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


  1. << 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.) >>

    What a perfect explanation of why politics is so screwed up!

  2. I don't really understand this comment. Let me make clear that I don't think there is anything wrong with briefs. I admire a well-crafted argument expressing a point of view as much as anyone. Probably more than most anyone, since that is what I do for a living. I also don't think there is anything wrong with political candidates advocating their point of view in as persuasive a style as they can. That's what politics is all about. And it's up to the voters to be smart enough to sort it out.

    But marshaling all of the arguments for a particular point of view is not what fact checkers are supposed to be doing. They are supposed to function more like a judge than like an advocate.

  3. << But marshaling all of the arguments for a particular point of view is not what fact checkers are supposed to be doing. They are supposed to function more like a judge than like an advocate. >>

    According to who? You are one of the few people who pay attention to them and quote them; unless they disagree with you. You know numbers and graphs can be interpreted more than one way. Most people on the internet are advocates. Most journalists on the internet are advocates.

    Presently, we can leave out the SCOTUS because they gave you what you wanted :-)