4. Issues and Bias

4.2 Economic

Eric Alterman has covered the topic of media bias on Economic Issues in Chapter 8 of his book (What Liberal Media). I suggest readers buy his book and read it. 

What I would like to do here is go beyond what Alterman has written about, because I think his chapter significantly understates the conservative tilt in news reporting in the mainstream media, when it comes to economic issues.  

For the moment let us set aside the fact that the U.S. media are part of a corporatist conservative establishment (more on that here). Let us focus, instead, on the news reporting on several relevant topics. 

4.2.1 Free Trade/Globalization

4.2.2 CEOs and Corporations v. Workers/Labor Groups

4.2.3 Taxes

PREFACE: "Millionaire Pundit Values"

A few ways in which the media tilts conservative on the issue of taxes 

A. Downplaying or ignoring the historical, bipartisan efforts to use tax increases to cut deficits and the magnitude of such increases

B. Largely reporting tax issues using fake Republican spin points

C. Failing to hold George Bush and the Republican party accountable for their long history of misleading, mendacity and fake promises on the topic of taxes (and the budget in general) 

D. Not reviewing history to see which party has done better on the economy overall, regardless of the tax policy used

4.2.4 Social Security

4.2.5 Illegal Immigration

4.2.6 Bankruptcy

4.2.7 Tort Reform

A few ways in which the media tilts conservative on the issue of "tort reform"

A. Spreading myths about "frivolous lawsuits"

B. Spreading myths about trends in the number of filed malpractice lawsuits and their associated costs

C. Exaggerating the size of malpractice awards

D. Rarely covering a key reason for malpractice lawsuits, i.e., malpractice

E. Rarely covering two of the main reasons for high malpractice insurance rates in some area/states - insurance industry losses/practices and serial malpractice by a small percentage of doctors

F. Rarely pointing out that 
(i) damage caps will act to deter meritorious lawsuits rather than reduce malpractice premiums, which they rarely do
(ii) there are much better ways to reduce frivolous lawsuits, allow meritorious lawsuits and reduce malpractice insurance rates 

G. Rarely mentioning that businesses are among the largest filers of actual (and frivolous) lawsuits, and that the Republican party has no intent of making them accountable for it

H. Rarely pointing out the hypocrisy (and fakery) from Republicans about the unreliability of civil juries compared to criminal juries, when assessing guilt of defendants

I. Rarely, if ever, mentioning that malpractice cases are not, in general, cases with high profitability for plaintiffs attorneys

J. Rarely pointing out that the proponents for malpractice award caps are usually lying through their teeth (as an experiment in Florida showed, where people was asked to testify under oath)

4.2.1 Free Trade/Globalization

Alterman cites a study on this in page 119 of his book that illustrates the media's pro-free-trade/globalization bias in the U.S.:

While the 1993 NAFTA debate raged in Congress, for instance, the argument that the accord would undermine the jobs of America's lowest-paid workers by forcing them to bargain in the shadow of even worse-paid Mexican laborers garnered little sympathy among journalists. The only issue that mattered, New York Times editors insisted, was "America's appetite for global leadership after the Cold war."⁶ The Los Angeles Times declared a pro-NAFTA vote to be "a vote for American foreign policy continuity."⁷ The Washington Post called the vote "a historic test of American intentions toward the rest of the world." Senator Byron Dorgan, a Democrat from North Dakota, calculated that the Washington Post had published sixty-three feet worth of pro-NAFTA editorials and columns, compared to only eleven feet of anti-NAFTA commentary on its op-ed page during the same period. Another labor organization tallied up forty-eight op-ed articles in favor of NAFTA in the Post and just eight against. Straight news coverage was hardly any more balanced: 71 percent of expert sources quoted in the Post were pro-NAFTA, and only 17 percent opposed. The New York Times followed with 66 percent pro-treaty quotes and only 24 percent for opponents.⁸

Alterman goes on to make a pretty much open-and-shut case for the media's general cheerleading and backing for free trade and globalization, issues on which they diverged from liberal groups like labor unions, and grassroots groups protesting the form of "free trade" that was being implemented across the globe. 

The media's coverage on free trade/globalization has been significantly slanted to the conservative viewpoint for quite some time, with particular contempt for anti-globalization protests. For example, see this 2001 column by Norman Solomon:

As police fired rubber bullets through tear gas in Quebec City last weekend, many reporters echoed the claim that "free trade" promotes democracy. Meanwhile, protesters struggled to shed light on a key fact: The proposed hemispheric trade pact would give large corporations even more power to override laws that have been enacted – democratically – to protect the environment, labor, and human rights.

Newsweek responded to the turmoil at the Summit of the Americas with a column by Fareed Zakaria, a favorite policy analyst in elite circles. He declared that "the anti-globalization crowd is antidemocratic ... trying to achieve, through intimidation and scare tactics, what it has not been able to get through legislation." In recent decades, of course, the same was said about cutting-edge demonstrations for such causes as civil rights, peace in Vietnam, and environmental safeguards.

Protests against the likes of the World Trade Organization, and now the Free Trade Area of the Americas, have great impact because they resonate widely. Foes of global corporatization are speaking and acting on behalf of huge grassroots constituencies.

Last Sunday the ABC television program This Week deigned to air a discussion with a real-live progressive activist, Lori Wallach of Public Citizen's Global Trade Watch. Journalist Cokie Roberts voiced befuddlement: "It's gotten to the point where any time there are global meetings, world leaders meeting, we have a sense that the protesters are going to be there, and there's not much sense of exactly what you're protesting." The interview only lasted a couple of minutes.

Most news outlets showed little interest in the content of alternative forums in Quebec City that drew thousands of activists from all over the hemisphere. Likewise, a big march in the city, with some estimates ranging above 60,000 participants, got underwhelming coverage. For that matter, most reporters didn't seem very deeply interested in the several thousand people who bravely engaged in militant, nonviolent direct action – risking and sometimes sustaining injuries from police assaults – while confronting the official summit.

What did get plenty of media attention was noted at the outset of last Tuesday's lead editorial in the Wall Street Journal, which yearned for "a world where TV cameras prefer trade agreements to black-clad anarchists." Some of those few "black-clad anarchists" call themselves the Black Bloc.

Routinely slipping by with scant journalistic scrutiny is what we could dub the "White Bloc" – a nexus of immense media power serving corporate interests.

The White Bloc is not monolithic. But on the issue of "free trade," it's difficult to find a major U.S. publication that does not editorially support accords like NAFTA, WTO, and the new FTAA.

The Wall Street Journal's editorial page, at the right edge of the Bloc, is much honored by the media establishment. Last year, Journal columnist Paul Gigot won a Pulitzer Prize for commentary. This year, a couple of weeks ago, the same award went to another very conservative columnist for the newspaper, Dorothy Rabinowitz. But it's the unheralded daily output of the White Bloc that can be most breathtaking.

On the day Rabinowitz's prize was announced, for instance, the editorial page of the Wall Street Journal featured a freelance article that began this way: "In the early 1990s, America's major cities were on life-support, suffocating under socialistic policies that left them looking like Soviet-bloc relics." (It was not a humor piece, by the way.) Farther down the page was a column headlined "The Monarchy Is Worth Saving," written by the Journal's deputy editorial features editor, who earnestly argued that British citizens need their monarchy "as a source of authority."

But the White Bloc has a liberal side too. Several New York Times columnists take turns condemning those who have the gall to stand in the way of corporate Progress.

