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Rights and Reason: Marijuana Ad On Metro Infuriates Lawmaker
I'm loath to spend much time focused on the drug war, but this Washington Post report has to be addressed:
An Oklahoma lawmaker is seeking to slice $92,500 from the federal government's annual payment to Metro because he is angry that the transit agency accepted advertising from a nonprofit group that wants to decriminalize marijuana.
Change the Climate Inc. has been using public service advertising space on the Metro system since 2001, but it was the latest round of advertising, this fall, that drew the ire of Rep. Ernest J. Istook Jr. (R-Okla.).
The ad showed a man carrying a tanned blonde in a short white dress, the two of them set against the azure sky of some tropical retreat. Under the picture appeared the declaration: "Enjoy better sex! Legalize and Tax Marijuana."
In a Nov. 10 letter to Jim Graham, chairman of the Metro board, Istook called the ad "shocking" and said the board had "exercised the poorest possible judgment, so I must assure that [Metro] will learn the proper lessons from this experience and will only accept appropriate ads in the future."
This week, Istook inserted into a bill language that would cut Metro's funds by $92,500 and prohibit any transit system that receives federal funds from running advertising from a group that wants to decriminalize marijuana. The money is just a fraction of the federal government's $164 million subsidy to Metro for capital projects.
The language is part of an omnibus bill expected to come before Congress for a vote in late December or January.
"Metro is using taxpayer facilities to promote illegal activity," said Micah Swafford, Istook's press secretary.
I think campaigns like the Change the Climate bus ad project are silly--they fail to address the real issues behind the misbegotten drug war, but it's Rep. Istook's conduct that shocks me. WMTA routinely donates ad space to nonprofit organizations. To demand WMTA deny Change the Climate ad space on the grounds that a congressman disagrees with their policy position is patently offensive. If CAC ran an advertising campaign calling for the abolition of the antitrust laws, would Istook seek to squelch CAC? What possible distinction can Istook draw between any citizen's group that seeks the repeal of any law they take issue with, and the Change the Climate ad campaign?
More and more, I grow weary of the Republicans. I'm sick of their utter contempt for the principle of individual rights, and I'm sick of how that contempt manifests itself in government encroachment after government encroachment of our most basic freedoms.
::: posted by Nicholas Provenzo
at 12:54 PM | link
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Friday, December 05, 2003 :::
Politics: Smith Recants... Under Pressure?
Timothy Noah of Slate reports Rep. Nick Smith of Michigan has backed off his earlier claim that House Republican leaders tried to bribe him into voting for the Medicare bill:
Earlier this week, Chatterbox urged Rep. Nick Smith, R-Mich., to reveal who attempted to bribe him into voting for the Bush Medicare prescription bill, which he opposed on the grounds that it was too expensive. After the Nov. 22 vote, Smith had complained to the Associated Press that somebody—the AP report, in a paraphrase, said it was "House GOP leaders"—had exerted "the most intense and strongest pressure to change my vote that I've ever experienced." Subsequently, Robert Novak had reported in his column that "On the House floor, Nick Smith was told"—by whom, Novak didn't say—that "business interests would give his son $100,000 in return for his father's vote." Smith is retiring at the end of this term, and his son Brad is seeking the Republican nomination to succeed him.
Noah says we shouldn't believe Smith's recantation. I agree. Smith made repeated and specific references to specific offers of money to his son's campaign in exchange for the Medicare vote. Smith's change of position is likely the result of two watchdog groups filing complaints with the Justice Department alleging bribery based on Smith's earlier statements. It's hard to disagree with the statement of one of the group's leaders: "The attempted bribery and extortion of a member of Congress on the House floor destroys the heart of our democracy." Smith presumably doesn't want to get himself in any deeper with party leaders already fuming over his "betrayal" on Medicare.
::: posted by Skip Oliva
at 6:38 PM | link
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Politics: A Merger of Equals... and Maybe Ideas...
Assuming there are no antitrust issues (just teasing), Canada’s two right-of-center political parties will likely join forces this weekend. The Progressive Conservative Party, the party that formed Canada’s first government in 1867, will decide tomorrow whether to complete a merger with the Canadian Alliance, an insurgent group that started over a decade ago in response to western Canadian displeasure with eastern Canada’s political elite. The Alliance, originally called the Reform Party, supplanted the PCP during the 1990s as the chief national opposition party to the Liberal Party, which has governed Canada with an iron fist since 1993.
The PCP’s collapse is one of the great political tales of recent decades. Since Liberal Prime Minister Pierre Trudeau rose to power in the late 1960s, the PCP has been playing the sort of “me-too” politics we’re now seeing from President Bush and the Republicans in this country. In 1979, the PCP ousted Trudeau in an election, but the resulting government couldn’t pass a budget and dissolved less than a year later, returning Trudeau to power for a final term. The PCP did win elections in 1984 and 1988 under Brian Mulroney, but by then the Liberal ideology—national health care, resentment towards the United States, and high taxes—had taken hold. Mulroney would eventually become tripped up in a failed constitutional reform plan designed to placate always-insurgent Quebec secessionists. By the end, Mulroney’s popularity polled in single digits, and the PCP would be reduced to two seats in the 1993 election, possibly the worst showing for an incumbent parliamentary party in western history.
Liberal Prime Minister Jean Chrétien has governed Canada for a decade now as a pale impersonation of Trudeau. He will be principally remembered for being an arrogant prick who ran the country like his personal toy. There is no memorable foreign or domestic policy Chrétien will be remembered for, although the Quebec secessionists did fizzle politically under his watch, which I suppose is something.
The PCP-Alliance merger is an attempt to give the anti-Liberal electorate some hope of ousting Chrétien’s successor, Paul Martin. The merger does make sense. The Alliance brings a solid right-of-center agenda, while the PCP brings at least the vestige of national credibility. The Alliance has never made an electoral dent in Ontario, Canada’s largest province and still a PCP stronghold.
