The Founders v. Wine Wholesalers: The Audio Version
I listened to Vintank's audio interview with Craig Wolf, president of the Wine & Spirit Wholesalers of America. You have to give Craig credit for sitting down and outlining the views of America's wine wholesalers on issues of consumer access to wine. And you have to give Kudos to Paul Mabray of Vintank for making it happen.
I knew the interview was coming and I was hopeful we would see Craig deliver some appreciation for the concerns and interests of American wine consumers as well as its producers and retailers.
But what I learned was this:
1. Craig Wolf and the WSWA are trying to sell snake oil and demonstrate a supreme lack of knowledge when they suggest the the 21st Amendment gave the states the power to interfere with interstate commerce.
2. Craig an the wholesalers mistake the three tier system of wine distribution for being a constitutional principle when it is nothing of the sort. They ignore the fact that while the Commerce Clause resides in the Constitution, the Three Tier System is no where to be found in that document. The idea that the protections against state based barriers to interstate commerce that businesses and individuals derive from the Commerce Commerce clause are somehow stripped away by three tier systems can't be justified.
3. They play a two faced game when complaining about litigation that challenges discriminatory state laws: They complain when retailers and wineries used the courts to knock down discriminatory state laws but say nary a peep when wholesalers do the very same thing. Wholesalers used the courts to knock down laws in Texas and Kansas they they didn't like. Where was their outrage then?
4. They are seeking to assure that consumers only have access to imported (French, Italian, Australian, etc..) wines that they can find at their local wine store and never have access to to the thousands and thousands of wines that can not be purchased locally but can only be purchased on-line from out of state sources.
But what's consistent about all these positions is that they represent the interests of wholesalers and greater control of the flow of goods by wholesalers, while completely snubbing their nose at consumer interests, retailer interests, producer interests and the primary motivation behind the writing of the U.S. Constitution: To create a single economic union that would not be undermined by trade barriers erected by states.
In the course of his interview with Vintank's Mabray, Wolf confirmed that wholesalers are coming 
back with both barrels blazing this year in their attempt to pass HR 5034. This bill would give states a right they have never before had in the history of this country: The right to interfere with interstate commerce in wine. Specifically, it would allow states to constitutionally erect bans on the shipment of wines to consumers from out-of-state wine stores for the singular purpose of erecting trade barriers for protecting in-state businesses.
For those of you unfamiliar with the creation of the Constitution, with subsequent Supreme Court cases and with the history of Congressional legislation concerning alcohol, it has always been the policy of America's founders and its subsequent leaders that trade barriers of the type that HR 5034 would allow have no place in American economic system. Such barriers to interstate trade in wine have always been opposed. An entire founding document was created to assure trade barriers do no carve up and balkanize America into economic fiefdoms.
HR 5034 will have a new number when it is re-introduced into Congress. We will all have to get used to calling it something new. However, anyone who believes that a level playing field ought to exist where commerce is concerned, anyone who believes wine merchants ought not have their constitutional protectinos stripped, anyone who believes that the Founders were correct in assuring that a system of state-based trade barriers ought not be erected to protect those who have the cash to buy laws, anyone who thinks congressional legislation ought not be up for purchase by the highest bidder and anyone who believes that consumer interests ought to be as highly valued as wholesaler interests will want to continue to oppose whatever this law will be called in this new Congress.
Tom… Great piece. Only a lobbyist lawyer could talk in so many inane circles. I’m so glad we have the three tier system looking out for State’s rights…he said sarcastically. I posted your piece on my Facebook and Twitter sites.
Roger Beery
Bacchus and Beery Wine Blog
http://www.bacchusandbeery.com
As I mentioned over at vintank.com, if the HR 5034 legislation is essentially neutral, then why bother spending any taxpayer money or congressional effort even discussing it?
I wonder who they will find to sponsor the bill. Bill Delahunt lost last year. He received 10k in 2008 from the beer wholesalers. Yup, for a little less than what I payed my used car, special interests can find someone to undermine the Constitution. Oh wait, the Supreme Court decided campaign money equals constitutional free speech, thus it shouldn’t be limited. . .
Tom,
I don’t like the 21st Amendment, but I like it better than the 18th. The 21st Amendment was a political “deal” because more than 25% of the states still wanted to keep some form of Prohibition. The deal was that each state could regulate commerce in alcohol. The language is pretty explicit in section 2 : “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.” Until fairly recently most courts have sided towards state power because the language of section 2 is pretty direct. It was the best deal we could get in 1932–but we are in the 21st century. Maybe it is time for another amendment. Waiting for the courts to pit the commerce clause against section 2 of the 2st amendment is going to take a LONG time.
Jim,
I agree. 21st Amendment is better than the 18th.
However, even with the language of the 21st Amendment, it says nothing about repealing the Commerce Clause where alcohol sales and distribution is concerned.
The 21st Amendment allows states that want to stay dry to say dry without having to worry about out of state vendors violating a Dry state’s law. In fact, the 21st Amendment essentially constitutionalizes the Wilson Act and the Webb Kenyon act, two pre-Prohibition acts of Congress that allowed states to enforce their alcohol laws, but did not allow them to interfere with interstate commerce.
In fact, the debates in Congress over the 21st Amendment show that this Amendment in no way gave states the right to interfere with interstate commerce.
It will take longer to get a new amendment than to let the court’s enforce the legal reality that states may not burden interstate commerce.
“Only a lobbyist lawyer could talk in so many inane circles” You should have heard the inane circles of logic he spoke when defending the choice of Sarah Palin to speak at their convention. Choice!