Why This Isn't Already Done

This is something I just posted on the "Abolish the PLCB - Rewrite The Code!" Facebook group page (a group you're certainly encouraged and welcome to join). A new member was full of righteous rage and wanted to know how to get privatization and said we needed to force Harrisburg to change this. Frankly, I wish we could. But 12 years of writing and editing this blog, and all the activity that went with it, has taught me patience, the patience needed to wear away a stone. Here's what I've learned, here's how it's got to be done.  

For the new readers: I've been trying to push this rock for twelve years. I've been to Harrisburg to attend hearings and lobbying meetings, I've testified before a joint committee of the legislature once, I've made friends with a number of reporters and fed them info and ideas. Some small progress has been made, but...a reality check is needed. This is an uphill fight, although the PLCB's huge failures in the past month are a great opportunity.

Here's why.

I was so spunky back then.

I had a lot of schemes and ideas when I started working on this back in 2008. The tough truth is that there isn't anything that can be done until a MUCH larger number of voters are actively engaged on the issue. And that's not easy, because of a few factors.

1. People are liable to be embarrassed to stand up for their booze rights. "It's only a drink, it's not important." Polls usually show that people are willing to be taxed more for drinks, even though they already are.

2. Many Pennsylvanians just don't know any better. They've never gone out of state to buy booze, so the State Stores' adequacy is all they know.

Dezinformatsiya...UFCW style

3. The other side, largely through the union that represents the State Store clerks, UFCW Chapter 1776, does a great job of shaming anyone who supports privatization: "You're a drunk! You just want more alcohol! This will cost thousands of family-supporting jobs! The PLCB gives MILLIONS to the state, to police, to communities! There are much more important things that need to be done!" And people back off, because that SOUNDS reasonable.

4. There's a LOT of deeply-believed misinformation and ignorance about the situation. That the PLCB is a cash cow (it's not), that it serves us well (with only 600 stores in a state where 5,000 would be average, how can they?), that it's not illegal to buy booze out of state (it absolutely is). People are constantly amazed about the existence of the Johnstown Flood Tax, they believe it's illegal because "it's a tax on a tax" (completely not illegal to do that), without ever realizing the huge layer cake of taxes and fees that boost the shelf price of booze in PA.

5. The PLCB is absolutely brilliant at assessing the threat of privatization, and doing just enough to make people think they're improving, and the threat decreases.

Despite all this, we will have to get millions of them on board, because the Legislature cannot be moved otherwise.

Democratic legislators block-vote against this; in over 10 years, not one has ever broken ranks that I can recall. Republicans from southeast PA are likely to flip-flop on it: they face more pressure from unions here, and from a highly-organized group of beer sellers who'd just as soon see their competition run incompetently. It's a powerful combo. Speaker Turzai has tirelessly campaigned for privatization (he's retiring after this term), but the Senate has balked on it, and Wolf will not sign a full privatization bill. Without Democratic votes, there's no way to override him.

Privatization? No. HELL no.

The courts won't do anything because of the 21st amendment; states have very broad power to regulate alcohol.

The Board itself is, naturally, only interested in preserving the agency. The three members are traditionally appointed 1 each by the legislative GOP, Dems, and the governor, so no real help there.

THE ONLY THING THAT WILL WORK is getting fellow citizens involved. Writing letters to newspapers, reminding people how badly the PLCB handled literally everything in this crisis, reposting on Facebook.

Like it says at the top of the blog,

"...there was [in 1997] no overarching passion within the General Assembly, or in the public at large, for privatization. Unless and until there is a general hue and cry, it is very unlikely there will be a privatization initiative that succeeds." -- John E. Jones III, former PLCB chairman

What could Tennessee Wine and Spirits Retailers Association v. Thomas mean to Pennsylvania?