None of this means the newly christened Conservative Party will beat Martin in the next election. More likely, the Conservatives are one more election away from just being competitive. The question then becomes, how far will the Conservatives go to regain power? Will they become “compassionate” conservatives a la George W. Bush and offer a watered-down leftist agenda? Or will they try to build upon the free-market ideas that built the Alliance into a successful insurgent movement? The most important ideological objective for the Conservative Party will be to break the political malaise the Liberals have brought to Canada; Chrétien and company acquired their power by exploiting fear, envy, and class hatred. If not for the presence of the United States to the south, Canada could well be teetering on the brink of third-world status right now given their hostility to basic principles of individual rights. The Conservative Party must forcefully reject the Liberals’ exploitation by offering a positive, pro-capitalist message. That will not be popular at first—few revolutionary calls ever are—but over the long run, it will prove the first step into building a new political majority in Canada. Maybe then the Canadians can show America how it’s done.
::: posted by Skip Oliva
at 6:26 PM | link
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Antitrust News: Building a Bridge Back to the 1980s (or Maybe the 1890s)
Those who wish to expand enforcement in ways that would retard the progression in recent decades toward sensible substantive and institutional norms now have an organization dedicated to that end, the American Antitrust Institute (AAI). The group's leaders call for enforcement that would disregard the prudent limitations observed in recent decades. Recommended areas of expansion include fuller use of per se rules, a return to 1970's style attacks on distributional restraints, greater reliance on structural presumptions against mergers, resurrection of the incipiency doctrine in merger cases, unprecedented expansion of alleged monopsony in merger cases, more emphasis on condemning price cutting, and even a return to the use of non-economic values in antitrust decision making. Although some of these individuals have produced important contributions to the modern antitrust consensus, enactment of their enforcement agenda would shatter that consensus, and return antitrust to its pre-1981 imperialism.
The theme of Muris’ speech, given to the American Bar Association’s antitrust section, was how the Bush administration’s antitrust enforcement strikes—at long last—a proper balance. Muris dismissed pre-1981 antitrust enforcement policy as too rigid, and the Reagan administration (which he worked for) as too soft. Somehow I doubt the businesses that have been prosecuted by Muris' FTC staff find the current antitrust approach "just right."
There is some merit to Muris’ argument. AAI is a radical organization that wants all economic decisions to be made by antitrust lawyers. I don’t think the FTC endorses that position, although sometimes they act like they do. Muris has his pet projects: destroying physician rights, nitpicking mergers in the food industry, and weakening intellectual property. But Muris is still not as bad the AAI people would like him to be. I have yet to read about a single merger or competition case where AAI isn’t screaming at the top of their Ivory-tower academia lungs for blood.
But then again, it’s unfair to criticize AAI for wanting to return to the pre-1981 imperialist age of antitrust. Personally I’d like to return to the past as well—to pre-1890, before antitrust even existed.
::: posted by Skip Oliva
at 10:48 AM | link
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Conservative Republican frustration over the failure of the Bush administration and the House Republican leadership to restrain federal spending has boiled over in recent days, producing a rare confrontation between GOP lawmakers and party leaders.
The internal conflict, fueled largely by recent passage of the $78 billion Iraq reconstruction effort and the $400 billion prescription-drug benefit for senior citizens that squeaked through the House on Nov. 22, came to a head last week when President Bush abruptly terminated a phone conversation with a Florida Republican who refused his plea to vote for the landmark bill.
Well-placed sources said Bush hung up on freshman Rep. Tom Feeney after Feeney said he couldn’t support the Medicare bill. The House passed it by only two votes after Hastert kept the roll-call vote open for an unprecedented stretch of nearly three hours in the middle of the night.
Feeney, a former Speaker of the Florida House of Representatives whom many see as a rising star in the party, reportedly told Bush: “I came here to cut entitlements, not grow them.”
Sources said Bush shot back, “Me too, pal,” and hung up the phone.
If this anecdote is true, how could President Bush possibly say that with a straight face? The only time he’s evidenced any willingness to say “Me too” is when it increases the size and scope of government. One measly tax cut an advocate of limited government does not make.
It gets even thicker:
At the same time, House Speaker J. Dennis Hastert (R-Ill.) castigated former House Majority Leader Dick Armey (R-Texas) after he wrote an op-ed article in The Wall Street Journal opposing the bill. Armey wrote that he opposed the bill even though he had voted for two similar bills as a member of Congress.
House leadership aides said Hastert and Majority Leader Tom DeLay (R-Texas) felt blindsided by Armey’s op-ed, which came at a time when they were trying desperately to round up the necessary votes.
“The Speaker is very disappointed about the article, especially because Mr. Armey voted for prescription-drugs bills that had even less reform than the conference report did when he was a member,” Hastert spokesman John Feehery told The Hill on Monday.
Tough. Hastert’s three hour vote revealed him to be willing to attempt almost any stunt to have passed this bill. Heck, the impeachment vote against Bill Clinton did not take as long. The GOP does not just deserve to be called out—it deserves to lose political power. The party no longer serves the interests of those who seek limited government. Consider the last bit of the article:
Republican aides said conservatives who voted against the bill, including Reps. Mike Pence (Ind.), John Culberson (Texas), Jeff Flake (Ariz.), Roscoe Bartlett (Md.) and Jim Ryun (Kan.), would suffer for their votes against the Medicare bill.
Leadership aides said those members “can expect to remain on the back bench” in the months ahead.
With a closely controlled Congress, even a group as small as 10 members could have a powerful impact on floor votes. If sentenced to the back bench, these congressmen should mount an all out attack against the GOP’s spendthrift (and rights violating) ways.
::: posted by Nicholas Provenzo
at 9:17 AM | link
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Thursday, December 04, 2003 :::
The War: They Get It, So Why Don't We?
Andrew Sullivan found this interview with Syed Munawar Hasan, the leader of Pakistan's largest Islamist political party in Asia Times Online:
ATO: "You reckon that there are so many contradictions between the West and the Muslim world, is there any chance of reconciliation and dialogue between the two civilizations?"
Munawar: "There is none. The basic concepts of both civilizations are in total contrast with each other. When I say this I do not address Western civilization as Christianity. I speak of a man-made system completely devoid of divine guidance. Our concepts of God, human beings, the universe, are totally in contrast with the concepts of the Western world. We cannot segregate human lives into private and public, our lives are ruled by divine guidance, not by man-made rules based on his own prejudices and specific mindset characterized by its own dilemmas and shortcomings. Our concept of the universe is not materialistic, and the result of an 'accident'. Instead, it was a very well thought out process envisaged by the creator of the universe with a plan. So these basic concepts have made the difference between ours and Western approaches."
