From the Archives: Delegate Steve Landes is 'keeping an open mind' on Governor McDonnell's ABC privatization plan

Delegate Steve Landes is 'keeping an open mind' on Governor McDonnell's ABC privatization plan
August 29, 2010 12:08 PM MST

Governor Bob McDonnell’s proposal to privatize Virginia’s state-owned liquor stores “has some possibilities,” said Delegate Steve Landes (R-25) after a town-hall meeting on government reform in Harrisonburg on August 26.

Landes, whose district includes parts of Albemarle, Augusta, and Rockingham counties, as well as the city of Waynesboro, added that “at this point” he is “keeping an open mind.” He wants to talk to his constituents to find out what they like and don’t like about the plan.

Delegate Landes spoke to the Charlottesville Libertarian Examiner on the campus of James Madison University as the crowd dispersed from the governor's town hall. State Senator Mark Obenshain and Delegate Dickie Bell were also interviewed that night.

‘Public safety concerns’
The governor, he said, had “addressed a lot of the public safety concerns” but as a member of the House Appropriations Committee, one of his main concerns is “how is the revenue going to work, where would that go, how are we going to offset what could be a reduction” in the money the state takes in from liquor sales. Landes also expressed concern about what would happen to the portion of ABC profits that goes to local governments.

Asked if he has a sense of what his colleagues in the legislature are thinking about ABC privatization, Landes replied:

“Most of the people I’ve talked to are just like I am, trying to get information, trying to find out what the proposals are, [and] what the governor may be proposing.”

Once the government releases “his formal proposal,” Landes said, “we’ll all be looking at that.”

‘Devil’s in the details’
As a member of the General Assembly for the last 16 years, Landes explained, he has “found that the devil’s always in the details, so you need to see the bill, you need to see what it says, and where the dollars are going to go, how the franchise sales would be, who would be eligible, whether you’re talking about small business people or just larger corporations, chain stores, and the like. All those details would have to be looked at before I could say whether I’m in favor or against it.”

Regarding the question of whether privatization of the ABC system is a “matter of principle,” Landes pointed to his support of the private sector and free enterprise over the years, adding that “there is a good argument from the standpoint of, ‘we don’t control beer and wine [so] why is the state in the business of’” selling distilled spirits?

Noting the current economic climate, Landes went on, “If the economy was really good, it would be an easier decision for me, because we’re not looking at what the revenue picture is, where the dollars are coming from, where they’re going to go.”

The issue would be easier for him to decide, he said, because as a member of the Appropriations Committee, “I think you have to look at making sure that the dollars are going to match up and that projections would be there to offset what the state might lose from the standpoint of sales and what we might obtain from the standpoint of tax revenue.”

Publisher's note: This article was originally published on Examiner.com on August 29, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: State Senator Mark Obenshain on Virginia liquor privatization: 'I was for it before it was cool'

State Senator Mark Obenshain on Virginia liquor privatization: 'I was for it before it was cool'
August 27, 2010 10:37 AM MST

A member of Governor Bob McDonnell’s Commission on Government Reform and Restructuring, state Senator Mark Obenshain of Harrisonburg says “I was for it before it was cool” when asked what he thinks about the governor’s proposals to privatize the Commonwealth’s monopoly on the sale of distilled spirits.

ABC privatization was a central topic of discussion when Governor McDonnell held a town hall meeting on the campus of James Madison University on August 26, and Senator Obenshain took a few minutes with the Charlottesville Libertarian Examiner to explain his support for the proposals.

“I’ve been pushing ABC privatization for several years,” said Obenshain, “and I was delighted last year when the Governor announced that he was going to include that as part of his transportation agenda. I’ve been working very closely with the administration, I’m fully on board as a member of the team, and I look forward to seeing it pushed through to fruition.”

‘Government’s essential mission’
Obenshain became involved in this issue, he said, because “I’ve always been a free-market guy. I believe in reform. I believe in prioritizing and figuring out what government’s essential mission is, and what it’s not.”

Speaking “frankly,” Obenshain added, “running a monopoly [and] running a statewide retail operation is something that state government really has no business being in. They’ve got to get out. We’re now 76 years post-Prohibition. Notwithstanding the fact that Virginia is a tradition-bound state -- which I love about Virginia -- it is about time for us to enter the post-Prohibition era.”

Asked what his colleagues in the state Senate are thinking about ABC privatization, Obenshain replied:

“I think a lot of them are keeping their powder dry,” because they have two major concerns.

“Number one, can it be done in an economically responsible way, and number two, can it be done in a socially responsible way?”

‘Crafting his proposal’
Obenshain explained that “the governor is crafting his proposal in a way that both of those questions can be answered in the affirmative. We can do it without losing the revenue stream that’s generated through our public ABC store operation and we can do it in a way that doesn’t endanger the public health [or] public safety.”

Addressing the worries of many who question the ABC privatization idea, Obenshain offered these assurances:

“It doesn’t put a liquor store on every corner. It preserves the right of localities and local governments and community organizations to express their support or opposition to proposed locations for licensees.”

He added that privatization “can be done in a way that satisfies the concerns of those who are on the fence.”

Obenshain conceded that there will be “people who are going to stake out a position in opposition to it,” including some “motivated by social reasons.”

‘Good idea for Virginia’
Identifying another set of opponents, the Harrisonburg senator suggested that some “are going to be opposed to it because it represents an infusion of capital into the transportation system. Their vision for solving the transportation problem is to raise taxes. As a consequence, anything that gets in the way of their effort to raise taxes is going to be something that they’re going to oppose.”