Free-marketeers at the Times know how to pound away at the same line. While heads of state prepared to leave the Quebec summit, Paul Krugman ended his column by writing that the protesters "are doing their best to make the poor even poorer." Two days later Thomas Friedman concluded his column by explaining that "these 'protesters' should be called by their real name: The Coalition to Keep Poor People Poor."

The White Bloc (which includes people of all colors if suitably conformist) has its own forms of hip solidarity. On the Hardball national TV program, airing on both MSNBC and CNBC, host Chris Matthews closed his April 18 interview with Friedman exactly this way:

Matthews: "You are the future, my man. Thomas Friedman of the New York Times."

Friedman: "Thanks, bro."

Matthews: "The smartest columnist in the world."

Now, I consider myself to be a supporter of free trade and globalization, but it is blindingly obvious that the media discourse on this topic is usually tilted to the pro-corporate-conservative outlook and often reduced to highly superficial pro-free-trade sound bites (including, by so-called "liberal" columnists, as Alterman shows) - rather than a proper and thorough examination of the full ramifications of globalization to understand how to do it right (as in, correctly). Alterman mentions Nobel prize winner Joseph Stiglitz's largely unsuccessful efforts to bring some more facts and reality into the policy discussions and media narratives on free trade. I have read Stiglitz's excellent book The Roaring Nineties and I'm going to cite a few paragraphs from the book to show some examples of the kinds of serious issues that media seriously underplayed or fails to cover (and I see similar failings in the media's coverage today, especially in their coverage of the ongoing Iraq-privatization travesty):

[p 21] ...by the summer of 1999, The New York Times was asking, "Who Lost Russia?"⁶  And even if Russia was not ours to lose, the statistics were sobering: with efficient capitalism replacing moribund and decadent communism, output was supposed to soar. In fact GDP declined 40 percent and poverty increased tenfold. And the results were similar in the other economies making the transition who followed the advice of the U .S. Treasury and the International Monetary Fund. Meanwhile, China, following its own course showed that there was an alternative path of transition which could succeed both in bringing the growth that markets promised and in markedly reducing poverty. 

Clearly, something was amiss in the way we were leading the world into the new international order.
...
Again, we needed to ask, what were our mistakes and why did we make them? We failed in what we did, and what we did not do; and we failed in how we did what we did.

The international agreements, for instance, reflected our concerns, our interests: we forced those abroad to open up their capital markets, say, to our derivatives and speculative capital flows, knowing how destabilizing they could be. But Wall Street wanted it, and what Wall Street wanted, it more than likely got. 

Developing countries were told to open their markets to every imaginable form of import, including the things Corporate America was best at, such as financial services and computer software. Meanwhile, we maintained stiff trade barriers and large subsidies of our on behalf of U.S. farmers and agribusiness, thereby denying our market to the farmers of the Third World. To a country fallen on hard times and facing recession, our standard advice was to slash spending - even though we had routinely relied on deficit spending to get us out of economic downturns.

These were not the only examples of what struck those abroad as blatant hypocrisy. Even in the budget-balancing nineties, we maintained robust trade deficits even as we preached to others that they should keep their trade deficits down; evidently, it was understandable if the rich could not live within their means; what was not to be forgiven was for the poor to do so.⁷

We scolded the developing nations about their disrespect for intellectual property laws that we, too, had scorned in our days as a developing nation. (The United States didn't get around to protecting rights of foreign authors until 1891.)

Especially strange was the contrast between the Clinton administration's palliatives abroad and the battles it waged at home. At home, we defended our public Social Security against privatization, lauding its low transactions costs, the income security which it provided, how it had virtually eliminated poverty among the elderly. Abroad, we pushed privatization. At home, we argued strongly that the Fed should keep a focus on growth and unemployment, as well as inflation - with a president elected on a jobs platform, he could do nothing less. Abroad, we urged Central Banks to focus exclusively on inflation. 

One of America's great glories had been the growth of its middle class. Still, we almost completely ignored the equity implications of the policies we urged on other nations - and the increasingly inescapable fact that globalization, as it was actually practiced, tended to make poor societies more rather than less unequal. 

...The policy framework that we pushed abroad was the one that would help our businesses do well abroad. At home, there was a check on these policies, caused by our concern for consumers and workers. Abroad, there was none. At home, we resisted pressure for changes in the bankruptcy law that would unduly hurt debtors. Abroad, a primary concern in any foreign crisis seemed the promptest and fullest repayment of debts to American and other Western banks, even to the point of supplying billions of dollars to ensure that that happened. The deregulation mantra that we pushed too far at home we pushed even further abroad.

Not surprisingly, the policies we pushed and the way we pushed them generated enormous resentment...

It was too little regulation, not too much, that caused the economic crises in East Asia in 1997. It was too little regulation that gave rise to the savings and loan debacle in 1989, in which American taxpayers paid more than $100 billion bailing out an important part of the nation's financial system. (The only thing that could be said in favor of the bailout was that - given the consequences of excessive deregulation - the costs of not bailing them out would have been even greater.) 

If we in the Clinton administration sometimes lost that balance, matters have become even worse during the next administration -....

In many respects, Stiglitz's book sends a very similar message to what Prof. Amy Chua (another free trade/globalization supporter) conveyed in her book World on Fire (2003). The following extract from a review of Chua's book by Publisher's Weekly provides a high-level summary of what her book is about:

A professor at Yale Law School, Chua eloquently fuses expert analysis with personal recollections to assert that globalization has created a volatile concoction of free markets and democracy that has incited economic devastation, ethnic hatred and genocidal violence throughout the developing world. Chua illustrates the disastrous consequences arising when an accumulation of wealth by "market dominant minorities" combines with an increase of political power by a disenfranchised majority. Chua refutes the "powerful assumption that markets and democracy go hand in hand" by citing specific examples of the turbulent conditions within countries such as Indonesia, Russia, Sierra Leone, Bolivia and in the Middle East. In Indonesia, Chua contends, market liberalization policies favoring wealthy Chinese elites instigated a vicious wave of anti-Chinese violence from the suppressed indigenous majority. Chua describes how "terrified Chinese shop owners huddled behind locked doors while screaming Muslim mobs smashed windows, looted shops and gang-raped over 150 women, almost all of them ethnic Chinese." Chua blames the West for promoting a version of capitalism and democracy that Westerners have never adopted themselves. Western capitalism wisely implemented redistributive mechanisms to offset potential ethnic hostilities, a practice that has not accompanied the political and economic transitions in the developing world. As a result, Chua explains, we will continue to witness violence and bloodshed within the developing nations struggling to adopt the free markets and democratic policies exported by the West.

Let me feature an extract from her book that is directly relevant to the discussion here:

[p 194] ...Despite these variations [between Western capitalist countries], the bottom line is again the same. Starting in the late nineteenth century, the explosion of market activity throughout the West was accompanied by the emergence of redistributive institutions of unprecedented magnitude, softening the harshest effects of capitalism. In every developed country these institutions include not only relief to the extremely poor but also progressive taxation, social security, minimum wage laws, worker safety regulation, antitrust laws, and numerous other features of Western society that we take for granted.⁶ These redistributive institutions have almost certainly helped dampen the conflict between market wealth disparities and democratic politics in the industrialized West.

