Comptroller Peter Franchot on Montgomery County’s monopoly over retail and wholesale sales of alcohol in the Country:
Montgomery County is the last bastion of a medieval state system.
This is a system that is incredibly slanted against the consumer and the ordinary citizen.
Most people in Montgomery County go to Prince George’s County, or the District or to Virginia to buy their alcohol because it’s such a disgrace.
And these are some of the nicer things he has to say.
I met Julian Bond for the first time like so many did: as the narrator of Eyes on the Prize, the wonderful televised series about the Civil Rights Movement. My African-American Politics professor required us to come in the evenings to watch the videos about events that were much more recent when he showed them in the late 1980s.
I didn’t realize at the time that one day I’d be showing an episode from the same series regularly in my class on Politics in the U.S. I would have been even more surprised if you told me that Julian Bond would be my colleague at American University where he was a Distinguished Lecturer for over two decades.
When another assistant professor and I first saw him down the hall in the late 1990s, neither of us had the nerve to go up and say hello and introduce ourselves. As my colleague put it, “that’s Julian Bond!”
His course on the Civil Rights Movement was much beloved not just because he served as a living bridge between the Movement and now who could communicate it to students. Or because he had a speaking voice and ability anyone would envy.
He took the time to respond thoughtfully and seriously to many, many students who came by his office hours. Though he was a fearless advocate with strong opinions who famously stood up to the powerful, he also somehow managed to be a consistently kind and gentle man.
Of course, I’ll always remember him for saying yes immediately to a request to speak out in favor of marriage equality during the referendum fight in Maryland. His clear and eloquent message of civil rights for all people unquestionably helped put us over the top.
His continued willingness to work for the basic dignity for all people until shortly before his death was typical. Long after he led the Student Nonviolent Coordinating Committee (SNCC) and fought successfully to be seated in the Georgia legislature, he spent many years restoring the NAACP to health and to respectability after it fell into crisis.
I’ll miss being able to refer students to his course–what an amazing opportunity it was for so many to learn from him. America will sorely miss a man who fought hard for justice with style and grace–and taught others to do the same.
Here is the statement he posted on Facebook:
After much soul-searching, I have decided not to run for re-election to the Rockville City Council this fall. I have cherished the privilege of serving the people of Rockville on their Council. But my family has paid a high price while I have campaigned and governed virtually nonstop over the past six years, and it is time for me to turn my attentions homeward.
Though I am keenly disappointed that my elected service must draw to a close for the time being, I take great satisfaction in what I have helped accomplish in office:
• We ended our downtown’s disastrous decade-long building moratorium;
• We saved an entire affordable neighborhood from developers who would have priced hundreds of working families out of their homes;
• We adopted a tough City ethics law; and
• We protected Rockville residents’ privacy by placing sharp limits on the data the government keeps on our movements.
My hard-won victories on these and other issues leave the City in a much better place than when I joined the Council. We can better protect our existing neighborhoods and better create great new ones. We can better compete with neighboring jurisdictions for residents and businesses and investment. The tough decisions I made on budgets and utility rates will maintain our infrastructure and strong City services for years to come.
I am surpassingly grateful for the efforts of Rockville’s superb City staff, whose round-the-clock efforts have made my job significantly easier every moment I have served in office.
You should know that I am very excited about some good folks who are preparing to run for office in Rockville this year. You will be hearing much more from them in the coming weeks. Keeping Rockville such a wonderful place to live, work, and enjoy life requires dynamic, experienced, and forward-looking leadership. We will have the chance for just that this fall. Stay tuned!
Finally, I am deeply grateful to the hundreds of friends and neighbors who have worked so hard over the years to send me to office so I could help fulfill our shared vision for a progressive, efficient, fair, safe, and neighborly Rockville. Thank you for giving me the opportunity to make our great City even better.
With warmest regards,
Tom
I can understand him calling it a day after six years–the same amount of time before I made the same decision. Tom was most recently in the news on this blog regarding Rockville’s debate over the removal of a statue of a Confederate soldier.
