Why Lowell Barron Will Walk Away a Free Man, or, Why Luther Strange Will Never Be Governor - Part II

In the early 1930’s, an Attorney General of Alabama prostituted his office to the cause of injustice, in an effort to propel himself to the Governor’s Mansion. Thomas E. Knight, Jr., of Greensboro personally took charge of the appeals, and the subsequent rounds of trials, of the Scottsboro Boys. Knight is one of the more execrable characters in Alabama’s history. As Attorney General, he secured affirmances of the convictions of the Scottsboro Boys, with the first round of opinions written by Alabama Supreme Court Justice Thomas E. Knight, Sr. Weems v. State, 224 Ala. 524, 141 So. 215, rev’d sub nom. Powell v. Alabama, 287 U.S. 45 (1932). Arguing against the audacity of the suggestion that blacks should be allowed to serve on Alabama juries, he declared that it was “an attack on the sovereignty” of Alabama, presaging the states’ rights rhetoric of the current incumbent. When asked by defense counsel to address the defendants as “Mr.,” as he had done for white witnesses, rather than by their first names, he stated that “I am not in the habit of doing that.” He became so invested in the prosecution that, after being elected Lieutenant Governor in 1934, he secured appointment as a special prosecutor to continue working on the case. In one of the stronger arguments for the existence of karma, he died at the age of 38 in 1937, without ever attaining the governorship he so badly coveted.
 

While the office of Attorney General has subsequently been ably filled with such forward-looking Generals as Bill Baxley and Don Siegelman, the present holder of that office is a full-bore regression to the disgraceful conduct of Knight. Once again, Scottsboro, which lies in the Eighth State Senate District, is involved. Luther Strange is just the sort of fellow the late, great Judge (and Senator) Howell Heflin had in mind when he coined the acid phrase, “the Grey Poupon Mountain Brook crowd, the Gucci-poochie-coochie shoe-wearing, Mercedes-driving, Rolex-wearing, polo-playing, Jacuzzi-soaking, Perrier-drinking, Aspen-skiing, ritzy rich, high-society Republicans who eat broccoli” to describe his 1990 opponent, Strange’s fellow Mountain Brookie, Bill Cabaniss. Like his predecessor Knight, Strange has stooped to prosecutorial misconduct by securing an unethical, fraudulent indictment of former State Senator Lowell Barron of DeKalb County, and Barron’s former campaign staffer, Jill Johnson, for political gain. The charges against Barron and Johnson are so weak that, despite the adage that a prosecutor can get a grand jury to “indict a ham sandwich,” Strange could not – despite repeated efforts – secure an indictment in Jackson County. He had to shop the case to a grand jury in more-Republican DeKalb to get the indictment, and even that took several months. In a previous post, I explained why it is not a violation of the Alabama Ethics Act to pay a worker in your political campaign. In this post, I will show that it is also clearly not a crime under the Fair Campaign Practices Act (“FCPA”) to pay a campaign employee.

The Ethics Act provision made the subject of some counts of the Barron-Johnson indictment is relatively simple. By contrast, the FCPA provision charged in that indictment is anything but simple. The often-convoluted language is as follows:

(a) A candidate, public official, or principal campaign committee as defined in this chapter, may only use campaign contributions, and any proceeds from investing the contributions that are in excess of any amount necessary to defray expenditures of the candidate, public official, or principal campaign committee, for the following purposes:

(1) Necessary and ordinary expenditures of the campaign.

(2) Expenditures that are reasonably related to performing the duties of the office held. For purposes of this section, expenditures that are reasonably related to performing the duties of the office held do not include personal and legislative living expenses, as defined in this chapter.

(3) Donations to the State General Fund, the Education Trust Fund, or equivalent county or municipal funds. Donations to an organization to which a federal income tax deduction is permitted under subparagraph (A) of paragraph (1) of subsection (b) of Section 170 of the Internal Revenue Code of 1986, as amended, or any other charitable, educational, or eleemosynary cause of Section 501 of Title 26 of the U. S. Code.