By contrast, the version of capitalism being promoted outside the West today is essentially laissez-faire and rarely includes any significant redistributive mechanisms. In other words, the United States is aggressively exporting a model of capitalism that the Western nations themselves abandoned a century ago. More broadly, it is critical to recognize that the formula of free market democracy currently being pressed on non-Western nations - the simultaneous pursuit of laissez-faire capitalism and universal suffrage - is one that no Western nation ever adopted at any point in history.

Is this wise? Almost by definition, in the developing world today the poor are far more numerous, poverty is far more extreme, and inequality far more glaring than in the Western countries, either today or at analogous historical periods. The ongoing population explosion outside the West only makes things worse.

...

...today's universal policy prescription for "under-development," shaped and promulgated to a large extent by the United States, essentially amounts to this. Take the rawest form of capitalism, slap it together with the rawest form of democracy, and export the two as a package deal to the poorest, most frustrated. most unstable, and most desperate countries of the world. Add market-dominant minorities to the picture, and the instability inherent in this bareknuckle version of free market democracy is compounded a thousandfold by the manipulable forces of ethnic hatred.

When I first started thinking of free trade and globalization, I must admit I was unaware of the fact that important policy details were routinely downplayed or ignored in favor of cheerleading, by the media and influential columnists (a prime example being Tom Friedman at the New York Times, who was one of the people I initially cited in my website on this topic). Since then, I have learnt a lot more about what has been mismanaged in promoting free trade and globalization across the world and how little publicity any of that gets in the media when this topic is discussed in news reports. It is a matter of life and death for many of the world's peoples and it is indeed appalling that important details are glossed over and the issue reduced to one-sided sound-bites.

Imposing an unregulated, laissez-faire mode of capitalism (whether in the non-Western world or in the U.S., as the Bush administration is driving to) is bound to cause great turmoil and ensure that the benefits of globalization are unfairly concentrated at the higher end of the income spectrum, without expanding the opportunities for a higher quality of life and wealth creation to a much wider section of the populace, especially the poor. It's about time the media brought some balance back into this debate.

4.2.2 CEOs and Corporations v. Workers/Labor Groups

No reasonable person can deny the fawning and largely uncritical coverage that businesses and CEOs got in the 1990s at the expense of workers and ethics. Alterman covers this in some detail and as he says:

[p 122] An entire money-loving journalistic structure grew up around the prosperity of the Nineties and the market boom that inspired it. The boom itself, as we all know, would prove to be heavily skewed toward the wealthiest Americans.
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[p 123] Evidently, the media's market-centricity carried with it important ideological implications for the spin they put on the news. The single-minded emphasis on "wealth creation" crowded out concerns for virtually everything that might be perceived to interfere with it, such as workers' pay, environmental destruction, equity issues, and, as investors found to their deep chagrin, honest accounting. 

Alterman also traces the incredibly fawning coverage that Enron got for most of its life and how one of those rare journalistic pieces (in the WSJ in 1998) by Jonathan Weil, that raised a red flag about Enron's dubious accounting practices (recording *expected* future income as current income), was largely ignored in the media. Warnings by some (on the Left) that skyrocketing energy price increases in California were likely due to rigging by energy companies like Enron were repeatedly dismissed by pathologically dishonest conservatives of the likes of Charles Krauthammer, William Safire and Vice President Dick Cheney and their enablers in the media. The deep links between big energy companies (like Enron) and the Bush administration (and its energy "policy" - which was largely drafted by the same companies) were barely investigated. And so on...

It is important to note that the pro-business or pro-CEO tilt is only part of the equation - even as the tilt softened in recent years due to the numerous corporate scandals. As Alterman shows, the voices of labor unions (part of the traditional liberal/Democratic establishment) are barely heard in media coverage in comparison to the voices of company representatives and corporate/conservative front groups (Sec. 4.4 has more data on the media's significant over-reliance on conservative front-groups and "think-tanks" in guiding discussion on news coverage.)

CASE STUDY: A recent case study provides a good example of the media's pro-corporate/ pro-conservative bent on economic issues. I am referring to a 2004 paper by Christopher J. Kollmeyer at University of California, Santa Barbara, titled "Corporate Interests: How the News Media Portray the Economy". The paper looked at the Los Angeles Times' coverage of economic issues in 201 articles focused on the economy in 1997 and 1998. (Remember, the LA Times is considered by the Right to be "liberal".) What is interesting about this study is that unlike half-baked studies that merely mine databases for "words" used, "topics" covered, "headlines" used, or "tone" of coverage, this study actually included a reading of each article to assess the detailed nature of the content. Granted, the study has its flaws - for example, it focused more on the manufacturing sector of the economy and it doesn't independently assess the accuracy of the news reports - but the way it was designed showed far more intelligence than is characteristic of the usual conservative "studies" that claim to show "liberal bias". As a result, the study was also able to extract conclusions that are more credible than the half baked studies mentioned above.

Kollmeyer first provides a good review of various papers that discuss media bias on economic reporting and derived a set of testable hypotheses from those papers:

Hypothesis 1: Negative accounts of the economy outnumber positive accounts of the economy.
...
Hypothesis 2: Most negative accounts of the economy focus on problems affecting the general workforce rather than problems affecting corporations or investors.
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Hypothesis 3: The news media rarely run stories about economic problems affecting workers.

Hypothesis 4: The news media rarely mention economic reforms designed to improve the material well-being of workers.
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Hypothesis 5: When covering the economy, the news media emphasize events and issues affecting corporations and investors and downplay events and issues affecting workers. 
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Hypothesis 6: Journalists rarely use union leaders, workers, or their spokespersons as sources of information about the economy.
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Hypothesis 7: Articles citing business spokespersons or government officials will report good news about the economy more often than articles citing union leaders, workers, or their spokespersons.

He then set up the study such that its findings are likely to be quite conservative, by doing two things:

(a) omitting any articles that appeared in the Business section of the paper, which tends to be business focused, rather than labor focused

(b) choosing keywords than tend to bias the articles selected from Lexis-Nexis in the direction of labor or workers (or bad news), as opposed to business, CEOs or corporations. 

He explains his methodology here:

In order to create a representative sample of articles, I used the Lexis-Nexis archive of electronic databases to identify all articles about the economy appearing in the Times during 1997 and 1998. Within the specified dates, I used the keyword function in Lexis-Nexis to obtain all articles with the words “economy,” “markets,” “labor,” “workers,” or “recession” in the headline or introductory paragraphs.⁵ Then I eliminated articles from the foreign desk, leaving only those articles about the domestic economy within the data set. The resulting materials included all topically relevant articles — whether they were hard news, human-interest stories, or editorials—appearing in the front, metro, and opinion sections of the paper. These selection criteria yielded 201 articles—149 from the front section, 37 from the metro and editorial sections, and 15 from Sunday’s opinion section.

Articles from the business section were not included in the data set. At first, this decision might strike some readers as peculiar, for seemingly an analysis of economic journalism should include articles from the business section. But this aspect of the research design, although it undoubtedly excludes many important articles about the economy, should actually strengthen my primary argument for two interrelated reasons. First, as Gans (2003:65–6) notes, nearly all newspapers design their business sections around the implicit interests of investors and business managers. This orientation, for instance, manifests in the business section’s emphasis on the stock market and related aspects of the economy,⁶ and the fact that nearly all newspapers label this section as the “business section,” rather than the “economy section” or “labor section.”⁷ Given these circumstances, the inclusion of articles from the business sections in the analysis would hinder my effort to understand those parts of the newspaper with the greatest chance of affecting public opinion about the overall performance of California’s economy. Second, and perhaps more importantly, since the business section by design appeals to a specific audience, research that finds a pro-business slant in the business section provides little sociological insight into important questions about the news media. 
...
Next, I read all of the articles, coding the content of each in terms of several criteria. First, the story’s date of appearance, location within the newspaper, and number of words were recorded. Then, more substantively important factors—such as the story’s topic, source of information and viewpoints, the appraisal of the economy’s performance, and discussion of reforms, if any—were analyzed and coded accordingly.

