Dan Foster, a young staffer at National Review, published a 2010 story about a class-action lawsuit against the federal government that resulted in "the waste of billions of dollars" and "systemic fraud implicating top federal officials." He wrote that the scandal touched President Obama himself, that countless payouts were made to people falsely claiming racial discrimination, and that more fraud was likely in successor lawsuits filed on behalf of women and Hispanics.
Two days after the National Review story appeared online, Nancy Scola, a progressive journalist, commented on the same suit at The American Prospect. "This is one of those times that government works that Paul Waldman wisely counsels us to celebrate. So, a few words of praise for the real progress made by President Obama's negotiation of the Pigford agreement," she wrote, giving a brief history of Pigford vs. Glickman, a case originally triggered by outrageous racial discrimination against black farmers. Resolving the subsequent class-action lawsuit was, she concluded, "a demonstration of what's possible when a handful of politicians sets priorities and then diligently navigates the process to bring them into being."
The few who frequent both National Review and The American Prospect could be forgiven for their confusion. The insular worlds of conservative and progressive journalism encompass ideological hacks, but neither Foster nor Scola fit that description, as their regular readers know. How did two smart, honest journalists, riffing on the same news, reach such strikingly dissonant conclusions? Branching out beyond their work wasn't much help. The class-action lawsuits were too complicated for the uninitiated to quickly assess. Conservative and progressive journalists had wildly different takes. And the story was mostly ignored by news organizations without an explicitly ideological mission. Everyone seemed to agree that the USDA had a history of discriminating against black farmers and that compensating Timothy Pigford, the original plaintiff, was justified, as were payments to an unspecified number of other black farmers who actually faced discrimination when seeking federal farm loans.
It is probably also true that the ideal claims process would reluctantly permit some false claims to be paid, since a standard of proof that would stop all fraud would also deny some legitimate claims.
Did the people involved in Pigford and its successor lawsuits deserve credit for helping to compensate victims of discrimination? Or blame for squandering many millions of dollars on false claims? Did the Pigford settlements with black farmers establish a useful precedent that could be applied to Hispanic and female bias claims? Or was it a cautionary tale of real discrimination being exploited by pandering politicians and hucksters trying to enrich themselves? When Pigford faded from the headlines, conservatives and progressives were dug into their respective narratives, taking almost opposite lessons from the class action lawsuit.
And then, three years later -- late last month --The New York Times published a major story on the case and its legacy. It vindicated many of the conservative suspicions about the case. "The compensation effort sprang from a desire to redress what the government and a federal judge agreed was a painful legacy of bias against African-Americans by the Agriculture Department," Sharon LaFraniere wrote. "But an examination by The New York Times shows that it became a runaway train, driven by racial politics, pressure from influential members of Congress and law firms that stand to gain more than $130 million in fees. In the past five years, it has grown to encompass a second group of African-Americans as well as Hispanic, female and Native American farmers. In all, more than 90,000 people have filed claims. The total cost could top $4.4 billion."
The Times went on to report that:
- Political appointees in the Obama Administration overruled career lawyers and agency officials at the Justice and Agriculture Departments, committing $1.33 billion to compensate "thousands of Hispanic and female farmers who had never claimed bias in court," even though the civil servants argued that there was no credible evidence of widespread discrimination.
- The template for payouts Team Obama adopted was a magnet for fraud.
- "From the start, the claims process prompted allegations of widespread fraud and criticism that its very design encouraged people to lie," but "those concerns were played down as the compensation effort grew."
- "... Even now people who say they were unfairly denied loans can collect up to $50,000 with little documentation."
In a 2010 settlement with Native Americans, Justice Department lawyers "argued that the $760 million agreement far outstripped the potential cost of a defeat in court. Agriculture officials said not that many farmers would file claims. That prediction proved prophetic. Only $300 million in claims were filed, leaving nearly $400 million in the control of plaintiffs' lawyers to be distributed among a handful of nonprofit organizations serving Native American farmers. Two and a half years later, the groups have yet to be chosen. It is unclear how many even exist."
- An internal Agriculture Department memo from 2010 stated that the payouts to women and Hispanics would be "a way to neutralize the argument that the government favors black farmers over Hispanic, Native American or women farmers."
- 15 Agriculture Department employees who reviewed or responded to claims "said the loose conditions for payment had opened the floodgates to fraud."
- Said Sandy Grammer, a former Agriculture Department program analyst who reviewed claims for three years: "Basically, it was a rip-off of the American taxpayers."
- One Arkansas prosecutor rejected a test case against someone who admitted to lying on his claim form, saying that singling him out could raise the question of selective prosecution: "The defendant could go to the jury and say: 'Everybody else did this. Why am I standing here?'"
- "In one ZIP code in Columbus, Ohio, nearly everyone in two adjoining apartment buildings had filed."