Objectivists have long been arguing that the battle between the West and the Islamic world is drawn upon secular and theocratic lines even before 9/11. Yet we still have this fiction of Islam as a "religion of peace" and a foreign policy guided by it.
The Islamic militants see the real battle lines. It's about time we did as well.
::: posted by Nicholas Provenzo
at 11:29 AM | link
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Capitalism and the Law: NY Council Introduces 'Potty Parity' Bill
The AP reports GWU’s "public interest" lawyer John F. Banzhaf III has struck again:
Potty parity. Squatters rights. Go ahead, make fun of the fact that several City Council members introduced a bill Wednesday to have more restrooms set aside for women than men in most buildings.
To women — and one male law professor dubbed "the father of potty parity" — it's a matter of gender equity.
"Women need more restroom facilities simply because women take longer," said John F. Banzhaf III, a public interest law professor at George Washington University Law School during a telephone interview Wednesday.
Banzhaf, who was dubbed the "father of potty parity" for filing several court complaints — including the first one on the federal level — wrote recently that these legal cases show that women are standing up for their rights "even if they can't stand up while exercising those rights."
"We would never tolerate a system where women would routinely have to wait five times longer than men to have their blood tested, even if men's and women's blood were tested for different things," Banzhaf argues. "And we shouldn't tolerate a system where women routinely are forced to wait five or more times longer than men to perform a basic and necessary personal function."
So why might women take longer in the bathroom? Because they often have small children to tend to, they wear more clothes, and, as Councilwoman Yvette Clarke put it, there's that anatomical difference.
"We don't have the same type of equipment that men have," said Clarke, one of the main sponsors of the "Restroom Equity Bill."
And women don't use urinals, said Banzhaf, another reason why men can zip in and zip out of restrooms.
Still laughing? You should stop now, Banzhaf said.
"I think the courts are recognizing that restroom facilities are an essential important service," he said.
No, Prof. Banzhaf, I'm laughing. So a business offers restroom facilities to its customers, and now it has an obligation to build those facilities to ratio determined by law. What if a business only offered a unisex bathroom? What if a business refused to provide restroom accommodations at all, or to only one sex? In John Banzhaf’s universe, this is not an issue for customers to decide though their continued patronage, but for the government, though legal sanctions.
This is the logic of the American with Disabilities Act taken to its natural conclusion. The foundation of the ADA was that the government ought to have the power to compel businesses to offer certain accommodations under penalty of the law. If the government can mandate the size of bathroom stalls, why can’t it mandate the ratio of male facilities to female facilities?
I can see it now: “Whereas, it is the sense of the New York City Council that it takes a woman longer to pee than a man, and as women go to the restroom in pairs, there shall be two stalls for women for ever one stall for a man.” Think I’m kidding: Ohio already has such a law. Ohio's "potty parity" code provisions for public buildings dictate one toilet for every 50 women and one for every 100 men.
Banzhaf thinks he has the right to use government to lord over one of our life’s choices. I wonder how long it will take him to shift his targets from trivial matters to ones that substantively threaten our freedom.
::: posted by Nicholas Provenzo
at 10:56 AM | link
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Rights and Reason: Lieberman Seeks Probe on Snack Food
The AP reports Democratic presidential candidate Joe Lieberman is gunning after snack food.
The Connecticut senator, who led the fight to put parental warnings on movie, video game and music advertising, wants the Federal Trade Commission to determine whether there is a connection between junk food advertising and the rise in obesity among youngsters.
"We're talking about how the government can get back on the side of parents and families and support them in raising healthy children and giving them good values," said Dan Gerstein, deputy communications director for Lieberman's campaign. "Governments can't raise children. That's the job of parents. But we can help to pull with them and pull for them."
As president, Lieberman would push for three interim moves while the FTC conducts its study:
Require junk food advertisements to include nutritional information that somehow issues a warning to parents, much like movie ads are accompanied by parental ratings.
Ask Congress to require restaurant chains to include nutritional information on menus and mini-boards. There already is a bill pending in Congress to do this.
Empower the Agriculture Department to set standards for food sold in schools, primarily vending machines. The USDA currently regulates lunch menus, but there are no limits on what companies can sell kids through vending machines.
Lieberman's campaign officials said the senator will not define what junk food is, leaving that to dietary and health care experts.
Lieberman’s call is yet another attack on commercial speech. Lieberman would not dare call for an FTC investigation of political speech, yet because the snack food advertisers speak out of a commercial motive, he believes he has a right to target them for investigation. This should send a chill up the spines of every business that relies of advertising to communicate with customers.
The fact is that parents are responsible for the cognitive development of their children, including a child’s eating choices and how they respond to advertising. If a child is making inappropriate decisions regarding his food options, the responsibility rests solely with the parent. Children receive different and conflicting messages from a variety of sources every day. It is for the parent to teach the child how to evaluate these messages and act appropriately.
The idea that the government can oversee advertising on the grounds that people are somehow powerless before it is obnoxious. People are responsible for their choices, not the government.
::: posted by Nicholas Provenzo
at 9:31 AM | link
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Wednesday, December 03, 2003 :::
Rights & Reason: Victory in D.C.?
Reports suggest the D.C. Council won't adopt a smoking ban. The key development: Mayor Anthony Williams said he'll veto a proposed ban. WJLA-TV reports, "The mayor says with the hospitality industry being so important to the city’s economy, he can’t support an outright smoking ban for bars, restaurants and nightclubs." Emphasis on "outright." It appears the mayor will back a proposal by Councilmember Carol Schwartz, a moderate Republican, to give a 15% tax credit each year to bars and restaurants that voluntarily ban smoking.
If I were on the Council, I would vote against Schwartz's "compromise." Businesses can already ban smoking voluntarily. I strongly disfavor using tax policy to encourage particular business decisions. That's how health care got screwed up in the first place—when businesses were offered a tax credit for offering their employees health insurance. That turned out to be the first step in the socialization of health care.
That said, I give Schwartz partial credit for trying to make the best of a bad situation. Schwartz's proposal won't inflict economic harm the way the proposed ban would. And presumably the mayor wants something to support rather than simply opposing a measure that's popular among the city's political elite.