Obenshain summed up his views on ABC privatization by saying the governor’s proposals will “make good sense for Virginians.

“I would not support it if it was going to result in increased incidence of alcohol abuse,” he said, “or liquor stores on every corner or [become] a drain on the resources of the Commonwealth. I believe it can be done without any of that and I believe it’s a good idea for Virginia.”


Publisher's note: This article was originally published on Examiner.com on August 27, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Justin Bieber, Gary Becker, and the future of marijuana prohibition

Publisher's note: This article was originally published on Examiner.com on January 7, 2013. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016. I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Justin Bieber, Gary Becker, and the future of marijuana prohibition

What do teen heartthrob Justin Bieber and a Nobel prize-winning economist have in common?

It turns out that both, in their own way, have made a strong argument in favor of ending the War on Drugs.

Bieber, the Canadian singer and actor, was allegedly caught on film smoking a blunt (marijuana in a cigar wrapper), as reported by celebrity gossip site TMZ. The incident occurred not long after Bieber was involved in a traumatic accident that resulted in the death of a paparazzo trying to photograph the teen idol in his white Ferrari on a Los Angeles street.

Soon after the photographs surfaced, Bieber tweeted to his fans: “everyday growing and learning. trying to be better. u get knocked down, u get up” – not an apology but a subtle acknowledgment that the allegations may have substance.

Losing the war

The same day that TMZ published the Bieber photos, Nobel laureate economist Gary Becker published an article in the Wall Street Journal asking, “Have We Lost the War on Drugs?”

Becker and his co-author, University of Chicago economist Kevin Murphy, point out that the “paradox of the war on drugs is that the harder governments push the fight, the higher drug prices become to compensate for the greater risks. That leads to larger profits for traffickers who avoid being punished. This is why larger drug gangs often benefit from a tougher war on drugs, especially if the war mainly targets small-fry dealers and not the major drug gangs. Moreover, to the extent that a more aggressive war on drugs leads dealers to respond with higher levels of violence and corruption, an increase in enforcement can exacerbate the costs imposed on society.”

Becker and Murphy argue for, at the very least, decriminalizing now-illegal drugs, as Colorado and Washington state voters did with regard to marijuana in last November's election.

“Decriminalization of all drugs by the U.S. would be a major positive step away from the war on drugs,” the economists said in the Wall Street Journal.

“In recent years, states have begun to decriminalize marijuana, one of the least addictive and less damaging drugs. Marijuana is now decriminalized in some form in about 20 states, and it is de facto decriminalized in some others as well. If decriminalization of marijuana proves successful, the next step would be to decriminalize other drugs, perhaps starting with amphetamines. Gradually, this might lead to the full decriminalization of all drugs.”

Saving money, raising revenue

Becker and Murphy are not the first notable economists to argue for an end to the drug war on the grounds that it is economically indefensible.

In 2005, a statement signed by 500 economists, including Nobel laureate Milton Friedman and several from Virginia's George Mason University, argued that ending marijuana prohibition “would save $7.7 billion per year in state and federal expenditures on prohibition enforcement and produce tax revenues of at least $2.4 billion annually if marijuana were taxed like most consumer goods. If, however, marijuana were taxed similarly to alcohol or tobacco, it might generate as much as $6.2 billion annually.”

The absence of a public outcry over Justin Bieber's alleged pot smoking, along with the Colorado and Washington initiatives and the adoption of laws permitting the medicinal use of marijuana in 18 states, suggest that the American people are more open to a rational discussion about ending the drug war. Bieber's non-apology on Twitter itself suggests that he views the incident as uncontroversial and unworthy of further attention.

While Gary Becker and other economists make erudite and logically rigorous arguments against drug prohibition, Bieber's near-silence is eloquent in its own way and equally compelling.

Politicians do not seem to be following expert opinion or public sentiment, however. While two years ago, then-Delegate Harvey Morgan (R-Gloucester) introduced legislation with the effect of decriminalizing marijuana possession, this year the emphasis in the Virginia General Assembly seems to be toward extending the reach of drug laws. Delegate Bill Carrico (R-Grayson County), for instance, has submitted a bill that would require welfare recipients to be tested for cannabis and other drugs. Nobody in Richmond seems to have taken on Delegate Morgan's mantle in the wake of his retirement.

Eventually, as Becker and similar thinkers point out, the law will catch up to public opinion.

From the Archives: Amity Shlaes discusses significance of Calvin Coolidge at Heritage Foundation

Publisher's note: This article was originally published on Examiner.com on February 20, 2013. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016. I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Amity Shlaes discusses significance of Calvin Coolidge at Heritage Foundation

Speaking at the Heritage Foundation on February 20, author Amity Shlaes reminded her audience, “if you want to know only one thing about Calvin Coolidge,” the subject of her new biography, “it is that when he left office in 1929” – 67 months after he had succeeded Warren Harding -- “the federal government was smaller than when he had become president in 1923.”

That singular achievement is one of the aspects of Coolidge's life that motivated Shlaes, a syndicated columnist for Bloomberg View and director of the Four Percent Growth Project at the George W. Bush Presidential Center, to write the simply-titled Coolidge, which is both follow-up and prequel to her previous best-selling book, The Forgotten Man: A New History of the Great Depression.

“I'm on a mission of reputation-building,” Shlaes said, in light of the fact that Coolidge tends to be ranked low among historians of the presidency. She identified parallels between the time Coolidge took office in post-World War I America and the present day, when crises seemed to emerge day after day, tempting the government to “do something.”