Yesterday, I published a reply by MCGEO’s Gino Renne to Adam Pagnucco’s guest blog on Montgomery’s Liquor Control Regime. In his reply, Renne attacks Pagnucco’s claim that the Department of Liquor Control (DLC) raises prices:
In his first false claim, Mr. Pagnucco claims that DLC’s operations increase costs for the consumer. Across all categories except special order beer, costs are 2-10 percent cheaper than neighboring jurisdictions.
This claim struck me as incredible, so I decided to do a sampling of wine prices at a Montgomery County Liquor Store and Total Wine in McLean, Virginia. I focused on comparatively affordable wines and picked out some first at the DLC store and others from Total Wine, and did not know the price of the wine at the other store when I selected it (i.e. no cherry picking).
The results are presented in the following table:
Among the 26 wines, DLC doesn’t carry seven–I checked with the cashier who searched the computer. Only one wine was cheaper at the DLC store and another at the same price, and these two bottles were on sale.
Looking only at the 12 wines currently offered at a discount at Montgomery DLC stores revealed that even their sales tend to be lousy deals. The discounted prices on these wines were an average of 21.9% higher than at Total Wine. When this same set of wines is not on sale, the difference rises to 44.0%.
Examining the larger basket of 19 wines available at both stores shows that regular prices in DLC stores average 36.4% higher that at Total Wine across the river. Put another way, it would cost you an extra $89.04 (plus tax) to buy them in Maryland.
If Gino Renne begins his argument for maintaining the status quo with an obvious, easily disproved falsehood, why should anyone believe anything else he or MCGEO has to say on the subject?
Here is the real capper: Total Wine has its headquarters in Montgomery County but it cannot open one of its (nicer than DLC) stores and offer the same prices here. If you want to know why, look no further than MCGEO and the County Council.
Gino Renne, President of UFCW Local 1994 MCGEO, Responds to Seventh State’s Guest Blogger Adam Pagnucco on Privatization of Montgomery County’s Department of Liquor Control:
Mr. Pagnucco opens his blog by stating that, “Few issues in county government have received more attention over the past two years than the operations of its Department of Liquor Control (DLC).” What a distraction! There are a lot of issues in Montgomery County’s Government that have received attention over the past two years, only one of which, the privatization of the DLC, seems to be receiving a lot of attention from the privileged elite in the County. Most of the County’s residents see far more pressing issues – the funding of the Purple Line, improving other parts of the County’s transportation infrastructure, increasing affordability of housing, and generally serving the needs of our county’s less-than-privileged with better wages, better economic opportunities and better public services. But since Mr. Pagnucco seems to think that we need to privatize DLC and claims that there are a bunch of “myths” surrounding DLC privatization, and he is using a one-sided platform to promote privatization rather than attend the Ad Hoc committees numerous public hearings and meetings, we’ll bite.
In his first false claim, Mr. Pagnucco claims that DLC’s operations increase costs for the consumer. Across all categories except special order beer, costs are 2-10 percent cheaper than neighboring jurisdictions. Many of the smaller retailers are against privatization primarily for the reason that DLC levels the playing field and keeps costs even.
Myth 1: Mr. Pagnucco claims that the County does not need DLC’s net income to function.
Actually, it does. Montgomery County, MD will owe $165,534,675 from 2015-2034 in debt service of revenue bonds that are currently paid through the revenues generated by the Montgomery County DLC. Additionally, the OLO report states that DLC has generated an average of $25.7 mill per year over past decade. That figure is nearly the entire Recreation Department or Library budget. Not chump change. The OLO report acknowledges potential lost revenue that will need to be made up through various fees, auctioning of licenses or a dedicated sales tax. However, the OLO report factors in no additional costs that would occur under a transition from county control to private enterprise. There would be leases to be paid, buyouts for early retirement, increased costs for enforcement and public health issues, etc.
While it’s easy to agree that the County will find a way to adjust, why should it? It has a guaranteed source of revenue that you propose the County throw away to make it easier for consumers to buy when there’s also no guarantee that consumption would increase. In Washington State, after privatization, sales only increased by 6% in its first year, while the next year data shows no increase. In addition, with increased prices, many consumers near the Oregon border are visiting liquor stores there to bypass the price increases. If privatization here were to follow the trends in Washington State, we’d definitely lose revenue to our neighboring jurisdictions.