::: posted by Skip Oliva
at 6:38 PM | link
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Rights & Reason: Loco for Localism
In Nick’s post below, he discusses Howard Dean’s desire to breakup large media companies. The thing that gets me about this debate is the “localism” argument, which Dean raises. Localism promotes the idea that programming is intrinsically better when it’s produced by a locally owned-and-operated station than by a national company. In Dean’s example, he bemoans the lack of locally-produced news in his home state of Vermont.
First of all, I always thought a key objective of the federal Constitution was to protect national markets from local discrimination. The Articles of Confederation failed precisely because states were not playing nice with each other to the detriment of commercial interests. Broadcast localism reverts us back to the 1780s, however, by automatically labeling nationalized markets inferior to local ones.
Of course, there were no national media companies in 1789, and most cities had dozens of newspapers competing for public attention. But the same is true today. Most cities may only have one major commercial newspaper, but “alternative” media of all stripes is thriving, such as the Internet, blogs, specialty magazines, alternative newsweeklies, and so forth. No individual is confined to just one source of information and entertainment.
Second, if large national networks are so harmful, why should the government permit them at all? Consider the recent FCC media ownership debate; the argument came down whether national broadcasters like Fox should be able to own stations reaching 35% of the nation or 45% (Congress and the White House settled on 39%). Right away you see the problem. Fox television doesn’t just reach 45% of the country; the FCC’s regulations only govern stations owned directly by Fox, not the hundreds of other stations that may be affiliated with the network. Affiliates are the lifeblood of national broadcasting. Yet under localism, they are an affront to diversity in media. After all, a Fox affiliate must carry a package of programs scheduled by the network; an affiliate generally can’t run some programs and not others, or run programs in a different order than the network’s schedule.
Or put another way, a network program provides identical content to the entire country without regard to “local interests.” If one applied antitrust theory to networks, they would be ordered broken up into regional competitors. Just imagine six regional NBC networks each forced to produce a “local” version of “Friends”—you could have one version for Atlanta residents, another for Denver, and yet another for Seattle.
::: posted by Skip Oliva
at 5:18 PM | link
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Rights and Reason: Howard Dean's Capitalism
This Monday, Democratic presidential frontrunner Howard Dean vowed to "break up giant media enterprises" out of a concern over "how deeply media companies can penetrate every single community" while a guest on Hardball with Chris Matthews. Dean says this is wholly compatible with capitalism.
DEAN: [F]irst of all, 11 companies in this country control 90 percent of what ordinary people are able to read and watch on their television. That’s wrong. We need to have a wide variety of opinions in every community. We don’t have that because of Michael Powell and what George Bush has tried to do to the FCC. MATTHEWS: Would you break up Fox? (LAUGHTER) MATTHEWS: I’m serious. DEAN: I’m keeping a... MATTHEWS: Would you break it up? Rupert Murdoch has “The Weekly Standard.” It has got a lot of other interests. It has got “The New York Post.” Would you break it up? DEAN: On ideological grounds, absolutely yes, but... (LAUGHTER) MATTHEWS: No, seriously. As a public policy, would you bring industrial policy to bear and break up these conglomerations of power? DEAN: I don’t want to answer whether I would break up Fox or not, because, obviously (CROSSTALK) MATTHEWS: Well, how about large media enterprises? DEAN: Let me-yes, let me get... (LAUGHTER) DEAN: The answer to that is yes. I would say that there is too much penetration by single corporations in media markets all over this country. We need locally-owned radio stations. There are only two or three radio stations left in the state of Vermont where you can get local news anymore. The rest of it is read and ripped from the AP. MATTHEWS: So what are you going to do about it? You’re going to be president of the United States, what are you going to do? DEAN: What I’m going to do is appoint people to the FCC that believe democracy depends on getting information from all portions of the political spectrum, not just one. MATTHEWS: Well, would you break up GE? (APPLAUSE) DEAN: I can’t-you... MATTHEWS: GE just buys Universal. Would you do something there about that? Would you stop that from happening? DEAN: You can’t say-you can’t ask me right now and get an answer, would I break up X corp... MATTHEWS: We’ve got to do it now, because now is the only chance we can ask you, because, once you are in, we have got to live with you. (LAUGHTER) DEAN: No. MATTHEWS: So, if you are going to do it, you have got to tell us now. (CROSSTALK) MATTHEWS: Are you going to break up the giant media enterprises in this country? DEAN: Yes, we’re going to break up giant media enterprises. That doesn’t mean we’re going to break up all of GE. What we’re going to do is say that media enterprises can’t be as big as they are today. I don’t think we actually have to break them up, which Teddy Roosevelt had to do with the leftovers from the McKinley administration. (CROSSTALK) MATTHEWS: ... regulate them. DEAN: You have got to say that there has to be a limit as to how-if the state has an interest, which it does, in preserving democracy, then there has to be a limitation on how deeply the media companies can penetrate every single community. To the extent of even having two or three or four outlets in a single community, that kind of information control is not compatible with democracy. MATTHEWS: How-how far would you go in terms of public policy? (APPLAUSE) MATTHEWS: This is not-what you describe is not laissez-faire. It’s not capitalism. DEAN: It is capitalism. MATTHEWS: How would you-what would you call it? DEAN: I am absolutely a capitalist. Capitalism is the greatest system that people have ever invented, because it takes advantage of bad traits, as well as our good traits, and turns them into productivity. But the essence of capitalism, which the right-wing never understands—it always baffles me-is, you got to have some rules. Imagine a hockey game with no rules. (LAUGHTER) MATTHEWS: Would you-would you (CROSSTALK) DEAN: Nobody benefits. Nobody benefits. So you have got to have reasonable rules. And the rules have to protect everybody in the game.
So Howard Dean’s definition of capitalism includes using the presidency to break up News Corporation and other media companies (but not GE) on “ideological grounds.” Whether this means Dean would break up these companies because he disagrees with them ideologically, or that he simply believes he has the right to shatter corporations that violate his vision of “democracy,” Dean has again revealed that he intends to put yet another part of the American economy under his boot.
Let’s reduce Dean’s statement to exactly what it is. A capitalis earns his customers by persuasion. The scale of his operation is determined by the degree he provides his customers with value. In the news media, success is determined by the businessman’s ability to provide his customers with relevant and accurate content. The trend toward broadcast media consolidation is driven by a simple dynamic: it is more cost effective if unprofitable duplication in broadcast media is eliminated.
