Tuesday, July 31, 2012


If Mitt Romney wanted to show just how different his approach to foreign policy would be from that of Barack Obama, his European trip succeeded beyond what anyone could have expected. The question is, to the extent that American voters even care about foreign policy, just how different do they want our foreign policy to be?

Mitt Romney took care to offend our friends and enemies alike. He had the Prime Minister of the UK making cracks about how different it is to hold the Olympics in a large city as opposed to the middle of nowhere. He provoked the Mayor of London into taunting him in front of a huge crowd in Hyde Park. He told the Palestinian Arabs they are culturally inferior, or disfavored by God, as compared to the Jews. He took care to insult newly-reelected Russian President Putin in a speech in Poland, and his team became increasingly hostile to the media.

What we learn from this trip, in which Romney announced no major foreign policy proposals per se, is that what would change in a Romney presidency is the tone America takes toward the rest of the world. Romney evidently thinks that President Obama is too popular abroad. That he is too friendly and cooperative with foreign leaders. That Obama goes out of his way to make people abroad like and respect him. Romney makes it all too clear that he will have none of that. He would make sure that people in other countries--leaders as well as ordinary folk--have every reason to hate and resent the United States.

I'm guessing that style suits a lot of Romney's supporters just fine. They don't seem to care if America is popular abroad. If they did, they would support President Obama's re-election, for Obama has immeasurably raised America's standing in the world from the dismal levels to which it sank toward the end of the Bush years, and has obtained unprecedented levels of cooperation in dealing with terrorism, nuclear weapons, dictators, trade, and other important problems.

If you think international cooperation is overrated; if you think we need more enemies and fewer friends; if you believe that insulting and antagonizing our neighbors is the best way to conduct foreign policy; or maybe if you just don't care all that much about foreign policy and think it's not a very important part of the job of president; if you believe all that, Mitt Romney has proven he is your man.

OFA smartphone app

Download here.

Monday, July 30, 2012

Making stuff up

I met Jonah Lehrer once after a talk he gave discussing his last book, How We Decide. He's an entertaining speaker and writer. His books are designed to convey complicated scientific information to general readers, and they succeed pretty well at that. I was saddened to learn that he is now in big trouble for inventing some of the quotes in his latest book, Imagine. What exposed Lehrer is that he made the mistake of inventing quotes from Bob Dylan. Bob Dylan is someone who has fans dedicated enough to notice quotations that do not appear familiar, and who will take the trouble to dig out the sources. Jonah Lehrer should have known that every word uttered by Bob Dylan is scrutinized, catalogued, collected, and argued over. You can't be sloppy about quoting Bob Dylan. If you make up a Dylan quote, you are going to be asked to document where you got it from. Jonah Lehrer could not survive this test.

One lesson from this story is to be careful in choosing the authors of quotations you use. You're less likely to get caught making up quotations if you choose a more obscure source, preferably one who has been dead for awhile, and who does not inspire an army of scholars who are familiar with all his words.

But the safest thing of all, if you're going to make stuff up, is not to attribute your statements to anyone other than yourself. The pundits on cable news shows, and even reporters writing for prestigious magazines, glibly make assertions all the time that they cannot prove. But they get away with it because they are not trying to attribute their statements to someone else. They just say things as if they are common knowledge. It's only if you say that someone else said something, that you must be strictly accurate about what that other person said. (It doesn't matter as much whether the thing the quoted person said is true or not. What's important is that you quote it accurately.) One reason Jonah Lehrer has severely damaged his career is that he never claimed to be original. He doesn't do original work in psychology or neuroscience. He is just good at explaining the experiments done by others to the rest of us. We appreciate having clear writers like Jonah Lehrer explain difficult concepts to us, but we impose publishing death on them if they do not convey the work of others accurately.

It's probably good that we're tough on writers like Jonah Lehrer. But it would probably also be beneficial if the tale of Jonah Lehrer inspired us to raise the bar just a bit on all the other journalists and pontificators who feel free to make up all kinds of stuff. The people who claim that humans are not causing global warming, for example. Or that we can solve all our energy problems by drilling for more domestic oil. Or that we can reduce taxes, increase defense spending, and still balance the federal budget. Or how about those who claim they got where they are without any help from anyone? People get away with making all kinds of fantastic and nonsensical statements only because they are careful not to use quotation marks. Or they accurately quote all kinds of nonsensical and fantastic statements by others, giving those statements the ring of truth. But you can't make a statement true just because you quoted it accurately. Nor is a statement necessarily false just because you made it up. It could be that some of the things Jonah Lehrer falsely claimed that Bob Dylan said are more true than some of the things that Bob Dylan actually said. I say that not to excuse the crimes of Jonah Lehrer, but only to suggest that using quotation marks accurately, while extremely important, is not the only test of truth.

Friday, July 27, 2012


While the national polls show the presidential race as a dead heat, right now various compilations of state-by-state polls (TPM, Huffington Post, Nate Silver) are all showing President Obama ahead in every single one of the so-called battleground states (generally thought of as Wisconsin, Michigan, Ohio, Pennsylvania, Iowa, New Hampshire, Virginia, North Carolina, Florida, Colorado, New Mexico, and Nevada, give or take a couple). Every single one of those states except for one: North Carolina.

Let's see. Where did the Democrats decide to hold their convention this year? Oh yeah, Charlotte. That will put North Carolina in the spotlight for a few days as the home of Democrats and the center of Obamaland. And will likely give the president a boost just where he might need one. (He can go over the top without North Carolina, but it would still be a nice state to win.)

It's almost spooky, isn't it? Like the people running the party and the campaign could see a couple of years into the future, and knew exactly where to locate the convention to turn the tide.

I'm not saying the election is in the bag, but the president is looking very strong at the moment on a state-by-state basis. And the state-by-state election is the only one that counts.

(270towin.com) (Close observers of this map will note that they also consider Missouri a battleground state, but I'll put it in Romney's column, as do most of the pollsters, so as not to confuse my point.)

Thursday, July 26, 2012

Are we ready?

London mayor Boris Johnson asks the crowd at Hyde Park to respond to Mitt Romney's suggestion that London might not be ready for the Olympics:

To what can I contrast this event? Oh, I don't know, maybe candidate Barack Obama's visit to Berlin 4 years ago at about this same time in the presidential campaign?

There's a popular hashtag on twitter right now called #RomneyShambles. Don't even go there. It's just brutal. People are suggesting that if we want our candidates vetted, just send them to London. That Romney is going to retroactively cancel his trip. That Romney is making Sarah Palin look good. Almost makes you feel sorry for the guy.

Tuesday, July 24, 2012

A solution in search of a problem

On the eve of a high profile trial challenging Pennsylvania's new voter id law, the state has admitted that they have no evidence of any real problem the law was designed to address. Specifically, the parties have stipulated in advance of trial  that there “have been no investigations or prosecutions of in-person voter fraud in Pennsylvania; and the parties do not have direct personal knowledge of any such investigations or prosecutions in other states.” Further, the state has agreed  that they “will not offer any evidence in this action that in-person voter fraud has in fact occurred in Pennsylvania and elsewhere.” The state even agreed that they will not argue “that in person voter fraud is likely to occur in November 2012 in the absense of the Photo ID law.”

