Date: Thurs, December 16, 1999 1:45:15 PM
Subj: Ben & Jerry's Breakfast
The Competitive Enterprise Institute was serving Ben & Jerry's ice cream this morning. The occasion was a press conference announcing that CEI had filed a false advertising complaint against the makers of Cherry Garcia.
Ben & Jerry's is quite concerned about the environment and quite supportive of Greenpeace, on whose board company co-founder Ben Cohen sits. The company combines these affections by producing "dioxin free" containers (ECO-Pints) and citing the Greenpeace party line on why this is a good thing in such adver-informational pamphlets as "Our Thoughts on Dioxin." One such thought is, "The only safe level of dioxin exposure is no exposure at all."
The problem: Ben & Jerry's packaging may be OK, but the company's ice cream, according to certified lab results, contains a heap of dioxin–nearly 200 times the amount the Environmental Protection Agency considers safe.
Such hypocrisy is more than the folks at CEI could take. According to CEI General Counsel Sam Kazman, the institute believes the federal government serves two legitimate purposes: to protect against force, which is why the military is OK, and to protect against fraud, which is why some folks at CEI consider the Federal Trade Commission legitimate. Today CEI has called on the FTC to investigate Ben & Jerry's for false advertising. Hence, I got ice cream for breakfast.
CEI is known for such creativity. In 1995, after the FDA announced it could regulate cigarettes as nicotine delivery devices, the folks at CEI embraced the model and called on the FDA to regulate colas and coffee as caffeine delivery devices. Purveyors of such products, after all, market them heavily to children even as they manipulate the levels of caffeine. And everyone knows that caffeine has pharmacological effects. This stunt cost CEI the support of Coca-Cola, according to Sam Kazman, and they weren't even serious.
This time, however, they are. To prove it, they presented retired government biologist Michael Gough, who has been studying dioxin since 1979 and served on the EPA's scientific advisory board on dioxin.
At 10:05 a.m., Sam Kazman stepped behind the podium and, with five or six empty containers of Ben & Jerry's ice cream to his right, articulated the complaint. By claiming that its packaging is dioxin free, he said, Ben & Jerry's is committing two well-established legal violations: deception by omission of material fact–in this case, that the ice cream contains dioxin–and deception by implication–in this case, the implication that the ice cream doesn't contain dioxin.
Kazman used a hypothetical kosher restaurant to illustrate the violations. Suppose a restaurant advertised it was kosher by claiming to maintain separate utensils for the handling of dairy and meat products, but didn't tell customers that the beef it served wasn't kosher. This would be false advertising.
Kazman doesn't claim a health hazard, nor did the scientist Gough. Indeed, a point of the exercise seems to be to get Ben & Jerry's to admit that ingesting a little dioxin, even if nearly 200 times what our government deems safe, has no health consequences. Said Kazman, "If Ben & Jerry's believed what they were saying, it would not be selling this product."
The harm the company is inflicting on its customers, like that of the hypothetical kosher restaurant, is spiritual, not physical. Greenies simply have the right to know that they are eating dioxin when a spoonful of New York Superfudge Chunk passes over their lips and down their gullets.
Hot on the breaking story, I walked directly to my office after eating a Dixie cup of Chocolate Chip Cookie Dough and called FTC Commissioner Orson Swindle's office for comment. Swindle, who bunked with Sen. John McCain (R-Ariz.) in a North Vietnam prison camp, seems like a fellow who likes a bit of ice cream–a taste an aide I got on the phone would neither confirm nor deny. He chuckled when I described the complaint, this being the first he heard of it, and asked me to fax it over. I'm still waiting for comment. I then called Burlington, Vermont, for comment from Lee Holden, the Ben & Jerry's public relations specialist whose name and number appeared on its ECO-Pint press release. He never returned my call.
Date: Thurs, December 16, 1999 4:36:35 PM
Subj: A Nonadversarial Approach to Sexual Harassment
"I do not call a woman a bitch. I do not call them a ho either," offered a young man yesterday at a Cato Institute forum on sexual harassment, proving the axiom that a microphone should be ripped from anybody who prefaces his remarks with, "I don't have a question, but a couple of comments." He was attempting to make the point that he thinks sexual harassment is a generational thing, as if our grandfathers popularized the couplet "bitches and hos." In so doing, he managed to plug his book-in-progress, The Future of Civilization, mentioning that it would be bound in two volumes.
