Daniel Foster has responded to Mark Thompson regarding the "widespread fraud" in the Pigford settlement, but I have a couple of problems with both the original piece and his response. I just want to establish a couple of things first.
As the Congressional Research Service report notes, "as of November 2010, 15,642 (69%) of the 22,721 eligible class members had final adjudications approved." Foster says you'll "laugh out loud" at the necessary evidentiary standards for filing under Track A, but someone could have plausibly walked away from reading Foster's piece believing none of the 94,000 claims would be dismissed, when 31 percent of those in the original settlement were.
The claimants were required to show "substantial evidence" that they were entitled to part of the settlement. This doesn't fit neatly into an article, so it's understandable Foster didn't include it, but I'll just blockquote it here:
• a copy of the discrimination complaint filed with USDA or a copy of a USDA document referencing the discrimination complaint;
• a declaration by a person who was not a member of the claimant’s family, stating that the declarant had first-hand knowledge that the claimant had filed a discrimination complaint with USDA and describing the manner in which the discrimination complaint was filed;
• a copy of correspondence from the claimant to a member of Congress; the White House; or a state, local or federal official averring that the claimant had been discriminated against (except that, in the event that USDA did not possess a copy of the correspondence, the claimant also was required to submit a declaration stating that he or she sent the correspondence to the person to whom it was addressed);
• a declaration by a non-familial witness stating that the witness had first-hand knowledge that, while attending a USDA listening session or other meeting with a USDA official (or officials), the claimant was explicitly told by a USDA official that the official would investigate that specific claimant’s oral complaint of discrimination.
In his response, Foster alludes to the Big Government report that claims to cite testimony from "USDA workers who rubberstamped the claims." Adjudicating whether the claims have merit was not handled by the USDA; it's handled by a court-appointed third party, who is backed up by another court-appointed monitor who double checks the claim. The USDA can provide evidence as to whether or not a particular claim is false, and I'm guessing that might be what he means.
Let me just point out, though, that if 31 percent of the claims are being denied, it literally means they aren't being rubber-stamped. The reason the terms were so generous was that, as Media Matters points out, folks at the USDA were literally throwing complaints into the trash, making documentation on the government's end difficult. There's basically a choice here -- you can make it easier to prove a claim and risk that some terrible people will try to defraud the government, or you can make it so difficult that a number of people with legitimate claims won't be able to prove they were discriminated against. In either case, it's possible, even likely, that some people who deserve money won't get it and some who don't will. But that doesn't amount to "massive fraud," nor do I think it discredits the entire process.
Fortunately, if you believe that the old terms were too generous, there are additional fraud protections in the Claims Resolution Act, that further empower the claims adjudicator and gives access to claims information, including the names and address of the claims filers, to the GAO. Not that you'd know that from Foster's piece. Chances are if/when someone tries to file a fraudulent claim, both we -- and Congress -- will hear about it.
Around 74,000 people filed claims past the deadline, the vast majority of these were dismissed for not meeting the deadline. The large number of late claims prompted the Senate to pass -- unanimously, I might add -- a second settlement.
$1.15 billion was approved to address the claims that weren't handled by Pigford I. The total number of dollars anyone has been paid from this is zero. Every single one of the late claimaints who didn't squeak through under Pigford I will have to refile, and according to the USDA, not a single claim has been filed yet because the court hasn't assigned an adjudicator. It'll be another two to three years before any Pigford II claims are adjudicated.
That's what makes the allegation of "94,000 phantom farmers" are getting payouts inaccurate. Foster never mentions that only around 16,000 have seen any money at all, while around 7,000 other claims were denied ("the gravy train shows no signs of slowing down"). He's using the total number of claims filed in the past, leaving the reader with the impression that all of them will be approved, even though all the late filers have to refile. His original piece also leaves the impression, both in his discussion of the evidentiary standards being used for Track A, and the use of the 94,000 number in his conclusion, that everyone is just getting handed a check by the USDA. Just get your friend Carl to say you were a black farmer.