There's a lot more to the Times story, including a remarkable final scene. Suffice it to say that, upon examination, Pigford was not, in fact, "one of those times that government works." In hindsight, the progressive media's coverage of Pigford and its successor lawsuits is revealed to be deeply flawed. At various points, progressive writers pointed out real flaws in conservative coverage. In doing so, they remained oblivious to the fact that concern over massive fraud was warranted, and wasn't confined to rabble rouser Andrew Breitbart*.
The coverage at Media Matters is one cautionary tale. If you pick your least favorite writer and cover a complicated story almost entirely through the prism of what you think he got wrong, you're extremely unlikely to give your readers an accurate sense of what's happening in the real world.
Yet even the progressive writers whose work I find most careful, accurate and valuable got this story wrong in important ways. Adam Serwer took time to dig into Pigford and provided some useful correctives (and some critiques with which I disagree) to conservative coverage, but also wrote, in one particularly uncharitable post, "the pervasiveness of conservative anger over the Pigford settlement augurs a new low for conservative anti-anti-racism, in which remedying an exhaustively documented instance of racial discrimination is objectionable not because the claim itself is illegitimate but because it represents a transfer of income from whites to nonwhites."
In fact, the vast majority of conservatives were upset by the widespread fraud, the perception that cynical racial politics helped enable it, and the related fact that hucksters were exploiting a widespread desire to redress discrimination by stealing from all taxpayers, nonwhite ones very much included.
Responding to the New York Times piece at Gawker, Cord Jefferson writes that "the details in this story guarantee it will be talked about constantly in conservative media circles for the foreseeable future: minority groups filling their coffers by scamming the U.S. government, unscrupulous lawyers abetting the scheming, a black president pressing for lots more money that went to fraudsters, conservative protestations ignored .... The final scene of the article, in fact, which depicts a man who's made it his job to help black people get Pigford money saying to an entire church that they should file discrimination claims, is so wanton and grotesque it almost seems like a bit of right-wing fiction." I think he's onto something. The malfeasance in the Pigford case fits the progressive stereotype of the sort of thing the right wing would make up. Perhaps that helps to explain why so many progressives who dug into the case failed to see the whole truth.
Jefferson goes on to lament that "many will look at Pigford as further evidence that blacks are lazy takers and that federal programs intending to right America's historical and racist wrongs are always wasteful. In other words, it's going to give fuel to racists who will in turn go on discriminating against blacks and Latinos, who will in turn push for institutions to help them get ahead in a racist country."
Racists who already believe blacks are lazy takers will continue to think so regardless, but I don't think we ought to treat their bigoted opinions as if they're influential, and I doubt this case will create converts to that position. The conservative line is explicitly that some of the biggest victims in this case were black farmers who actually suffered discrimination and are sharing settlement money with a bunch of people who didn't. Most critics of the Pigford settlement understand that offering any racial group, or any other group, an easy opportunity to make tens of thousands of dollars defrauding the government will result in widespread fraud. And black people told about the fraud, including black people with real discrimination claims from the initial Pigford settlement, are just as upset as anyone by the hucksters.
Another one of my favorite progressive writers, Kevin Drum, responded to the New York Times story as follows:
The problem here is one that's common in discrimination cases: even after you've agreed that illegal discrimination happened in general, how do you decide which individuals were discriminated against? Proving individual discrimination is incredibly hard, because in most individual cases there are plenty of plausible reasons for the discriminatory action. This was doubly hard in the Pigford cases because the Agriculture Department simply didn't keep records of lots of the loan applications in questions, and there were never any applications in the first place for people who were flatly turned down before they could even apply.
Given that, you have two choices. You can either set a high bar for evidence of discrimination, knowing that it will unfairly deny compensation to lots of people who were treated wrongly. Or you can set a low bar, knowing that this will unfairly give money to lots of people who don't deserve it. Roughly speaking, it sounds like the government chose the second course, and lots of money has been paid out to people who never farmed, never applied to farm, and never had any intention of farming. But it was raining money, so they put out their hats.
It's worth noting that there didn't even seem to be agreement that discrimination happened in the case of the class actions filed on behalf of Native Americans, Hispanics, and women, but Drum definitely captures the line policymakers must walk in discimination cases. He loses me when he goes on to say, "It's hard to know what to think of this. Obviously it's hard to understand why the Agriculture Department didn't adopt a stricter standard, one that wouldn't have paid out thousands of fraudulent claims to people who didn't deserve it." Is it really hard to understand? After investigating the subject in great depth, The New York Times has reported that payouts were "driven by racial politics, pressure from influential members of Congress and law firms that stand to gain more than $130 million in fees." Numerous politicians stood to benefit from lax standards, and opponents of the bill were blatantly cast as having "named themselves racist." And once everyone saw how easy it was for black claimants with no evidence of discrimination to get paid? One of the attorneys for Hispanic claimants said, "Once the government puts a program in place for one racial group, even if it decides it is too generous, it cannot adopt a different set of restrictions for another racial group. It's outrageous."