Let's review the main conclusions.

First about the good news-bad news mix:

These results can be interpreted in two ways. With only 7.5 percent of the articles reporting exclusively bad news, as compared to the nearly 40 percent of the articles reporting exclusively good news, the data do not reveal a pronounced inclination toward negative accounts of the economy. But when combining the bad-news and mixed-news articles into one category, the data indicate that over 60 percent of the articles contain at least some criticism of the economy’s performance.
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As Table 2 shows, articles reporting good news appeared on the front page 77.2 percent of the time, and they had an average length of 1,413 words. Conversely, articles reporting bad news appeared on the front page only 33.3 percent of the time, and they had an average length of only 1,232 words. These findings clearly contradict the assertion that the news media most often emphasize the economy’s shortcomings.

The emphasis on corporations and investors v. workers:

As Table 4 shows, articles reporting problems threatening corporations and investors received front-page attention 73.7 percent of the time, and they had an average length of 1,447 words. But articles reporting problems threatening workers received front-page attention only 21.1 percent of the time, and they had an average length of 1,315 words. By comparison, articles about problems affecting the economy in general, although they had the smallest average word count, were distributed almost evenly between the front and back pages of the newspaper. Nonetheless, the overall findings displayed in Table 4 portray a pattern of journalism that downplays coverage of economic issues affecting workers.

More:

Taken together, this means that articles discussing reforms, as compared to articles not discussing reforms, were half as likely to appear on the front page and almost 9 percent shorter. 

Second, when articles mentioned reforms intended to help corporations and investors, they were given more prominent attention, by a considerable margin, than articles mentioning reforms intended to help workers. As Table 6 indicates, articles mentioning reforms intended to help corporations and investors appeared on the front page 83.3 percent of the time, and they had an average length of 1,569 words. But articles mentioning reforms designed to help workers appeared on the front page much less frequently (only 14.3 percent of the time), and they were much shorter on average (only 1,120 words). Or, stated differently, this finding means that articles mentioning reforms designed to help corporations and investors were, on average, almost six times more likely to appear on the front page and approximately 28 percent longer than articles mentioning reforms designed to help workers. Combined, the data presented in Tables 5 and 6 depict a pattern of journalism that, while not avoiding the subject altogether, downplays discussions of potential economic reforms, especially when the proposed reforms address problems affecting workers. 

Sources used:

To facilitate a quantitative analysis of the resulting information, the identified sources were grouped into one of seven mutually exclusive categories. The results of this coding process, displayed in row one of Table 7, provide strong support for the hypothesized outcome. As anticipated, the data show that union leaders, workers, and their spokespersons were rarely used as sources of information about the economy. Specifically, these individuals were used as primary sources for only 7.9 percent of the articles in the data set. This compares unfavorably with most other types of sources — the two exceptions being the category representing Times op-ed writers (used in 5 percent of the articles) and the category representing three or more sources (also used in 5 percent of the articles). The most frequently cited source was “business/government,” a category for articles citing both business spokespersons and government officials as the primary sources of information. The next most frequently cited sources were business spokespersons (21.3 percent), social scientists and individuals described as authors (19.3 percent), and government officials (18.8 percent). Consistent with the literature of the subject, these findings demonstrate that journalists with the Times rely heavily upon individuals representing the corporate community and government for much of the information that eventually becomes news about the economy. In fact, at least 62 percent of the articles in the data set used some combination of business spokespersons and government officials as primary sources—a number nearly 8 times greater than the percentage of articles using union leaders, workers, or their spokespersons as primary sources.

When used as sources of information about the economy, business spokespersons and government officials seemingly received preferential treatment in other ways as well.   According to the data displayed in row two of Table 7, there exists a moderate association between an article’s source of information and its likelihood of appearing on the front page. Specifically, when journalists used business spokespersons as primary sources—either alone or coupled with government officials—the resulting articles appeared on the front page more than 83 percent of the time. But when journalists used union leaders, workers, or their spokespersons as primary sources, the resulting articles appeared on the front pages less frequently— approximately 56 percent of the time. The least prominent attention, however, went to articles citing social scientists and individuals described as authors. When journalists cited these sources, only 17.9 percent of the resulting articles appeared on the front page. Taken together, the data displayed in rows one and two of Table 7 provide moderate support for the claim that the news media privilege the corporate community and government as sources of information on the economy.

As I said earlier, the study here is not without flaws since article accuracy is not evaluated, which is very important. But the detailed and conservative approach to the study makes it superior to most other media bias studies to date and makes it conclusions more credible. While this study focused only on one paper and for a limited time period, it so happens that the paper is deemed a (so-called) "liberal" one and that the broad conclusions are consistent with other data presented on this page. The bottomline is clear: the U.S. media's reporting on economic issues tilts conservative and downplays the voices of workers and labor unions. 

There are many reasons why media coverage might tilt conservative, especially on issues relating to business or corporations. Steve Kangas has commented on this - here are some snippets from one of his older essays:

The fact is that conservatives have powerful friends in the media: the corporations that own them, and the corporations that pay for their advertising. These giant firms have been increasingly successful in bending the media's message to suit their self-interests, which include a conservative and pro-corporate agenda. Studies show that the media are eerily silent on the issues most important to workers, consumers and other citizens adversely affected by corporate behavior.
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The Media Monopoly

Easily the most famous book on media trends in the last 15 years is Ben Bagdikian's 1983 book, The Media Monopoly. In it, he predicted that deregulation under President Reagan would allow media ownership to concentrate in fewer and fewer corporate hands. This, in turn, would result in a more pro-corporate media. Ridiculed as "alarmist" when it first came out, it has since been praised as a classic for the accuracy of its predictions. "I derive no pleasure from having been correct," writes the former dean of American journalism in his most recent edition. (3)

To be specific, the number one trend within the media today is that they are rapidly being monopolized by large corporations. Technically, the term "monopoly" is incorrect when describing today's media -- what we actually have is a shrinking media oligopoly. Most scholars use the term "media monopoly" only because that's the direction the media are headed. This essay will also use the term "media monopoly" to denote the direction, rather than the current status, of the media.

The dangers of a media monopoly

Before reviewing the statistical evidence of the media monopoly, which is undisputed even by the media themselves, we should make certain of its dangers.

The incentives for buying media organizations have long been obvious to Wall Street, which has seen vicious competition break out to capture the remaining media markets. These incentives were articulated in 1986 by Christopher Shaw, a Wall Street expert who has handled over 120 media mergers. Shaw told investors that media buy-outs would give them two things: "profitability" and "influence." (4)

There is nothing inherently wrong with either profitability or influence, of course -- it's just that in a monopoly, they would be abused. Consider the abuse of profits. All the usual market failures would be present in a media monopoly: the captive market, the rise in prices, the drop in quality, and the exploitation of consumers.