Parallels to today

For instance, federal debt had grown by a factor of 20 since before the First World War. The times were “troubled,” Shlaes said, because thousands of returning veterans had been unable to find work and as many as one-third of them were disabled.

At the end of the Wilson administration, she explained, “the machine of government was broken. They had gridlock,” not unlike the current standoff between Republicans in Congress and the Obama White House.

In 1920, the presidential ticket of Ohio Senator Warren G. Harding and Massachusetts Governor Calvin Coolidge ran on a platform of “no” – as Shlaes put it, “not kinder, gentler, but 'no'” to spending, to taxes, to expanding government.

During Harding's term, Congress passed the Budget and Accounting Act, which established the forerunner of today's Office of Management and Budget (OMB). For the first time, the federal government was able to invoke independent analysis of budget proposals with an overarching view of how programs added up. Previously, appropriations were made on an ad-hoc basis, which made it difficult for presidents, when asked for something, to say “no.”

Cutting tax rates

After Harding died, Coolidge continued and built upon his program of austerity. With Treasury Secretary Andrew Mellon, he cut the top marginal income tax rate to 25 percent, resulting in increased revenues paid to the U.S. Treasury. (No other president has been able to achieve such low marginal rates since then. Ronald Reagan, Shlaes pointed out, was only able to cut the top rate to 28 percent.)

Coolidge made cutting government into an art. He used the political skills he had honed since first being elected to public office at age 26 to veto 50 bills over six years. He also made ample use of the “pocket veto,” which requires no message of explanation and, because Congress is not in session when the president quietly rejects the bill, it cannot be overridden. Coolidge, Shlaes said, “was like an Isaac Stern of the pocket veto.”

Coolidge's use of the veto and pocket veto reflected his view that “it's better to kill bad laws than to pass good ones.” As then-prominent political commentator Walter Lippmann put it, Coolidge used “dullness and boredom as a political device,” in order to prevent bad legislation.

Bothersome Prohibition

In reply to a question posed by the Charlottesville Libertarian Examiner about Coolidge's role in Prohibition, Shlaes said he regarded it “as a bother.” Earlier in his career, she explained, he had seen commerce in alcoholic beverages as beneficial to local farmers and businesses. He also understood that Prohibition was unpopular among recent immigrants, and he was concerned about his party (the Republicans) losing immigrant votes – something, she pointed out, with parallels today.

Coolidge, she explained, “tried to ignore [Prohibition] as best as he could” but felt constrained to uphold it because it was the law of the land. He disfavored Prohibition because “there was too much social legislation when economic legislation is more important.”

Still, before the repeal of the 18th Amendment, Coolidge bought stock in a grocery-supply company that sold a great deal of yeast, a major component of making beer and other fermented beverages. He was betting, Shlaes said, that Prohibition would end sooner rather than later.

As it turned out, of course, Coolidge ended sooner than Prohibition. He died on January 5, 1933; Prohibition was repealed on December 5 that same year, exactly 11 months later.

'Bootleggers and Baptists': An Interview with Adam Smith

Over on Book Reviews by Rick Sincere is a recent interview with economist Adam Smith of Johnson & Wales University.

Smith is the coauthor, with his grandfather Bruce Yandle, of Bootleggers & Baptists: How Economic Forces and Moral Persuasion Interact to Shape Regulatory Politics, which was published by the Cato Institute in September.

The two authors gave a presentation about their book at Cato in October. Afterward, I spoke to Smith about the book and its title. Here is an excerpt:

Smith explained that the term “bootleggers and Baptists” originated during alcohol Prohibition in the 1920s, when “you had bootleggers and Baptists with aligned interests” even if they did not realize it.

Baptists, he explained, proclaimed “Down with legalized distribution of alcohol!” because they saw drinking as morally detrimental. Bootleggers, too, proclaimed “Down with legalized distribution of alcohol!” because Prohibition raised the price of illegal liquor and fed more profits to the bootleggers.

“It was a boon to the bootleggers,” Smith explained, “and the Baptists were kind of oblivious to that situation.”

Broadening the concept to include other kinds of regulations, Smith said, “what we see today in our modern political economy [are] many, many manifestations of the same kinds of strange bedfellows.”

More and more, he said, “we're seeing that those bedfellows are recognizing one another and coming together to form even more powerful would-be bootlegger/Baptist coalitions.”

There is also a relationship between “bootleggers and Baptists” and “crony capitalism,” when government grants preferential treatment to certain, well-connected businesses.

Smith said that, in the book “we call it 'bootlegger/Baptist' capitalism instead of crony capitalism.”

Read the whole thing here.

Black Friday Becomes 'Green Friday' Where Pot Is Legal

This headline caught my eye: "Va. ABC stores to offer Black Friday discounts." The AP story, posted on the web site of ABC News affiliate WJLA-TV, explains that customers who buy more liquor worth $50 or more will get a ten percent discount, and that customers will also be offered an opportunity today to enter a drawing for a gift card worth $80 to celebrate the 80th anniversary of the Virginia Department of Alcoholic Beverage Control.


What is the difference between a government-owned monopoly on liquor sales offering special discounts and free booze and privately owned marijuana stores in Colorado offering similar discounts on pot?

The first obvious difference is that Virginia's ABC is a residue of 1930s socialism and prohibitionism, while the Colorado weed stores represent American entrepreneurship at its best.