Why do litigants agree to stipulations such as these? Usually because a stipulation will soften the blow for the party making the admission. In other words, the state's attorneys would rather admit that they have no evidence of voter fraud, than give the other side the opportunity to introduce evidence of a lack of voter fraud. This should mean that the state has the burden of justifying the likely discriminatory effects this law is going to have on the poor, the elderly, and minority voters by relying solely on hypothetical and undocumented threats to the integrity of the voting process. This is the wonderful thing about courts and the legal system for which we should really show more appreciation. In court, you can't just waltz in and say whatever the hell you want. You have to prove it. And if you can't prove it, you have to admit that you have no evidence to support what you are saying.

The plaintiff in the case is Vivette Applewhite, a 93 year old woman who has no driver's license or other id but has been voting regularly for more than 50 years. To people who say it's not such an imposition to require the poor and the elderly to go get a picture id, my response is, why should they? This woman has a right to vote. She shows up every year to her precinct, where the poll workers undoubtedly recognize her and happily hand her a ballot. To suggest that Ms. Applewhite should be turned away this year because a bunch of state legislators have dreamed up a new hoop she should have to jump through to vote, is an insult to people like Ms. Applewhite, and an outrageous assault on our most important right. And these (mostly) Republican legislators who have been so eager to adopt these requirements are supposedly so distrustful of the government! Yet they want to allow the government to take away the most precious tool for maintaining our freedom from anyone who doesn't have the time, the inclination or the ability to obtain some government-issued paperwork.

If the state of Pennsylvania wants to institute a new fraud prevention system, to guard against threats they are unable to substantiate, they ought to go door to door to make sure that people like Vivette Applewhite get whatever papers are needed. And they ought to apologize to her for the inconvenience of having to answer the door to receive that paper. Vivette Applewhite should not have to lift a finger to get more proof that she is eligible to vote. It should be more than enough for her to get herself down to the polling station. As a matter of fact, the state should probably be providing free rides to help the sick and the elderly do that.

But we know that these voter id laws were not designed to make it easier for people to exercise their right to vote. They were designed for the opposite purpose. And at least one state legislator was candid enough to admit the legislators' real motives.

Monday, July 23, 2012

The Choice

Friday, July 20, 2012


I was struck by the report from ABC News, which this morning contacted a woman identified as Aurora shooting suspect James Holmes's mother. Before learning any of the details of the tragedy, she said, "You have the right person. . . . I need to call the police ... I need to fly out to Colorado."

At this point we don't know many details about the shooter's motives or background, we can't be sure what this woman meant by her statement, and it would be too early to jump to any conclusions. It's also doesn't seem to be of much use to start the usual cycle of recriminations about gun control, the decline of Christian values, violence in popular entertainment, or a number of other favorite causes I have already heard discussed in the media today. Not that these issues aren't important and worth debating, but their connections to this shooting don't seem clear yet, and premature debate on these topics doesn't seem likely to change very many minds.

I'm hesitant to suggest anything more than reflection about the tragedy in Colorado, and sympathy for the victims. But maybe one thing we could start talking about, as long as we can do it without being divisive, is whether we are paying enough attention to potential killers in our midst. Doesn't it seem with every one of these horrific events--whether it was the Virginia Tech shooter, or the Tucson shooter, or the Norway camp shooter, or the Fort Hood shooter--that as soon as (or even before) the suspect is identified, some neighbors or classmates or family members say, "Oh yeah that guy. I'm not surprised"? It seems often the case that the suspect was already identified by mental health personnel, or by law enforcement, or by the community, as a troubled person, but those people felt unable or unwilling to do anything more to deal with those troubles.

What I'm suggesting is not intended to blame anybody for these shootings other than the perpetrators themselves. In many cases the people who knew some of these shooters did all they could, or had good reasons for not doing more. I'm also not trying to set one point of view against another. I'm suggesting a more unifying message. We're all horrified by senseless violence. We all want to reduce hate and fear. We all want to protect the innocent. We should also all agree on the need to identify and pay more attention to people who might be prone to violence. So if you are what we used to call a law-and-order conservative, you might think that alerting the cops to suspicious behavior would be a good idea. And if you are what we used to call a bleeding heart liberal, you probably think that additional counseling or social work or treatment would help bring disaffected people back from the brink. If you are an old-fashioned family values believer, you should advocate strengthening the kinds of family and community bonds that keep people from behaving violently. If you are religious, you might think that outreach by your church or synagogue or mosque could be helpful. And even if you just want to be left alone and leave others alone, you still probably want to feel safe as you go about your daily routine. All these different values and viewpoints should share a common interest--an interest in paying more attention to our neighbors and classmates and workmates and relatives, to make sure they're ok, and to make sure we take some action if they don't seem ok.

We're not going to be able to prevent all acts of violence. Some truly seem to come out of the blue. But we might be able to prevent more of them. And there is also value in having a sense of--I want to say trust--but if not trust then at least some control over our fellow human beings, instead of just feeling powerless against the possibility that anyone might act out in a destructive way.

Thursday, July 19, 2012

Cheap shots, part 2

I have to apologize for Tuesday's post (a post I would like to retroactively re-title as Cheap shots, part 1). In that post I criticized Mitt Romney for attacking President Obama's comment which seemed to suggest that entrepreneurs did not build their own businesses. I made the terrible mistake of taking Romney's argument somewhat seriously. (The argument being the standard conservative argument that people succeed by pulling themselves up by their own bootstraps, without much help from government or the community.) I wondered in my previous post why it is so hard for conservatives to acknowledge that business cannot succeed without a decent education system, a functioning legal system, and up-to-date infrastructure, much of which is funded by the government.

Now, after viewing the Romney campaign's latest video, I realize I was wrong in suggesting that the Romney campaign might be trying to make a coherent and respectable argument about the relative importance of private entrepreneurship as opposed to public investment. Instead, it appears that all they wanted to do was edit the president's remarks to make him say something that he never said. Nowhere did the president ever say that entrepreneurs did not build their own businesses. All he said was that they did not build the roads and bridges, the educational system, the legal system, and the other foundations of our economy that help their businesses succeed. We could have an honest and fair debate the about how much investment we need to continue to make in that infrastructure to build a solid foundation for the economy, or whether we think that business would do better if we stop repairing roads and bridges, and de-fund schools and courts and other public projects.

The Romney campaign's latest ad shows they are not interested in an honest and fair debate. All they want to do is play the game of stringing together a bunch of words the president used to make him say something that he never said. That makes the Romney campaign no different from the people who make those amusing videos where they string together a bunch of clips to make the president sing a popular song.

Here's the president singing "Call Me Maybe," for example:

We can't debate stuff like that. We just have to laugh at it.

Wednesday, July 18, 2012

Did something happen?

What does it mean to "retroactively" retire?

Tuesday, July 17, 2012

The meaning of "that"

To get to the bottom of the latest campaign flap, we need to do a little grammatical analysis.  The other day, President Obama said these words: "If you've got a business, you didn't build that." The Romney campaign is all over this statement, claiming that it insults every businessman and entrepreneur and that President Obama is accusing the likes of Bill Gates and Steve Jobs and Papa John of not building their own businesses.