(4) Inaugural or transitional expenses. Ala. Code § 17-5-7(a).

Put into simpler English, this code provision says that money contributed to a campaign can only be used for “necessary and ordinary expenditures of the campaign,” expenses of the inauguration or office, or donated to a government or charity. These uses of the money are permitted; any other use of the money is a criminal offense.

Obviously, the most relevant of these legal alternatives is “necessary and ordinary expenditures of the campaign.” If the payments to Ms. Johnson fit that peg, the game is over and there is no crime. If Strange’s assistants try to argue to the Court that Ms. Johnson did not work for the campaign, which would make payments to her some sort of “expenditures of the campaign,” they will find themselves in contempt, and sanctioned by the Alabama Bar, in short order. As far as the statute goes, the only question is whether the payments were “necessary and ordinary.”

Granted, $58,000.00 and even a used, high mileage campaign car, are generous compensation. (The Kelley Blue Book value of a 2007 Toyota Camry, which is the car named in the indictment, in fair condition, is $5,945.00. I understand this was a high-mileage campaign vehicle.) At first blush, Strange might argue that this compensation was not “necessary and ordinary.” If one follows the letter of the statute, and presumes that payments this large were not “necessary and ordinary,” you could argue that the statute was violated, and a crime committed. But the first thing you have to look at here is that the $50,000.00 payment was made after Barron lost the 2010 election, and this looks like nothing so much as a proper severance payment to a loyal staffer who had worked for Barron for years; running campaigns, coordinating community events, and handling constituent matters; and who was about to be unemployed.

Even more significant, as I pointed out in Part I of this post, is that Strange is nothing if not a blithering hypocrite. As I related there, in the 2010 election cycle, Strange paid Jessica Medeiros Garrison, a fellow Mountain Brook resident, and her corporation, MDM27 Holdings, Inc., the vastly princelier sum of $227,727.99. This sum seems even more extravagant when you consider that Strange’s expenditure disclosures reveal that he had specialist firms – media, polling, and so

forth – doing most of the heavy work of his campaign. If what Lowell Barron did was a crime, then the only proper thing for Luther Strange to do is turn himself in immediately at the nearest police station that has an orange jumpsuit to accommodate his 6’9” frame.

At this point, it’s pretty clear that the FCPA was not violated by Senator Barron’s payments to Ms. Johnson. Pretty clear, but a really biased Republican would still say that there is enough of a chance that a motion to dismiss the indictment should not be summarily granted; that there is enough of a remote chance that a jury might find that the payments to Ms. Johnson, being as large as they are, were not “necessary and ordinary” expenditures of the Barron campaign, so as to allow the case to go to trial. Sorry, Republican partisan, that argument fails. It fails because a court not only has to look at the statute in a criminal case, it has to determine whether that statute, as applied to the defendant, violates the Alabama and U.S. Constitutions. One of the best known parts of the U.S. Constitution is that part that makes it possible for bloggers like me to tell the truth about a corrupt, unethical Attorney General: the free speech clause of the First Amendment.

The Federal Election Campaign Act of 1971, Pub. L. 92-225, § 104, 86 Stat. 3, 5 (1972), placed dollar limits on the amounts candidates for federal office could spend on advertising and broadcast media. In the course of striking down those expenditure limits, the United States Supreme Court stated:

The First Amendment denies government the power to determine that spending to promote one’s political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign. Buckley v. Valeo, 424 U.S. 1, 57 (1976).

This language has been construed to be “a broad holding that government does not have the right to pass judgment on how or why a person expends campaign resources.” Homans v. City of Albuquerque, 366 F.3d 900, 915 (10th Cir. 2004).

