I’m not surprised that a majority on Whitewater’s Common Council made the mistake of banning drink specials at Tuesday night’s Common Council meeting. I wrote about the proposal a few months ago, and I did so in the belief that the ban would be passed.
(For remarks on the topic, see, The New Prohibition – Drink Specials (Part 1, Regulation) and The New Prohibition – Drink Specials (Part 2, Advice)).
Two aspects of Tuesday’s discussion are notable.
Bad Origins
First, the proposal began in the worst way — with a few business people meeting away from the whole Council, with the presence of Whitewater’s Police Chief Coan and City Attorney McDonell, and a Council representative. In a better-ordered community, those involved would know not to meet that way. It’s just business as usual for some in Whitewater. A situation like this has all the makings of a proposal for a special pleader.
When one reads the Daily Union‘s May 5th account of how this ordinance first came before council, one reads that “[t]he issue had been brought to the council by a tavern owner who supported the ban.”
That’s not accurate, and it’s misleading. It’s not even consistent with the paper’s prior coverage of the origins of the ordinance, from a story they published in February:
The issue was brought forth by Councilperson Jim Olsen, who said he was presenting it on behalf of some of the local tavern owners after discussing the issue with them.
“This came up during a meeting with the police chief (James Coan), city attorney (Wally McDonnell), and myself and five of the tavern owners, back in August,” he said. “This was something they requested. When they brought it up, the chief thought it was a good idea …”
They’re not the same accounts, are they? In the most recent account, the DU story makes it seem as though someone walked into council during time for citizen comments, and asked for legislative action. In the earlier — and accurate account — this was an ex parte meeting, of a few, with others unnotified at the time.
(One should note that the Daily Union‘s latest account of the ordinance’s origins isn’t even internally consistent. The latest account is contradictory to the actual origins of the proposal, even within the May 5th’s story. Although the 15th paragraph states that someone approached council, one sees in the 32nd paragraph that there was concern about the proposal’s origins — that it was not a conventional path to council at all.)
The recording of the meeting February meeting, and the DU‘s initial coverage, reveals that this was the effort of a few seeking legislation on their own behalf.
The ordinance is a kind of business welfare — support for some at the expense of others.
False Empiricism.
One would hope for a city with less binge drinking, but this legislation will not produce that result. For the most part, there’s really no attempt to show how the legislation might help, except to repeat that binge drinking is a problem. That’s predictable — advocates of additional legislation use the words ‘binge’ or ‘abuse’ like magic wands to conjure away the need for facts.
Chief Coan’s career, for example, seems to rest on the idea that to say something is to prove it; to declare is enough. On those rare occasions I’ve heard him refer to a study, it’s typically something old or trite, long-since discarded as a concept in other places.
There was, however, an attempt at a more empirical approach at Tuesday’s meeting: a representative’s catalog of other municipalities’ binge-drinking ordinances.
It’s a false empiricism, though, resting not on the relationship between legislation and actual drinking behavior (the true concern), but instead is merely a list of cities’ ordinances. This approach conflates the ubiquity of legislation with its effectiveness. It assumes that legislation widely adopted must accurately address the supposed health risks to which it is addressed.
It’s easy to show that the catalog of ordinances does not establish whether an ordinance for Whitewater would be useful.
Consider an example, from the 1920s, regarding leprosy. One might live in a town that was concerned about the risk of lepers infecting other people, and spreading their affliction. That’s a legitimate health concern — one would not want others to become ill.
The town’s government would wonder what to do, about the risk, and might look and see what other towns had done. Perhaps some banned lepers, others jailed them, some confined them permanently to their homes, some marked them with special clothes, and a few have did nothing.
Looking at that situation, what would someone using this ordinance-examination method conclude? That some proposals are more or less restrictive than others, and perhaps that an approach that’s in the middle would be a moderate, prudent course. After all, an approach in the middle wouldn’t be as restrictive and harsh as some towns’ schemes, or as unrestrictive as others’ approaches.
The town fathers might decide that to prevent the spread of leprosy, they would confine lepers to their homes, but not jail or ban them from town.
As it turns out, leprosy is not highly contagious, is likely not contagious for long, and most are immune to it. A solution that confines lepers permanently to their homes would be consistent with other practices, but would be medically unsound.
Following the examples of other towns would not produce an effective, rational solution.
An ordinance examination-approach conflates a catalog of ordinances with a true empiricism (studying how leprosy rises or falls in a given town with or without legislation).
It’s not a comparison of statutes, but a comparison of statutes to conditions in each town that would be a true and useful empiricism.
Tuesday’s method looks in the wrong place. One would need to compare towns with ordinances, towns without, etc., to actual drinking in those towns.
Needless to say, looking at ordinances alone makes no such comparison.
(Note — I’m not even considering the contention that ordinances banning drink specials actually increase binge drinking — that these efforts to ban drink specials will exacerbate binge drinking by driving it underground, and will lead to greater harm than current commercial practices.)
If enough for now to note that a mere ordinance-by-ordinance comparison is an unsound method to consider correctly the effects of legislation on public health. It has the appearance of an empirical approach, but not the substance of a good method.
Legislation should not advance through special pleading, nor by the power of flowery rhetoric or dubious method.
One can see the meeting online, at http://blip.tv/file/2080598/.
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