Pennsylvania’s public liquor stores, which just beat back efforts to privatize, have reported a record boost in sales that are said to be due to improvements and modernization. A liquor board member said that people living in a border area are returning to shop in Pennsylvania stores because of the improvements.
A better solution is to keep the current public model in place with its fair prices and guaranteed revenue while expanding DLC stores. The resolution passed by the Council last week allows for this solution.
In Myth 2, Mr. Pagnucco claims that DLC monopoly isn’t needed for public safety, quoting decreased DUI and drunk driving arrests in newly privatized Washington State as evidence.
An official with an ALEC-connected think tank in Washington notes that this claim doesn’t really hold water. “Privatization didn’t improve the numbers necessarily but it didn’t make it any worse either.” A Washington state police spokesman adds, “I don’t think you can draw a correlation that because of private sales now we have fewer alcohol related arrests. The number of arrests is much more directly connected to the number of police officers out there actually patrolling.” The state police official notes that there are 80 fewer state troopers than previously, which has led to the decline in arrests. Couple that with legalization of marijuana in that same time period, one can draw the conclusion that arrests could have just as easily declined due to substitution of one drug of choice for another.
Tori Cooke, president of the Montgomery County FOP, testified that privatization would create public health and safety issues that are not easily addressed. And he and his fellow officers are against any efforts to privatize.
Dr. Roland Zullo, a research scientist at the University of Michigan, examined the impact of state ownership of retail alcohol distribution on 23 different crimes grouped in six categories. Dr. Zullo finds that state control of retail alcohol distribution is associated with statistically significant reductions in crimes that have been linked to alcohol consumption, including domestic abuse, assault, and fraud. Control states also had lower rates for vehicle theft and vandalism (using a slightly lower threshold for statistical significance, the 10% rather than the 5% level).
In Myth 3, Mr. Pagnucco claims that privatization would not result in the loss of high paying union jobs.
This is his most egregious of claims, especially for a former union employee. Where’s the evidence that “many private wholesalers” are represented by IBT? Or even evidence that union membership will not suffer a net loss? Mr. Pagnucco needs to explain himself on this one. I don’t know how he sees that transition occurring.
These are our members; it’s our job to protect them and to protect unions in general. It’s a public policy issue. There are societal costs. How much is it going to cost to put these people on the streets? Where are the high paying jobs that are family supporting and middle class sustaining going to come from for these 400 employees? I doubt we’ll see them at the mom and pop shops that could pop up if privatization were to occur. It’s extremely difficult to organize a union in your workplace these days. Although the NLRB is trying to speed up the process, the length of time from a certification election to a first contract can still take years. Union busters find many successful ways to stop a union campaign, as Mr. Pagnucco well knows.
DLC is able to provide good jobs with benefits while generating tens of millions to county coffers. Meanwhile, privatization will create minimum wage liquor clerk, warehouse and delivery jobs with little-to-no benefits that will exacerbate our economic inequality in this county. Sure, privatization could create union organizing opportunities, but no way it would create net gains in union membership.
In Myth 4, Mr. Pagnucco claims that the DLC is not getting better.
First and foremost, the fraud, waste and abuse in the private liquor industry is as rampant as it is in the public sector, if not more. But, because it’s private industry, it isn’t enforced or prosecuted very often or as publicly. In 2006, eight wholesalers in New York were ordered to pay $1.6 million in fines and costs for a “pay to play” scheme that favored larger retailers and provided discounts and inducements to those willing to pay. Meanwhile, smaller licensees were forced to cope. Under DLC’s structure, small licensees are given the same treatment as larger purchasers. With oversight, the DLC is forced to answer for its practices and it does. Private industry will not be given the same oversight.
Secondly, the DLC was hamstrung by technology purchases that were inappropriate for its needs and a hiring freeze, forcing customer service to suffer. Both of these were county mandates, not DLC-specific. It’s now been given the go ahead to hire and has made significant strides on that front. The ordering system is getting its revamp as well.