Game over. The chickens have hatched and can be counted. The fat lady has sung. As long as campaign contributions are expended on the campaign, the First Amendment absolutely prohibits regulation of how they are spent, or how much is spent. Government may not prohibit political speech expenditures simply because they are “wasteful, excessive, or unwise;” neither may it require, as the FCPA purports to

dictate, that they be “necessary and ordinary.” If Senator Barron had chosen to spend his entire campaign fund to hire Hooters Girls at $10,000.00 apiece for the day, to wave his signs at voters at polling places on Election Day, he would have been guilty of questionable taste. He might have even become as big a joke as Shad McGill. (It being Alabama, I will refrain from speculating about whether Barron might thus have beaten him.) But as long as the Hooters Girls stayed 30 feet from the front door of the polling place, there would have been no crime. As with the Ethics Act charges, the FCPA counts of the indictment are also due to be dismissed.

The Barron and Johnson cases are in front of DeKalb County Circuit Judge Randall Cole. Cole, a Democrat, is the most senior circuit judge in the state, and was re-elected to his final term in 2012. (He will be ineligible for further terms due to age limits.) For years, Cole was selected by his fellow circuit judges to sit on the Judicial Inquiry Commission, which investigates ethics charges against judges. For much of his time on that panel, he was selected by its members to be its Chairman. Cole’s assignment to the case is fortuitous for Barron and Johnson. Cole need fear no political blowback from (properly) dismissing the charges before trial, even if such pedestrian concerns ever influenced his rulings. While Strange could appeal a dismissal to the Court of Criminal Appeals, that Court would be more reluctant to reverse such an eminent trial judge. Even more troubling to “the Criminals” is that they are themselves all

elected judges, and should be disinclined to issue a ruling that subjected them to potential indictment. Presiding Judge Mary Windom (left, front in the photo), for example, paid her campaign operative Bill Goolsby $17,500.00 in her 2008 campaign. Was that salary criminally “converted to [his] personal use” under the Ethics Act? She also paid Auburn Network, Inc., and the affiliated Network Creative Media some $107,700.40, and we all know to whose “personal use” that got “converted.” Were those “necessary and ordinary expenditures” of her campaign? Reversing a dismissal would create a precedent that could get these Republicans indicted.

This brings us back to the way Strange is channeling the ghost of Thomas Knight, Jr. This indictment is pure, dirty politics. At least some political pundits view Strange as a potential primary challenger to Governor Bentley in 2014.

Note Strange’s less-than-supportive posture and visage during Bentley’s 2013 State of the State Address, while others are shown applauding. Strange’s fraudulent indictment of Barron and Johnson is nothing more than an effort to throw red meat to the Republican base. An additional Republican political motive comes from rumors that Barron is contemplating either an effort to regain his Senate seat, or perhaps the Lieutenant Governor’s chair, in 2014. While Strange knows that these charges are fraudulent and won’t stick, he doesn’t care. To the low-information voter, “Barron” and “indictment” now have a subconscious association. To combat this, we Democrats have to put on our A-game after the charges are tossed, to keep the spotlight on Strange’s unethical behavior. From comments on al.com to letters to the editor to statements by Party leaders, the drumbeat of Strange’s impropriety has to be maintained. Not only to make him suffer the consequence of his wrongdoing, but to undo the unjustified damage to the reputations of Senator Barron, Ms. Johnson, and the Party as a whole.

Before I close this Part II, I have to return for a moment to the petite, lavishly-paid Jessica Garrison, and her incredibly tall six-year-old son Michael. According to statistics maintained by the Centers for Disease Control, fewer than 5% of all boys are four feet tall at age six, and he’s obviously well past that.

He’s going to make the basketball coach at Mountain Brook High School happy someday. Why, at this rate, he will grow up to be as tall as ... Goliath. Where did you think I was going with that, anyway??

Why Lowell Barron Will Walk Away a Free Man, or, Why Luther Strange Will Never Be Governor - Part I

One of this year’s leading political news stories was the indictment of former State Senator Lowell Barron, shown here before his crippling tractor accident last year, and his former campaign employee Jill Johnson, on charges of violating the Alabama Ethics Act and the Fair Campaign Practices Act. As if on cue, media sources from across Alabama, which have never mentioned the corruption of “Choctaw Bob” Riley or Speaker Mike Hubbard, jumped on the story as an example of “corrupt Democrats.”