Foster finds the USDA's widespread, systemic discrimination against black farmers to be inconceivable, because of the scale involved. "Centralized, top-down, discrimination by the federal government would be awful but plausible, the sheer number and geographic scope of the claims suggests a remarkable universality." I find that to be an astonishing argument. Jim Crow was not a "centralized, top-down affair"; it was a matter of "local administration." "Local administration" is how segregation worked; it's how Southern Democrats did things like ensure the benefits of the New Deal would be restricted to whites.
I also had a really visceral emotional reaction to Foster's original conclusion:
At a December 8 signing ceremony, President Obama heralded Pigford II as the close of “a long and unfortunate chapter in our history.” In a way, one hopes the president is right—that the credulity, or perhaps the shame, of the American government and its taxpayers cannot be strained to accommodate the petty greed of more than 94,000 phantom farmers, and that the con will finally have run its course. But that is unlikely. Two Pigford style class-action suits—one for Hispanic farmers, another for women—with the potential to dwarf current settlements are working their way through the courts. Like so many Pigfords to the trough.
Look, the genteel white populism of this paragraph can't be explained away. Not only have those greedy black frauds stuck their snouts into your wallet, but the Messicans and womens are on their way. There's simply no way to credibly pivot from a statement like this, which attacks the very idea of financial restitution for past wrongs, to genuine concerns about farmers who deserved money that didn't receive it because of the settlement terms.
Historically speaking, according to the Congressional Research Service citing an internal USDA report tracking their practices between 1990 and 1995, the crowd at the trough actually looks considerably less diverse:
According to the commissioned study, few appeals were made by minority complainants because of the slowness of the process, the lack of confidence in the decision makers, the lack of
knowledge about the rules, and the significant bureaucracy involved in the process. Other findings showed that (1) the largest USDA loans (top 1%) went to corporations (65%) and white male farmers (25%); (2) loans to black males averaged $4,000 (or 25%) less than those given to white males; and (3) 97% of disaster payments went to white farmers, while less than 1% went to black farmers. The study reported that the reasons for discrepancies in treatment between black and white farmers could not be easily determined due to “gross deficiencies” in USDA data collection and handling.
Shortly afterward, Agriculture Secretary Dan Glickman suspended farm foreclosures and ordered an investigation into the matter. Before then, no one had been particularly bothered by it, for obvious reasons. Some snouts are more welcome at the trough than others.
I have no doubt that some people will try to defraud the government out of money here, nor do I discount the possibility that some have. Frankly, I think the bigger worry is that some people who deserve money will be bilked out of it by people posing as agents or lawyers and promising to ensure, for a fee, claimants get their settlement money. A class-action settlement is a juicy target for con artists. Those people deserve to be in jail. The fact that some people will try does not invalidate the government's effort to rectify past wrongs.
Finally, I just want to address Foster's original nut graf:
And in finally securing justice for himself and the few hundred farmers who first joined his class-action suit, he’d unwittingly set off an injustice greater than the one he sought to rectify: one that would involve the waste of billions of dollars, systemic fraud implicating top federal officials, the unseemly electioneering of two presidential campaigns—even murder.
Maybe I'm missing something here, but I don't see how Foster has proved that billions were wasted or that there is systemic fraud in the Pigford settlement. It's only "unseemly electioneering" if you pretend there wasn't substantial bipartisan support for the settlement, or if you think the president is unmoved by racial injustice and merely spends his entire day thinking about how to get whitey's money. The idea that the settlement itself is responsible for people who planned to defraud the government by making a false claim and murdered a witness they feared might talk is just stupid. But this paragraph certainly reflects the ideological disposition of most conservatives -- that efforts to rectify past racial injustices always create "more injustice" than the original crime.
Anyway, Dan and I are doing Bloggingheads on Monday so in case you're not sick of this there's more to come.