I am not a lawyer, and some or all of my thoughts could be right or wrong, so maybe this post should be filed under wishful thinking, but...there seems to be a crack in the control wall. It's from the hammer blow struck by the Supreme Court's decision in Tennessee Wine and Spirits Retailers Association v. Thomas, handed down on June 26. Take a look with me and see what you think. 

The future of the PLCB?

The facts of the case:

To sell liquor in Tennessee, you need a license from the Tennessee Alcoholic Beverage Commission (TABC). That's pretty normal...in states where private liquor stores are allowed. But there was a catch in Tennessee. Under Tennessee Code, to get a license, you must have been a resident of the state for two years. There was a ten year residency required to renew a license, so don't plan on leaving. And yes, the same requirements were there for corporations.

The case stems from two license applications that did not meet the residency requirement. The TABC was planning to approve their applications anyway...until the Tennessee Wine and Spirits Retailers Association informed TABC that if they did, they planned to sue. (You know...to protect their competitive advantage.) The TABC preemptively went to court to determine the constitutionality of the requirement. The district court ruled that it violated the dormant Commerce Clause of the U.S. Constitution (Been saying that about the PLCB for years! -- Lew). The Sixth Circuit affirmed, and it was off to the Supremes, because the Association wasn't giving up on their anti-competitive lawsuit. 

Cracking the wall around the 21st Amendment

The Supremes Say: 

In a 7-2 decision (Justices Gorsuch and Thomas dissenting), the court found that: Under the dormant Commerce Clause, notwithstanding the Twenty-First Amendment, a state may not regulate liquor sales by granting licenses only to individuals or entities that have met state residency requirements.

The 21st Amendment has long been held to allow states free rein on writing laws controlling the sale of alcohol within their borders. Section 2 of the Twenty-First Amendment states: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

But a number of Supreme Court decisions since the 1990s -- 44 Liquormart, Granholm, etc. -- have been chipping away at the absolute nature of such control. Tennessee Wine and Spirits takes that quite a step further. The Court’s Commerce Clause jurisprudence holds that “a state law that discriminates against out-of-state goods or nonresident economic actors can be sustained only on a showing that it is narrowly tailored to ‘advance a legitimate local purpose.’” Tennessee’s residency requirement clearly favors residents over nonresidents, hard to justify as a "legitimate local purpose" in the face of the Commerce Clause.

That's just what the Supreme Court found. The Court noted that at the time the Eighteenth Amendment (nationwide prohibition) was ratified, it had already been established that the Commerce Clause prevented states from discriminating against the citizens and products of other states. Against this backdrop, when the Twenty-First Amendment was ratified, “the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations.” Thus, while § 2 of the Amendment gives states latitude with respect to the regulation of alcohol, it does not allow them to violate the nondiscrimination principle.

(A discrimination, maybe, against every citizen and entity who would like to sell alcohol in competition with the state's police-enforced monopoly?)

The Court concluded that protectionism is not a legitimate local purpose and that the residency requirement “has at best a highly attenuated relationship to public health or safety.”

My Opinion
Our state law does discriminate against out-of-state citizens and out-of-state economic actors. It also imposes police powers to maintain and enforce protectionist measures. Read the beginning of the Liquor Code Section 104(a):"This act shall be deemed an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth and to prohibit forever the open saloon, and all of the provisions of this act shall be liberally construed for the accomplishment of this purpose."

In the above decision, the Supreme Court held that "Protectionism is not a legitimate local purpose" and stresses the REGULATORY authority, not monopoly authority of the state. But does that make Pennsylvania's Almighty Liquor Code invalid? That just might be the next question the Court will have to decide. How much does the 21st Amendment give the states the right to impose protectionist, monopoly, discriminatory measures, instead of regulation that allows the intent of the Commerce Clause? How much does it matter if the state allows private retailers or only state store sales?

As I said, I'm not a lawyer. But it does make me think of what might be coming down the road at some point. I think that Costco and Total Wine teaming up will have the resources to get it done and none too soon for me.

Privatize.