Joan Kennedy Taylor, author of What to Do When You Don't Want to Call the Cops: A Non-Adversarial Approach to Sexual Harassment (NYU Press), was the featured speaker, with University of Virginia law professor J.H. Verkerke commenting on the book. The nut of the book, Taylor told me over the tail end of Cato's standard lunch of sandwiches, potato chips, and cookies, is that as women complete their infiltration of even the most sacrosanct of male workplaces, sexual harassment is going to become a non-issue.
There will be bumps along the way, of course, primarily because men often don't know how to treat a woman in such environments. Women must recognize that men develop cultures that allow them to cooperate but that also have anti-women components: the use of foul language, the embrace of sexual jokes, and the tolerance of pornography. "Women," says Taylor, "have to recognize that this predated them and is not an attack on them." Men in these situations simply don't know how to treat women as colleagues. They either treat a female co-worker like they treat women outside of work, giving deference with healthy dabs of honey, or treat her like one of the guys. Men get in trouble either way. What is needed, in most cases, therefore, is not a lawsuit but better communication.
Which brings us to Taylor's response to Cato analyst Darcey Olsen, who, as a libertarian looker, often finds herself as a minority inside a minority. Olsen asked what advice Taylor had for men in a majority position, presumably all those beasts at Cato. "The first thing they should realize is that they have habits that women find offensive," Taylor said. No shit. Taylor then used the military as an example. "They used to drill [chanting] `rape, kill, mutilate,' " she said. "Obviously women are going to change this."
One of the great things about these events is that they are open to the public, and sometimes members of the public attend. A woman describing herself as an activist at her daughter's high school said high schools are experiencing problems with girls being approached by lesbians. This is just the type of probing comment nobody in polite society wants to deal with. Taylor dodged by saying such harassment was covered by Title IX, and that she hadn't studied it.
The professor spoke up, saying that the Supreme Court has established a different standard for school cases. He seemed a bit distressed that schools actually have to be notified of the alleged harassment and fail to take action in order to be held liable. That sounds about right to me. But then "boys will be boys," was still an excuse when I was in school.
Date: Fri, January 7, 2000 2:40:37 PM
Subj: How They'd Govern
Newsweek's Eleanor Clift and The Washington Post's E.J. Dionne Jr. were talking in the doorway. Former congressman Dan Rostenkowski sat at the dais. "Dave, good to see you," he greeted The Weekly Standard's David Brooks in a deep, weathered voice that was audible to me in the fourth row.
It was Tuesday, and the American Enterprise Institute, in conjunction with the Brookings Institution and the Hoover Institution, was kicking off the first of four forums titled "How Would They Govern?" Bill Bradley was today's topic of discussion. Thursday it's John McCain's turn. Next week Al Gore and George W. Bush will be examined.
The purpose, in the words of Thomas Mann of Brookings, is "to make campaigns conducive to government rather than antithetical to it." It's a noble goal, and one suitable for these august institutions. But it's awfully hard to accomplish. Where does one find a disinterested analyst in this city? The elected officials they set up for the first two panels are either active supporters of the candidates–Rep. George Miller (D-Calif.) for Bradley and Sen. Chuck Hagel (R-Neb.) for McCain–or disgraced former politicians now lobbying their former colleagues, seeking redemption, or a combination of both.
Rostenkowski, recently released from prison, was the most believable of the bunch. Bob Packwood had a sexual harassment problem for which the Senate Ethics Committee recommended his expulsion in 1995, causing him to resign on principle. He's now a lobbyist. Then there's former Minnesota Sen. David Durenberger, a goofy fellow who had nothing interesting to say and kept referring to himself in the third person. I knew there had to be something shady in his past. Sure enough, according to The Almanac of American Politics, there was a laundry list of ethical problems, including an indictment for financial misdealing, that cut his already too-long political career short in 1994. From his comments, he now appears to be lobbying on long-term health care issues.
