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Friday, August 15, 2003
How to Deal with Frivolous Suits

In the course of a Slate article on suits against the fast food industry, Dahlia Lithwick wrote:
Even frivolous lawsuits deserve their day in court. That's why we have judges: to throw them out

Eugene Volokh takes exception to that line:
I don't get this. Frivolous lawsuits let plaintiffs inflict huge litigation costs on innocent defendants. Their existence increases legal risk, until they're definitively thrown out, and tends to, on the margin, discourage investment in the industry. This problem is exacerbated by the fact that even if nearly all such lawsuits are rejected, one or two lawsuits (perhaps before unusually plaintiff-friendly judges and juries) may yield massive punitive damages awards. A few juries may thus end up essentially making food policy for the whole nation.

No one "deserve[s]" the right to force people into ligitation on an unsound legal theory. If the theory is indeed unsound, then it's perfectly proper for the legislature to prevent the cost and risk of the litigation in the first place, rather than waiting until tens of millions of dollars are spent in various lawsuits.

Both Lithwick and Volokh have points. Volokh treats the issue of whether a not a suit is frivolous as self evident. That is not the case. Only when a suit is tested by the adversarial process of litigation can it be determined if there is merit. Thus, Lithwick’s position that even frivolous suits “deserve their day in court” is surely true. Every litigant should be given the opportunity to prove that their suit has merit.

Volokh’s argument that the filing of frivolous suits (and, of course, the assertion of frivolous defenses to meritorious suits) imposes costs, including attorney fees, litigation expense and, occasionally other damages, on the other side is also surely correct.

A policy to deter frivolous litigation needs a mechanism to identify which suits are frivolous and a mechanism to shift the costs incurred in the process of opposing frivolous suits and defenses onto the party and/or lawyer who has asserted the frivolous position.

To separate the frivolous from the suits that have merit, we first need a definition of frivolous.

Georgia law imposes abusive litigation sanctions on a party and/or the lawyer for a party, when he or she has:
Asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.

That is a fairly reasonable definition of frivolous. Except in certain circumstances identified below, a suit filed (or a defense asserted) that presents no “justiicable issue of law or fact” and which it is unreasonable to believe that a court would accept the position can fairly be termed “frivolous.”

That statutory scheme does not go as far as “loser pays.” Every suit that is not settled has a loser. Not every losing case is frivolous. Sometimes a jury just has to decide who to believe. Sometimes, the law is unsettled. Sometimes the precise fact pattern presented by a case has never been ruled upon in that particular jurisdiction.

Recently I litigated the issue of the measure of damages due to a co-tenant for minerals removed and sold from the common property. I argued that the measure of damages should be the value of the minerals once extracted less the lost of extraction. The mining company argued that a reasonable royalty rate was the better measure.

The two measures resulted in vastly different recoveries. Georgia law had never ruled on the issue. Other jurisdictions were split on the issue. One side or the other had to lose. Neither side was frivolous.

Georgia law makes it mandatory, upon motion of the aggrieved party or on the court’s own motion, for a judge to impose sanctions when the definition quoted above is met. The sanction to be imposed is an award of all attorney’s fees and litigation expenses incurred in opposing the frivolous position.

The Georgia scheme gives each litigant “a day in court” as Lithwick suggests is appropriate while also shifting the litigation costs Volokh notes to the party causing those costs to be incurred.

There are a number of possible objections to the Georgia scheme. First, it should be noted that the law is never stagnant. It changes over time as new situations occur and societal standards evolve. At one time, the filing of desegregation suits in the South might have fallen into the category of being without a reasonable belief that the position would be accepted. I hope that we do not want a frivolous litigation scheme that would have prevented such suits.

Fortunately, Georgia law recognizes that the law is ever changing:
No attorney or party shall be assessed attorney's fees as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority.

If a suit or a defense is asserted in a good faith effort to establish or extend a new legal theory, it is not usually very difficult to find an opinion from another jurisdiction, a dissent or a law review article supporting the new theory. If no such authority can be found, perhaps the theory just is frivolous and deserves sanction.

A second objection to the Georgia statute discussed above is that the sanction is limited to an award of attorney’s fees and litigation costs. What if the filing of a frivolous claim causes other damages?

For instance, assume that you are trying to sell a house. You find a buyer, agree on a price and prepare for closing. You are confident that you will close because the buyer already has locked in financing at a certain rate.