State-owned liquor stores offer all the innovative thinking that one usually associates with government bureaucracies. Marijuana retailers in Colorado (and Washington state and soon in Alaska, Oregon, and Washington, D.C.) have met both their newfound freedom and remaining restrictions with creativity and genuine innovation.

Bloomberg News reporters Duane D. Stanford and Kevin Orland note under the headline "Marijuana Shops Seek Holiday Surge With ‘Green Friday’" that

The legalized pot industry in the U.S. will be worth about $2.3 billion this year and may grow to more than $10 billion by about 2018, according to the San Francisco-based ArcView Group, which invests in the industry.

This “green rush” generated $207 million in recreational pot sales in Colorado during the first nine months of the year, according to the state Revenue Department. In that period, recreational and medical marijuana combined to raise $52.5 million in revenue for the state through taxes, licenses and fees.

CBS News had its own report on "Green Friday," titled "Pot merchants cash in on Christmas cannabis."

In an accompanying story, CBS Moneywatch correspondent Kim Peterson reported:

Black Friday is almost here, and some shoppers are preparing to rush out and buy family and friends a stocking full of marijuana....

Americans freely give each other buzz-inducing gifts of wine or Scotch over the holidays, but buying someone a gift box full of bud? That idea is just sinking in across the state. "People are just starting to consider the notion of, 'Well hey, I can give this,'" Fox added....

Other dispensaries are planning similar Black Friday promotions, and many are taking out ads in local newspapers or promoting their sales online. An edible-pot maker in the state is offering a miniature pumpkin pie laced with marijuana, according to The Associated Press. Stores will also be selling spiced holiday teas, marijuana mint cookies and creams for sore muscles.

Marketing "Green Friday" specials on Black Friday is just one sign of the maturing of the marijuana industry. Matt Ferner and Ryan J. Reilly noted in The Huffington Post earlier this week that

Colorado and Washington state illustrate how cannabis is shedding its stoner image and entering mainstream culture. Marijuana products have been featured prominently in gourmet dinners and in cooking seminars in both states. The drug has become a fashionable substance to offer as a celebratory toast at weddings. Yoga enthusiasts can seek zen at marijuana-fueled classes.

Earlier this year, the Colorado Symphony Orchestra held a “Classically Cannabis” fundraiser, where well-heeled attendees sipped drinks, shook hands and smoked pot from joints, vaporizers and glass pipes, while a brass quintet played Debussy, Bach, Wagner and Puccini.

"Cannabis is being elevated into the pantheon of refined and urbane inebriants, no different than boutique rye or fine wine," said Matt Gray, the publisher of a new gourmet marijuana cookbook.

Could marijuana become legal in Virginia, a state where liqueurs are sold by a government-owned and -operated monopoly?

Bart Hinkle of the Richmond Times-Dispatch thinks it can and should.
"Instead of trying to shake more money out of Virginians’ pockets," he wrote on Tuesday,

the commonwealth should follow Washington’s lead and sell off its liquor business. But it should not adopt Washington’s deceptive practice of trying to claw back its money through hidden fees. So how can Virginia lawmakers scrape up the revenue that would be lost?

Simple: Legalize recreational marijuana, as four other states have. Washington did, and expects to collect $637 million in licenses and taxes by 2019. Colorado hopes to reap $174.5 million over the next three years. By one estimate, legalizing weed in Virginia could raise as much as $500 million for the commonwealth. But even half that would more than make up for ending the liquor monopoly

True, there are many arguments against the state letting people smoke pot. But those same arguments work just as well against the state letting people drink booze — let alone selling the stuff itself.

State Senator Adam Ebbin (D-Alexandria) has introduced a bill for the 2015 session of the General Assembly that takes the first step: decriminalizing personal possession of marijuana within Virginia. SB 656

Decriminalizes marijuana possession and changes the current $500 criminal fine for simple marijuana possession to a maximum $100 civil penalty payable to the Literary Fund and eliminates the 30-day jail sentence. The bill reduces the criminal penalties for distribution and possession with intent to distribute etc. of marijuana. The bill creates a rebuttable presumption that a person who grows no more than six marijuana plants grows marijuana for personal use and not for distribution and provides that the suspended sentence/substance abuse screening provisions apply only to criminal violations or to civil violations by a minor. Marijuana is removed from a statute making it a Class 1 misdemeanor to distribute or display advertisements, etc., for instruments used for marijuana and from the common nuisance statute. The distribution of paraphernalia statute will apply only to an adult who distributes to a minor at least three years his junior. The bill also limits forfeiture of property from sale or distribution of marijuana to quantities of more than one pound; currently there is no minimum amount. The penalty for possession of marijuana by a prisoner is reduced from a Class 5 felony to a Class 6 felony.

So far the bill has one co-patron, Delegate Kaye Kory (D-Falls Church). It has been referred to the Courts of Justice committee. When similar legislation was introduced by former Delegate Harvey Morgan, a Republican, it was killed in committee despite not a single person testifying against it.

While Virginia won't be celebrating Green Friday this year, we know that politicians here and elsewhere across the country are watching Colorado closely to see what happens in a regime of regularized, taxable marijuana sales.

Today Is Repeal Day - Let's Celebrate!

Today, across the country, Americans are celebrating "Repeal Day." As David Boaz of the Cato Institute put it, "Today is a great day for freedom."

What's the celebration about? We are commemorating the 80th anniversary of the 21st Amendment, which was ratified on December 5, 1933, and took effect ten days later (coinciding with Bill of Rights Day). Ratification was confirmed by a vote of the Utah legislature to repeal the 18th Amendment that prohibited the manufacture, distribution, and sale of alcoholic beverages within the boundaries of the United States.