I guess it depends on what "that" means, doesn't it? In isolation, it might seem logical to read the antecedent of "that" as "business." In that reading, the president would be saying, "If you've got a business, you didn't build that business." But even in isolation, does that reading even make sense? Does it seem plausible that the president would say that nobody who has a business had anything to do with building that business?

Maybe if we tried reading the statement in context, we might find another possible antecedent for "that." Let's look at the preceding sentence: "Somebody invested in roads and bridges. If you’ve got a business, you didn’t build that." Could Mitt Romney be honest enough to acknowledge that the "that" might possibly refer to "roads and bridges"?

Want even more context? Here is more context:
“If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business, you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.
The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together. There are some things, just like fighting fires, we don’t do on our own. I mean, imagine if everybody had their own fire service. That would be a hard way to organize fighting fires.
So we say to ourselves, ever since the founding of this country, you know what, there are some things we do better together. That’s how we funded the GI Bill. That’s how we created the middle class. That’s how we built the Golden Gate Bridge or the Hoover Dam. That’s how we invented the Internet. That’s how we sent a man to the moon. We rise or fall together as one nation and as one people, and that’s the reason I’m running for president — because I still believe in that idea. You’re not on your own, we’re in this together.”
Clearly, the president was not asserting that Steve Jobs lacked initiative. The president expressly acknowledged individual initiative. But the president also recognized that people like Steve Jobs also had a lot of help. For conservatives, that idea should be offensive enough without having to distort it further. For some reason, conservatives find it shameful to acknowledge that we all get some help from the community. Hillary Clinton was pilloried by conservatives for quoting an old African proverb that it takes a village to raise a child. Barack Obama is now being mocked because he wants to acknowledge our debt to our teachers, and to the people who built our roads and bridges, not to mention the whole "unbelievable American system that we have that allowed you to thrive."

Why is that debt so hard to acknowledge? I would ask Mitt Romney: Are you that unpatriotic, and that ungrateful, that you think you owe the Founding Fathers nothing? Do you really think the people who developed the American legal system, and the American financial system, contributed nothing to your success? Do you really believe that infrastructure does nothing whatsoever to help our economy? Do you think Americans can compete in the global economy without a good education?

Of course you don't. It just pains you to acknowledge these facts for some reason. And you'd rather score some cheap points taking the president's statements out of context, than have an honest debate about what the government should or shouldn't do to encourage initiative and innovation.


If you ask many of President Obama's supporters what about the president's performance has disappointed them or makes them unhappy, many will say he has not been combative enough, that he has not pushed hard enough for policies they believe in, that he compromises too much.

The president's opponents tend to say, on the other hand, that he has been too combative or divisive, and that he has tried to impose a left wing agenda on a conservative country.

Obviously, both critiques cannot be correct.

If you ask President Obama himself what he is disappointed or unhappy about, he does not fall into either camp. In an interview with Charlie Rose earlier this week, he says:
"And, if you asked me what is the one thing that has frustrated me most over the last four years, it's not the hard work, it's not the enormity of the decisions, it's not the pace, it is that I haven't been able to change the atmosphere here in Washington to reflect the decency and common sense of ordinary people--Democrats, Republicans and independents--who I think just want to see their leadership solve problems. And there's enough blame to go around for that."
It would be understandable if President Obama had decided to give up trying to change the political dynamics of Washington. People might expect the president to say that Republican intransigence had taught him it was a waste of time to try to reach accommodation with his adversaries. Instead the president appears to be the last man who still believes, after all he's been put through, in the dream of transcending red and blue states, putting aside excessive partisanship and divisiveness, and trying to work together constructively to solve problems in a way that serves common interests. It's also charming that the president still believes that that is what the people want also.
[T]he basic notion that we are not Democrats or Republicans first, we're Americans first, and that most of the problems that we face are solvable, not in some ideological way, but in a practical, common sense, American way, that I believe as much as ever. And I think so do the American people.

I think he's right. The institution of government people are most disgusted with is Congress, because Congress is where the most obvious signs of partisan wrangling and gridlock have exhibited themselves. President Obama, on the other hand, still enjoys pretty decent favorability ratings. That reservoir of good will is all the more remarkable considering the still sluggish state of the economy. President Obama enjoys that standing at least in part because people can see that he is still trying to work with all sides and serve common interests.

What needs to change, then, is the perception of partisans of all stripes. The president's allies on the left need to appreciate the necessity of negotiation and compromise to pass legislation and to serve the interests of all constituents. The president's opponents need to appreciate that the socialist ideologue they imagine they are dealing with is a figment of their imagination. They will get more accomplished in President Obama's next term by trying to work constructively with the other side, than they will by reflexively opposing everything the Democrats support. If those realizations would sink in, we might actually achieve some portion of the dream of fixing our broken political system that was what attracted people to President Obama in the first place.

Monday, July 16, 2012

Where are the jobs?

All through the campaign, candidate Romney has been telling us he has the experience and the ideas to create jobs. How to verify this claim? There's the problem. Finally, we have some data. A new study by economist Kimberly Clausing provides the independent verification everyone has been looking for demonstrating that Romney's team actually does have a workable plan for reforming international corporate taxation, a plan that is is likely to create as many as 800,000 jobs.

One small problem, however. These 800,000 jobs? They're not coming to America. They are going to be created in places like Canada, China, the Netherlands, Germany and Mexico.

At this point, I should explain some basic and not-so-basic concepts of corporate taxation, which is difficult for me because I must admit that corporate taxation was never a subject that interested me all that much back in law school. I took the introductory course in personal income taxation, and that pretty much did it for me, tax-wise. Thankfully, there are people like Professor Clausing, who do take an interest in this stuff, and can tell you that there are at least a couple of different approaches to reforming the international corporate taxation system. One is to require multinational corporations to pay a minimum tax on foreign income earned in countries with low corporate tax rates, and to crack down on practices that allow corporations to book economic activity in such countries while taking deductions and credits in the United States. Another approach is to move to a territorial system that would make the foreign income of U.S. multinational corporations completely exempt from U.S. taxation.

You can probably guess which approach is favored by the Obama administration and which by the Romney campaign.

It's not really so difficult to understand that Romney's plan to eliminate taxes on foreign profits would incentivize US corporations to move operations overseas. Not surprising, either, that such a plan would come from someone whose business career was based on maximizing value for corporate investors regardless of the effects on employees. What's remarkable is that economists are able to calculate the likely number of jobs that would be created abroad as a result of Romney's proposed reforms.

Thanks to the Obama campaign for creating this cool graphic that shows where the jobs that Romney is promising are likely to be created:

Sunday, July 15, 2012

What happened to hope and change?

In the interests of fairness and equal time, here's an ad from the Romney campaign:

You want to know what happened to hope and change, Mitt Romney? I'll tell you, since that has been my subject of special interest for the past four years writing this blog. The Obama campaign is still all about hope and change. Just listen to the president's campaign speeches. They are all about restoring the dreams of the middle class. Increasing fairness. Bringing manufacturing back to this country. And trumpeting the administration's accomplishments so far. Making health care affordable for all. Ending two wars. New financial oversight to prevent a repeat of the 2008 financial meltdown. Equal rights for women, minorities, gays.

That's what the president has been talking about--a positive message of hope and change--while all you've been doing is lying about the president's record, running from your own record, and failing to present any alternative positive vision.