Yet Howard Dean believes he can act as Caesar (or more accurately, Teddy Roosevelt) over media businesses, on the grounds that he is displeased with the content they generate. So much for the First Amendment right to speak free from government coercion. And, as Dean revealed on Hardball, the principle that drives him is based in large part on his personal whims (i.e, News Corporation is a target, GE is not).
The argument that media consolidation somehow threatens local coverage is bankrupt. In the age of the Internet and desktop publishing, where the costs to creating a niche media presence are so low as to be almost negligible, it is within practically anyone’s grasp to cover any news story that interests them.
The idea that government has the right to check one business model in the favor of another is also bankrupt. No business has the right to exist at the cost of the political destruction of its competitors. The only people who have a right to decide the fate of a business are a business’s owners, by choosing to stay in business or not, and its customers, by choosing to patronize the business or not.
And what has been forgotten in the media consolidation debate is that broadcast spectrum is a property deserving of the same protection afforded any other property. Rather then treat broadcast spectrum as a public good, the broadcast spectrum should be treated as a private property owned by those who develop it. Just because the broadcast media uses radio waves to communicate with its customers does not mean that it forfeits its rights.
Dean’s campaign is not the first time an anti-capitalist has presented himself to the electorate in capitalist’s clothing. Like Teddy Roosevelt before him, Dean attacks the alleged "malefactors of great wealth." And just like Roosevelt, when Dean speaks of the “bad traits of capitalism,” he means nothing less then self-interest. What else motivates a capitalist? It is not avarice that creates new ideas and innovations and brings them to market. It is pride, productivity and reason.
Yet it remains to be seen whether America’s proud, productive and rational will mount a better defense of their freedoms then their forbearers did under Roosevelt. Rather then worry about how deeply media companies penetrate every single community, as Howard Dean cliams, we ought to worry about how deeply government squelches the rights of every single individual.
::: posted by Nicholas Provenzo
at 11:23 AM | link
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As some New Yorkers have learned the hard way, the mere existence of an ashtray in a place where smoking is prohibited can lead to a summons. It doesn't matter if the ashtray is stored well away from public areas. It doesn't matter if it is used as a decoration, or to hold paper clips or M & M's. No ashtrays are allowed, period.
The reason is simple, said Sandra Mullin, a spokeswoman for the city's Department of Health and Mental Hygiene. The presence of an ashtray might be taken by some people as an invitation to light up.
"Not having ashtrays and putting up no-smoking signs are two of the strongest ways to discourage smoking and to let people know what the current law is," Ms. Mullin said.
Since May 1, when the Health Department began to enforce the law in earnest, about 2,300 summonses have been issued, she said. A little more than 200 were for ashtray violations.
It's nice to see the mayor and his administration have completely lost perspective post-9/11. It's good to know the mayor is dedicated to the destruction of personal property rights at every conceivable level. It's comforting to realize he puts his personal crusade against smoking over the economic health of his city.
For all the talk of New York rebuilding stronger after 9/11, the terrorists have won. And I don't mean the virgin-seeking morons who flew their planes into the World Trade Center. And if you think comparing 9/11 to a smoking ban is out of line, I'm only following Mayor Bloomberg's lead. He said, "Think about all the press attention to 9/11. That number of people die every year in the city from secondhand smoke." Of course that's false, but facts don't get in the way of those who oppose individual rights.
UPDATE: The Washington, D.C., city council is holding a hearing this morning to discuss its own smoking ban. Or as I like to think of it, they're passing a nice economic subsidy for Northern Virginia bars and restaurants; with Maryland and D.C. on the anti-property rights bandwagon, smokers will now flock to Arlington, Alexandria, and Fairfax. And there's little chance a tobacco state like Virginia will turn down the free revenue by enacting their own ban. Only jurisdictions like D.C. are stupid enough to intentionally inflict harm on their own businesses.
For more on the D.C. ban, check out BantheBan.org, a local grassroots movement against the D.C. smoking ban.
::: posted by Skip Oliva
at 9:29 AM | link
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Tuesday, December 02, 2003 :::
Rights & Reason: Getting Sick on Health Care "Reform"
Robert Novak reports on the lengths the White House and House Republican leaders went to in passing the Medicare bill:
During 14 years in the Michigan Legislature and 11 years in Congress, Rep. Nick Smith had never experienced anything like it. House Speaker Dennis Hastert and Health and Human Services Secretary Tommy Thompson, in the wee hours last Saturday morning, pressed him to vote for the Medicare bill. But Smith refused. Then things got personal.
Smith, self term-limited, is leaving Congress. His lawyer son Brad is one of five Republicans seeking to replace him from a GOP district in Michigan's southern tier. On the House floor, Nick Smith was told business interests would give his son $100,000 in return for his father's vote. When he still declined, fellow Republican House members told him they would make sure Brad Smith never came to Congress. After Nick Smith voted no and the bill passed, Duke Cunningham of California and other Republicans taunted him that his son was dead meat.
.The Republicans stole the Medicare vote pure and simple. A majority of the House went on record during the vote against the bill, but House Republican leaders kept the vote open an embarrassing three hours to switch already-cast votes. House Speaker Dennis Hastert should resign for allowing this travesty. He had an obligation to protect the House majority—meaning the majority that voted against the bill, not the Republican majority—from this abuse of process. The House was essentially kept in session until they yielded to the White House’s demands, robbing the chamber of its constitutional independence and integrity. Frankly, the House GOP’s misconduct mirrors the Democrats’ shenanigans in Florida three years ago. It was wrong then, and it’s certainly wrong now.
But then again, maybe it’s appropriate the GOP resorted to Democratic tactics. After all, the bill is largely indistinguishable from what Democrats wanted; they only voted against the bill to deny President Bush a political victory. Similarly, the White House’s decision to steal the victory reflected the President’s final descent into pragmatist Hell. We knew the White House had abandoned the façade of protecting individual rights a long time ago—witness campaign finance “reform,” backing down on affirmative action, and expanding antitrust regulation—but the Medicare bill was an outright attack on free-market principles.
You can argue political arm-twisting is part of the process. I can accept that if the process itself is geared towards the ideological debate of issues. But here the Republicans’ openly stated objective was to stifle any debate on Medicare in favor of political expediency. Rep. Smith’s objections were based in facts and principles, two things that are foreign to the Bush administration.