The relevant facts of this case are a matter of public record, fully disclosed in Barron’s campaign filings. Jill Johnson was a long-time political employee of Barron, and she is known all across his former district for her campaign and constituent services work. When Shad “Hands Off, He’s My Man!” McGill upset Barron in the 2010 general election, Barron had no further need of a campaign staffer. Like many grateful employers, Barron gave Johnson a well-earned severance bonus. He gave her title to the campaign’s high-mileage, four-year-old Toyota Camry, and two cash payments of $6,000.00 and $50,000.00. The indictment also charges Barron and Johnson for a payment of $2,000.00 during the campaign. I guess Republican Attorney General Luther Strange hasn’t practiced enough real law to know that it’s a crime under § 16 of the Fair Labor Standards Act (29 U.S.C. § 216) not to pay your employees their wages.

In fact, his lack of real legal experience notwithstanding, Strange knows that his indictment of Barron and Johnson is frivolous, perhaps to the point of being unethical conduct on his part as a member of the Alabama Bar. In this post, I am going to look at the Ethics Act charges against Barron and Johnson. In a future post, I will talk about the Fair Campaign Practices Act part of the indictment.

 When Alabama first adopted the Ethics Act in 1973, it was one of the first of its kind in the country. To be sure, over the years, it has provided the means for ridding Alabama politics of a number of unsavory political figures. Republican Governor Guy Hunt comes to mind. Sometimes, it has been criticized as being too strictly applied, as when the Ethics Commission has fined public employees for using the office fax machine for a local personal fax, at no cost to the taxpayers. In balance, though, the law has been beneficial for the state. It is Strange’s blatantly political use of the Act – in the year before an election in which Barron is rumored to be seeking to regain his Senate seat – that is so worthy of condemnation.

The provision of the Ethics Act that Barron and Johnson have been charged with violating is deceptively simple:

Contributions to an office holder, a candidate, or to a public official’s inaugural or transitional fund shall not be converted to personal use. Ala. Code § 36-25-6.

Now, the first thing anyone has to realize is that this part of the Ethics Law only reaches contributions to Barron’s campaign. This case does not involve one penny of taxpayer money. The second is, as noted above, that Barron properly disclosed these payments on his campaign disclosure reports, which are available to anyone online. Finally, according to lawyers involved in the case, Johnson reported receiving these payments on her income tax returns, and paid tax on them. I think we can safely assume that is true, because otherwise she would have been charged with tax evasion.

Let’s unpack the language of the statute. No one is denying that the funds were campaign funds, or, in the words of the statute, “contributions to an office holder [or] a candidate ...” The only question is whether the payments caused contributions to be “converted to personal use.” Now, if Barron had paid these funds to himself, there would be no question that the law had been violated. That is the thing – with inauguration contributions – that got Guy Hunt convicted. But none of the payments in the indictment were to Senator Barron. They were to Johnson. So, Barron and Johnson are only guilty of violating the Ethics Act if payments to her constitute “conversion to personal use.”

Obviously, that phrase “converted to personal use” is the key to these charges. The Ethics Act does not define “personal use.” This leaves no obvious answer to the question, whose “personal use” are we talking about? When it comes to the Alabama Ethics Act, I think it’s safe to say that no one knows more about it than the Alabama Ethics Commission, the independent agency that enforces it. Their staff spends a minimum of 40 hours every week thinking about it, and the Commissioners themselves spend countless hours studying it before and during meetings. In a 2005 opinion to Circuit Judge Joseph Brogden of Escambia County, the Commission had this to say about this statute:

Provided the disposition of excess campaign funds are not converted to the personal use of the candidate, a member of his or her family or a business with which he or she is associated, the disposition of excess campaign funds is controlled [only] by The Fair Campaign Practices Act, found in Title 17 of the Code of Alabama. Alabama Ethics Commission, Advisory Opinion No. 2005-15 to Hon. Joseph Brogden, p. 5 (April 6, 2005)(emphasis added)(approving transfer of surplus campaign funds to church of which officeholder was member, on proviso that he was not an officer or director, and advising that such a transfer was only subject to the FCPA).