It's tough to get at the core of a person, even with an insider group of the still and formerly powerful. No one can resist the temptation to kiss the butts of the candidates. For some, such as McCain press secretary Dan Schnur, this is because they are paid to say only good things and are good at what they do. For others, it's because they are unabashed partisans. Hagel, who's on McCain's national steering board or some such thing, was spewing so much bullshit the room started to stink. The journalists were the most objective, and the most useful. But even they are hemmed in by considerations of future access and the fact that much of the good information is off the record.
In one of the forum's high points, co-moderator Brooks read a recent Bradley response to the question, Why are you running? "I think we are good people," read Brooks. "There's a goodness in every one of us, and we can see it in our neighbor, and if we can see it in our neighbor, then that allows us to have more connection, and if we have more connection, then we are less fearful and less lonely, and then with less loneliness we can begin to see the whole, and when you see the whole, you see our collective possibilities, so that's the real reason I am running."
Brooks then asked Rostenkowski: 1) How would Boss Daley respond to a politician who speaks like this? 2) Does he resemble Jimmy Carter? 3) Can a politician who speaks like this pass legislation?
Rosty, who worked with Bradley to pass the 1986 Tax Reform Act, said he didn't know a Bill Bradley who talked like this. The Bradley he knew was incredibly detail-oriented, hard working, and in Rosty's office so much that he thought Bradley was part of his staff. Rosty said that he'd had problems with what he called "the wet head gang," members on the committee who were in the gym all the time and came to votes with wet heads from recent showers. Rosty, who still holds forth as if he's running his committee, asked Bradley to head to the gym to work on those folks. Bradley said he had made a commitment to himself that he wouldn't play basketball while in the Senate. "Bill, do you want a bill?" Rosty recalled saying. "Do you want a bill? Then get down to the gym." Bradley went down, and the wet heads came around.
Bradley's other great legislative accomplishment was reform of the federal water projects in California, a feat that Rep. Miller spoke of at length. Marcia Aronoff, who served as Bradley's chief of staff from 1978 to 1991, was, not surprisingly, bullish on Bradley. I don't recall her mentioning a single drawback to a Bradley presidency, which will almost surely land her in a key administration post. Rosty expressed concerns that Bradley wouldn't compromise enough. Durenberger seemed to think that Bradley hadn't needed to master a lot of intricate policy, such as health care while in the Senate, since "Durenberger" was there to do the heavy lifting.
Thursday it was on to McCain. The panel consisted of Packwood, Hagel, Washington Post reporter Helen Dewar, and Associated Press reporter Matt Kelly. The conclusion I left with is that McCain would be an excellent chief executive. He'd give reporters access, delegate just the right amount to staff, and make decisions based on his breadth of experience and sound principles.
When asked what kind of White House McCain would run (we were, after all, pondering governance), Bob Packwood let loose. "Duty, honor, country, McCain," he said are the words that pop into his mind when he thinks of McCain. "He will be in charge. Like Ronald Reagan, he understands that the function of the president is to inspire the country." Packwood, it turns out, is on McCain's tax committee and has sent him some papers. He later said he would expect McCain to disband the Federal Communications Commission, privatize parts of air traffic control, and further deregulate trucks and railroads.
McCain had made the front page of the nation's papers Thursday for sending a letter to the FCC asking it to act, but not telling it how to act, on a long delayed case involving Paxson Communication Corp., a campaign contributor whose corporate jets McCain sometimes uses. In his defense of McCain, Hagel hit on an excellent idea. "Why don't we just disband Congress," Hagel said, by way of illustrating the absurdity of anyone's questioning the motives of a senator who oversees an agency and sends it a letter.
McCain's communications director Dan Schnur showed why he's playing with the big kids. Addressing McCain's apparent hypocrisy, he pointed out that 90 percent of American businesses have issues before the commerce committee that McCain chairs. If he didn't take money from individuals associated with business, Schnur said, "He'd be limited to taking money from Chinese nationals, and we saw how that worked last cycle." That was good for a laugh. And the plane rides are no big deal, Schnur said, since Paxson makes its plane available to any member of Congress any time the company is not using it. (The duties of a regulated industry–Bill Gates, take note.)
At this point, Hagel said, "Commercial airlines don't fly in and out of New Hampshire and South Carolina and all these little places," and informed us that politicians have to pay first-class rates to use these jets.
Schnur was soon back on message, saying the problem with politics is the special interests and corporate money, and that we need to clean up the system to get rid of the cynicism. I still don't know why.