Yes, we agree that the system needs to be more nimble – it shouldn’t be forced to follow county-imposed hiring freezes and should be allowed to buy technology that specifically fits its needs, especially since it is a self-funded department.
In Myth 5, Mr. Pagnucco claims that the resolution to allow private wholesalers to fulfill sales of special order items is not “historic reform.”
We agree, it’s not “historic.” That’s hyperbole used for political purposes but it is a significant change for the department. Part of the change should make the DLC more nimble and part of the change should allow for expansion of the DLC’s store base. The “fee” Mr. Pagnucco complains about is paid by the distributor to allow for its participation in the Montgomery County market. Its structure has not yet been determined, just that there will be a fee.
Comparing the County DLC to the USSR’s failed perestroika? Really? I hope all readers realized that this is an absolutely absurd comparison. This resolution came after months of hearings, testimony and input from stakeholders. If you don’t like the way the process was playing out, Mr. Pagnucco, why didn’t you participate in it? Why are you using your friend’s blog to post your opinion without allowing for public input or participating in the public forum?
Again, I will emphasize there are much larger issues facing Montgomery County residents than from whom they can buy their liquor or wine. You need to respect the process and move on from this DLC issue and tackle our real problems.
As long as I’m focusing on U.S. politics today. . .
Charlie Cook has a set of very interesting analyses of loyalty to leadership among Democrats and Republicans. While Democrats who live in safe districts are more likely to vote with Pelosi than Democrats from marginal districts, the opposite is true among Republicans. Marginal district Republicans are much more likely to vote with Boehner than Republicans from safe districts.
This pattern is likely explained by primaries and the unusual disjuncture between the hardcore Republican base and the House leadership. Members from safe districts in both parties have a huge incentive to pay more attention to their primary rather than general election electorate. While moderation is rewarded in the general election, it’s all about the base in a party primary.
As a result, Democrats from safe districts have no problem casting solid left votes. Notice that the major Democratic defection from President Obama was on trade, where he lost Pelosi’s support and was at odds with the Democratic union and left-wing base.
The Republican conservative base is hostile to efforts by Boehner and McConnell to concede ideological points in order to govern. Ted Cruz’s attack on Mitch McConnell was an applause line at last night’s debate! So Republicans from safe districts are more likely to rebel against their party’s leadership. In contrast, marginal district Republicans want their party to look reasonable and able to make the government function so they vote with Boehner.
So I am currently in an undisclosed location with no television, which still did not leave me safe from political debates. Nevertheless, thanks to the inability of the FOX news stream to work, I had to listen to it on the radio feed while watching a picture about 10 seconds off from the talk on the home page.
I was struck once again how right wing the Republican Party has become. Jeb Bush, probably the most conservative governor of his (now past?) day, was one of the “moderates.” Projecting strength was the order of the day with Paul’s efforts to hearken back to a day when conservatives believed doing less was more falling flat.
Angry too. President Barack Obama isn’t just wrong. He’s a traitor who has perpetrated countless unconstitutional acts, weakened our military, and ruined America. Not many rays of sunny optimism save for the Horatio Alger competition at the end of the debate that would not have been out of place in a Democratic debate.
The three questioners from the right-wing media establishment asked good, tough questions. Their major negative moment was Chris Wallace’s decision to turn “illegals” into a noun, which I guess was shorter than “those brown people.”
The Republicans may be having a bromance with Trump but FOX wants to break them up. The three moderators were gunning for the Donald who repeatedly received questions that one would call “gotcha questions” except they were totally legit.
On the other hand, Marco Rubio received the easy softball about what he’d do to improve small business. Gave him the opportunity to hit the usual Republican erogenous zones. FOX man crush?
Contempt. This guy has it for everyone. One even had the sense that he had it for the people who let him on the stage. A one man walking self-admiration society. With Trump, the answers may devolve into word salad but it’s all about the attitude.
