Sour Grapes, Bad Policy, and Overkill: Congressman Joe Barton and the College Football Playoff Act of 2009

After examining my preseason predictions, I had planned to break down my bowl forecasts this evening, but that enterprise was delayed somewhat by an e-mail from attentive reader Erik, who pointed me in the direction of this:

It would seem there's little common ground between Rep. Joe Barton – the Waco-native, proud Aggie and Texas GOP-heavyweight – and President Barack Obama – the Democratic star with international roots and Ivy League degrees.

Football, however, makes strange bedfellows. . . .

Proof that this Aggie doesn't have a dog in the fight: The Texas Longhorns – along with the University of Utah – were this year's poster-child for schools considered to have been cheated by the BCS.

Rivalries aside, Barton's bill would prohibit the promotion, marketing or advertising of any post-season NCAA Division I football as a championship game unless a play-off system crowns the champion. "Otherwise, it's a false trade practice because it's false and deceitful," Barton said.

The congressman is working to get a committee to consider the bill; meanwhile, he is gathering more co-sponsors for the measure, a way to broaden its support in the House.

Barton said he's talked to the president about the issue and that Obama is "enthusiastic."

Let’s get a few things straight: Congressman Barton, a Texas A&M partisan attempting to curry favor with the Texas exes in his district, isn’t being ecumenical, he’s being hypocritical. As a great American once said, this is sour grapes. The fact that Congressman Barton has to shop this asinine proposal around to find a committee silly enough to take it seriously is a credit to the U.S. House of Representatives. Also, if you have more than one "poster-child," don’t you have poster children?

H.R. 390, the so-called "College Football Playoff Act of 2009," would apply to any postseason Division I-A football game played after January 31, 2011, meaning that it would punish the failure of the N.C.A.A. to adopt a playoff format in time for the 2011 season. These are the acts prohibited by Section 3 of the College Football Playoff Act:

(a) Promotion of Game- It shall be unlawful for any person to promote, market, or advertise a post-season National Collegiate Athletic Association (NCAA) Division I Football Bowl Subdivision (FBS) football game as a championship or national championship game, unless the game is the final game of a single elimination post-season playoff system for which all NCAA Division I FBS conferences and unaffiliated Division I FBS teams are eligible.

(b) Merchandising- It shall be unlawful for any person to sell, market, or advertise any merchandise related to a post-season NCAA Division I FBS football game that refers to the game as a championship or national championship game, unless the game is the final game of a single elimination post-season playoff system for which all NCAA Division I FBS conferences and unaffiliated Division I FBS teams are eligible.

These are the consequences of failure to comply under Section 4:

(a) Enforcement Authority- A violation of section 3 shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). The Federal Trade Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made a part of this Act.

(b) Regulations- The Federal Trade Commission may promulgate regulations or issue interpretative guidelines as necessary to implement and carry out this Act.

Let’s leave aside the question of why, precisely, we need the word "interpretative" when we already have the word "interpretive." (It probably is a product of the same noun-to-verb-and-back-to-noun process that saddled us with the word "admittance" when "admission" serves us nicely enough already.)

Let’s also leave aside the fact that the S.E.C. championship game is "a post-season National Collegiate Athletic Association (NCAA) Division I Football Bowl Subdivision (FBS) football game," as are the title tilts hosted by the A.C.C. and the Big 12. The S.E.C. championship game is no more "the final game of a single elimination post-season playoff system" than the B.C.S. championship game (although it could be argued that both are the culmination of a single-elimination tournament to which two teams were invited), and the S.E.C. championship game is far less a game for which "all NCAA Division I FBS conferences and unaffiliated Division I FBS teams are eligible" than the B.C.S. national championship game is, yet the Southeastern Conference certainly "sell[s], market[s], or advertise[s] . . . merchandise related to" the annual contest in the Georgia Dome "that refers to the game as a championship." Will the Federal Trade Commission be coming after the Southeastern Conference? If so, my money’s on (and the Worldwide Leader’s money is with) Mike Slive.

Do you really want the Federal Trade Commission regulating the marketing of college football games, though? That’s intended as a rhetorical question---just asking it sends a chill up my spine---but, in case you regard that inquiry with anything other than jaw-clinching trepidation, the salient portion of 15 U.S.C. 57a(a)(1) authorizes the F.T.C. to prescribe "rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce." If that sounds mind-bogglingly sweeping to you, that’s because it is.

What, you may wonder, is the F.T.C. empowered to do? Among other things, this:

To gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practices, and management of any person, partnership, or corporation engaged in or whose business affects commerce. . . .

To require, by general or special orders, persons, partnerships, and corporations, engaged in or whose business affects commerce . . . or any class of them, or any of them, respectively, to file with the Commission in such form as the Commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the Commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective persons, partnerships, and corporations filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the Commission may prescribe, and shall be filed with the Commission within such reasonable period as the Commission may prescribe, unless additional time be granted in any case by the Commission.

And this:

For the purposes of this subchapter the Commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any person, partnership, or corporation being investigated or proceeded against; and the Commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the Commission may sign subpoenas, and members and examiners of the Commission may administer oaths and affirmations, examine witnesses, and receive evidence.

Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the Commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence.

Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any person, partnership, or corporation issue an order requiring such person, partnership, or corporation to appear before the Commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.

Upon the application of the Attorney General of the United States, at the request of the Commission, the district courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person, partnership, or corporation to comply with the provisions of this subchapter or any order of the Commission made in pursuance thereof.