Now you can't handle it when the Obama campaign also wants to spend a little time talking about your career. You wish the Obama campaign would just play all nicey-nicey and stop saying all those mean things about you. You'd like to be free to spread nastiness and negativity everywhere you go, and demand apologies from anyone who has the audacity to raise questions about your record. You think you don't have to play by the same rules as everyone else, because that's just the way it's been for you. Well, sorry, Mitt. You're in the big leagues now. If you can't take the heat, stay out of the kitchen.

You'll hear plenty of positive messages from the Obama campaign for the next three months. But you're also going to have to answer a lot more hard questions about your own record. And you can't blame the Obama campaign for that, because the media is like a pack of wolves. If they smell blood, they don't stop coming after you. They will either hound you back to the ash heap of history, or you will learn to be a little more straightforward and a little less whiny.

UPDATE (7/16): Bob Schieffer is apparently unhappy about being used in a Romney campaign ad. According to this story,  Schieffer was just doing his job as a journalist, interviewing David Axelrod: "I wasn’t stating something there. I was asking somebody else a question."

Ed Gillespie tries to clear it all up.

#retroactively now the top twitter trend. Somebody tweeted that it's like adding "in bed" to your fortune cookie saying. It makes anything you say funnier and more suggestive. . . retroactively.

Memo to Romney campaign: When you're in a hole, you should stop digging yourself in deeper.

Saturday, July 14, 2012

The McLaughlins

Woody Guthrie 100


Friday, July 13, 2012

Taking responsibility

Here is President Obama explaining clearly and succinctly why Mitt Romney needs to take responsibility for the actions of Bain Capital:


As President Obama explains,
"my understanding is that Mr. Romney attested to the SEC, multiple times, that he was the chairman, CEO and president of Bain Capital and I think most Americans figure if you are the chairman, CEO and president of a company that you are responsible for what that company does."
(transcript here)

As I have tried to make clear in previous posts on this topic, the issue is not whether Mitt Romney was or was not involved in Bain management decisions during the period from 1999 through 2002 when he left Bain to manage the Olympics. The issue is whether Romney remained responsible for Bain management decisions during that time because he continued to serve as an officer and director.

How does Mitt Romney respond to that question, when he took to the airwaves today to answer the Obama campaign's charges? He doesn't.

Notice that when Romney is asked a direct question about official company documents stating that he was the CEO of Bain Capital, he completely sidesteps the question about his role as an officer and director of the company and instead obfuscates by talking only about his share ownership of Bain:
'But there's a difference between being a shareholder, an owner, if you will, and being a person who's running an entity. And I had no role whatsoever in managing Bain Capital after February 1999."
 (transcript here) OK Mitt, we understand the difference between an owner and the person running the entity. But you were listed as running the entity. What about that?

I looked over as many as I could find of the transcripts of the other interviews Romney gave today on this topic. (ABC, CBS, NBC)  I could not find a single acknowledgement that, even if he stayed out of decision-making at Bain during that 1999-2002 period, Romney remained legally responsible for the corporation's activities by virtue of his status as an officer and director. Romney did not even want to admit that he in fact continued to serve as an officer and director for three years after he left Bain.

The question raised by the Obama campaign, as was clearly framed in the president's interview today, was whether Romney stayed attached to Bain as an officer and director. Mitt Romney has ducked the question, the way he is attempting to duck responsibility for anything that happened at Bain while he retained his officer and director positions.

Can you picture this guy as president? Let's say someone asks him about a decision by the Secretary of Health and Human Services. Romney might respond: "What do you want from me? I was out of the country at the time, dealing with a crisis in Syria or wherever. I had no role in that decision." Say a drone attack goes off target somewhere on the other side of the world. Romney would probably shrug his shoulders: "Hey, it's not that I'm not proud of our military. I just happened to be nowhere near the Pentagon at the time."

Several times during today's interviews, Romney tried to explain that, it's not that he is embarrassed to have been associated with Bain during the period in question. It's just that he had nothing to do with Bain during that time frame. That will not do. Your name is on the letterhead. You have to take responsibility. Period. Why does it seem so congenitally difficult for Romney to accept that responsibility? Why does avoiding the facts and making excuses come so naturally to him?

Why Bain is important

Thursday, July 12, 2012


From the Charlie Rose interview, some interesting insights into what the president could have done better, especially in his first two years, from the man himself.

Apples and oranges

In the face of growing interest in the question whether Mitt Romney continued to stay involved in Bain entities during the period (1999-2002) when Romney claims to have relinquished control of Bain, those in the fact-checking world (FactCheck.org and Fact Checker) who took a position supporting Romney, are still trying desperately to defend their original conclusions. They are missing the point.

The latest FactCheck rebuttal repeatedly mischaracterizes the issue as whether Mitt Romney was "actively managing" Bain during the period in question. Evidence supports the conclusion that Romney was heavily involved in the Olympics during those years. Nobody doubts that Romney substantially reduced the amount of time he spent on Bain activities. Obviously, if Romney was working full time on the Olympics, he had less time to spend on Bain. The relevant question, however, is whether Romney was still involved in managing Bain at all. That is relevant because Romney is not claiming merely that he substantially reduced his role at Bain. He is the one who is claiming that he was not involved in Bain at all.

From the financial disclosure forms cited in the previous FactCheck article, which were signed by Mitt Romney in 2011 when he declared his intention to run for president:
Since February 11, 1999, Mr. Romney has not had any active role with any Bain Capital entity and has not been involved in the operations of any Bain Capital entity in any way.
Note that Romney is not talking about reducing his role in the "active management" of Bain. What he certified on these federal disclosure forms is that he has not had ANY active role with ANY Bain entity, and has not been involved in their operations in ANY way since February 1999. If the companies' subsequent SEC filings are correct, however, and we should assume they are (because they are supposed to be), Mitt Romney actually stayed on as owner, officer and director of various Bain entities for three more years. Therefore it is hard to imagine that he did not have ANY role or involvement in operations.

That brings up the second blind spot of these Romney defenders. They claim that just because Romney held a title, like  managing director, "doesn’t necessarily mean that he’s responsible for decisions like layoffs or outsourcing." And it's true that a person's title does not tell you what actual duties they personally performed. What a title can tell you, however, is what LEGAL responsibilities a person may have had. Certain titles carry with them specific legal responsibilities. A title like "director" includes the responsibility for electing officers, for example, and for ratifying their actions. Likewise, officers of a corporation have specific legal responsibilities defined in a corporation's by-laws or by operation of common law or statutory law that do not depend on what they actually did on the job. Those responsibilities encompass essentially all of the operations of a company. (Today's Fact Checker article does not even deal with the problem of Romney's role as a corporate officer, asserting that "[j]ust because you are listed as an owner of shares does not mean you have a managerial role." As pointed out in my previous post, ownership does not necessarily carry legal liability with it. Holding the positions of officer and director is quite something else.)

This is not about titles, and it's not about the amount of time that Romney did or did not spend managing Bain during 1999-2002. It is about legal responsibilities. If Romney was performing those responsibilities, then he was actively involved in managing Bain. But even if Romney were not performing any of those responsibilities, he was still legally responsible for the actions of whomever did perform them, based on what Bain reported to the SEC. Eventually Romney is going to have to acknowledge either that he did not have the responsibilities that were listed on his companies' SEC filings, and therefore the filings were incorrect; OR alternatively that he did either himself perform or delegate those responsibilities, and therefore continued to be legally responsible for all of the operations of Bain during the period that has been called into question. Either way, you have to wonder why a person running for the most responsible position in the world, a person who wants to sit at the desk where Harry Truman placed a sign saying "The Buck Stops Here," why somebody seeking that office would be so intent on ducking responsibility for any of the actions of companies that represented his life's main work.