While it would be easy to attribute the celebration to nothing more than the desire of Americans to imbibe a shot and a beer without bribing a police officer or paying a mobster, the repeal of the Prohibition amendment represents something far more fundamental: It means that, despite Ronald Reagan's quip that "the nearest thing to eternal life we will ever see on this earth is a government program," it is indeed possible to end programs that fail miserably, are counterproductive, increase the size and scope of government, and intrude in the private lives of citizens.

In other words, the 21st Amendment should offer a lesson for everyone who wants to repeal Obamacare (or, for that matter, marijuana prohibition and NSA domestic spying).

Although recent history may give more reason for pessimism, it is not impossible to reverse a bad government program. The effort may take hard work, extend over a long time (Prohibition lasted almost 14 years and its effects are still with us -- such as Virginia's socialist liquor monopoly), and encounter setbacks, but success can happen.

With that in mind, to quote Franklin D. Roosevelt, "What America needs now is a drink!" Toast now; legislate later.

(Cross-posted from Bearing Drift)

Lookin' Forward to the Weekend with Legal News About Beer

As the ubiquitous song goes:

It's Friday, Friday
Gotta get down on Friday
Everybody's lookin' forward to the weekend, weekend
Friday, Friday
Gettin' down on Friday
Everybody's lookin' forward to the weekend

Although Rebecca Black and her teenage friends may look forward to "kickin' in the front seat" and "sittin' in the back seat" and "partyin'" as Saturday approaches (followed, of course, by Sunday, which "comes after ... wards") with age-appropriate soft drinks, those a bit older might be mulling over what kinds of adult beverages they'll be consuming this weekend.

Thus it is that a couple of legal cases involving beer come to our attention.

Reported by the law firm of Shook, Hardy, & Bacon (bacon is everywhere nowadays, even in ice cream dishes at Denny's) in its on-line newsletter, Food & Beverage Litigation Update, one case comes from Europe and one from the United States.

The European case involves the use of "Bud" as a brand name for beer, and it is a new ruling on an old dispute.

Czech and U.S. brewers seeking to market their beers under the name “Bud,” have apparently been at odds since the early 1900s. In the latest installment of the dispute, the Court of Justice of the European Communities has set aside a decision of the Court of First Instance which allowed the Czech brewer to oppose Anheuser-Busch’s registration of “Bud” in Europe.  Anheuser-Busch Inc. v. Budějovický Budvar, No. C-96-09 (E.C.J., decided March 29, 2011). While the Court of Justice upheld some of the lower court’s rulings, it determined that the lower court erred (i) in the factors it relied on to decide if a “sign,” or trademark, in opposition to a new registration was used in a sufficiently significant manner, and (ii) in holding that the use of the sign in opposition does not necessarily have to occur before the date of the application for new
registration.

The language may be dry, but the beverage is still just as wet as you might expect.

The American case a bit more racy and it involves a microbrewery. Microbrewers, by their nature, are always more interesting and adventurous.

Flying Dog Brewery has filed a lawsuit under the First Amendment, alleging that the Michigan Liquor Control Commission and its individual members violated its free speech rights by prohibiting the company from selling Raging Bitch Twentieth Anniversary Belgian-Style India Pale Ale. Flying Dog Brewery, LLP v. Mich. Liquor Control Comm’n, No. n/a (U.S. Dist. Ct., W.D. Mich., filed March 25, 2011). According to the complaint, a British artist, who once worked with journalist Hunter S. Thompson, designed Flying Dog’s beer labels, including the one at issue. The defendants rejected Flying Dog’s application for a license to sell the pale ale in the state, allegedly finding “that the proposed label which includes the brand name ‘Raging Bitch’ contains such language deemed detrimental to the health, safety, or welfare of the general public.”

If I can find a six-pack of Raging Bitch, I may drink one or two this weekend while reading a new book that arrived from Amazon.com this week: Prohibition in Washington, D.C.: How Dry We Weren't, by my friend, Garrett Peck. If anything shows the residuum of Prohibition remaining in U.S. law, it's a ruling by a regulatory body that says the name of a beer -- even if it's "Raging Bitch" can be "detrimental to the health, safety, or welfare" of anybody.

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Legislative Redistricting Under Conditions of Divided Government

One of the unexpected things I learned about the evil that was alcohol Prohibition from Daniel Okrent's excellent 2010 book, Last Call: The Rise and Fall of Prohibition, was that the pro-Prohibition lobby successfully prevented Congress from doing its constitutional duty of reapportionment after the 1920 census.

The Constitution requires, in Article I, Section 2, and in Amendment XIV, Section 2, that an enumeration (census) shall take place every ten years and that Congress shall apportion the number of Representatives following each enumeration.

As Okrent notes, however,

The dry refusal to allow Congress to recalculate state-by-state representation in the House during the 1920s is one of those political maneuvers in American history so audacious it's hard to believe it happened. In its disregard for constitutional principle and its blatant political intent, it would almost rank with Franklin Roosevelt's Supreme Court-packing plan of 1937 -- that is, if anyone remembered that it even happened. The episode is all the more remarkable for never having established itself in the national consciousness....