Said a UC Berkeley professor who studied the matter in great depth, "I was so disgusted. It was simply buying the support of the Native Americans." How can Drum not understand, after all that, why the Agriculture Department didn't adopt stricter standards? It's as if progressives writing about Pigford are blind to the fact that plaintiffs' lawyers and identity-based interest groups exert influence in politics just like corporate interest groups, industry interest groups, defense contractors, and every other constituency that participates in lobbying the U.S. government. Not all claims of cynical racial politics are bogeymen dreamed up by bigoted conservatives.
Every powerful interest group has its excesses.
To mark the 30th anniversary of Washington Monthly, Nicholas Lemann wrote an essay in which he observed that the magazine's original mission was "figuring out how to make specific government policies and agencies work effectively to help ordinary people who need it." I have yet to see an article from a progressive or a liberal that takes a hard look at the excesses of Pigford and its successor cases and addresses how, in the future, government policies and agencies can more effectively help the ordinary people who need or desserve it without squandering money enriching people who don't, along with their lawyers. Speculating about the racist motives of Pigford critics is evidently a more urgent priority, judging from the coverage so far. Then again, it wouldn't shock me if Washington Monthly already has that article assigned.
*The late polemicist's presence looms over the Pigford case because, before his death, he talked about it constantly. Since the New York Times story ran, his fans and the site that bears his name insist his obsession with the case has been vindicated. I'd agree to that narrow point: Breitbart was correct that Pigford and its successor settlements warranted far more scrutiny than they got from the media. At the same time, I can't blame journalists for ignoring Breitbart's claims. He'd already proved himself unreliable at that point in his career for reasons that everyone outside the conservative movement already understands. For the subset of conservative readers who don't understand, it's hugely important to your prospects that you try.
Here's the thing:
Everything opinion journalists comment on that we haven't reported ourselves involves a degree of trust. Sometimes when I'm trying to decide whether to approvingly cite another journalist's work, I imagine myself being cross-examined in an adversarial manner, and try to think if I could defend treating their work with the presumption that it is correct, even if it later turned out that they made an uncharacteristic mistake that I unwittingly passed on. (If I cited Jayson Blair you'd all laugh in my face, correct?) The New York Times isn't perfect, or free from bias, but they do their best to get the facts right, issue corrections, and even employ a public editor for an extra layer of accountability. I can defend citing them. Dan Foster of National Review isn't perfect. But I've read his work for a long time, know that he does his best to get everything right, and appreciate that he was willing to debate a critic of his Pigford piece in a neutral forum. I can defend citing him. Were I to run with a Breitbart scoop, an adversarial attorney could say, "Mr. Friedersdorf, isn't it true that the only time you wrote a column that treated a scoop published by Breitbart as if it was accurate you had to correct the record in a subsequent column? Isn't it also true that Breitbart misled his audience about you personally in a way that would've seriously damaged your career if anyone had believed him, that you alerted him to that fact, and that you complained bitterly when he wouldn't correct the record? Additionally, are you aware of the fact Breitbart.com published an article claiming that Lyndon Johnson drunkenly dropped a nuclear bomb on the United States, that they failed to correct that claim after it was publicly mocked, and that they didn't even correct it when the author of the piece disavowed it?"
"Yes, that's all true," I would have to say.
"So how can you defend citing his work?"
"Um, I can't."
"How many times have you seen serious errors documented in the work published at Breitbart.com, with no correction issued? Multiple times?"
"The nuclear bomb claim is still up today, correct?"
"How can you defend citing their coverage?"
"Um, I can't."
Everyone makes mistakes. People and sites that fail to correct the most serious mistakes after being alerted to them to lose the ability to get me interested in what they're writing about because I can't trust any of it. There are too many honest journalists and important, undercovered stories to chase allegations made by people with a deserved reputation for carelessness and dishonesty. Much of the media felt that way about Breitbart, having been burned by chasing stories he broke only to find out that lots of the details he ran with were wrong. (Unfortunately, there are more careful writers at Breitbart.com who suffer due to their affiliation.)
I don't know if George Will or John Stossel could've gotten more people in the mainstream media to pay attention to fraud in Pigford, but I understand why Breitbart and Breitbart.com couldn't. (I wrote about the case when National Review covered it. And addressed critics in a tedious post here.) For another specific example of Breitbart.com's refusal to remedy its mistakes read the story of Juan Carlos Vera.
For what it's worth, conservative bloggers choosing to frame Pigford as "see, Andrew Breitbart was right" rather than "see, Obama enabled massive fraud in part because he was trying to buy off progressive interest groups" have a very strange notion of conservative punditry's purpose.