What quirk?

A story in today's Boston Globe validated reports that Mitt Romney continued to be listed as an owner, officer and director of various Bain companies for three years after Romney and Bain have said that Romney left Bain. In response, a Romney campaign official was quoted in a CNN report as follows:

"Although Governor Romney was not involved with Bain Capital after he left to head the Winter Olympics in 1999, he was still listed on some technical filings. This is nothing more than a quirk in the law. When Governor Romney took over the Olympics, he was not involved in the operations of any Bain Capital entity in any way. He was too busy working to make the Olympic Games among the most successful ever held."
What is this story about? Does it depend on what the meaning of "left" is? In a way, yes, but this controversy is not just about whether Mitt Romney was spending some of his time managing Bain during the years 1999-2002, or whether he was spending all of his time managing the Olympics. Let's take Romney and his friends at Bain at their word and assume for purposes of discussion that Romney was spending all of his time managing the Olympics, and had nothing whatsoever to do with Bain in any way, shape or form.

Would that end the controversy? NO. Because it is not just a quirk in the law that Mitt Romney was reported in numerous SEC filings to be the owner, director and an officer of various Bain entities. Those concepts all carry legal responsibilities.

Being the owner of a corporation might be the least of Romney's problems, because ownership by itself does not necessarily carry liability for the actions of a corporation that you own. In fact, the whole point of creating a corporation is to insulate the owners from responsibility in most cases for the corporation's actions. So let's take another leap of faith and assume that Romney was merely a passive investor in Bain during those years. As an owner, he still profited from Bain's activities, and therefore might still have some moral responsibility for Bain's actions. But legally, he could still claim it is unfair to hold him responsible for the actions of a corporation he did not manage.

Being an officer and director is a whole different matter, however. Officers and directors have fiduciary obligations to the corporations. They also face potential liability to people who deal with the corporation for fraudulent and other wrongful acts by the corporation. They have a legal responsibility to manage the business. Romney does not avoid that legal responsibility by claiming that he delegated management responsibilities to others. In some ways, it is worse for him if he did that, because that would almost prove by itself that he was not living up to his legal responsibility to manage the business. In other words, either Romney is being untruthful in claiming that he was not involved in the management of Bain in any way, or he has admitted to a dereliction of his legal obligations. It must be one or the other.

Romney cannot avoid this dilemma by claiming that these were merely "technical" requirements or "quirks" in the law. According to the way the Romney campaign is trying to paint the story, it simply took Bain some time to get the paperwork right. Romney had already surrendered his management responsibilities in fact. It just took a while for Bain to update its SEC filings to reflect what had already happened. This explanation will not suffice. This is the SEC we are talking about. Whatever you might think of the SEC, it is not a "quirk." It is supposed to serve a real purpose by giving the investing public accurate information about the operations of companies. That means that if Mitt Romney is no longer serving as the officer and director of a company, the company is supposed to file reports identifying the people who are now serving in those capacities. That is the whole point of those SEC filings. Does it take three years to amend those reports? No. Is it difficult? Not particularly. Mitt Romney could have called a shareholders meeting the night he left for Salt Lake City in which he accepted his resignation as an officer and director, and appointed new people to take his place. His lawyers could have documented that transaction the following morning, and accurate information could have been quickly submitted to the SEC. Somebody needs to be identified as holding these positions of responsibility, and it does not take very long at all to complete the necessary paperwork to identify who those people are. If Bain never got around to changing those names in its "technical filings," that means Bain either chose to keep Mitt Romney on public display as the legally responsible officer, regardless of who was actually running the company, or Bain simply could not figure out who was actually running the business for all that time. (or Romney was actually running Bain, which again I am assuming for the sake of argument he was not)

All this means that either the SEC filings that Bain submitted are accurate, which would mean that Mitt Romney (however much time he did or did not spend managing Bain) continued in his legal capacity as an owner, director and officer during the entire period from 1999 through 2002. Or the filings were inaccurate, which would mean that Bain was not complying with its disclosure requirements. Nobody is saying that Bain filed false information with the SEC. Instead the Romney campaign just seems to be suggesting that these filings were some kind of technical, unimportant matter. Or they are trying to distract attention from the real issue by pretending that this is all about how much time Romney spent at one job or the other.

Why does any of this matter? What is it really about? I would submit that it is about assuming responsibility for one's own actions. All Mitt Romney has to do to put this controversy to rest is to say he takes full responsibility for whatever Bain did at least up until 2002, when he formally relinquished control. The interesting question is why Romney is so reluctant to do that. Isn't Mitt Romney supposed to be proud of his record in business, the entire basis for his claim that as president, he would do a better job of improving the economy than President Obama has done? What has Bain done during this period that Mitt Romney is so ashamed of?

Wednesday, July 11, 2012

Mr. Smith Goes to Washington (2012 version)

Interior of Congressman Smith's house in Washington. Congressman Smith is a freshman Tea Party Representative. The Congressman enters, greeted by his 4 year old son, Johnny.

Johnny: Hi daddy, what did you do in Congress today?

Smith: Today we had a very important vote to repeal Obamacare.

Johnny: What's Obamacare?

Smith: Son, don't you remember when I explained to you how those awful Democrats passed a law two years ago to help everyone get health insurance?

Johnny: Oh yeah, I think I remember. What's so bad about health insurance again, daddy?

Smith: It's not that health insurance is so bad. We have health insurance, and that's a good thing. It's just that we don't think the government should be helping people get health insurance.

Johnny: But doesn't the government give us health insurance?

Smith: Well, that's just because I happen to work for the government right now. But that doesn't mean that everybody should have health insurance.

Johnny: Why not?

Smith: Because that's not what our founding fathers fought the Revolution for.

Johnny: Wow. We fought the Revolution so Americans wouldn't have health insurance? That means you're just like those Revolutionary War soldiers fighting to keep Americans from having health insurance.

Smith: That's right.

Johnny: So now that you repealed Obamacare, all those people who don't deserve health insurance won't have it any more, so that's good, right?

Smith: Actually, it's not quite that simple. Today the House repealed Obamacare, but that's only the first step. Next, the Senate also has to pass the bill, and then the president has to sign it for it to become a law.

Johnny: So tomorrow the Senate will repeal Obamacare then, right? 

Smith: Probably not. The Senate doesn't seem to want to repeal Obamacare. And even if the Senate did that, President Obama is never going to sign a bill repealing Obamacare. It was his idea in the first place.

Johnny: So how come you passed a bill if you know it can never become a law?

Smith: Anybody ever tell you that you ask a lot of questions? Look, sometimes you have to take a stand, even if you don't succeed this time. So that's why we keep passing this bill.

Johnny: You mean this is the second time the House passed this bill?

Smith: Son, you don't send a message by just doing something once or twice. You have to keep on fighting.

Johnny: So how many times have you voted to repeal Obamacare then, daddy?