A third party files a frivolous suit to stop the sale claiming that he or she actually owns your house. That claim has no legal or factual basis. You hire a lawyer and proceed to prove that you own the house and that the suit was frivolous.

The court agrees and awards you the amounts you have spent on lawyers and litigation. After you win, you try to sell the house to the same buyer.

During the litigation, the buyer’s lock expired, rates moved up and the buyer can not longer afford the payments at the old price. The buyer agrees to take out a new loan at a higher rate to buy the house but requires a reduction in the price in order to be able to afford the payments. You agree to the lower price.

You have been damaged over and above the attorney’s fees and litigation expenses you have incurred. Georgia law addresses that problem as well. A separate statute ( OCGA §51-7-80 et seq.) creates a cause of action that permits you to file an independent suit against the party and/or attorney asserting the frivolous claim to recover any such additional damages.

A few years ago I taught the procedure for sanctioning abusive and frivolous litigation to a group of about 200 Georgia trial court judges. Those judges, almost to a person, thought that they could easily identify suits, defenses and positions that were frivolous. Those judges are very busy and have long dockets. They do not need their dockets cluttered by frivolous suits. They were looking for a way to deter the filing of frivolous suits and defenses.

In my experience, the Georgia procedure works well and has worked well for over a decade. It allows access to the courts for any person who feels aggrieved. It deters much frivolous litigation by the threat of sanction. For frivolous suits that are not deterred, it shifts the costs to the party causing those costs to be incurred. It may not be a perfect solution but it works pretty well.

Many tort reform proposals, such as the President’s proposed cap on non-economic damages in medical malpractice cases, are sold as a way to prevent frivolous suits. The reality is that such proposals are not designed to deter frivolous suits but, rather, to reduce the damages defendants must pay on meritorious claims.

If we are serious about deterring frivolous suits, it is possible to do so. Legislation modeled after the Georgia scheme is a good place to start.

Thursday, August 14, 2003
Spinning Madly In The Wrong Direction

I am amused by the spin coming from both sides of the political spectrum on the question of whether or not the recession began on Mr. Bush’s watch.

My amusement stems from three factors. The first is that although there is a political dispute over whether or not the nation was in recession when Mr. Bush took office, there appears to be no factual dispute over that issue at all. Secondly, the political dispute is ridiculous as the precise timing of when the recession began is of no importance whatsoever. Finally, I am amused by the fact that both sides appear to be spinning against their own interests.

The facts are clear. The authoritative body charged with calling beginnings and ends of recessions is the National Bureau of Economic Research. In July, the NBER called the end of the recession:
The Business Cycle Dating Committee of the National Bureau of Economic Research met yesterday. At its meeting, the committee determined that a trough in business activity occurred in the U.S. economy in November 2001. The trough marks the end of the recession that began in March 2001 and the beginning of an expansion. The recession lasted 8 months, which is slightly less than average for recessions since World War II.

I have seen no one question the authority of the NBER to make the call nor anyone challenge the beginning date of the recession. There seems to be a mostly academic debate over whether in calling the end of the recession, the NBER should have given greater weight to employment or growth (see for instance this post by Brad Delong) but both the authority of the NBER and the date on which the recession began appear to be unchallenged.

Thus, by weight of authority, the recession lasted from March of 2001 until November of 2001. The recession began when Mr. Bush had been in office about 2 months or less.

Why that fact is important escapes me. Surely no one can seriously argue that Mr. Bush’s policies resulted in a recession beginning two months after the inauguration. Mr. Bush’s signature piece of economic legislation had not been passed. Mr. Bush and his economic team were probably still trying to figure out the phone system at the time the recession began.

Would any serious person be prepared to argue that Mr. Bush is either more or less responsible for the state of the economy today (or more importantly in November of 2004) if the recession had started in December of 2000?

Nonetheless, each party seems intent on convincing the public that the recession started on the other party’s watch.

Spinsanity has noted a number of instances in which Mr. Bush and the administration have tried to claim that the recession did not start on his watch.

In Santa Clara, Mr. Bush said:
So with the combination of the loss of revenue as a result of the recession -- which was official in January of 2001…

He repeated that spin in Nebraska (“ And then we went into a recession. That's three quarters of negative growth. From January of 2001, for the three quarters ending, starting January 2001, we were negative,”) in New Mexico (“In January of 2001, we were in a recession”) and in Indiana (“And then our nation went into a recession, starting January 1st of 2001”).

