Barkley’s jump into the race raises the question of whether the Birmingham white-shoe business-banking-legal community is hedging its bets on Bachus. Not only is Barkley a rookie candidate, a quick search of FEC donor records indicates he’s never given to a federal candidate before. He is going to need some serious coin to overcome his lack of name recognition in this battle of longtime media stars. Perhaps he hopes to benefit from some confusion with 6th District native Charles Barkley.

Pate’s deep pockets will only serve to boldface what I originally wrote about the Birmingham media market being deluged with negative against prominent Republicans. This donnybrook can only help Democrats at many levels. And unless the GOP goes with a baggage-free nominee like Standridge or Barkley, this district could be the most vulnerable to a Democratic win since Bachus edged Democratic incumbent Ben Erdreich in 1992 by a 52.3%-45.0% margin.