Silly Laws Bottle Up Fine Wine
By Marc Fisher
Sunday, August 1, 2004; Page C01
A good portion of the people who travel down the long drive of Juanita Swedenburg's farm in Middleburg are Marylanders who have crossed the Potomac on a weekend jaunt into Virginia's wine country. The visitors might note the good tannic structure of Swedenburg's Cabernet, or they might simply like the taste of her Chardonnay.
So they tell her to ship them a case, unaware that they are asking the vintner to commit a felony.
Swedenburg and her late husband, Wayne, began growing grapes and making wine on their 130-acre farm three decades ago. After retiring from the Foreign Service, they, with son Marc, did nearly all the work themselves -- from the fields to the laboratory to the bottling plant out behind their little tasting room off Route 50. The family produces about 2,500 cases of wine each year, nearly all of it sold directly from the farm because in most of the country, it is illegal to ship wine across state lines.
"People buy some wine, they go home and they want more," Swedenburg says. "At first, we would ship it to them, but then I discovered it was illegal, and then I learned about this hodgepodge of laws in every state, and I got to thinking it just doesn't seem right."
It's illegal to ship wine through the U.S. mail, and about half the states ban the shipping of wine even by private carriers. It's even illegal for Marylanders to stock their trunk with wine and drive back across the river.
The wholesalers who dominate the industry say such laws prevent minors from buying alcohol (as if teenagers are about to go online to order a case of wine and then wait a week for it to arrive). The real reason the laws exist is pure protectionism. "Wholesalers are scared to death that if direct shipping is allowed, big producers like Kendall Jackson will sell directly to Costco," Swedenburg says.
So she recruited one of her customers, Clint Bolick, a Washington lawyer who specializes in fighting government regulation. "I'd gone to law school at Davis in California and learned as much about wine as about law," Bolick says. "So I was pretty agitated to learn that the only way I could get some of my favorite California wines was to go there and bring them back."
Five years ago, Bolick and his Institute for Justice took on Swedenburg's cause without charge, filing suit against New York State and the wholesalers.
Whether it's the lure of free wine or the clash of constitutional principles, this case has attracted some of the capital's top conservative advocates: Bolick and Kenneth Starr, special prosecutor in the Monica Lewinsky case, face off against Robert Bork, Nixon's hatchet man; C. Boyden Gray, counsel to Bush the Father; and Viet Dinh, architect of the Patriot Act, in a battle of free trade against states' rights.
Bolick says the guys on the other side "are there because they have clients who are paying them generously," and, indeed, Gray recently argued -- together with Starr -- that state regulation of the telecom industry burdens "an inherently borderless world."
But when it comes to wine, Gray, who represents wholesalers, argues that borders are good, that the 21st Amendment, which ended Prohibition, guarantees states the right to regulate sales and collect taxes.
Swedenburg, whose office is decorated with photos of President Bush, argues for a different clause in the Constitution: "I'm so convinced that the Founding Fathers meant for us to have trade between the states. This is what brought down the first American government, the Articles of Confederation: State lines were barriers to trade, and it just didn't work."
The legal bars against shipping wine are easing in some places. Last year, Virginia relaxed its restrictions, but it allows shipping only to states with similarly liberal laws. (The District lets residents receive up to a quart of wine a month.)
But it's the federal case that will determine the future for small winemakers. Swedenburg won in the trial court, then lost the appeal, and now the case has been accepted by the U.S. Supreme Court, where arguments will probably be heard in December.
Wayne Swedenburg didn't get to witness the final act in the family's legal marathon, but Juanita plans to see this through. After all, does it really make sense that you can buy guns, explosives, drugs and pornography online, but not a bottle of wine?
© 2004 The Washington Post Company