Ari Fleischer and Karl Rove made similar statements (see Spinsanity for the links).

That seems like a lot of spinning to give the impression that the economy was in recession when Mr. Bush took office, particularly when the fact that the economy went into recession two months after he took office is not prejudicial to Mr. Bush.

The Democrats are quick to call Mr. Bush on his spin. I think that it is appropriate to use Mr. Bush’s spin for the purpose of showing that he does not always stick to the truth. I have done that myself. The 2000 election demonstrated that a string of small, inconsequential inaccuracies can have a devastating effect.

Some of the criticism of Mr. Bush, however, seems to be making the point that the recession started on his watch, not Mr. Clinton’s, and that somehow makes him responsible for the downturn. That argument is ridiculous.

The most amusing part of the spin is that it is in each party’s interest to spin the other way. The Democrats should be arguing that the recession began earlier and it is in Mr. Bush’s interest to use the later start date.

The spin is all about politics, of course, and the issue is whether or not the Democrats can get any traction on the economy in the 2004 election. If the economy is humming along by Election Day, Mr. Bush is going to claim credit regardless of what the Democrats say or do.

If the economy is still sputtering in 2004, the issue will be how much blame Mr. Bush gets. The argument that Mr. Bush caused the recession simply will not get traction. As noted before, the recession started before Mr. Bush unpacked.

The argument the Democrats should make is that Mr. Bush failed to fix the problem. The more time Mr. Bush had to fix the problem, the more traction the Democrats will gain.

The Democratic line should be, “Mr. Bush wasted four full years and $2 trillion and the American people still can’t get jobs.”

The more time Mr. Bush had to turn the economy around, the better that argument will sound.

The converse is true for Mr. Bush. The later the recession started, the less time his policies have had to work. If the economy remains sluggish, Mr. Bush will argue that his prescription is right, but the medicine has not yet had time to work. That argument works better if it is made closer to the time the symptoms appeared.

I find watching both parties spin madly in the wrong direction to be rather amusing. Don't you?

Wednesday, August 13, 2003
Florida Passes Med Mal Reform

The Florida Legislature passed a measure to reform the medical malpractice tort system.

According to Reuters, Jeb Bush is confident that the measure will work:
Gov. Jeb Bush applauded lawmakers following three special legislative sessions to hammer out a compromise measure and said he would likely sign the bill into law on Thursday.

"I'm confident there will be a reduction in insurance premiums," Bush said. "I'm confident we'll have a better system to deal with doctors -- the small number of doctors -- that commit grievous malpractice. I know we will be able to get better data for all of us to be able to make policy decisions going forward."

I am cautiously optimistic that the measure will prove effective at holding down increases in medical malpractice insurance rates as well.

The bill includes certain provision capping recoveries. Reuters says:
The compromise plan caps damages for pain and suffering and other noneconomic penalties at $500,000 per doctor…

The bill also places liability caps for health care facilities and emergency rooms. Victims would be still able collect up to $2.5 million in noneconomic damages for the most egregious cases, such as those causing serious injury or death.

Those caps are far more reasonable than the hard cap of $250,000 for non-economic that the doctors and insurance companies supported. I doubt that either the more generous cap that passed nor a hard cap would do much to reduce the rate of increase of med mal insurance premiums. Premiums simply have not been rising as a result of large awards for pain and suffering.

My reason for guarded optimism about the bill comes from two sources. First, Reuters reports that:
Opponents of the bill included the Florida Medical Association, the Academy of Florida Trial Lawyers and medical malpractice insurers.

If the doctors, lawyers and insurance companies are all against the bill, it is probably a pretty good compromise.

Secondly, Reuters reports:
the plan freezes rates until Jan. 1, when insurers would be required to justify new rates based on the new legal environment.

That is the provision that may cause the plan to succeed. Insurance companies have for years argued that their rate increases were driven by frivolous suits and outrageous awards. That argument is and has always been disingenuous.

When placed under oath in Florida, the insurers, doctors and regulators all admitted that frivolous suits were not the problem.

Now, with damage caps in place, the insurance industry will have no straw man on which to blame rate increases. The insurance industry will have to justify any rate increases with actual data instead of spin.