In other words, if the transfer is not to the candidate/officeholder, his family member, or his business, Ala. Code § 36-25-6, which is what Barron and Johnson are charged with violating, does not apply to the transfer, and there is no crime. Yes, this Opinion adds words (“a member of his or her family or a business with which he or she is associated”) that are in the statute only by implication, limiting “personal use” to the candidate/officeholder or his family. But when you think about it, no other reading of the law makes sense. 

First, at some point, when campaign contributions are spent on the campaign, they are going to be “converted” to someone’s personal use. When a candidate buys a radio spot, the funds are “converted to the personal use” of the owner of the radio station. Purchase of a newspaper ad means campaign contributions are “converted to the personal use” of the owner of the newspaper. The newspapers that have been condemning Barron without a trial ought to think long and hard about what that interpretation means to their owners. And today, every campaign above the level of dogcatcher has at least one paid staffer. There is no real difference in the legitimate remuneration of a staff member, and the purchase of an ad in the media. If candidates are to exercise their First Amendment right to campaign, contributions to their campaigns have to be “converted to the personal use” of their staff and vendors. “If the First Amendment has any force, it prohibits ... fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 349 (2010). Hiring and paying a campaign staff member is “simply engaging in political speech.”

Secondly, the interpretation of the Ethics Commission makes even more sense when you think about the obvious purpose of this section. Both the Ethics Act and the Criminal Code have bribery provisions. This provision is just a backstop to them. If it weren’t there, a candidate or officeholder could evade a bribery charge by just having the bribing party make a contribution to his campaign, then disburse the funds to himself, rather than directly pocketing a bribe. That’s obviously not an issue when the money goes to a staffer who is not a candidate’s family member.

Finally, the Federal Election Campaign Act of 1971 has a very similar prohibition stating that a “contribution or donation described in subsection (a) of this section shall not be converted by any person to personal use.” 2 U.S.C.A. § 439a(b)(2). The Federal Election Commission has interpreted that statute to prohibit only transfers to the candidate or his family, and even then, allows such payments if the payment to a family member for campaign work is not “in excess of the fair market value of the services provided.” 11 C.F.R. § 113.1(g)(1)(H). Ms. Johnson, it goes without saying, is not a member of Senator Barron’s family.

In short, Senator Barron’s payment of compensation to his staffer, for work done, is not a violation of the Alabama Ethics Act. Attorney General Strange and his assistants know this, and should never have charged Senator Barron or Ms. Johnson. In fact, this law is so clear, that Attorney General Strange has probably violated Rule 3.8 of the Rules of Professional Conduct of the Alabama Bar, which states that a “prosecutor in a criminal case shall ... refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” A criminal defense lawyer I know recently pointed out to me that there have been many cases where both trial and appellate courts have thrown out convictions of even clearly guilty murderers because of intentional prosecutorial misconduct. He went on to tell me that he had searched the back issues of The Alabama Lawyer, in which all disbarments, suspensions, and reprimands of lawyers are published, and had never found a single case in which a prosecutor had been given a sanction for prosecutorial misconduct. (I welcome any correction to that observation in the Comments.) Not even when that misconduct was in a death penalty case. Perhaps this will be the case that changes that.

North Carolina disbarred Mike Nifong, the district attorney who brought bogus rape charges against members of the Duke University lacrosse team in 2006. At least Nifong had a witness who claimed to have been a victim of an actual crime. Perhaps someone with skin in the game will file a complaint with the Alabama Bar when these charges are disposed, and we can do as well as North Carolina.