Novak said renegade Republicans “were warned that if this measure failed, the much more liberal Democratic bill would be brought up and passed.” This is curious. Why would the liberal Democratic bill pass? Republicans still have a House majority; did the leadership mean to suggest it would vote for a Democratic bill just to get something passed and spite the principled conservatives? If that’s the case, the Republicans aren’t just irrational, but suicidal.
::: posted by Skip Oliva
at 10:15 PM | link
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Antitrust News: California AG Moves in for the Kill
The first rule of California government—When businesses are down, make sure to kick them as hard as possible:
California's attorney general is investigating whether the nation's three largest grocery chains have broken antitrust laws by forming a financial pact.
Safeway Inc., Kroger Co. and Albertsons Inc. were issued subpoenas Monday by Attorney General Bill Lockyer's office, demanding they reveal details of a mutual-aid pact, which the companies reportedly made to share revenue so they could reduce losses in the event of a labor strike. Some 70,000 Southern California workers are in the eighth week of a strike and lockout.
Meanwhile, the grocers agreed to arbitrate a suit filed by a union seeking health-care benefits for striking members.
This takes antitrust to a new low. Now businesses can’t act in self-defense to stem potentially crippling financial losses. Lockyer, of course, wants to protect unions from any pressure to settle on terms favorable to grocers. This is particularly galling since labor unions enjoy a federal antitrust exemption, which gives them a substantial political advantage over employers in labor negotiations. On top of that, the grocery strike is not about wages or working conditions, but whether employers will continue picking up the entire tab for health benefits, something which bears no relation to employment in the first place. But once again, federal law practically obligates employers into providing health care to employees.
Lockyer’s actions show just how hollow antitrust is. The states objective of antitrust is to “protect consumers,” yet how does adding to the economic woes of grocers’ aid consumers? It doesn’t. Consumers have already suffered immense harm because of the grocery strike and the parallel public transit strike. If the unions break the grocers on health care, the result will be higher labor costs, which translates into higher prices, the traditional scourge of antitrust enforcers.
A final note: Kroger, one of the grocery companies targeted by Lockyer, is itself a plaintiff in the Andrx antitrust lawsuit, which I discuss in the post below. There, Kroger is using antitrust to try and force lower cost generic drugs onto the market. When you put this in context, you realize Kroger is forced into this position because of the government-union alliance's demand that the company finance employee healthcare without restrictions. This doesn't justify Kroger's suit against Andrx, but it does explain it.
::: posted by Skip Oliva
at 9:37 PM | link
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Rights & Reason: The Latest Battle for Intellectual Property
CAC is preparing an amicus brief to the Supreme Court in Andrx Pharmaceuticals v. Kroger Company, a case that mixes a dangerous cocktail: antitrust law and patent infringement. The case started a few years ago when Andrx, a generic drug manufacturer, asked the FDA for permission to market a generic version of Cardizem, a hypertension medication made by Hoechst Marion Roussel (HMR). Like many generic drug applications, this one became embroiled in a patent infringement dispute when HMR sued Andrx. Under federal law, the infringement suit triggered an automatic 30-month stay of Andrx’s FDA application, during which time the generic Cardizem was kept off the market.
As the 30 month period was expiring, the two companies reached an interim settlement whereby Andrx agreed to keep its drug off the market until the patent dispute was resolved, and in exchange HMR would make quarterly payments (of several million dollars) to Andrx. These interim settlements are common in patent litigation disputes, and in fact are encouraged as a means of helping obtain quicker resolutions.
This is where the antitrust lawyers come in. A group of antitrust plaintiff’s attorneys, backed by a group of businesses and drug purchasers, sued both Andrx and HMR, claiming the interim agreement “harmed” consumers by denying them quicker access to cheaper, generic Caridizem. Like the interim settlements, these antitrust suits are now commonplace, as trial lawyers seek to exploit the public outrage over prescription drug costs. The case was tried in Michigan, and the trial court held the Andrx-HMR interim settlement was a per se violation of the antitrust laws. Essentially, the court found the companies conspired to deny consumers access to cheaper medication. The U.S. Court of Appeals for the Sixth Circuit affirmed, holding that any attempt to put the agreement into its proper context was forbidden by the antitrust laws; after all, the whole point of the per se antitrust rule is to permit courts to declare actions illegal without having to bother with context or evidence.
A few months after the Sixth Circuit’s decision, the Eleventh Circuit in Atlanta ruled on a case brought by essentially the same lawyers and plaintiffs against another interim patent settlement, and that court reached the opposite conclusion. The Eleventh Circuit found the interim settlement did not violate the antitrust laws. Hence we have a disagreement between two courts of appeal, and Andrx seeks to have the Eleventh Circuit’s ruling adopted as the national standard.
CAC’s amicus brief will obviously support Andrx’s petition to have this case heard. We’ve seen firsthand what the per se rule can do to an industry. In 1982, the Supreme Court held the per se rule applied to agreements among physicians regarding fees, and the result is the current FTC-DOJ policy of preventing physicians from engaging in any meaningful negotiations with government-backed managed care companies. The Sixth Circuit’s ruling against Andrx and HMR has a similarly disastrous effect, since it effectively outlaws any effort to settle a patent case without considering the subjective desires of third-party consumers.
This will be the fifth amicus brief filed by CAC with the Supreme Court in the past two years. You may wonder what the value of these briefs is, since it’s difficult to measure their precise impact, if any, on the Court’s decision-making. Amicus briefs are often superfluous, restating arguments made by the parties, and in high-profile cases, the sheer volume of filings renders an individual brief’s contribution worthless. Seventh Circuit Judge Richard Posner, a notorious stickler for judicial efficiency, claims 99% of amicus briefs are a waste of time and money. I would not go that far, but I do believe that amicus briefs must have clear ideological and practical objectives in order to be worth the time and cost.
In the Andrx case, CAC’s ideological motive is obvious: We disapprove of the antitrust laws, and the Sixth Circuit decision, left undisturbed, would vastly expand the reach of antitrust into intellectual property law. But CAC is hardly the only critic of antitrust out there, nor are we a group of career antitrust lawyers who can debate the finer points of particular antitrust theories. Thus, our practical (or political) objective here is to try and shape the debate to our unique organizational strengths.