Smith: Uh, . . . today will make the 33rd time we voted to repeal Obamacare.

Johnny: That's a lot, dad! My nursery school teacher told one of the other kids he should stop banging his head against the wall after the third time.

Smith: Maybe that's enough to make your point in nursery school, son, but national politics is serious business. We're probably going to vote to repeal Obamacare at least ten more times before the election.

Johnny: Gee dad, how do you get anything else done if you have so many votes to repeal Obamacare?

Smith: We work really hard, and we get a lot of important things done. Do you know how many times we voted to defund Planned Parenthood?

Johnny: Cool! Does that mean I'm going to get a little brother or sister soon, dad?

Smith: Like I tried to explain, kid, it's not that simple. I think that's enough questions for tonight.

Monday, July 9, 2012

How to solve America's financial problems

A lot of questions are being raised about Mitt Romney's offshore investments, as well as his investments in outsourcing, his unreleased tax returns, his $100 million IRA . . . . Wait a minute. Let's talk about that last one for a minute. There was a good story in TPM a couple of days ago focusing more attention on exactly how someone could accumulate such an awesome sum of money in an IRA account, considering that an IRA is merely a middle class retirement vehicle for which contributions are currently limited to $6000 per year.

 A lot of stories about Romney's finances have focused on how unfair it might seem for someone like Romney to take advantage of generous tax breaks that allow the wealthy to pay lower rates than the middle class, or how unpatriotic it seems for Romney to park his money in Switzerland or the Caribbean instead of betting on America. As for the IRA, a lot of economists and tax accountants are scratching their heads right now trying to figure out how Romney could have turned at most  $6000 a year (over a hundred years that would amount to only $600,000 in contributions), into over a hundred million dollars in value.

I want to give Romney the benefit of the doubt on this whole IRA brouhaha. If Mitt Romney has figured out how to parlay an IRA account into a means for people to become centimillionaires, I say more power to him. And right now, what he really should be doing is sharing those tricks with the rest of us. Lots of people are capable of maxing out their IRA contributions, and even more of us would do it if we knew we could turn those IRA accounts into oceans of fabulous wealth. Republicans are always talking about teaching a man to fish instead of giving a man a fish. So teach us all how to fish, Governor Romney. Tell us your secrets. Because if we all followed your example, the prosperity of this country would know no bounds. We could all buy lakefront mansions in New Hampshire, and fix up fancy beach houses in La Jolla. We could put the whole construction industry back on its feet building our summer houses.

All Mitt Romney needs to do is explain in simple terms how we can invest our money in a more clever way that will make us all many millions. Presumably what Romney did was legal, and presumably it only cost him at most a measly $6000 a year. If he could do it, we all should be able to do it. Just tell us where we can obtain the assets to park in an IRA that will blossom into such enormous financial treasures. These were not magic beans I'm sure. They must be tangible investments that anyone can make. If they were only valued at a few thousand dollars each year, they are not beyond the reach of many of us. Prove that the American dream is still alive, Mitt. Show us how we can all do it, and you will not only make our nation wealthy; you will also prove you are worthy of leading us.

Sunday, July 8, 2012

Defying history?

An AP story making the rounds yesterday, as well as a similar AFP story, suggest that for President Obama to win re-election in the face of our country's continued high unemployment rate would represent some kind of miracle, contrary to all recent historical precedent. Stories like these might be helpful in building up Obama's image as a miracle-worker, but they don't fairly represent history.

In passing, the AP story does note that the last time a president won re-election with unemployment higher than it is today was 1936, as if to suggest just how unlikely such a victory would be. But what if 1936 is in fact the closest historical parallel to today? We have not had a recession this severe since the Great Depression. When Franklin D. Roosevelt came into office, the financial system was on its knees, and the country was suffering massive unemployment. Nothing like that kind of financial collapse occurred again until 2008. And although we have had many recessions during the intervening years, we never had the kind of shocking collapse in asset values, notably home prices and financial portfolios, as also occurred in 2008. The only reason we do not see the shantytowns and bread lines that existed in the 1930's is that we have a better social safety net (partly thanks to Roosevelt) than existed at that time. It is food stamps, Social Security benefits, and unemployment insurance that are keeping millions of people out of abject poverty. Those programs were not available in the 1930's.

The public understood the severity of the problems Roosevelt had to deal with when he was elected in 1932. Many were ready to give him dictatorial powers. But people did not expect FDR to bring economic conditions back to normal in his first four years. They saw slow progress in lifting the country out of recession, and efforts by the federal government to try new ideas. That was enough to re-elect Roosevelt in a landslide. (FDR lost only two states in 1936.)

I'm not predicting a landslide for Obama. The public seems less inclined to give the president the benefit of the doubt, and more impatient for instant results than people were in the 1930's. And the crisis this time is not as severe as it was during the Great Depression. Still there are no better recent historical parallels for the upcoming re-election campaign. That is why President Obama will not be defying history by winning re-election while we are still in the midst of a bad economy. He will be re-playing to some extent the history of 1936.

Friday, July 6, 2012

California embraces the future!

Today the California Senate approved funding for the first segment of the nation's first true high-speed rail network: over $3 billion in federal funds and nearly as much in previously-authorized state bonds. The money will go toward construction of a 130 mile segment of the planned network through the central valley from Bakersfield to Madera. This is the easiest and cheapest part of the rail line to build, and basically goes from nowhere to nowhere. The rest of the funding, to build the more important and difficult segments, is years away and increasingly doubtful.

I hope we eventually build the whole thing, and I can someday travel to San Francisco by a train traveling over 200 miles an hour. But even if we never build more than this pathetic little segment, I'm still thrilled. That's because approval of this project means that we have not abandoned the dream of grandiose and ambitious and forward-looking projects in California. We have not given up.

To those nay-sayers who whine about wasteful government spending, I say I don't care if it's wasted (though I don't think it will be). Even if we were to put construction crews to work digging a gigantic hole in the central valley and then filling it up again, that still might serve a useful purpose. It would at least serve the purpose of putting construction crews to work. But if we want to talk about wasteful government spending, let's compare this rail project with some other projects. Let's talk about, say, the F22 fighter jet program. The F22 fighter jet is a marvel of technology. It is awesome. It does things other fighter jets can only dream about doing. And it cost taxpayers about $79 billion, or more than $400 million per plane. A remarkable sum of money taxpayers have shelled out, especially considering that none of these incredible fighter planes has flown a single mission. That's right. Even though we've been engaged in complicated military operations in Afghanistan, Iraq, and most recently Libya over the last few years. In all that time, the military has not found a use for this highly advanced aircraft. It seems that the F22 fighter jet is so advanced; it is so beyond the capabilities of any other nation we may be in conflict with, that it has no worthy adversaries.  We don't need it. Perhaps we will need it in the future, but we just haven't found a use for it yet.

Let's suppose, after we build a high speed rail line in the central valley, that hardly anyone will find it useful. After all, you can usually do 75 mph in your car in those parts, and you might not find it worthwhile to park in Bakersfield and wait for the train just to go 200 mph for a half hour stretch. If we never build the segments that will serve California's major cities, and this bullet train demonstration project merely turns into an object of curiosity out in the farmlands, we can still admire it as a monument to our technological prowess. Just like the F22 fighter. But even if only 100 people find it convenient to take the train from Bakersfield to Fresno once in a while, that would still make this tiny, useless segment of the high speed rail line 100 times more useful than the F22 fighter jet. Since this segment is less than one-tenth the cost of the F22, that means in terms of bang for the buck, it would still be more than 1000 times as useful as the jet.