But significantly more troubling is the monopolization of influence. If one person controls all information, there are no opposing viewpoints so essential to keeping public and scientific debate honest. We profoundly condemn the monopoly of information by the state, as exemplified by Joseph Goebbels' "Ministry of Propaganda and Enlightenment." But this danger is no less evident if a single business takes over the control of all information in society. Then all information would come from a corporate point of view, silencing the voices of workers, consumers and other citizens who are affected by corporate behavior. Democracy is based on the assumption that opposing viewpoints can be heard. If corporations could somehow eliminate or control populist debate, then we will not have a true democracy.

The potential for abuse by corporate owners is obvious. Just one example was General Electric's earlier buyout of NBC News. General Electric is the 10th largest company in the United States. It is a major Defense contractor and an international player on the world market. It is sensitive to the needs of its clients, who come from all sectors of the economy. It is also a fact that GE has suffered many a scandal throughout its history. During the Great Depression, it cut the life of its light bulbs by one-third to drive up profits. It was convicted of an illegal agreement with a German arms company during World War II. It has been convicted of fraud, fixing bids, conspiracy and tax evasion. (5) In all these cases, control of a major media outlet would have given it undue influence, whether in the market or before Congress or the courts.

Furthermore, GE has played an active role in conservative politics. Shortly after the company acquired NBC, a GE executive announced that NBC should start a political action committee to contribute money to strengthen the company's influence in Washington. Failure to cooperate, the executive said, would raise questions about the employees' "dedication to the company." (6) Later the President of NBC News clarified that its news employees would be exempt from contributing, but this hardly removes the larger conflict of interest.

It should not be surprising that these parent companies, like most big businesses and all Defense contractors, are extremely conservative. They have agendas: they desire lower taxes, fewer lawsuits from the public, fewer environmental restraints, better public relations (a euphemism for less public exposure to scandals), higher profits and more effective lobbying power in Washington. Controlling public opinion would give them all these things. Ironically, it would not be necessary for a single winner to emerge from the take-over wars. Shaw maintains that by the year 2000, all U.S. media will be in the hands of six giant corporations. Most business analysts agree with him. (7) One can safely assume that they will all have the same business and political agenda.

The statistical evidence of a media monopoly

That said, let's review the evidence of a media monopoly. Ownership of all forms of media (newspapers, magazines, radio shows, network television, cable, journals, books, movies, videos and cassettes) are quickly being consolidated under a few corporations. In all, the number of dominant corporations who control any form of media has shrunk from 46 in 1981 to exactly half in 1992: 23. At the end of World War II, 80 percent of all newspapers were privately owned. Today, that figure is its exact opposite: 80 percent of all newspapers are owned by corporate chains. From 1960 to today, the number of corporations which own newspapers fell from 27 to 14. (Gannett Company, which publishes USA Today, is the largest, with 87 other daily newspapers.) From 1981 to 1988, the number of corporations who owned magazines fell from 20 to a mere three. Television news is dominated by four major networks, who control up to three-fourths of the audience share. (8)

One of the most obvious signs of this trend is that cities are becoming "one-newspaper towns." One of the persons most responsible for buying out competing newspapers is Rupert Murdoch, who says that his worldwide strategy is acquisition and takeovers. (9) Another is Allen Neuharth, chairman of Gannett Company, who told a group of Wall Street investors that "No Gannett newspaper has any direct competition." (10)

Since the 1992 edition of The Media Monopoly, media mergers of unprecedented scale have continued unabated -- but there's no discussion of the dangers involved, or the controversy it should represent. Disney has since bought ABC, Westinghouse has bought CBS, and Time-Warner has bought Turner Broadcasting System. Congress cleared out the remaining obstacles for still more media mergers by passing the Telecommunications Act of 1996. Headlines in the media blared about the bill's attempt to censor pornography on the Internet, but otherwise remained completely silent about its deregulation of anti-trust laws for the media. For this bit of censorship, the Telecom Act was voted the number one censored story of 1995 by Project Censored.

The cable industry offers a perfect snapshot of media monopolization and all its dangers. After the cable television industry was deregulated in 1984, prices soared, quality of programming plummeted, and cable systems began selling their channels in indivisible blocs that prevented subscribers from voting with their dollars. From 1986 to 1990, the cost of basic service rose 56 percent -- twice the rate of inflation. (11) The problem? Growing monopolization, at several levels. There are now 11,000 cable systems across the nation, almost all of them exercising a local monopoly over their municipal region. They in turn are controlled by a handful of national companies. By far the most dominant is the phenomenally expanding TCI, which is a gatekeeper over national programming. Its owner, John Malone, owns all or part of 25 national or regional cable channels, including Turner Broadcasting. (12) Because there is little or no competition, cable programmers search for the cheapest shows to produce. Quality of programming has sunk to network TV levels. It seems that each year, Congress passes yet another cable deregulation bill. Every single one has been touted to "open competition" and "benefit the consumer." But the concentration of power in the cable industry keeps getting worse, not better.

Another source of pro-corporate bias: advertising

Owning and monopolizing the media is only one way that corporations introduce a pro-corporate bias into the media. An equally pervasive one is advertising.

Most media depend on the sale of corporate advertisements to stay alive. Without advertisements, a medium would have to charge its customers a higher up-front price for its product. But that would kill its circulation, since competitors would offer up-front prices that were considerably lower or even free. Of course, there's no such thing as a free lunch. The consumer actually pays a higher price for the advertiser's products, which then go to the media.

Advertising has been criticized on many grounds: it is inefficient, wastes time and resources, is terribly unpleasant, stifles free market competition, helps sustains long-term advantages to giant corporations, and makes people buy products for psychological reasons instead of economic ones like cost, quality and demand. Entire essays could be written on each of these shortcomings, but what we will address is how advertising injects a pro-corporate bias into the media.

The media generally cannot run stories that offend corporations, because sponsors will threaten to pull their advertising dollars. [eRiposte emphasis] In 1980, the liberal staff at Mother Jones debated over whether or not to publish a series of articles linking cigarettes to cancer. The editors knew that the tobacco industry would punish them by canceling their lucrative advertising contracts, which the young, struggling magazine desperately needed. Mother Jones stuck to its principles and printed the articles anyway; and, just as expected, the tobacco companies angrily pulled their ads.

And whereas a parent corporation like GE has a particular set of interests that NBC would never report against, advertisers have general interests that reporters would never tilt against either. A publisher never knows who the next advertiser might be; therefore it's good policy not to write offensive things about any corporation, or even corporate culture in general. No news organization could attract advertisers if it persistently attacked the corporate agenda.

Evidence of pro-corporate bias in the media

...Ben Bagdikian writes that owners let the editors operate freely until a story arises that affects the company's interest. Then one of two forms of influence will be exerted. It may be a direct order, as when the Chairman of General Electric called the President of NBC News after the 1987 stock market crash and told him not to use words in their reporting that would adversely affect GE stock. (13) (The NBC News president claimed he did not pass on the order.)