Here, CAC’s advantage is its substantial experience with the FTC, an agency that is not scrutinized by most other advocacy groups. The FTC plays an important, though not immediately obvious, role in the Andrx case, because the Commission has been laying the groundwork over the past two years to mount a major assault on intellectual property rights. The FTC views patents as a necessary evil—rather than a necessity of capitalism—because consumers are inconvenienced by higher prices for patented goods. The Commission actually investigated the Andrx-HMR agreement in 2001, but settled after concluding it didn’t have a strong enough case. A Supreme Court ruling affirming the Sixth Circuit would strengthen the FTC’s power to scuttle future patent settlements, making it more difficult for firms to file infringement suits defending their property rights. At the end of the day, property rights are an anathema to the “consumer rights” the FTC is sworn to protect.
Our amicus brief will provide the Court, and the general public, with a broader context to this case then the parties themselves will present. This is especially important because appellate courts are notoriously pragmatic—they take every measure to avoid public policy context, preferring to issue narrow rulings outside of any broad principle. Even if the Supreme Court does not accept Andrx’s case for review, CAC’s brief will set the stage for the larger debate over the FTC’s role in balancing property rights with “consumer rights.” This debate affects the nation at-large, and hopefully those of you reading this entry will be motivated to contribute to CAC so that we can remain at the forefront of the discussion.
::: posted by Skip Oliva
at 3:46 PM | link
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Monday, December 01, 2003 :::
Sports: Firing Frank for Capitalism
The University of Nebraska fired football coach Frank Solich yesterday after posting a 9-3 record in 2003, and an overall 58-19 in six seasons. At first glance, it’s odd that a coach who won 75% of his games while competing in the Big 12—arguably the toughest football conference in Division I-A—would be dismissed in the absence of any misconduct. But Nebraska athletic director Steve Pederson said he needed to make a change because, in his words, “I refuse to let the program gravitate into mediocrity.” Pederson argued Nebraska was not moving in the right direction compared to conference rivals Oklahoma and Texas. Presumably, Nebraska’s 31-7 loss to Texas (and a wretched home loss to Kansas State) this season didn’t help Solich any.
Pederson’s criticism of “mediocrity” is noteworthy. The AD’s description of Nebraska’s football program is unusual for a college administrator: “The byproduct of excellence in every area of your program is winning, and I don’t apologize for having high expectations.” You wouldn’t hear a college president or dean talk that way about an academic department. Nobody criticizes a math department chairman for allowing his program to “gravitate into mediocrity,” or the political science’s lack of commitment to “excellence in every area.”
If anything academia—especially at state-run schools—is a monument to mediocrity. Tenure, a core principle of almost every college and university, ensures mediocrity is an institutional standard. Professors are not held to individual standards of excellence, but to communal standards of conventional wisdom. Challenging the establishment is disfavored, and competing for the sake of self-improvement is practically sacrilege. In most academic departments, office politics is the key to success.
College football is criticized for being more about business than academics. Some of that criticism is justified. But then again, what’s wrong with being a business? Business recognizes the pursuit of selfish objectives as a moral calling. That doesn’t mean business can’t corrupt; it can and often does (especially in college football, where players are expected to work for free because the academics have wrongly declared “amateurism” a moral virtue.) But competitive, market-based business models do not promote mediocrity as a virtue. Innovation and accomplishment are the foundations of profit.
I don’t know whether Frank Solich’s firing was a good decision from an academic standpoint. If Solich were a math professor, he’d be encouraged to plod along for twenty years as a mediocre academic. And without greater knowledge of the specifics, I won’t say Steve Pederson’s decision makes sense from a football standpoint. But I do think Pederson made a responsible business decision—he saw the company going in the wrong direction, and decided to shake things up at the top. Frankly, there are Fortune 500 companies that wouldn’t make a CEO change when presented with clearer evidence of management failure. Pederson’s decision certainly entails risk, but it’s a risk worth taking.
Situations like this confirm my belief that college football needs to segregate itself completely from the fraudulent, anti-capitalist world of academia. A few months ago on the “Steve Czaban Show,” I proposed creating a for-profit college football association, where the 60-plus schools now in the five major Division I-A conferences would transfer their football teams to limited liability companies (controlled either directly by the school or through boosters) that would run the football programs as businesses. The players would get paid regular salaries, and profits could be returned to the investors. This not only divorces college football from the unreasonable, immoral mandates of the NCAA; it also removes football from campus politics. (In theory, this would also remove football rosters from Title IX calculations, thus relieving major schools of some budgetary and political pressure while pissing off those radical feminists who detest capitalism.)
::: posted by Skip Oliva
at 9:08 PM | link
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The Courts: The Post Office--Floor Wax or Dessert Topping?
This morning I attended oral arguments at the Supreme Court in United States Postal Service v. Flamingo Industries, a case where CAC filed an amicus brief. The case presents a simple question: Is the Postal Service a “person” subject to suit under the antitrust laws. Flamingo Industries brought an antitrust claim against USPS over a procurement dispute. USPS said the antitrust laws only applied to persons—including corporate persons—organized under the laws of the United States; agencies of the United States itself are not persons but rather sovereign entities. The always-contrarian U.S. Court of Appeals for the Ninth Circuit disagreed, holding USPS, as presently structured, was a person amenable to antitrust lawsuits. The Solicitor General, acting on USPS’ behalf, asked the Supreme Court to reverse.
Deputy Solicitor General Edwin S. Kneedler represented USPS. His advocacy was unremarkable, and consisted largely of laundry listing the various ways USPS was a traditional government agency. His central theme was that USPS carries out an essential sovereign function—delivering the mail—and subjecting the Service to antitrust laws would inevitably compromise that sovereign function.
Harold J. Krent, dean of the Chicago-Kent College of Law, argued on behalf of Flamingo Industries. Krent’s argument mirrored Kneedler’s, only he laundry listed the ways USPS acted as a commercial business. Krent conceded that the First Class mail monopoly carried out a sovereign function, but that USPS also competed with private businesses in areas not related to that monopoly. Much of Kneedler’s discussion with the justices dealt with the precise nature of USPS’ private-sector competition and the need for antitrust protection.
