09/06/1996
The Wall Street Journal
Page A15
(Copyright (c) 1996, Dow Jones & Company, Inc.)

By Greg Rushford

As the U.S. presidential election approaches, Mexicans are learning a new twist on an old Yankee law school maxim: When you don't have the facts, argue the law . . . and vice versa. The Washington addendum to this is: When you don't have either the facts or the law, there is always politics. Just look at how U.S. Commerce Secretary Mickey Kantor has been trying to adjust the facts and the law to help Florida tomato growers get trade protection from Mexico.

Mr. Kantor has figured out that Florida has 25 electoral votes and Mexico has none. If Bill Clinton can carry Florida and nine other big states, he'll be re-elected. The commerce secretary finds his latest political opportunity in persistent complaints from Florida's tomato farmers that they are being forced out of business by Mexican competitors. The chief problem seems to be that, in the winter, tasty Mexican tomatoes from Sinaloa compete very well with Florida tomatoes.

It is difficult to have much sympathy for Florida. As The Wall Street Journal's Helene Cooper and Bruce Ingersoll have reported, tomato growers in the sunshine state have been issuing dire warnings that Mexico was going to ruin them since Jimmy Carter was president. It hasn't happened.

But Florida farmers have shown great creativity in thinking up tricks to discredit their foreign competition. The sneakiest attack is a legislative ploy designed to require that Mexican tomatoes be packed the same way that American tomatoes are packed. It turns out that Florida tomatoes come off the vine hard (they are ripened later) and are packed in ordinary boxes. Mexican tomatoes, by contrast, are nice and juicy when they are picked, and, like eggs, are carefully packed in cartons. Ordinary boxes would squish them.

This is hardly the stuff of high-level government discussion. When most Americans think of official meetings in the White House, they imagine serious discussions of vital national issues in a dignified setting. How dignified is it for the National Economic Council to schedule a special meeting to hear Mickey Kantor argue that Section 8e of the Agricultural Marketing Agreement Act of 1937 should be amended to squish Mexican tomatoes and please Sen. Robert Graham, a Florida Democrat and the amendment's chief advocate?

Florida tomato growers have had other difficulties, too. In March 1995, Mr. Kantor, then the U.S. trade representative, met with members of the Florida Tomato Growers Exchange and promised that if they would file a case under Section 201 of the Trade Act of 1974 before the federal International Trade Commission they could get a 50% duty put on Mexican tomatoes. Exactly how Mr. Kantor intended to get the independent ITC to do this was unclear.

The ITC commissioners, in any event, threw their own tomatoes at the scheme, on the sound legal grounds that Section 201 does not allow them to offer trade protection just for the Florida winter segment of a year-round U.S. tomato industry. Undaunted, Florida growers filed another 201 case this year, this time purporting to act on behalf of the entire U.S. industry. But the ITC rejected that argument in July, finding there was no evidence of serious injury to the U.S. tomato industry from the Mexicans.

To get around these politically inconvenient rulings, Mr. Kantor has been working with Florida's representatives in Congress to push through legislation that would amend Section 201, allowing the ITC to disregard the rest of the U.S. tomato industry and help the Florida Tomato Growers Exchange obtain trade relief only on behalf of its winter season. Meanwhile, Sen. Graham failed earlier this year on procedural grounds to attach his own tomato protection bill to legislation designed to rebuild Palestinian territory and also to a bill establishing trade relations with Cambodia.

The Florida tomato growers have also accused Mexican farmers of "dumping" tomatoes (selling them at less than "fair" value) in U.S. markets. And the man in the position to make the call is none other than Mickey Kantor, who as commerce secretary administers U.S. dumping laws.

Commerce's Import Administration has a well-deserved reputation for dreaming up ways to defeat non-U.S.-based traders, but in this case it's on its way to a new high (or low). Here the tricky legal part is defining the "season" when winter tomatoes are grown. In real life, that's easy. Mexico grows winter tomatoes in Sinaloa between January and April. Previously, both the Court of International Trade and the Commerce Department have held that the law must imitate life by defining a growing season as -- well, the actual growing season.

But Commerce now says it will investigate only the first two months of this year's season (January and February) and the last two months of the 1995 season (March and April). Why? It happens that in these particular four months -- in the past two growing seasons -- prices were at their lowest, thus increasing the likelihood that when Commerce issues its ruling in October, Mexico will be found to have been "dumping" below cost. Clever.

The bureaucrats justify their ploy by accusing the wily Mexicans of raising prices just before the dumping petition was filed this April, knowing that the case was about to be filed. Mexican growers deny that, arguing that they have been threatened with similar dumping cases continually for the last several seasons.

But what about the economic rationale behind tinkering with the definition of a growing season? There isn't one. As Steven Blank, an economist at the University of California at Davis who has submitted an affidavit for the Mexican tomato industry, says, it makes no sense at all to stitch together two different parts of different growing seasons. You don't have to be an economist to understand that -- or to grasp that when Commerce declares it's found dumping and forces up the price of imported Mexican tomatoes with stiff duties, Florida growers will be free to charge U.S. consumers more.

The point, after all, isn't economics. It's politics, and Mickey Kantor and Bill Clinton aren't the only politicians who understand that. Earlier this year, when Bob Dole was Senate majority leader, he worked hand-in-glove with Democrats like Sen. Graham to change the law to favor Florida tomatoes.

So, no matter which candidate Americans elect president in November, he will be a man who thinks it is just terrible that Americans are not paying more for tomatoes at the local grocery store.

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