Insurance reform, not damages caps, has always been the road to keeping premiums lower. By freezing rates for a time and then requiring increases to be justified by experience, Florida may have found a way to slow the rise in medical malpractice premiums.

Nice Try

While I have often written about my younger son Bobby, I have only rarely written about his older brother, Jesse.

Jesse is nine and just entered fourth grade in a math and science magnet program. I think his class is learning about exponents.

For several years now, Jesse has received an allowance of a few dollars. The allowance is doled out weekly with Sunday night being allowance night.

Upon returning home from school today, Jesse proposed that we change the allowance routine. He no longer wished to receive his allowance weekly.

Instead, he suggested that he receive one penny on the first day of the month, two pennies on the second day with the daily allowance doubling each day for a month.

Now maybe it’s just me but I think that $5,368,713.30 per month is too much for a nine year old boy to handle. Nice try, son.

Hopeful Signs

While things may not be going swimmingly in Iraq, today’s New York Times had two stories that carried some hopeful signs from the other memebrs of the Axis of Evil, North Korea and Iran.

With regard to North Korea, the Times reports:
The Bush administration, which had barred concessions to North Korea before it dismantled its nuclear weapons program, is now considering some conciliatory steps. In return, North Korea would have to either fully disclose its weapons or allow international inspectors into the country, administration officials said today.

Possible concessions include some form of written assurance that the United States has no intention of attacking North Korea and some relaxation of curbs on activities by international institutions to help the North with its economic problems, the officials said.

An administration official said the United States might even be prepared to offer economic incentives, an idea it previously disparaged in connection with the Clinton administration's 1994 deal to freeze North Korea's nuclear program, which the North subsequently breached…

For nearly a year, North Korea has insisted that in exchange for dropping its nuclear program, it must get a nonaggression treaty with the United States and large infusions of economic aid.

The Bush administration has ruled out a nonaggression pact. But Secretary of State Colin L. Powell has said some form of written assurances might be acceptable as a means of underscoring President Bush's declaration that the United States had no intention of attacking North Korea.

All in all, that seems like a good development. The difference between a “non-aggression pact” and “written assurances” of no intent to attack does not seem to be an insurmountable obstacle.

Providing economic aid in return for dismantling of the North Korean plutonium production capacity does have the whiff of blackmail. Nonetheless, I would prefer that we purchase North Korea’s plutonium than to have it for sale to Al Qaeda and others. The key, as in all decisions to pay blackmail, it to ensure it is a one time transaction.

The news from the third corner of the Axis is also hopeful. The Times carries a Reuters story out of Tehran:
The head of Iran's atomic energy program said Wednesday the Islamic Republic planned to allay international concerns about its nuclear program which Washington says may be used to produce atomic bombs.

``I believe that we will remove the international concerns,'' Iran's Atomic Energy Organization chief Gholamreza Aghazadeh told reporters after a weekly cabinet meeting.

Iran has come under mounting international pressure to allow closer inspections of its sophisticated network of nuclear facilities, which include a uranium enrichment facility…

Iran insists its nuclear program is solely geared to producing electricity and has so far resisted calls to sign the Additional Protocol of the nuclear Non-Proliferation Treaty (NPT) which would allow no-notice, intrusive inspections.

EU Commission spokesman Jean-Christophe Filori said Aghazadeh's comments only partially eased European concerns.

``This is fine, but what we really expect is signature and ratification of the protocol,'' he told a daily news briefing.

``We hope this is all a step in the right direction, but we expect something concrete before making more definitive assessments.''

While the Iranian announcement cannot be taken at face value, I agree with Filori that it may be a “step in the right direction.”

Neither story suggests that our goals in Iran and North Korea have been accomplished. Both stories, however, contain a ray of hope.

Tuesday, August 12, 2003
Would You Like a New BMW?

We have been considering buying a new car for my wife. Her car is getting old and with the kids, she really needs a minivan. While we will end up being practical, I could not help but notice the new BMW. It is a fine car.

It has been a number of years since I have been car shopping and I admit to a bit of sticker shock. The BMW costs more than $33,000.

To me, that seems like a lot of money to fork over for a car. George W. Bush doesn’t think it is much money at all. He plans to put the cost of a brand new BMW on your credit card.

In the 2000 campaign, George W. Bush promoted his tax cut policies by reminding the voters that “it’s your money.”