There is another rule – this one a rule of common sense, involving glass houses and stones – that Attorney General Strange seems to have violated. Meet Jessica Medeiros Garrison. The photo below shows the petite Ms. Garrison next to the 6’9”, former college basketball player, Mr. Strange.

Like Ms. Johnson, Ms. Garrison spent 2010 working for a

candidate. In her case, the candidate was her fellow Mountain Brook resident, Luther Strange. She also owns a corporation, MDM27 Holdings, Inc., which tells the Secretary of State that its purpose is to provide “political marketing services.” As Strange’s 2010 campaign expenditure disclosures show, one of MDM27 Holding’s clients was his campaign. As calculated by the blog Legal Schnauzer, based on these compiled expenditure disclosures, Ms. Garrison and her corporation “converted to [her] personal use,” by Strange’s definition, some $227,727.99 of the campaign contributions to the Strange campaign - over three times what Senator Barron paid Ms. Johnson. You can review these reports, and a compilation of the sums paid Ms. Garrison, and check Legal Schnauzer’s math, here:

Luther Strange Campaign Expenditures 2010-12 by PubliusIX

Ms. Garrison was paid for all this “work” while, as these reports show, Strange had different firms and consultants handling most of the parts of his campaign, such as media, polling, direct mail, and so forth. During part of the time in which she was getting these payments, she had joined the payroll of a white-shoe Birmingham law firm, Balch and Bingham, and couldn’t have been working full time for Strange. Nice work if you can get it.

Now, since the Attorney General is doing the exact same thing for which he indicted Senator Barron and Ms. Johnson, may we presume he will demand that he and Ms. Garrison be indicted, as well? That would, of course, be the honorable thing. And surely, the Attorney General is an honorable man. His fellow Republicans – Governor Bentley and Speaker Hubbard included – allowed contributions to their campaigns to be “converted to personal use” by their staffs.

Will Mr. Strange see to it they are indicted? That would be the honorable thing, and surely the Attorney General is an honorable man. So are they all, all honorable men.

I would ask that the readers of this post, and the coming post on the Fair Campaign Practices Act, do a service for their State, but more importantly, for Senator Barron and Ms. Johnson. Attorney General Strange has played this case for maximum political effect. His investigator arrested Ms. Johnson, and coordinated her arrival at the DeKalb County Jail with the news media. The major media in this state, especially our three largest newspapers and their joint website, have relied almost exclusively on the Attorney General’s office for the “facts” and “law” of this case, and have accurately reported neither as a result. What I want you to do, reader, is bookmark this post, and the coming Part II, in your browser. Keep your eyes on both the TV and newspaper coverage of this case as it proceeds. If you see a story about the case that does not point out the identical behavior of Mr. Strange and Ms. Garrison, or fails to point out the interpretation of the law by the Ethics Commission means there was no violation, get the reporter’s email, and send them a link to this post and/or Part II. Tell them you expect them to do better, since the information about the Attorney General and his “consultant” is also a matter of public record. Tell them you expect them to accurately report the law, as these posts set out, and attorneys for Senator Barron and Ms. Johnson will doubtless do in court. Send letters to the editor. 

This is not a criminal prosecution, because there has not been a crime. As a result, these charges will not stand up, regardless of what the media report. But if we can keep the media honest, not only will Senator Barron and Ms. Johnson walk away vindicated, the real criminal in this case – Luther Strange – will limp back to Montgomery with his dream of riding Barron and Johnson into the Governor’s Mansion in tatters. We can control the headlines with pressure on the media.

Before I close this Part I, let’s return to the cute, petite, pixyish Ms. Garrison. What on earth would Ms. Garrison do with that kind of money “converted to [her] personal use?” Well, it costs a lot to raise a proper Mountain Brook kid these days. Meet Michael Garrison, who just turned six in March, sitting next to Mommy, and, as you can see with your own eyes, already reaching her ears. Isn’t he a cute, tall six-year-old, growing like a weed on triple-13?