Felt like he was serving reheated pablum from the previous Bush administrations only that he’s too bright to believe it, which tended to weaken the delivery. You never quite feel you know where he stands–a problem in an election where “authenticity” (even if from a fake reality TV star!) seems the order of the day. He tried to dog whistle the right at the end with a Terri Schiavo allusion but it didn’t seem like a night for subtlety.
Though he nonetheless came across as one of the adults in the room, Bush’s unavoidable ability to remind us of his brother and complete hogwash of an answer on how he would create 4% economic growth through magical thinking made him look less like a general election winner than before the debate.
Has somehow managed to make Republicans forget that he was one of the major sponsors of the much reviled immigration reform bill. Rubio had the most telegenic delivery in the debate. His youth combined with not being Bush made him seem a more likely candidate if the goal is to get the Republicans to nominate someone credible who can get voters to turn the page.
If he does become the nominee, expect Democrats to play the clip unceasingly on his opposition to banning abortion in cases of rape and incest in response to a question from Megyn Kelly. Many Americans are uncomfortable with abortion but this provides a clear distinction that any Democrat would be glad to draw.
Fascinating to see how the Republicans are no longer just that into the two guys who enchanted so much after the 2014 elections. Paul was an object lesson on what not to say to appeal to Republican voters.
Cruz continues to try to win the game of who is the most conservative of them all. But somehow pressing that button isn’t working for him anymore–at least not yet. Completely uncompromising and a good example of how our dysfunctional government could become more so.
Huckabee is extremely comfortable on television. Sorta like an infomercial that leaves me deeply uneasy. Republican commentators thought he did well and he certainly wasn’t gunning for my vote.
Ben Carson’s soft-spoken delivery left me utterly confused as to why he is a Republican phenom. Unless his job is to explain why it’s OK never to talk about race–his big applause line.
Chris Christie’s ongoing problem is that he is the Lucy Ricardo of the Republican candidates–he always has some ‘splainin to do and never sounds altogether convincing doing it. Couldn’t answer why his state’s bond rating has plummeted even though he’s done such a bang up job balancing the books. Loves the blame game–it’s always someone else’s fault. Doesn’t look like Gov. Hogan’s endorsement will pay off for Maryland in future.
John Kasich sounded like a reasonable guy with experience. This leads me to believe he is unelectable in a Republican primary, despite the clear affection from the hometown crowd. But it’s hard to imagine how any nominee would not give serious thought to putting this popular swing-state governor on the ticket.
Scott Walker made no memorable impression on me. No gaffes and nothing off from the Republican script.
As @PeterBeinart tweeted, “how on earth does Saturday Night Live parody this?”
Maxwell Roberts has developed circle-style maps for many of the world’s subway systems. They often don’t go terribly well with geography but are elegant and fun to see. Here is the one he designed for Washington:
Today, I am pleased to present a guest blog by Adam Pagnucco.
Few issues in county government have received more attention over the past two years than the operations of its Department of Liquor Control (DLC). In most parts of the United States, the alcohol industry has been divided into three tiers since the end of Prohibition: producers, distributors and retailers. DLC, which is a county department but derives its authority from state law, inserts itself into this structure as an extra middle-man between distributors and retailers. Instead of being able to sell directly to Montgomery County-based retailers, distributors must sell their products to DLC which in turn sells them to stores and restaurants. DLC then charges an extra mark-up which, after paying for its cost of operations, is returned to the county’s general fund as revenue. DLC also has a complete wholesale and retail monopoly on hard alcohol and sells it through county stores.
A sure way to increase costs, delays and inefficiencies in any distribution system is to add more middle-men, especially ones who do not add value to compensate for their fees. DLC is no exception and has been the subject of complaints for years. But mounting problems, growing press interest and the emergence of the agency as a political issue in last year’s election have brought DLC to the forefront of public attention.
It’s time for a hard look at the myth and reality of DLC.
Myth 1. The county needs DLC’s net income to function.
In Fiscal Year 2016, DLC is expected to transfer $24.5 million in net income to the county’s general fund. That amount represents 0.48% of the county’s total $5.1 billion in projected revenues.