When the government runs up massive debt, it is also “your money” only on the debit side of the ledger. How much of your money will Bush’s policies put on the debit side of your balance sheet? About the cost of a brand new BMW for each American tax filer.

The starting point for this analysis is the Office of Management and Budget’s Mid Session Review.

Mr. Bush’s OMB anticipates that the federal government will run deficits of $2.069 trillion for the years FY 2002 through FY 2008.

Those estimates, however, assume that the entire Social Security and other trust fund surpluses will be spent to fund current operations of the government. Mr. Bush and almost every other major political figure have promised not to spend those surpluses as they will be needed to fund the costs of the retirement of the baby boomers.

For the period of 2002-2008, those surpluses amount to $1.332 trillion dollars according to the OMB estimates. Thus, the “on-budget” deficit Mr. Bush proposes to run for the period of FY 2002-2008 totals $3.4 trillion.

That is not all. The OMB estimates do not include the costs of rebuilding Iraq. As OMB states:
These estimates do not reflect what the Administration has previously indicated are expected but undetermined additional costs arising from ongoing operations in Iraq, extending beyond 2003.

This report’s lead paragraph states that:
Private analysts have estimated that the cost of U.S. military and nation-building operations in Iraq could reach $600 billion.

The body of the story reports estimates of possible costs for Iraq's reconstruction ranging from about $100 billion up to $600 billion. Since we used conservative figures on the future deficits, let’s use the higher estimate $600 billion for cost of rebuilding Iraq.

In addition, the Mid Session Review did not include any spending for Mr. Bush’s proposed prescription drug benefit. Mr. Bush has asked that any such legislation be limited to $400 billion.

Thus, when the costs of rebuilding Iraq, the prescription drug benefit and the trust fund surpluses are accounted for, Mr. Bush plans to put about $4.4 trillion of debt on the nation’s credit card.

There are about 130 million individual tax returns filed in the U.S. Mr. Bush’s proposed borrowing works out to about $33,846 of new debt per tax return. That is about $800 more per filer than the cost of the BMW I was recently drooling over.

I guess I will end up having both the debt and a minivan.

Frivolous, Fair and Balanced

I have previously argued that lawsuits filed for a purpose other than to succeed on the merits are one type of frivolous suit that can succeed. I gave two examples of such suits.

First, I noted that drug companies file patent infringement suits not to vindicate their intellectual property rights but rather to extend the period for which profitable drugs remain under patent protection. Second, I noted a suit by Monsanto against a small dairy that appeared to have the purpose intimidating other small dairies.

Those suits are frivolous because they are brought for an improper purpose. Today, I note another suits that may have been brought for an improper purpose.

Fox News has sued Al Franken and his publisher for trademark infringement based on the title of Franken’s new book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.

Fox contends that Franken’s book infringes on its trademark of the phrase “Fair and Balanced.”

Alex Knapp of Heretical Ideas thinks that Fox is suing not in a effort to win the suit against Franken but, rather, to make a record of haven vigorously defended its trademark so as to increase its chances of winning other suits:
And while yes, it's probably true that Franken will win the suit, the blame doesn't lie on Fox's "sensitivity," but rather the nature of trademark law itself. The fact of the matter is, it's really easy to lose one's trademark, and recent Supreme Court decisions have made it easier. And one factor in claiming that a company's trademark is no longer unique is the lack of vigorous enforcement of the mark. So Fox's goal here, I would imagine, isn't to win this lawsuit, but to make sure they can use this suit as evidence of vigorous enforcment in the case that their trademark does become infringed. That's the nature of the business.

I think Knapp has correctly identified Fox’s motive. I also think that filing suit for purposes other than winning the action on the merits is frivolous and abusive.

Why should Franken or his publisher have to endure a suit so that Fox is in a better position if someone else, say CNN, decides to claim that its news coverage is "Fair and Balanced"?

Now, I expect that neither Franken nor his publisher is very upset. The suit is likely to drive book sales through the roof.

Nonetheless, after Fox’s suit is dismissed on the blindingly obvious grounds that Franken’s use of “fair and balanced” is parody, Fox should be sanctioned.

Monday, August 11, 2003
If You Read One Thing Today

If you read one thing today, make sure it is What Would Bobby Do? by the incomparable Jeanne D’Arc.

Today, she reminds me of something I have long known but had recently forgotten. Thanks Jeanne. Please go read it.