Stay tuned, friends, for Part II. And would someone get General Strange something to drink? He is not looking at all well over there.

Democratic Legislature in Alabama - 2014?

If I had posted, using this post’s title, anytime during the first ten months after the 2010 Alabama elections, I would have been deluged with email requests for a swig of whatever it was I had been drinking. I may yet get such emails. Hopefully, though, we are now to the point where rational analysis can take place without the undue influence of the ceaseless crowing of The Birmingham News that Alabama is now, and for all eternity will be, a Republican-dominated state. That media drumbeat had us all a little depressed.

The hill that the Alabama Democratic Party has to climb to regain legislative control is high, and it is steep. But it looks a little less like Mount Everest, and a little more like Sand Mountain. Which, coincidentally, is partially within the 29th District, where Democratic Whip Jack Page was narrowly ousted by Republican Becky Nordgren in 2010, by a tally of 5,845 to 5,406. This is one of several districts which, looked at with a knowledgeable eye, are ripe for a Democratic comeback in 2014.

Currently, the GOP holds a 64-40 majority in the House (with one seat up for special election; GO (former Miss Alabama) PAIGE PARNELL!). In the Senate, it’s a 22-13 Republican split. Neither of these margins requires a large number of seats to change hands to put GOP control of the chamber in jeopardy. And those numbers are doable.

For starters, at least on the House side, four of the 64 GOP seats were won by Democrats, who proceeded to cross the aisle within days of their election. (I am sure they weren’t promised anything to do so; that would be bribery, and I am sure Attorney General Holder would have the malefactors indicted, the same way he fought to keep Alaska Republican Senator Ted Stevens in pris ... never mind.) Let’s face it; if a Democrat carried a district in 2010, that district is congenitally Democratic. It should, by definition, be competitive in 2014.

Taking a slightly broader look, let’s look at all 105 districts in the House. I’ve ranked all 105 by the Republican margin in each district (whether positive or negative, and including those seats subsequently vacated by death or resignation). Let’s look at what that ranking shows for the two narrowest Democratic wins, and the ten narrowest Democratic losses:

District	D Nominee	R Nominee	R% Margin
81	Graham	Tuggle	11.8%
2	Curtis	Greer	9.5%
12	Fields	Buttram	8.3%
16	Thigpen	Boman	7.8%
24	Ledbetter	Greeson	6.7%
27	McLaughlin	Long	6.3%
29	Page	Nordgren	3.9%
21	Hinshaw	Patterson	3.5%
38	Long	Bridges	2.0%
7	Letson	Johnson	1.3%
1	Burdine	Hanson	-1.5%
73	Hubbard	Grimes	-2.0%

You will frequently hear a rule of thumb that any incumbent who won his or her last election by under 5% is vulnerable in the next election. Like any arbitrary number, this one should be applied with caution, but it’s a starting point. I call it a starting point because 2010 was in so many ways a “perfect storm” for the GOP that they are unlikely to be able to replicate in 2014. There will not be a bingo indictment of Democratic legislators timed for a month before the election. There will not be as intense an anti-Obama sentiment in the atmosphere, as he presumably will have improved his weak and ineffective messaging if he is re-elected. And if Obama is not re-elected, the GOP in Alabama will be deprived of its racist bogeyman; an all too obvious reason for its 2010 wins.

By this measure, we Democrats should be able to threaten Republican incumbents whose 2010 margins were more than 5%, and 10% is not unreasonable. (Several of the 2010 GOP wins were against Democrats who had won by much more than 10% in 2006.) Of course, one of these seats is already in Democratic hands, thanks to Daniel Boman’s refusal to go along with King Pig Speaker’s storm trooper tactics, and Boman’s subsequent switch to the Democratic Party. A more Democratic wind in 2014 would also make it far less likely that Democrats such as Joe Hubbard and Greg Burdine would be reckoned vulnerable solely by their narrow 2010 wins. A Parnell victory in the upcoming special would make the leap to majority even shorter.