Never in American history, not even during the tumult of Civil War, had Congress disregarded the constitutional mandate, enunciated in Article I, Section 2, to reapportion itself following completion of the decennial census. In each of the three most recent opportunities -- 1890, 1900, and 1910 -- the process consumed less than nine months. As late as January 1921, [Wayne B.] Wheeler [the chief pro-Prohibition lobbyist and organizer] himself believed that reapportionment was imminent and warned the [Anti-Saloon League] faithful to "be on guard." But a threatened majority, like a threatened animal, will do what it can to preserve itself. Between 1921 and 1928, forty-two separate reapportionment bills were introduced in the House. Not one became law.

As it turned out, Congress never reapportioned the House based on the 1920 census. The next reapportionment took effect in time for the 1932 elections, after the 1930 census. Prohibition, it becomes clear, worked to undermine the Constitution in fundamental ways.

We do not live in such interesting times today. The number of representatives is set at 435, the same number as in 1920, and while a few states will lose representatives beginning after the 2012 elections and others will gain them, there is no movement afoot to prevent that from happening.

The 2010 census was just the first stage in a process that will lead to the redesign of legislative districts all across the United States over the next two years. Districts for the U.S. House of Representatives, state legislatures, city councils, county boards of supervisors, and school boards will all be affected.

In Virginia, the redistricting process is accelerated because it is one of only four states that hold their state legislative elections in odd-numbered years.

Consequently, Virginia does not have a full-year's cushion in which to consider and pass a redistricting plan before it has to be in place for the next general election. In addition, because it falls under the jurisdiction of the Voting Rights Act, every aspect of the plan must be approved by the U.S. Department of Justice before it can be implemented.


George Mason University political scientist Michael P. McDonald is an expert on reapportionment and redistricting.  He is co-editor of The Marketplace of Democracy: Electoral Competition And American Politics, published in 2006 by the Brookings Institution.

McDonald has served as a consultant on redistricting issues, sometimes “helping jurisdictions produce redistricting plans that are in conformance with federal and state criteria,” sometimes serving as an expert witness in lawsuits on behalf of either the plaintiff or the defendant, “defending or challenging whether or not a redistricting plan is legal.”

After McDonald spoke to local election officials from across the Commonwealth at the State Board of Elections’ annual Election Uniformity Workshop (translation: training conference) last August, I interviewed him about what Virginia voters can look forward to in the coming months.

For the first time in Virginia history, redistricting in 2011 will take place under conditions of divided government. For the first time, the process will be supervised by a General Assembly in which the House of Delegates is controlled by Republicans and the state Senate is controlled by Democrats.

After the 1990 census, both houses were controlled by Democrats, as was the case in every decade since Reconstruction, and after the 2000 census, both houses had Republican majorities.

Moreover, in 1991, when the post-1990 redistricting took place, Virginia had a Democratic governor, L. Douglas Wilder. In 2001, Virginia had a Republican governor, Jim Gilmore. In both instances, the legislative and executive branches were unified under one political party's control.

Michael P. McDonald

“How it’s played out in other states,” Professor McDonald explained in our interview, “is that one chamber will draw its districts, the other chamber will draw its districts, and then the two will do a logroll,” in which each chamber approves the other’s proposal. In effect, McDonald said, “you will have two different partisan gerrymanders, one for each chamber.”

Virginia differs slightly from other states, however.

“The wrinkle that we have in Virginia,” McDonald pointed out, “is that the governor can amend legislation.” As a result, “there’s a little bit of concern on the Democratic side” that “even if the House passes their version of the Senate plan” the governor might not “keep his hands off of it.”

There is some discussion, McDonald said, that “the governor may form a commission or a committee of some sort to help assist him in evaluating the redistricting plans that come out of the legislature.” Such a commission, he explained, “may play a mediating role there.”

Given how fast the state legislative elections are approaching (in November 2011, when 100 seats in the House of Delegates and 40 seats in the state Senate are up for election), there is some concern about whether the General Assembly can pass a redistricting plan in time to meet the needs of the electoral calendar -- which includes setting a date for primary elections, normally held in June, in districts that have not yet been designed.

McDonald is optimistic, however.

“Plenty of other states have done it,” McDonald said. “We’ve done it in the past in Virginia.”

Can the process be completed in time?

“Presumptively, yes, the answer should be yes, that we can do it in time,” McDonald noted, also pointing out that “if it is not done in time,” federal courts will intervene.

“That’s one thing that the voters of Virginia can know to be true,” he said, “that the federal courts will step in if the state government can’t produce a redistricting plan.”

The courts, he added, “will basically draw their own map or they will accept a map that was not considered during the legislative process.”

Whether the redistricting process will fall victim to partisan bickering, or whether conditions of divided government actually make the process fairer and more transparent, both remain to be seen.

(A shorter, slightly different version of this article appeared on Examiner.com on September 4, 2010, under the headline, "After the census: GMU political scientist Michael McDonald forecasts Virginia's 2011 redistricting.")

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Gift Ideas for Cyber Monday

Black Friday is past.  It seems to have begun this year on Thursday, Thanksgiving.  Merchants are happy because their sales receipts for Black Friday 2010 have outpaced those of Black Friday 2009.

Increased sales of push-up bras and other lingerie items tend to indicate a recovery in the retail sector, and, reports Reuters,

Total retail traffic will have risen 8.7 percent to 212 million shoppers from Thanksgiving Day through Sunday, compared with the same period in 2009, according to the survey from the National Retail Federation.

Shoppers will have spent $45 billion online and in stores over the four days, according to the survey, which includes estimated spending for Sunday. That compares with $41.2 billion in 2009.

Spending per person rose to $365.34 from $343.31 a year earlier, NRF said.