Or it may be an unspoken agreement. Editors and writers know what their employer's interests are, and they protect them without being told. Why? Either to demonstrate their dedication to the company, thus protecting their future promotions, or simply because they fear being fired. Unfortunately, it is a frequent practice for owners to fire journalists who, knowingly or not, write against their particular interests. Just one of many examples is the owner of the Dallas Morning News, who fired Earl Golz for writing a story about an imminent bank failure that outraged the owners of the Abilene National Bank. Golz' story proved true -- the bank crashed a few weeks later -- but Golz' was not rehired. (14) To be sure, other journalists witnessing his fate would practice self-censorship whenever it came to protecting their owner's interests. [eRiposte emphasis] 

Whether owners interfere explicitly or implicitly in the newsroom, evidence of it continually surfaces. [eRiposte emphasis] Here are just a few examples:

• During the debate on health care reform, the New York Times ran stories persistently in favor of managed competition, a program which would have been profitable to major health care corporations. Other proposals for reform, like the Canadian single-payer program, were criticized or ignored. Reason: four members of the Times board of directors are also directors of major insurance companies, and two are directors of pharmaceutical companies. (15)

• Victor Neufeld, the executive producer of ABC's top-rated news show 20/20, repeatedly rejected several promising stories on nuclear power hazards. Reason: His wife is a prominent spokesman for the nuclear and chemical industries. (16)

• Walter Annenberg, owner of the Philadelphia Inquirer, used his paper to attack a candidate who opposed action that would have benefited the stockholders of the Pennsylvania Railroad. Reason: he was the single largest stockholder. (17)

• Rupert Murdoch's Post endorsed President Carter in the crucial New York Presidential primary, contributing to his victory. Reason: two days earlier, Murdoch had lunch with Carter, convincing him to lean on the Export-Import Bank of the United States to give him a taxpayer-subsidized loan of $290 million. The bank had previously rejected the loan. (18)

• A four-month study by FAIR (Fairness and Accuracy In Reporting) analyzed how the New York Times and Washington Post covered NAFTA. Of the experts quoted in their articles, pro-NAFTA outnumbered anti-NAFTA sources by three to one. Not a single labor union representative was quoted. Reason: these newspapers' boards of directors are drawn from big business. (19)

• Journalist Elizabeth Whelan asked ten major women's magazines to run a series of articles on the rise of smoking-related diseases in women; all ten magazines refused. Reason: "I frequently wrote on health topics for women's magazines," says Whelan, "and have been told repeatedly by editors to stay away from the subject of tobacco." (20)

The above stories are anecdotal, but they show specifically how editors and advertisers interfere with the objectivity of the media. Now let's look at broader statistics. All feature the same theme: the power of editorial selection. Editors play a crucial role in deciding which stories get covered and which ones don't. This is an important tool for shaping and influencing the nation's debate. Due to the abuse of this power, three giant trends have grown within the media as big business continues to monopolize it:

The first is that pro-labor stories are almost completely absent, even though blue-collar workers make up the vast majority of this nation's work force, and indeed the news media's audience. The majority of stories should include the conditions they work under, the challenges they face, the wages they earn and the hazards that maim and kill them. But the media is curiously silent on nearly all these natural topics. In 1989, researcher John Tasini studied ABC, NBC and CBS for a year to see how much coverage was devoted to workers' issues, including the minimum wage, workplace safety and child care. He found it amounted to a dismal 2.3 percent of all coverage. In fact, all three networks carried only 13 minutes of coverage on workplace safety for the entire year! The worst offender was NBC Nightly News, who devoted a total of 40 seconds to worker safety. This is not surprising, since its parent corporation, GE, has an appalling work safety record. (21) Elsewhere, a Los Angeles Times poll found that 53 percent of the nation's newspaper editors were pro-management, but only 8 percent were pro-labor. (22) The pro-corporate bias of our media is one of the most important reasons for the decline of labor unions in this country. [eRiposte emphasis] 

4.2.3 Taxes

The issue of taxes is another area where the mainstream media displays its strongly conservative tilt on economic matters, by its biased, misinformation-laden coverage - to the point that it has become toxic for Democrats or liberals to not just advocate tax increases but even oppose tax cuts. 

PREFACE: "Millionaire Pundit Values" 

In some respects, it is no surprise why the U.S. media makes the talk of tax increases a no-no. This exchange noted by Bob Somerby is notable:

MILLIONAIRE PUNDIT VALUES: And, of course, there’s always time for this required exchange:

RUSSERT: There are indications that some of the soldiers in Iraq, because of their low income, will not be beneficiaries of this tax cut. Would that be acceptable to you?

NOVAK: To me, it’s quite obvious that people who pay the taxes should get the tax cuts. People like you, for example, who get so much income, should get the tax cuts.

SAFIRE: And you. And you.

AL HUNT: All of us here, let’s be honest.

Can these harlequins ever discuss the budget without explaining how rich they all are?

And Somerby's note on a column by Bill Keller of the New York Times makes it clearer:

Trust us—scribes who quote their three-year-old children are trying to tell you how silly they are, and Keller has surely completed the task with his pandering piece in this Sunday’s Times magazine. Profiling Bush, Keller fawns long and hard—and shows off those Millionaire Pundit Values. We’ve warned you that your millionaire scribes simply don’t care about normal people. But we don’t know when we’ve seen a pundit revel so much in that fact:

KELLER: Bush has already surpassed Reagan in advocating a shift of responsibilities from government to the private sector, and from the federal governments to the states…You could easily imagine Reagan’s husky chuckle the other day as Bush announced plans to outsource up to 850,000 federal jobs—about half the government’s civilian work force—to private contractors. This is on top of the 170,000 federal employees who will lose most of their contract protections when they are folded into the new Department of Homeland Security.

Nice guy! Keller pictures Reagan callously chuckling as hundreds of thousands of normal people lose job protections for which they have bargained. But why should we be so surprised at this image, when Keller—speaking with an approving tone, as he does throughout this piece—sketches out Bush’s bold vision:

KELLER: What Bush is striving for, on the evidence of the choices he has made so far, is bold in its ambition: markets unleashed, resources exploited. A progressive tax system leveled, a country unashamed of wealth. Government entitlements gradually replaced by thrift, self-reliance and private good will. The safety net strung closer to the ground.

Finally! Progressive taxation will finally end and wealth will again dare speak its name! Throughout this profile, Keller showers praise on this oddball vision, which he fawningly fobs off on Bush. You’ll have to read the piece yourself to take in Keller’s pandering tone. But through the course of his 8000 words, Keller never shows the slightest concern about these remarkable values.

But then, we’ve warned you about Millionaire Pundit Values. Like many high-toned modern pundits, Keller doesn’t seem to spend too much time worrying about normal people. Insouciance is his all. 
...
You’ll have to read this piece for yourself to pick up its remarkable tone. Why does Keller fawn so fully? Here at THE HOWLER, we don’t have a clue. But dudes! Would Reagan have laughed at those laid-off workers? We doubt it. But Bill Keller will!

The media's almost one-sided coverage on taxes manifests in multiple ways. 
Some of these (A, B, C, D) are:

A. Downplaying or ignoring the historical, bipartisan efforts to use tax increases to cut deficits and the magnitude of such increases

Who ever hears this replayed again and again in our mainstream media? The fact that these facts hardly come out shows the media's strongly conservative bias on taxes, since it is established "wisdom" that conservatives are for tax cuts and that they effectively associate tax increases with the apocalypse [yes, I'm kidding, but only barely so]: 

“Ronald Reagan does hold a special place in the annals of tax policy, and not just as the patron saint of tax cuts,” Krugman writes. Krugman notes that Reagan “followed his huge 1981 tax cut with two large tax increases.” Here’s the skinny on Reagan Tax Increase number 1:

KRUGMAN: The first Reagan tax increase came in 1982. By then it was clear that the budget projections used to justify the 1981 tax cut were wildly optimistic. In response, Mr. Reagan agreed to a sharp rollback of corporate tax cuts, and a smaller rollback of individual income tax cuts. Over all, the 1982 tax increase undid about a third of the 1981 cut; as a share of G.D.P., the increase was substantially larger than Mr. Clinton’s 1993 tax increase.