The county regularly adapts to revenue shortfalls of much larger amounts. Its six-year fiscal plans contain revenue estimates that vary up and down by tens of millions of dollars before actual revenues are recorded. The council just approved a $54 million reduction in its recently passed operating budget. The Silver Spring Transit Center is $50 million over budget (and counting). Between Fiscal Years 2013 and 2015, the council reduced energy tax revenues by a cumulative $31 million per year. And in 2010, the council approved a $191 million reduction from the prior year’s tax-supported budget. None of these adjustments were painless, but the county got through them and the world did not end.
The county government can survive without DLC’s money. It simply chooses to collect it because it can.
Myth 2. DLC’s monopoly is needed for public safety.
Last year, Council Member Craig Rice claimed that “county control of liquor sales promotes safety, particularly when it comes to sales to those who are under age 21.” The DLC does indeed vigorously regulate alcohol licensees. It has an eleven-person Licensure, Regulation, and Education program that conducts 400 minor consumption compliance checks annually and trained more than 1,300 licensees in safe alcohol service last year. Additionally, the county’s Board of License Commissioners issues liquor licenses and can revoke and suspend them for violators. But these functions are separate from the county’s role as an alcohol merchant and do not depend on a sales monopoly to be effective. In fact, there is no evidence that the county’s monopoly itself contributes one way or the other to regulatory efficacy. In Washington State, which gave up its alcohol sales monopoly in 2012, both DUI arrests and drunk driving collisions actually FELL a year later.
Myth 3. Without DLC, high paying union jobs will be lost.
This claim is frequently made by MCGEO (Municipal and County Government Employees Organization), the union which represents more than 300 DLC employees along with many other rank-and-file workers in county government. The union has a responsibility to protect its members and generally does an excellent job of it, so its position is understandable. But if DLC’s operations are eventually eclipsed by the private sector, there is no guarantee that union employment will suffer a net loss. That is because many private wholesalers are organized by the International Brotherhood of Teamsters, another union noted for its aggressive defense of its members. MCGEO may prefer that wholesale alcohol employees pay dues to its treasury rather than the coffers of the Teamsters, but that is not a public policy concern that warrants large-scale extractions from county residents.
Myth 4. DLC is getting better.
George Griffin, the long-time Director of DLC, is a happy warrior and tireless defender of his agency. In 2005, Griffin was elected President of the National Alcohol Beverage Control Association (NABCA), a group of public alcohol organizations. He told NABCA of his efforts to continually improve DLC’s operations, including its new Enterprise Resource Planning program to increase efficiency and its installation of security cameras in warehouses. Griffin said, “POS (point of sale), inventory control, accounting, the warehouse, licensee ordering, buyers: they’ll all be tied together… from the retail stores, which will have running inventories, to our drivers, who will be equipped with handhelds.”
Years later, subsequent investigations revealed DLC to be anything but a model of efficiency. This past February, the county’s Inspector General found that DLC employees used “informal, handwritten notes” to track inventory, resulting in “significant decreases in the recorded quantities of warehouse inventories in FY2013 and FY2014.” NBC4 discovered DLC employees drinking and driving on the job and skimming cases of beer to sell on the black market. Restaurant owners have gone on the record with searing complaints about DLC’s service, with one even calling the agency an “evil empire.” Even Gino Renne, leader of the union that represents DLC’s employees and one of its biggest defenders, concedes, “This department needs to be more nimble.”
Myth 5. The County Council has called for “historic reform” at DLC.
On July 28, the County Council passed a resolution calling for a procedural change concerning some of DLC’s sales. The resolution is not binding but may be the basis for a future state-level bill, which is required to affect DLC. County Council Member Hans Riemer called the resolution “historic” in a mass email. But is it really?
The resolution addresses “special orders,” or products that are requested by DLC customers that are not part of its regular stock. These products are often specialty wines or craft beers that have not yet developed wide distribution in the county. Restauranteurs have complained for many years that DLC special orders are subject to long delays, big markups and substantial shortages, particularly when compared to the service offered by private wholesalers. The council’s resolution would allow customers to bypass DLC and deal directly with the private sector when requesting these items.