Tomorrow, November 29, is the much-vaunted Cyber Monday, when workers return to their jobs from the four-day weekend and begin using their office computers to shop on line (the honorable ones only during their lunch hours), ordering gifts for themselves and loved ones.

In between came a new shoppers' holiday called "Small Business Saturday."  The idea of that one is that consumers should visit local mom-and-pop shops and buy things there.  Even government officials got into the act.  Virginia Governor Bob McDonnell, according to the AP, urged Old Dominion shoppers to patronize local small businesses.

The Republican governor says small business accounts for 98% of all businesses in Virginia, and for 75% of job growth.

He said doing your holiday shopping Saturday supports what he calls the "lifeblood of Virginia."

For my part, I visited four local businesses on Saturday:  Carter Mountain Orchard, The C'ville Market, McDonald's, and Walmart.

Lest you object that eating at McDonald's and buying things at Walmart betray the spirit of "Small Business Saturday," keep in mind that both McDonald's and Walmart started out as small businesses, respectively six and five decades ago.  And for those of you who found this blog post through the most pervasive global business of them all, Google, it's good to remember that the search engine giant did not exist even 15 years ago.

The best lessons about how small businesses succeed and grow, I suggest the South Park episodes "Something Wall-Mart This Way Comes" (Season 8) and "Gnomes" (Season 2).

That second episode contains a speech about free enterprise that would put Howard Roark to shame.  As Robert Arp writes in his book, South Park and Philosophy:

In the spirit of libertarianism, Kyle proclaims something rarely heard on television outside of a John Stossel report:  "Big corporations are good.  Because without big corporations we wouldn't have things like cars and computers and canned soup."  And Stan comes to the defense of the dreaded Harbucks:  "Even Harbucks started off as a small, little business.  But because it made such great coffee, and because they ran their business so well, they managed to grow until they became the corporate powerhouse it is today.  And that is why we should all let Harbucks stay."

In short, today's small business -- or even a yet-unrealized business concept -- may be tomorrow's behemoth, and that's good for consumers, for workers, for entrepreneurs, and for stockholders.

Looking forward to tomorrow, however, I would like to make a few suggestions for Cyber Monday purchases, whether something self-indulgent or something that will be a stocking-stuffer for St. Nicholas Day or gift under the tree on Christmas. (You may want to order expedited delivery if you're buying Chanukah presents. The Festival of Lights begins on December 1 this year.)

Let me begin by recommending the four best books that I have read in the past year.  Three are non-fiction, one is fiction.  I regret not having written full-length reviews of these books yet, but I may get around to it eventually.

By far my favorite book of 2010 has been Daniel Okrent's Last Call:  The Rise and Fall of Prohibition.  The title is self-explanatory but completely understates the rich lode of historical matter that Okrent has gathered between the book's covers.  I thought I knew the story of Prohibition, and I was wrong.  So many rich details had slipped my notice over the years, including the seminal work of Wayne B. Wheeler, the pre-eminent lobbyist for Prohibition, who basically invented grass-roots political organizing and direct-mail fundraising years before Marvin Liebman, Richard Viguerie, or MoveOn.org.

Neither did I know how the forces of Prohibition had undermined the Constitution by preventing for a full decade the mandated reapportionment following the 1920 census, because those favoring Prohibition knew that a Congress that more accurately represented cities, suburbs, and recent immigrants would be less inclined to support stiff enforcement of the Volstead Act and would be more inclined to move toward full repeal of the 18th Amendment.  As a result of the manipulation of Wheeler and others, the Congress elected in 1930 represented the same districts as their predecessors did in 1912, a clear violation of the Constitution.

What's more, Okrent did some digging and discovered no evidence for the widely-held belief that the patriarch of the Kennedy clan, Joseph P. Kennedy, was a bootlegger.  Though Kennedy had imported liquor legally at just about the time that repeal seemed inevitable, there simply is no documentary proof that he had imported illegal liquor during Prohibition.  The rumor that the senior Kennedy had been a bootlegger, and had built his family's fortune on that, seems to have begun sometime in the 1950s and, as Okrent points out, if any evidence had existed prior to that date, Kennedy -- who had many enemies in business and politics -- would certainly have been called out on it.

Another book of history that I really enjoyed was Jennifer Burns' Goddess of the Market:  Ayn Rand and the American Right.  Burns, who teaches at the University of Virginia, wrote a page-turner about the Objectivist philosopher and novelist's life.

That may be hard to believe, since the outlines of Rand's career are so well-known, given previous biographies and memoirs.  Somehow, however, Burns is able to keep the reader's attention.  As I read along through the book, I kept saying to myself, "I know what happens next, but I want to find out how it happens."

Burns was the first outside scholar to be given access to Rand's personal papers and library, and the result of her research is a highly readable yet informative chronicle, not only of Rand's life but of her influence on the American conservative and libertarian movements. 

Over the course of the past eleven or twelve months, I have had at least three opportunities to see Burns speak:  once at the Miller Center, once at the Virginia Festival of the Book, and once at a forum she assembled on the idea of "liberaltarianism," or the cooperation between libertarians and liberals in the public square.  On two occasions, I was able to interview her about Ayn Rand and about her book.

In the world of entertainment, it was my pleasure last month to see TV's Craig Ferguson perform his stand-up act at the Paramount Theatre in Charlottesville.

In anticipation of that show, I read Ferguson's own autobiography, American on Purpose:  The Improbably Adventures of an Unlikely Patriot.