Happy Mother’s Day

I wanted to take this opportunity to wish a Happy Mother’s Day to my wife and all of the other moms of school aged kids (especially moms of special needs kids).

Any of you who think that Mother’s Day is a Sunday in the spring and not a Monday in the fall either do not have school aged kids or have not been paying attention. School started today and that marks the real Mother’s Day.

Fiscal Fraud

Matthew Miller has an excellent column about GOP fiscal policy entitled Truth Is Antidote To GOP. Link via Tom Spencer.

Miller first sets out to demonstrate that GOP rhetoric on government spending is fraudulent:
Proof of the GOP's honesty deficit comes by asking a simple question: What is the Republican position on the right size of government and how to fund it?

Start with basic but poorly understood facts. Seven programs make up 75 percent of all federal spending: Social Security, Medicare, Medicaid, military pensions, civil service pensions, defense and interest on the debt. That's "big government."

Republicans aren't trying to cut a dime of it but are calling for big increases in every one of these programs. According to the White House, interest on the national debt alone will soar by 66 percent over the next five years, thanks to the red ink oozing from President Bush's budget.

Those "big 7" programs come before you toss in everything from NASA to the national parks to the National Institutes of Health, not to mention homeland security, student loans and farm subsidies -- all things Republicans support, and which take up a goodly portion of the remaining quarter on the federal dollar.

Thus, if you pay heed to their votes and not their words, the Republican critique of "big government" is a pure charade.

Fiscal policy consists of more than just the spending side of the equation. There is also the tax side. Miller demonstrates that the GOP’s tax position is equally dishonest:
Though it hardly seems possible, the GOP position on taxes is even more shocking. Understanding why requires a quick, painless look at a few numbers.

Over the next five years, President Bush figures the "big 7" programs will cost, on average, about $1.8 trillion a year.

Over the same period, he says, the revenue the government will collect, not counting Social Security taxes (which both parties say shouldn't be used for current spending, though it is), will average $1.35 trillion a year -- $450 billion a year less than just the "big 7" on which Republicans want to spend more.

Income tax reduction under President Bush accounts for most of this gap.

Since the GOP thinks income tax rates should continually be reduced, they obviously believe we should fund activities they support in one of two ways.

First, we can borrow huge amounts from our children (GOP's present plan).

Or, we can at some point raise payroll and other retirement taxes, which means funding government through taxes that impose a greater burden on lower- and middle-income citizens. The income tax, by contrast, is progressive.

Mathematically, these are the only options available, given that Republicans, rhetoric aside, aren't interested in cutting government spending.

This, then, is today's spectacle: "Family values" Republicans are sticking the kids with the bill for current spending while railing fraudulently against the "big government" they support.

How does the GOP get away with simultaneously being for big government spending, low taxes and family values? Miller puts the blame squarely on the media:
If we had a functioning press corps -- one that simply presented these facts again and again -- the fiscal and moral fraud of the GOP position would be self-evident.

Instead, today's press corps chews endlessly over the political jockeying. "Does Bush have Democrats in a bind because they have to talk about repealing his tax cuts?" they ask, rather than laying out the facts that show that Bush's positions are an obvious hoax.

So much for our "adversarial" press! And because the White House knows top editors and producers will think that repeating these tougher questions and analyses would seem too "biased," they can count on "he-said, she-said" coverage to leave citizens confused.
This confusion is the Republican goal.

Is this Republican hoax really sustainable? As both political parties know, the answer largely depends on how the press views its responsibilities in the coming election cycle.
It's time for editors and producers to hammer home some basic civic facts instead of continuing their overwhelming -- and lazy -- emphasis on "the politics" of every debate.

I agree with Miller’s assessment although I think a fair amount of blame for the success of the GOP fraud lies with Democrats who underestimate the public’s intelligence and refuse to simply and clearly describe the fraud over and over until it begins to resonate.

The GOP will continue to perpetrate the fraud until it becomes politically costly. The only way to make it politically disadvantageous is to expose the fundamental dishonesty of the position in clear language. When that does not work, do it again. And again. And again.

The explanation should be in every speech of every Democratic candidate from now til November 2004 and beyond. It should be in many if not all Special Order speeches on C-Span. It should be repeated on every talk show on cable.