That sounds great except when considering the actual details of the resolution itself. Among other things, the resolution authorizes the county to establish a fee to “replace DLC estimated revenue lost by allowing the sale of special order beer and wines by private wholesalers.” That’s right, DLC would earn money on alcohol it does not even deliver. Multiple distributors testified at the council’s hearing on this resolution that the size of the fee, along with the additional cost of direct delivery to customers, might deter them from participating in this program. In other words, there would be no effective change.
DLC’s fee for doing nothing is reminiscent of Pepco’s “bill stabilization adjustment,” under which the utility was allowed to charge customers for power it did not deliver during outages. Many people condemned Pepco’s ability to charge for a service it did not provide. But Pepco is not part of county government. Perhaps that explains why what is unacceptable for Pepco is apparently acceptable for DLC.
The biggest myth of all is that DLC can be reformed from within by a series of small tweaks like this one. The idea resembles former Soviet Union leader Mikhail Gorbachev’s concept of “perestroika,” under which his communist government was expected to reform itself. The Soviet Union ultimately collapsed. But with its powerful protectors, DLC goes ever on.
Town of Chevy Chase Vice Mayor John Bickerman is a lawyer and 
mediator who is often quick to tout his legal talents, which makes it all the more surprising that he has failed to apologize for misleading his constituents on a key legal point related to his involvement in election shenanigans.
Specifically, as part of his defense for his support for a secret write-in campaign about which only the “right people” were informed as to who was running as a write-in candidate, Bickerman asserted in an email to the Town that it is a “Constitutional right” to be a write-in candidate. Wrote Bickerman:
A person’s right to be an a write-in candidate, and the corresponding right to seek others to vote for a write-in candidate is a Constitutional right that has been clearly acknowledged by the federal court of appeals for Maryland.
However, as Town Resident Ben Delancy has explained, Bickerman’s characterization of the law concerning write-in campaigns is simply wrong:
Mr. Bickerman and others on this board have frequently referred to a Fourth Circuit opinion confirming a constitutional right to have write-in candidates and campaigns. He suggests that any attempt to limit the ability to write-in would violate those constitutional rights. He finally implies that we would obviously understand all of this if we had bothered to consult with an election lawyer.
He is wrong.
There is no Fourth Circuit opinion holding that there is an absolute constitutional right to have write-in campaigns. There is a Fourth Circuit opinion, Dixon v. Md. State Administrative Election Laws, 878 F. 2d 776 (4th Cir. 1989), finding that it was unconstitutional for Maryland to impose restrictions on one group of write-in candidates (those who fail to pay a fee), but not to impose those same restrictions on other write-in candidates. The court did not hold that there is an absolute right to have write-in candidates because it was not asked to address that issue. In fairness to Mr. Bickerman, however, I acknowledge that the Fourth Circuit did refer to the ability to vote for a write-in candidate as a fundamental right, and that Dixon is sometimes cited for that proposition.
Nevertheless, it is perfectly clear that there is no such absolute constitutional right. The United States Supreme Court, in Burdick v. Takushi, 504 US 428 (1992), upheld a state’s complete ban on write-in candidates. If there was ever any debate about the impact of Dixon, that debate was ended by Burdick.
Given our Town’s election rules, which place very few limitations on someone’s ability to be a candidate, it is entirely likely that a complete ban on write-in candidates would be permissible and should be among the options considered.
Mr. Bickerman complains below that we are confusing the community, but I think it is perfectly clear who is causing confusion.
So either Bickerman–a lawyer himself–is misinformed on the prevailing Supreme Court law concerning write-in campaigns, or he intentionally misled people in Chevy Chase. Either way, he has yet to correct his mischaracterization of the law.
Bickerman also continues to refuse to answer questions posed by the Town Elections Board and Ethics Committee regarding his actions during the election. But his refusal to answer questions itself speaks volumes. Where an elected public official is unwilling to offer any plain account of his own involvement in a decidedly unethical campaign, his constituents will not have any trouble drawing their own conclusions.