Most of the Court’s questions came from the left side of the bench. I don’t mean ideologically; I mean seating. Justices Ginsburg, Souter, and Scalia—all of whom sit to Rehnquist’s left from the audience’s viewpoint—did most of the questioning. Ginsburg focused largely on how to apply precedent. Souter sought to understand the commercial-vs.-sovereign debate. Scalia largely mocked everyone, especially Kneedler. Scalia was particularly amused when Kneedler asserted Congress’ intent in reorganizing the Post Office in 1970 was to remove politics from the department’s operations. Scalia noted the conundrum of trying to insulate a government agency from the government itself.
Scalia also indirectly raised the issue discussed in CAC’s amicus brief—whether USPS’ management structure is constitutionally consistent with a sovereign entity. We argued that under the Court’s prior decision in Morrison v. Olson, a properly constituted executive department must have its head appointed by the President with the consent of the Senate. The USPS’ chief executive is appointed by nine presidentially-appointed governors, but not by the President himself. In our view, this means either USPS’ structure is unconstitutional, or that it is not genuinely an executive agency entitled to sovereign status. For purposes of this case, we argued the latter conclusion. Scalia never directly raised our argument, but he did ask Kneedler several questions about USPS’ structure and how it might affect the Service’s sovereign status. Kneedler once again argued that Congress wanted to retain USPS as a sovereign entity while depoliticizing its control. But, as Scalia noted before, this makes no sense; any agency under government control is inherently political.
Justice O’Connor had the most telling comment of the morning. At one point, the famed pragmatist asked with some exasperation why this wasn’t a question for Congress. In other words, if Congress wanted to apply or exempt USPS from the antitrust laws, they should just say so. Of course, if Congress were clear in the construction of its laws, we probably wouldn’t need appellate courts. Still, O’Connor raised a good point. The postal organization laws do not clearly determine whether USPS should be treated like a regular business for antitrust purposes; given the economic importance of USPS, Congress should be clear about such things.
The entire back-and-forth on was USPS a business or a sovereign agency reminded me of the old Saturday Night Live commercial for Shimmer—was it a floor wax or a dessert topping? Unfortunately, none of the justices seemed willing to play the Chevy Chase part and declare USPS was both a business and a sovereign agency. That is, after all, the right answer. But the Solicitor General would not concede that point, and the justices seemed inclined to vindicate his position.
Krent certainly gave the justices enough solid arguments in favor of his client’s position. But my overall sense was that the Court wanted to overturn the Ninth Circuit and spare USPS the burden of defending itself in antitrust lawsuits. Kneedler effectively countered many of Krent’s arguments, and if I were scoring this like a debate tournament, I would give Krent at best a draw. If the justices saw things that way, they are likely to resolve the tie in favor of the government’s position. This could end up being a unanimous reversal. There wasn’t one justice, not even Scalia, that I would consider a definite vote for Flamingo.
::: posted by Skip Oliva
at 1:37 PM | link
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Rights and Reason: President To Drop Tariffs On Steel
This Washington Post reports it's the end of the line for steel tariffs:
The Bush administration has decided to repeal most of its 20-month-old tariffs on imported steel to head off a trade war that would have included foreign retaliation against products exported from politically crucial states, administration and industry sources said yesterday.
The officials would not say when President Bush will announce the decision but said it is likely to be this week. The officials said they had to allow for the possibility that he would make some change in the plan, but a source close to the White House said it was "all but set in stone."
European countries had vowed to respond to the tariffs, which were ruled illegal by the World Trade Organization, by imposing sanctions on up to $2.2 billion in exports from the United States, beginning as soon as Dec. 15. Japan issued a similar threat Wednesday. The sources said Bush's aides concluded they could not run the risk that the European Union would carry out its threat to impose sanctions on orange juice and other citrus products from Florida, motorcycles, farm machinery, textiles, shoes, and other products.
Bush advisers said they were aware the reversal could produce a backlash against him in several steel-producing states of the Rust Belt -- including Pennsylvania, West Virginia and Ohio. That arc of states has been hit severely by losses in manufacturing jobs and will be among the most closely contested in his reelection race.
The sources said that Bush's aides agonized over the options to present to the president and that they considered it one of the diciest political calculations of this term. A source involved in the negotiations said White House aides looked for some step short of a full repeal that would satisfy the European Union but concluded that it was "technically possible but practically impossible."
This decision comes about 20 months too late. The steel tariffs were yet another sacrifice of the rights of businessmen in the name of the Republican’s short term political expediency.
::: posted by Nicholas Provenzo
at 8:03 AM | link
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Rights and Reason: 'Master' and 'Slave'
Los Angeles just keeps getting weirder and weirder. Consider this AP report:
A county official has asked computer and video equipment vendors to consider eliminating the terms "master" and "slave" from equipment because they may be considered offensive.
"Based on the cultural diversity and sensitivity of Los Angeles County, this is not an acceptable identification label," according to an e-mail sent to vendors on Nov. 18. The memo asks manufacturers, suppliers and contractors to change or remove any labels on components "that could be interpreted as discriminatory or offensive in nature."
The county's 39 departments also were told to identify equipment with offensive labels.
"We got a note back from IBM saying thank you for bringing this to our attention and we'll take a look at this," said Joe Sandoval, who wrote the memo. Sandoval is division manager of purchasing and contract services for the county's Internal Services Department.
The term "master" and "slave" --when applied to electronic equipment-- describes one device controlling another.
In May, a black employee of the Probation Department filed a discrimination complaint with the county Office of Affirmative Action Compliance after noticing the words on a videotape machine.
"This individual felt that it was offensive and inappropriate ... given the experiences that this country has gone through in respect to slavery," office director Dennis A. Tafoya said.
I can’t help but marvel at the thought process of the black employee. Did this person look at the “slave” hard drive and think to himself, “All I want to do is work, yet the peripherals remind me of institutional slavery, paralyzing my ability to be productive.” And notice that the employee focuses not the slavery that exists in Africa today, but on “the experiences that this country has gone through.”
Such victimhood! I see a new lobby group here: The National Association for the Advancement of Subservient Peripherals.
Since the LA county Office of Affirmative Action Compliance is obviously home to frivolous discrimination complaints, if I were an employee, I’d file my own complaint. I’d say that the culture of black victimhood that permeates LA government and attempts to make me feel guilty for the actions of my white forbearers and tries to remind me of it in every stupid little thing is offensive and inappropriate.
::: posted by Nicholas Provenzo
at 7:59 AM | link
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