We’ll return to that highlighted point. For the record, here’s Krugman’s description of Reagan Tax Increase 2:

KRUGMAN: I’m referring to the Social Security Reform Act of 1983, which followed the recommendations of a commission led by Alan Greenspan. Its key provision was an increase in the payroll tax that pays for Social Security and Medicare hospital insurance.

For many middle- and low-income families, this tax increase more than undid any gains from Mr. Reagan's income tax cuts. In 1980, according to Congressional Budget Office estimates, middle-income families with children paid 8.2 percent of their income in income taxes, and 9.5 percent in payroll taxes. By 1988 the income tax share was down to 6.6 percent—but the payroll tax share was up to 11.8 percent, and the combined burden was up, not down.

For those who don’t want to do the math, Krugman’s “middle-income families with children” were paying a combined burden of 18.4 percent by 1988, up from 17.7 percent in 1980. For these middle-class families, Reagan—who did reduce taxes overall—had actually raised their tax burden.

For many American consumers of “news,” these facts might come as a surprise. As we’ve told you again and again, our modern press corps is fact-averse, but is very much fable-friendly. We’re fed simple tales about every topic, including Reagan’s effect on taxes. With that in mind, let’s return to that point Krugman made about Reagan’s 1982 tax increase: “[A]s a share of G.D.P., the increase was substantially larger than Mr. Clinton’s 1993 tax increase.” Presumably, Krugman included that fact today because he’s familiar with our spin-driven cable discourse, in which President Clinton’s 1993 increase is routinely said to have been “the largest tax increase in American history.”

The spinning began almost instantly, driven by the foolish—and largely uncorrected—hyperbole which now defines our discourse. On May 2, 1993, David Rosenbaum quoted a leading Republican in the New York Times:

ROSENBAUM: “This is the largest tax increase in the history of the human race, and it is not appealing to us,” said Representative Bill Archer of Texas, the top Republican on the [House Ways and Means Committee].

The largest in the history of the human race! On May 28, 1993, the Times’ Michael Wines captured more of the clowning:

WINES: “The largest tax increase in the world,” said Representative Deborah Price, an Ohio Republican.

“The largest tax increase in the history of civilization,” anted Representative Philip M. Crane, an Illinois Republican.

Lenin and Mao never taxed so much! For that matter, Pharoah was off the hook too! On radio, of course, Rush Limbaugh was peddling such pap every day. In late May, the Times tried to introduce a few facts in an unsigned “scorecard” feature:

NEW YORK TIMES (5/28/93): The Congressional Budget Office, the official scorekeeper in such matters, estimates that the package will increase taxes by $270 billion over five years. That appears to make it larger than the 1982 tax increase, which raised $215 billion in new taxes over five years under President Ronald Reagan.

But if inflation is factored in, the Clinton package raises taxes less.
Viewed another way, the Clinton package would raise taxes in its fifth year by slightly more than 0.9 percent of gross domestic product. The Reagan tax increase ends up being larger because it increased taxes in its fifth year by 1.3 percent of gross domestic product.

As everyone knows, it’s pointless to compare budget costs across the decades without adjusting for inflation. On August 5, David Rosenbaum also laid out some facts:

ROSENBAUM (8/5/93): When the dollars are adjusted for inflation, this year’s budget bill is neither the biggest deficit reduction measure nor the biggest tax increase in recent years...

As for taxes, the 1982 law enacted under Ronald Reagan raised taxes by $215 billion over five years, which amounts to $286 billion in 1993 dollars, considerably more than this year's figure.

And, of course, as Krugman notes, the Reagan increase was followed by Reagan Tax Increase 2. But so what? Two days before Rosenbaum’s analysis appeared, Bob Dole had responded to an address by Clinton, saying the Man From Hope’s budget plan was “not just the largest tax increase in American history, but the largest tax increase in world history.” And uh-oh! Someone had penned a Times op-ed that same day. His name was Ronald Reagan:

REAGAN (8/3/93): [Clinton] knows Americans have always been kind and generous. In war and peace, they have been willing to make great sacrifices to serve a greater good. Today, the White House is trying to appeal to this great quality by getting us to go along with the largest tax increase in the history of our country.

Needless to say, Reagan was troubled by all the spinning. “Despite the slick presentation, talented spin doctors and White House talking heads all over TV, the simple truth is that this plan is bad for America,” he good-naturedly said.

This is just a tiny part of the recent history of tax-increase-spinning. For the record, we’re pretty sure that we saw Bob Dole, in recent years, acknowledge ruefully that the GOP may have exaggerated the size of Clinton’s tax hike a bit. But we’re darned if we can find the statement today. (Anyone know where he said it? We have an idea, but it won’t be on Nexis.) So why did Krugman mention the fact that Reagan’s 1982 increase was actually somewhat larger than Clinton’s? Most likely, because this silly spinning continues. Clinton’s “biggest tax increase in human history” is a silly staple of pseudo—con spin. Just last month, as a matter of fact, Sean Hannity made a comical adaptation. Here he was on April 16, trashing big-taxing John Kerry:

HANNITY: John Kerry has flipped and flopped on just about every issue...The only issue he is consistent on is voting for taxes. He voted for the two largest tax increases in American history, voted to raise taxes 350 times. And, you know, on every tax issue he’s wrong.

No, we’re not sure what Hannity meant; at the time, the official Bush/Cheney talking-point only said that Kerry had voted for the one biggest increase. Was Hannity comically accusing Kerry of voting for Reagan’s tax increase too? Of course, Kerry didn’t happen to be in the Congress at the time of the Reagan increase, but Hannity didn’t seem to know that. Here was another exchange from this same laughable program:

ELAINE KAMARCK: Well, first of all, you’ve got to start with the fact that John Kerry has been a deficit hawk from the word go. In the 80s—don’t laugh at me. Do you know that he voted with President Reagan? In the 80s, he voted for the famous Gramm-Rudman Act. Not many Democrats did that.

HANNITY: Did he vote for the Reagan tax cuts?

KAMARCK: He voted for—

HANNITY: Did he vote for the Reagan tax cuts? No.

No he didn’t, and neither did you. You weren’t in the Congress then, and neither was Ol’ Flip-Flip, John Kerry.

This week could be a time for tributes—and beyond that, it could be a time for learning. But the press corps rarely lays out facts when clowning clowns make a joke of your discourse. Today, Krugman offers some information. Expect it to end right there.

(Note: None of this has a thing to do with the merits of these different tax increases. But our discourse is rarely about the merits. Our discourse is about pleasing spin.)

VISIT OUR INCOMPARABLE ARCHIVES: In October 2003, conservative economist Bruce Bartlett wrote a detailed review of Reagan’s tax increases. For the record, he referred to Reagan’s 1982 hike as “the largest peacetime tax increase in American history.” Incomparably, we quoted Bartlett at length. See THE DAILY HOWLER, 10/31/03.

Meanwhile, one last point on that Clinton increase. By the time Clinton’s budget plan passed, Americans were deeply misinformed because of all the silly spinning. In our discourse, spin and dissembling almost always overwhelm the press corps’ feeble attempts at clarification. Too see how little the voters knew, see THE DAILY HOWLER, 11/12/02. As usual, American voters lacked the first clue. Our discourse tends to be like that.