And that's the worst case scenario. The best case is the more likely one, that once we build this initial segment, we will find the money to build the rest. Then eventually people will not be able to imagine life without a high speed connection between California's major cities. And a lot of us will be able to avoid the  freeway traffic or airport security lines we currently have to endure to travel across this state.

The funny thing is, a lot of Republican Congressmen screamed bloody murder when President Obama canceled the F22 fighter jet program. Some of them are the same people who object to any spending on high speed rail. They would rather spend untold billions on useless equipment that is taking up space on airfields in the Middle East than a single dollar on transportation projects that might actually help Americans get from place to place a little faster.

Romney statement on jobs report

Charles Dharapak/AP photo from NY Times
In reaction to the disappointing report released this morning indicating that the American economy had created only approximately 80,000 new jobs in June, Governor Romney issued the following statement (after the first sentence my version is kind of a paraphrase):

The president’s polices have not gotten America working again, and the president’s going to have to stand up and take responsibility. What it is that President Obama did to cause this anemic job growth I'm not going to explain, but clearly it must be his fault. And what I would have done to create more jobs faster I'm not going to explain either. But obviously the only hope for my campaign is to spread as much fear and pessimism about the economy as I possibly can, so that these employment numbers stay weak until the election, and so that we can continue to blame President Obama for continued high unemployment. I can promise the American people that my campaign will keep doing that every day.

In some positive news, however, I can report that I took a few minutes away from the celebration this morning with some of my campaign staffers to call  House Speaker John Boehner and other members of the Republican leadership. I congratulated them for their hard work in making sure that Congress does as little as possible to reduce unemployment. That will increase the chances that voters will elect more Republicans this fall, and allow us to return to the kinds of economic policies that caused the economy to lose hundreds of thousands of jobs each month back in 2008 and 2009.
And here's a true story about something Mitt Romney actually said when he was governor of Massachusetts. When being criticized for job losses occurring during his first 11 months as governor, Romney said it was "silly" to include the initial period after he took office, when the state was still recovering from a recession. Of course, that doesn't stop Romney from including that period when he measures President Obama's performance.

Notice that what Romney is describing with his hand in this video looks a lot like this graph:

Thursday, July 5, 2012

Is it a tax?

In the wake of last week's Supreme Court ruling upholding the constitutionality of the Affordable Care Act,opponents of the ACA have seized on the Supreme Court's rationale to attack President Obama for imposing a huge new tax on the nation. (The Romney campaign has been a little confused in its response, because coming around to the view that the mandate is a tax would seem to suggest that the Massachusetts mandate was also a tax, something Romney has always denied.) But all of this reaction is funny in a way, because it's not as if the text of the ACA has changed. However the individual mandate worked when the ACA was passed, that is still how it works today. And whether you want to call whatever is imposed if an individual does not have insurance a penalty, or a tax, or a rose, that cost is going to be the same for people who choose to go without coverage as it was when the ACA was passed.

The only thing new is the Supreme Court's rationale for upholding the power of Congress to pass such a law. Any act of Congress can only be constitutional if it falls within one of Congress's designated powers. The Obama administration's lawyers argued, as any good lawyers would, in support of all possible grants of authority. The law was authorized under Congress's power to regulate commerce. It was also authorized under the necessary and proper clause. And it could also be allowed under Congress's power to tax. The Court could not agree on any of these rationales. Four justices opined that there is no possible basis in the text of the Constitution that allows Congress to require that people have health insurance, or charge them if they do not have insurance. And four justices said that Congress has the power under the commerce clause, or the taxing power. But one justice sided in part with both camps, and that is the controlling decision. Justice Roberts does not think that Congress had the power to enact this statute under the commerce clause, but he does think it is permissible under Congress's authority to tax. (To add some more confusion to the issue, remember that Chief Justice Roberts's opinion also holds that the law is NOT a tax for purposes of assuming jurisdiction over the case, but IS nevertheless a valid exercise of Congress's taxing power.)

Does that suddenly make the mandate a tax? It certainly makes the mandate permissible under the Constitution's grant of taxing authority. That means you can call it a tax if you want. But you could always call it a tax even before the Supreme Court ruled. You can still call it a penalty if you want also. In fact, you can call it whatever you want. What it is in fact is a legal obligation to obtain insurance if your employer does not already provide it for you. In some cases the government will subsidize the cost of that insurance, and in some cases you might have to buy insurance yourself. And if you choose not to buy insurance, the IRS will assess a payment due (which by the way the IRS will be limited in its ability to collect). That's what it is. That's what it always has been.

If you don't like it, explain why you think it is an admirable exercise of American principles of freedom that people who go without insurance should be able to freeload on the system that the rest of us have to pay for, and still get to use emergency room services when they get sick or injured, at tremendous cost to the rest of us, because that is our current system. And also explain how an insurance system can work if people are allowed to wait until they get sick or injured before they buy insurance (because that is what would happen if we require insurance companies to accept people with pre-existing conditions). Finally, explain to people that they don't have to pay this "tax" unless they choose to go without insurance (but the payment might still be cheaper than getting insurance, so maybe they shouldn't mind paying it). But don't just try to scare people with the word "tax." Because it's not a dirty word, and people should not be afraid of it.

Tuesday, July 3, 2012

Who will fact-check the fact-checkers?

Fact-checking has grown in importance in journalism, and fact checkers like PolitiFact, FactCheck.org and the Washington Post's Fact Checker can perform a valuable service by measuring the accuracy of statements made by politicians and other public figures. But the rating systems fact-checkers employ may have a tendency to turn them into advocates for a position, instead of simply advocates for truth. Once a fact checker makes such an assessment, they might fall victim to the natural human tendency to defend their own judgments. To do that, they might start emphasizing the arguments in support of their position, and discounting those facts that tend to detract from it. At that point, some of these fact checkers start to sound like trial lawyers. (That's a style I recognize, because I happen to be a trial lawyer by profession. I know how to write a brief, and I can recognize a brief when I see one.)

Take as an example the claims the Obama campaign has been making about Mitt Romney's experience at Bain Capital, including that Bain invested in companies engaged in outsourcing, and that Bain engaged in outsourcing or downsizing themselves at companies in which Bain invested. FactCheck.org has accused the Obama campaign of overreaching by blaming Romney for shipping American jobs overseas, and the Obama campaign responded with a six page letter detailing the evidence supporting one particular sub-part of this complicated issue: whether Romney actually left Bain in 1999 when he took on the job of managing the Salt Lake City Olympics. So now the reputation of FactCheck.org has been challenged. How do they respond? Not with a dispassionate assessment of the evidence for and against Romney's continued involvement in Bain during the period he was working on the Olympics, but with what amounts to a lawyer's brief.