The Commission may order testimony to be taken by deposition in any proceeding or investigation pending under this subchapter at any stage of such proceeding or investigation. Such depositions may be taken before any person designated by the commission and having power to administer oaths. Such testimony shall be reduced to writing by the person taking the deposition, or under his direction, and shall then be subscribed by the deponent. Any person may be compelled to appear and depose and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission as hereinbefore provided.

And also this:

Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry or to produce any documentary evidence, if in his power to do so, in obedience to an order of a district court of the United States directing compliance with the subpoena or lawful requirement of the Commission, shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine of not less than $1,000 nor more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment.

Any person who shall willfully make, or cause to be made, any false entry or statement of fact in any report required to be made under this subchapter, or who shall willfully make, or cause to be made, any false entry in any account, record, or memorandum kept by any person, partnership, or corporation subject to this subchapter, or who shall willfully neglect or fail to make, or to cause to be made, full, true, and correct entries in such accounts, records, or memoranda of all facts and transactions appertaining to the business of such person, partnership, or corporation, or who shall willfully remove out of the jurisdiction of the United States, or willfully mutilate, alter, or by any other means falsify any documentary evidence of such person, partnership, or corporation, or who shall willfully refuse to submit to the Commission or to any of its authorized agents, for the purpose of inspection and taking copies, any documentary evidence of such person, partnership, or corporation in his possession or within his control, shall be deemed guilty of an offense against the United States, and shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not less than $1,000 nor more than $5,000, or to imprisonment for a term of not more than three years, or to both such fine and imprisonment.

If any persons, partnership, or corporation required by this subchapter to file any annual or special report shall fail so to do within the time fixed by the Commission for filing the same, and such failure shall continue for thirty days after notice of such default, the corporation shall forfeit to the United States the sum of $100 for each and every day of the continuance of such failure, which forfeiture shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States brought in the case of a corporation or partnership in the district where the corporation or partnership has its principal office or in any district in which it shall do business, and in the case of any person in the district where such person resides or has his principal place of business. It shall be the duty of the various United States attorneys, under the direction of the Attorney General of the United States, to prosecute for the recovery of the forfeitures.

If that doesn’t strike Congressman Barton as outrageous overkill, he needs to quit crowing about his "diligent work to promote a conservative agenda," as there is nothing remotely conservative about a Wilsonian initiative to aggrandize the national government and specifically empower it to eviscerate tradition. If that doesn’t strike President Obama as a ludicrous overreaction in a time of meaningful real-world problems, we should cringe every time the occupant of the Oval Office becomes "enthusiastic."

There is one other important point that bears making. As playoff proponents are quick to point out, any system that crowns the national champion using votes cast in a poll---not unlike the system that, you know, sends people to Washington, D.C., to represent particular constituencies, presumably including disgruntled football fans with mismatched priorities and too much time on their hands---is merely an expression of opinion, which hardly qualifies as "a false trade practice because it's false and deceitful."

Among the most eloquent and conscientious playoff advocates is Dr. Saturday’s Matt Hinton, who frequently notes that nothing obligates any group of voters other than the coaches who vote in the final poll to bestow their No. 1 ranking upon the victor in the B.C.S. national championship game. Sports reporters, bloggers, and other poll voters are free to vote their consciences. The B.C.S. national championship game is a national championship game only to the extent that we agree it is; calling it the "national championship game" is just an expression of opinion, utterly unlike the sorts of genuinely deceptive trade practices the Federal Trade Commission Act was crafted to combat.

O.K., so the winner of the B.C.S. national championship game gets a trophy and a bowl payout; so do the champions of the Sugar, Sun, and Poinsettia Bowls. Those payout amounts differ based upon the quality of the matchups and the interest generated by the presence of particular teams. If Congressman Barton believes a playoff would solve this unequal yet not inequitable state of affairs, he should take a long look at the difference between the ratings for the Super Bowl and the ratings for the N.F.L. wild card games.

If I sell you a car by telling you it has antilock brakes and I know it has no such feature, I’ve been deceptive; if I tell you Colorado, and not Georgia Tech, was the true national champion in 1990, I’m just telling you what I believe. You are free to argue otherwise, but, while you may have good reasons for telling me I’m wrong (you don’t, by the way, but let’s pretend, just for the sake of argument), you have absolutely no basis for claiming that I have lied to you or employed some artifice or trick to pull the wool over your eyes . . . and, besides, what business is it of the national government’s if I have? Do we really want Washington, D.C., stepping in if I hurt a Utah fan’s feelings by voting a different team as my national champion? Surely, in light of Buchanan’s Blunder and Sherman’s March, Utahans and Georgians can agree that having more federal minions sent within our borders is a bad thing.

We as Americans are free to disagree over the opinions expressed in answer to the question of who is No. 1, to argue our respective positions, and to vote accordingly. The BlogPoll, in fact, deliberately and actively encourages that very thing. Accordingly, Congressman Barton and anyone who greets the College Football Playoff Act of 2009 with enthusiasm (or, really, with any emotion other than bemusement and/or disgust) may want to take a moment to consider another prohibition against underhanded action tucked away amid the nooks and crannies of the federal law:

Congress shall make no law . . . abridging the freedom of speech, or of the press.

The College Football Playoff Act of 2009 or the First Amendment. You make the call, America.

Go ‘Dawgs!