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Pigford and Discrimination
Does rectifying discrimination mean allowing widespread fraud?

Black farmers rally at the Agriculture Department in Washington, February, 2010.

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Daniel Foster

But even though the government found itself overwhelmed with claims — many of which were obviously fraudulent, and many of which were rubber-stamped anyway — in 2007 a young senator from Illinois (where about 0.0012 percent of farms are operated primarily by blacks) introduced an amendment to Congress’s annual “farm bill” that extended the filing deadline for Pigford claims by more than ten years, maintained the graft-magnet Track A route, and appropriated an additional $1.25 billion for payouts. The fellow then signed the selfsame bill when it finally reached his desk as president in 2010. Can you guess this young man’s name?

Now, as the Times report makes clear, once Pigford II was made law and its architect made president — well, all bets were off. Thus came new cases, Pigfords for other open-ended classes, such as women, Hispanics, and Native Americans.

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As with any class-action suit, the parties to the original litigation made extensive efforts to determine the size of the potential group of claimants and alert them to the settlement. They used USDA resources, mail, phone, and even radio spots and advertisements in Jet and Ebony magazines. And even after all of this, both parties agreed the original Pigford class was unlikely to exceed 2,500.

To review, we went from old Tim Pigford fighting a lonely fight, to a few hundred black farmers fighting alongside him, to a class that a federal judge and Pigford’s lawyers thought would max out at 2,500, to 100,000 and change original-Track-A claimants — the overwhelming majority of which were identified as those who had merely “attempted to farm” because they couldn’t prove that they had ever so much as operated a garden hoe in anger — to hundreds and hundreds of thousands of potential claimants in other protected classes.

Surely, somewhere in this decades-long, ever-expanding fraud, we trampled over the “reasonable middle ground” Drum is looking for. Perhaps when the number of claims started to wildly exceed the expectations of both the litigants and the court, they could have taken another look at the incentives. Perhaps after many of those Track A claims proved obviously fraudulent, they could have opted not to extend the filing deadline by ten years, or to do so only for Track B claimants. Perhaps when it came time to consider manufactured class-action cases for other groups, the government could have tried its luck in court, or at least insisted on better fraud safeguards when it inexplicably decided to roll over and settle. Or perhaps the president could have limited awards to the amount appropriated by Congress, instead of expanding the kitty by dubiously dipping into a DOJ fund meant for a different kind of case. All — any — of these things might have stopped or at least slowed the scam.

And the fact that none of them happened makes it tough to buy this clusterfrack as the result of good intentions gone awry, as Drum’s shoulder-shrugging, “whaddayagonnado” response implies.

As for Drum’s worry that setting the evidentiary bar too high sees true victims go uncompensated? Well, many in Timothy Pigford’s original cohort, who had been fighting the USDA long before the trial lawyers came around, were pressured by those lawyers to take the Track A route, since it was easier (and yielded virtually guaranteed fees for little legal labor). Many did just that, even in cases where $50,000 was well below the actual financial damage caused by discriminatory treatment. For these farmers the settlement was a band-aid, and many — including Tim Pigford himself — have since left farming all together.

But then, Pigford isn’t really about black farmers, or even about discrimination. It hasn’t been for quite some time.

— Daniel Foster is news editor of NRO.



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