As the title implies, the story culminates in Ferguson's decision to become an American citizen.  I was actually a bit disappointed that, for all the detail about his life and "adventures" earlier in the book, the section on the naturalization process was thin.  It certainly was not as complete as the reports Ferguson gave about it on The Late, Late Show on CBS while he was going through it.  (That included numerous offers of "honorary citizenship" from state governors, including a then-unknown-outside-Alaska Sarah Palin, whom Ferguson described at the time as something of a "sexy librarian.")

Still, Ferguson's chronicle of his life growing up in a lower-middle-class household near Glasgow in the 1960s and '70s, his love affair with the United States that began upon his first visit here at the age of 13, his early life as a drunk and drug addict, his first attempts at performing (which began with him as the drummer for a punk rock band, leading to a stand-up act as the character "Bing Hitler") that included encounters with other beginners like U2 and Alan Cumming, through his long-term engagement as a regular on The Drew Carey Show and finally, his becoming the best of the late-night talk show hosts (in my opinion, at least).

After Ferguson's performance at the Paramount in Charlottesville, I noticed his tour bus was still parked out back and, curious, I found a cadre of fans standing outside, waiting for the star to emerge.  Sure enough, only a few minutes later, he came out of the stage door and signed a few autographs and posed for a few photographs.  Luckily for me and Steven Latimer, who was with me that night, Craig let us pose with him in the very last shot taken that night.  Naturally, I posted it on Facebook as soon as we got home.  It appears here for the first time outside a social networking context.

As the picture was being snapped, I said to Craig, "You're the smartest host on late-night TV," to which he replied:  "That's like being a tall midget."  Maybe so, but I stand by my statement.

For what it's worth, I also purchased Ferguson's novel, Between the Bridge and the River, on that night at the Paramount.  I have not yet had a chance to read it.

I don't read much fiction, in general, but when I received a review copy of James Magruder's Sugarless, I simply could not put it down.

It has been almost a year since I read the book, but I still think about it because it resonates with my personal experience so much:  not in every aspect, but hitting a sufficient number of points on the matrix to make me believe it.

Sugarless is the story of Rick, a 15-year-old high school student in suburban Chicago during the mid-1970s who, almost purely by chance, ends up on the speech team and finds out he has a talent for dramatic interpretation (or dramatic interp, for those in the know).

Magruder's verisimilitude about high school forensics struck me more than anything else in the book, even the parts about the protaganist's struggle with coming out as gay in an era far less accepting of that than it is now.  His descriptions of the scenes at speech tournaments are amazingly accurate, and his portrayals of coaches and competitors are eerily familiar to me.

The one detail that other readers might find difficult to believe is the choice of the protaganist's speech coach to have him do an excerpt from Mart Crowley's play, The Boys in the Band.  People unfamiliar with high school forensics may think that a play about gay men would be off-limits, especially in 1976, and especially in the American Midwest.

The truth is, a cutting from The Boys in the Band was circulating at that time, and my own coach asked me to do it.  For reasons unrelated to the content of the piece, I ended up doing a different selection.  (If I recall correctly, it was the courtroom scene in A Man for All Seasons, a far more conventional choice.)  So I can testify against the doubters that an excerpt from The Boys in the Band was, indeed, being performed on the high school forensics circuit in the mid-1970s.

Having just seen the excellent documentary about Crowley and his play, Making the Boys, at the Virginia Film Festival, my memories of reading Sugarless earlier this year and my own experience in high school rushed back to me.  I recommend Sugarless to anyone who has competed in speech and debate or to anyone who was once a gay teenager.  It's an excellent book, and a compelling read -- a real achievement for a first-time novelist, even one who, like Magruder, is an accomplished playwright and translator.

I had planned to list a few novelty items here to round out this list of suggestions for Cyber Monday gifts, but these four books probably do the job.

In any event, Amazon.com has set up a whole page of links aimed at the Cyber Monday shopper.

Video Interview with Garrett Peck

On Friday night, I was able to nab an exclusive interview with Arlington-based author Garrett Peck, who was in Charlottesville to speak about his new book, The Prohibition Hangover: Alcohol in America from Demon Rum to Cult Cabernet, at the Barnes & Noble book store at Barracks Road Shopping Center. Earlier in the day, Peck had spoken in Lexington to a group of VMI cadets at his alma mater and to other area residents.

I first encountered Peck a few weeks ago when I was in D.C. on business. Stuck in traffic on Interstate 66 in mid-afternoon, I tuned to the Kojo Nnamdi Show on WAMU-FM. The conversation was about alcoholic beverage regulation -- a topic that has long interested me -- but it wasn't until the end of the interview that I learned the guest's name and that he was scheduled to speak that night at the Arlington Central Library. Since the library was just a few blocks from where my car would be parked, I decided to attend the presentation.

Peck's talk was interesting and entertaining. (It was accompanied by a slide show with images of the temperance movement and drinking culture.) When he mentioned that he would soon be in Charlottesville to talk about his book, I made a note of it.

That's how I found myself in the religion section of Barnes & Noble last evening, sitting with Garrett Peck and asking him questions about alcoholic beverage regulation, the drinking age, regional differences in attitudes toward alcohol consumption (and preferences for types of beverages), and other topics touched upon in The Prohibition Hangover.

The interview is in two parts of about seven minutes each, both also available on YouTube.

The first part includes introductory material. The second part addresses the most controversial question -- should the drinking age be lowered back to 18 -- and the efforts of groups like the Amethyst Initiative.

Part I:

Part II:

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