If every Democratic candidate, Senator and Congressman makes a priority of explaining the fraud, the media will be forced to report it. At some point, even our current media will ask Mr. Bush how he plans to pay for the amount of government he advocates.

Update and Correction

Jane Galt points out in comments that Miller is including all Social Security spending but no Social Security receipts in his analysis. Jane is correct.

I think what Miller meant to do was to include all current Social Security spending and all Social Security revenue less the surplus generated by Social Security taxes. That is, I expect that Miller intended to subtract the trust fund surpluses from government revenue.

While I do not have the time at the moment to do the five year averages Miller uses, for FY 2004 total government revenue is expected to be $1.797 trillion (see Table 7 at the link). The off budget surplus is expected to be about $164 billion (see Table 8 at the link). Thus, total receipts ex of the trust fund surpluses are expected to be about $1.633 trillion.

Spending in FY 2004 is expected to be $2.272 trillion. If, as Miller suggests, spending on the “big 7” is about 75% of total spending, then the “big 7” will consume $1.704 trillion or slightly more than total projected revenues (other than the trust fund surpluses). Without the trust fund surpluses, we would be in deficit next year even if the government funded nothing but the "big 7".

Assuming Miller is right about the “big 7” consuming 75% of spending (and that would be close to my guess), his point is valid even if his numbers got screwed up.

Sunday, August 10, 2003

My post on Jamie Gorelick’s conflict of interest attracted a bit of interest. It appears that there is a consensus across the political spectrum that Ms. Gorelick should resign from the 9/11 commission.

From the right, John Cole says that the conflict should cause a “seething rage.” Glenn Reynolds says that the conflict is a “doozy” and is “unacceptable." Tom Maguire, the Minuteman, agrees that the conflict is bad. He also says that:
We can reliably predict the reactions of certain prominent lefty bloggers, and we hope that Dwight does not catch too much flack for, no doubt inadvertently, becoming a temporary dupe of the right-wing spin machine.

His prediction of the reaction of the left was off the mark. Matthew Yglesias finds the conflict “intolerable.” Oliver Willis agrees that the conflict is an “unbelievable outrage.” Jeanne D’Arc remarks that “You can't investigate 9/11 and represent Saudi interests.” Atrios finds the conflict “disturbing” and a “horrible travesty.”

Making sure that unanimity among bloggers is never achieved, Beldar recognizes the conflict but thinks that it should be waived. With all due respect, I disagree. Beldar thinks that competent, uncompromised people are just not available to serve on the commission:
Find me a lawyer in Washington who's absolutely pure, unencumbered by all conceivable potential conflicts of interest, remotely as well-qualified by education and experience as Ms. Gorelick, and beyond all plausible attacks by the conspiracy theorists, and I'll eat Dubya's sweaty Rangers baseball cap. You're more likely to find a unicorn in Lafayette Park.

To that I respond that the commissioners do not have to be lawyers and that Gary Hart and Warren Rudman are both available. End of discussion.

The most interesting discussion of the issue came from Atrios. His position on the Gorelick conflict is that:
It is a horrible travesty, but the entire 9/11 commission is a horrible travesty, and I've frankly just written the whole thing off as a farce.

I agree that the commission is a farce, but I disagree that it should be written off. I will post my reasons shortly. For now, however, I want to address the fact that Atrios was, apparently, hectored into providing his views on the subject.

John Cole “had his knickers in a twist” because he did not feel that Atrios was paying sufficient attention to the story.

While many of us have come to rely on Atrios for news and commentary in much the same way we rely on the power company to supply the juice when we flip the switch, Atrios is not, in fact, a public utility. Unlike a utility, Atrios is not required to provide his service whenever we request it.

Atrios writes about the things that interest him. He is not required to weigh in on an issue simply because someone else is interested in it.

I note that in the last couple of days, there have been major stories published about the Weather Balloons of Mass Destruction (as Atrios puts it) as well as the administration’s willingness to deceive the public in the run up to the war. A link to either story is absent from Instapundit.

Should those of us who have been critical of Mr. Bush get our “knickers in a twist” over those omissions? I do not think so. Glenn is not a public utility either. He writes about what he chooses just like Atrios and every other blogger. If people do not like the issues that Atrios or Reynolds choose, they are free to visit other sites.

To paraphrase blues singer Taj Mahal, how bloggers select subjects on which to write "ain't nobody's business but your own."