FactCheck.org acknowledges in yesterday's post that the main evidence cited by the Obama campaign--numerous SEC filings in which Mitt Romney was listed as the owner, director, and officer of a number of Bain entities--was accurate. They also acknowledge evidence that Romney contemplated continuing involvement in Bain at the time he was running the Olympics, as well as statements by his wife and his lawyer suggesting that Romney continued to work for Bain during this period. At this point, a diligent fact-checker should recognize these facts, and also add into the hopper additional facts that support Romney's position that he had relinquished day-to-day management of the companies. For example, that Romney claimed on a disclosure form he submitted in connection with running for governor of Massachusetts, that "[s]ince February 11, 1999, Mr. Romney has not had any active role with any Bain Capital entity and has not been involved in the operations of any Bain Capital entity in any way." That Romney's lawyer supports his current position. and that the Olympics job turned out to be extremely consuming. An AP story cited in the FactCheck brief states that Romney “immersed himself in books on sports management” and “answered about two dozen e-mails and letters a day.” OK, so he read some books, attended a lot of meetings, and answered two dozen messages and letters every day, all dealing with the Olympics. And he and his associates all say he ceased active involvement in Bain. That still doesn't exactly answer the question of what he actually did for Bain during this same period.

Given this conflicting evidence, it may not be possible to come up with a definitive answer to that question. But it's hard to imagine that for two years Mitt Romney never even picked up the phone to check on what was going on at Bain, because he was so busy running the Olympics. (I've just finished the latest volume of Robert Caro's biography of Lyndon Johnson, which reveals that even after Johnson became president, he still remained deeply involved in the activities of his supposedly "blind" trust. These are the kinds of facts historians often don't find out about for many years, if ever.) But even if Romney had zero involvement in running Bain during that period, that still wouldn't end the inquiry, because that would imply he was shirking his legal responsibilities to the companies of which he remained an officer and/or director and/or shareholder. A shareholder of a company can take a minimal role in management, and function as a passive investor. But Romney was also not just a shareholder. He remained the CEO and director of several Bain entities, and therefore had a fiduciary responsibility to manage the activities of those entities. Even if he delegated his authority as an officer and director to others, he would still remain legally responsible. On the record so far in this this case, a prudent fact checker could honestly answer that there is no way to know for sure the extent of Mr. Romney's hands-on management activities in Bain during the period in question. A fact checker might also raise the question whether that even matters, given that as an officer and director of various companies, Mitt Romney continued to have legal responsibilities for their activities anyway.

Or the fact checker could go out on a limb and take Mitt Romney's business associates and attorney at their word, as the FactCheck.org fact-checkers do. That assessment crosses the line from journalism to advocacy. And these fact-checkers have to understand that in the world of campaign charges and counter-charges, their brief can now be used by the Romney camp to deflect legitimate questions about Romney's record at Bain Capital. Now the Romney campaign can just respond to questions about Bain's activities by asserting that the respected news organization of FactCheck.org has found these criticisms to be all wet.

But the Obama campaign is far from all wet. The questions raised by the Obama campaign go beyond asking how much time Mitt Romney spent running the Olympics or running Bain during the 1999-2001 time period. Those questions concern activities that Bain engaged in during the period that Mitt Romney was an owner and officer of the companies involved. Romney does not get to wash his hands of all responsibility for those activities by claiming he was too busy working on the Olympics. And Romney should not be entitled to say that anyway, given that he has never himself disavowed or disapproved of any of Bain's activities during that period or any other period.

As a trial lawyer, sometimes my most important piece of advice to a witness is to remind them not to be afraid to say you just don't know the answer to a question. That is often the most truthful answer, but one that witnesses are hesitant to give. I rarely see these fact checking organizations admit that they have no idea whether a particular statement is true or not, but it would be refreshing if they did that more often. I understand the natural desire we all have to convey an air of knowledge. But when we get too invested in a position or a version of events, we are likely to make mistakes. Then truth, which is supposed to be the ideal that fact-checkers serve, instead becomes their victim

Monday, July 2, 2012

How to win

Now that the dust is settling around the Supreme Court's decision upholding the Affordable Care Act, I wonder if those progressive supporters of Obama whose enthusiasm has cooled somewhat, will recognize that they got as much reform as they possibly could get passed by the Congress, and upheld by the Supreme Court. Those who fall in the disappointed and disillusioned camp like to think that with a more uncompromising, aggressive approach, President Obama could have accomplished more liberal reform. Considering how difficult it was to pass even this moderate reform, it's hard to imagine that a more progressive bill, such as one including a public option, would have had more success. But the people I'm talking about cling to the idea that the president did not need to water down the health care bill so much to get it passed. They imagine that past champions of progressive reform got their programs enacted without so many concessions.

A look at history casts doubt on those assumptions. There was a piece in the New York Times yesterday, for example, called How Liberals Win, comparing the deals that FDR and LBJ made with corporate power in order to enact their reforms, with the deals the Obama administration struck with pharmaceutical companies to obtain their support for health insurance reform. Obama's initiative may have been crucial to obtaining passage of the bill. Contrast Clinton's failed efforts at health care reform when he first took office, which fell victim to a fierce and unrelenting advertising campaign by the industry. Clinton lost that battle because he had no allies in the health care industry. Obama did not make that mistake. That's one reason he was able to get major reform passed that Democrats had tried and failed to accomplish for a hundred years.

Other examples of what it really takes to make progressive reform possible appear in Robert Caro's latest installment of his Lyndon Johnson biography. Caro details exactly how Johnson was able to get two signature Kennedy promises enacted after Kennedy's assassination--the income tax cuts, and the Civil Rights Act. Both those bills were stalled in Congress in the fall of 1963, and nobody in the Kennedy administration seemed to have a clue about how to move them forward. How did Johnson do it? It was not just by browbeating and arm-twisting his opponents, although he did do some of that. With the tax cut bill, he saw that the only way forward was to placate Senator Harry Byrd, Chair of the the Senate Finance Committee, by making severe budget cuts that year-anathema to liberals. The only way to get cloture on the Civil Rights bill was to obtain the votes of a sufficient number of Republicans in both the House and Senate, to make up for the no votes of nearly all Southern Democrats. Johnson did that by appealing to Republicans' sense of history, continually reminding Republicans that theirs was the party of Lincoln.

Obama's critics on the left have criticized him for attempting to make deals with the Republicans, especially the budget compromise that prevented the government from going into default last year. If they think there was ever a president who got what he wanted without making deals, they will have to look pretty hard to find examples. Both Roosevelt and Johnson, who left the largest legacies of reform in modern times, despite their large Democratic majorities in Congress, were constantly making deals. Ronald Reagan, who left a legacy of wide-reaching changes in a conservative direction, was also a notorious practitioner of compromise, which is how he got major changes in tax and spending policies, and immigration reform, through the Congress.

The GOP plan for the uninsured

For those who don't have time to watch this video of Senator McConnell's remarks on one of the Sunday talk shows, here's a handy summary.  The question, which is repeated several times, is what is the GOP's plan to find coverage for the 30 million uninsured after they supposedly repeal the Affordable Care Act. Minority leader Mitch McConnell trots out a number of answers: 

"I'll get to it in a minute (actually I'm never going to get to it)."

"Let me tell you about some other things we're not going to do."

"What we're going to do is go step by step to do a bunch of other things that will not address that problem."

"I can't hear you. My fingers are in my ears."

"Who thinks that is a problem we are supposed to address?"

Why do you keep asking me that? Isn't this Fox News?"

"We're just not going to do it, OK?"