While I have been talking about the House, similar numbers and issues face the GOP majority in the Senate. Even Scott “Aborigine” Beason may be vulnerable, as long as the tag lines are in Birmingham. And a birdie has told me that one darling of the 2010 Republican effort, Shadd McGill of Jackson County, is already in a deep hole. In fact, that birdie told me that McGill was recently physically removed from the courthouse office of a Republican official in his district - by McGill’s fellow Republican officeholder!

In addition to the historical precedent that unusual sweep years are usually corrected in the next cycle, the Republicans have to face an additional threat. Political and economic issues are likely to be arrayed in the extreme against the Alabama GOP in 2014. For 136 years, they whined and cried about not being allowed to run state government. (In 2010, as in 1874, their control was dependent on the partisan intervention of the Federal government.) Republican Party, be careful what you wish for; now you own it.

Budget shortfalls are going to be a major problem for the state over the next three years. While the recession continues - thanks in large part to the national GOP’s efforts - state revenues will be depressed, and Federal stimulus funding to fill the gap is going to vanish. This also is thanks to the Know-Nothings of the national Republican Party. This means programs will be cut, and employees will be laid off. Families of senior citizens will be upset that their Medicaid benefits are cut, and lots of drivers will be upset that potholes aren’t being fixed. And there will be no Democratic Legislature on which The Birmingham News can blame it. GOP attacks on education have also clarified the minds of thousands of teachers, many of whom had complacently begun voting Republican, as to where their political interests truly lie.

Speaking of latter-day Know-Nothings, even the GOP’s pride and joy of racist reaction - HB56, better known as America’s most repressive law against those whose color suggests they might be undocumented aliens - isn’t working out as planned. While the senescent crackers whoop, stomp and clap at the Republican luncheon at the Golden Corral (between artery-clogging trips to the buffet), in the rest of the community, the bill is causing one giant train wreck. Senseless requirements for “proving” citizenship for auto tag and drivers’ license renewals have created gigantic lines at every courthouse in the state, and deprived Alabamians of the basic 21st Century convenience of renewing these licenses online.

If the stupidity of the immigration bill reaches all Alabamians once a year, it zeros in on thousands of small Alabama businesses constantly, and takes direct aim at their bottom lines. While many crops such as cotton are mechanically harvested, many fruits and vegetables still require hand picking, and the immigrant labor which makes this possible is fleeing the state. Even many legal immigrants are leaving from fear of arrest, and crops are reported to be rotting in the fields. Many of the GOP gains in 2010 were made in counties, such as DeKalb, Marshall and Cullman, where the state’s billion-dollar poultry industry is centered, and that industry is utterly dependent on immigrant labor. Other service industries, such as food services, nursing homes, and construction, are likewise facing labor shortages as a result of the Hispanic exodus. These constituencies are not marginal for the GOP; they are its bedrock electoral and financial base. And they made their displeasure with HB56 plainly known during the 2011 session. By 2014, Democrats should find both votes and dollars available from small businesses whose interests the GOP has trampled. (Of course, we need to start working on this outreach now, while tempers are still hot!)

To be clear, I am not predicting that we Democrats will retake one or both houses of the Legislature in 2014. I am making it emphatically clear that it is reasonable that we might do so. Even as the GOP laid plans and worked for four years to make Alabamofascism possible, we need to be working now to reverse it. Candidate recruitment, fundraising, and work on the ongoing voter list system are critical. More particularly, our media message needs to step up just a bit. Voters need to be helped to think of those three-hour lines at the car tag office as “Republican lines.” This needs to be a full-court press, including repeated media statements from local Democratic leaders, and letters to the editor. Poultry producers need to be invited to Democratic meetings where they can hear the workforce-killing HB56 condemned. Protests against the moral outrage that is HB56 are good, but it is when we speak to the interests of 2010 GOP voters that we will regain a Democratic Legislature.