B. Largely reporting tax issues using fake Republican spin points

Bob Somerby at the Daily Howler has covered various "scribes" doing this. Let's start with Tim Russert, the king of GOP spin, who runs Press The Meat Meet The Press on MSNBC:

As he interviewed John Kerry on yesterday’s program, Tim Russert pushed them RNC points rather hard. First, Kerry said he wouldn’t implement future Bush tax cuts. In other words, current tax rates would stay where they are. Let’s say it again: Current tax rates would stay the same. To Tim, of course, that’s a tax increase:

RUSSERT: So the tax cut that’s scheduled to be implemented in the coming years, for the—

KERRY: No new tax cut under the Bush plan.

RUSSERT: Immediately.

KERRY: Most of which goes to the wealthiest Americans, because we simply can’t afford it.

RUSSERT: Effective immediately.

KERRY: It doesn’t make economic sense….I’m saying no new tax cuts, Tim.

RUSSERT: But would you implement the ones that are now scheduled to take place?

KERRY: Those are new tax cuts.

RUSSERT: The Bush administration says that is raising taxes because people—

KERRY: Well, I don’t care what they say, Tim. The average American understands that a tax cut that you don’t have today is a new tax cut…

RUSSERT: But the Republicans—

KERRY: And in no way—look, we can’t cower in front of their silly argument that by not being given a new tax cut it’s an increase. No average American believes that’s an increase.

Actually, no speaker of English believes that’s an increase [eRiposte note: Not to mention that the expiry of the 2001 tax cuts was specifically agreed to by Bush and the GOP when they pushed it through - which, according to their and Russert's logic, would mean that Bush and the GOP were for tax increases in 2001]. But Russert pushes the ludicrous point every time the need arises. Somebody run and wake up Fred. He’s probably dozing over Rupert’s best cognac.

And Russert’s point-peddling was hardly finished. Soon, he read an anonymous quote to Kerry. Was there anyone watching the show who couldn’t figure who Tim was quoting?

RUSSERT: There is a big philosophical debate, however, how you grow the economy. Let me show you one explanation. “An economy hampered by restrictive tax rates will never produce enough revenue to balance our budget, just as it will never produce enough jobs or enough profits. Surely the lesson is that budget deficits are not caused by wild-eyed spenders, but by slow economic growth and periodic recessions.” And it goes on: “In short, it is a paradoxical truth that tax rates are too high today and tax revenues are too low and the soundest way to raise the revenues in the long run is to cut its rates now.” Do you agree with that?

Kerry said he didn’t agree, and Russert dropped the bombshell. That was John Kennedy he was quoting, all the way back in 1962! And why was Russert reading this quote? Duh! Because it’s a Rush Limbaugh spin-point. Never mind the fact that the marginal tax rate was 91 percent when Kennedy said that “tax rates are too high today.” Over and over, Rush bullshits his listeners with this absurdly irrelevant precedent, and Tim was eager to recite it too. Somebody go wake up Fred!

And that wasn’t all. Eager to complete the Rule of Three, Russert journeyed back seven years to peddle a tired old spin-point. He revisited the tired old 1995-96 battle over Medicare funding:

RUSSERT: But the Republicans—

KERRY: And in no way—look, we can’t cower in front of their silly argument that by not being given a new tax cut it’s an increase. No average American believes that’s an increase, and every American—

RUSSERT: So when the Republicans wanted to limit the growth in Medicare that should not have been called a “cut” by Democrats?

KERRY: No. If you’re holding something at equal spending, but inflation is going up at a rate above that, you’re not keeping up with inflation, that is a cut. That is in fact a cut, Tim.

In 1995, both parties proposed spending less on Medicare in future years than it would have cost to maintain the existing program. And that was the kind of budget proposal that had always been described as a “cut.” But the Gingrich Congress changed the language, as we’ve incomparably explained in the past (see THE DAILY HOWLER, 8/20/99). Newt’s effort produced a load of confusion (see below). And it was Newt who was changing the language—no one else. But no matter. On this Sunday’s Meet the Press, Russert was still pushing Newt’s point.

More on Tim Russert from Somerby:

But let's just say it: When Russert sat down with the Treasury Sec, O'Neill ate Tim Russert for lunch. Was the big guy even prepared for the session? Here were a few of the problems:

1) How much will the tax cut cost? Russert asked O'Neill about Democratic claims that the Bush tax cut would really cost $2.6 trillion. Not one word of O'Neill's reply had anything to do with what Russert had asked. Seeming not to notice this point, Russert simply moved on (see THE DAILY HOWLER, 3/6/01).
2) How much will go to the top one percent? Twice, Russert asked O'Neill about claims that 43 percent of the tax cut's benefits go to the top one percent. Both times, O'Neill pulled a switch—asked about the total plan, he gave an answer about the income tax provisions. That seemed to be fine with Russert. O'Neill was never forced to speak to the question which Russert had asked (see THE DAILY HOWLER, 3/7/01).
3) What about those White House numbers? On Saturday, both the Washington Post and the Washington Times reported on distributional numbers which the White House had released. Each paper devoted an entire story to the White House numbers (see THE DAILY HOWLER, 3/5/01). Russert—seeming wholly unaware of the Saturday stories—asked O'Neill if the White House would ever release such numbers. O'Neill—who dodged the distribution question all through the session—didn't mention the Saturday stories either.

Does performance like this by the press corps matter? Only if democracy matters. If the Democratic cost analysis is accurate, for example, then Bush's plan truly doesn't add up. You'd think Russert would want to examine that question. Sorry—the genial host was far too busy hashing and rehashing the Clinton pardons, asking again and again, for the thousandth time, questions which have been hashed and rehashed long before.

Let's move to the other mainstream media outlets (including Fox News):

As a candidate, George W. Bush paraded about, vowing to pay down debt. Like Candidates Bradley, McCain and Gore, Bush pledged to use Social Security surpluses ($2.4 trillion over ten years) for Social Security only. During most of the campaign, that seemed to mean that he’d use those surpluses to pay down federal debt. (Later, he quietly said that he might use $1 trillion of the $2.4 trillion to set up private accounts in SS.) And why had Bush set his proposed tax cut at $1.3 trillion? Because that was all we could afford, he said, or else we’d have to spend SS dough. Bush had counted every penny. $1.3 trillion was all we could manage.

But that was then, and this is hijacking. Bush got his $1.3 trillion in 2001; passed another small tax cut in 2002; and has just passed another cut which will likely cost $800 billion over ten years. His agents say more tax cuts are coming. And everyone knows that the Alternative Minimum Tax will have to be fixed; that will cost hundreds of billions more. Meanwhile, what else is happening while these tax cuts proceed? We’ll let Chait review it:

CHAIT: Although no one talks about it much, this year’s $400 billion (or more) deficit comes on top of the administration spending the Social Security surplus in its entirety—restraint has dwindled.

Let’s make sure we understand what this means. Throughout the campaign, Bush said that none of that SS surplus would be spent. That’s why his tax cut could only be $1.3 trillion. Now, the entire SS surplus is being spent (plus an extra $400 billion this year)—and he keeps trying to cut taxes more! It’s time to go searching for Candidate Bush. Someone else seems to be in the White House.

“No one talks about it much,” Chait says. And that is surely an understatement. Bush’s actual program has little to do with the picture he drew during Campaign 2000. As a candidate, Bush didn’t say the silly things he says now. He didn’t say that he’d keep cutting taxes in order to produce increased revenues. He didn’t say he’d present a new tax cut every single year he held office. As a candidate, Bush painted a pleasing portrait—one that fit the press corps’ CW. Now, he’s flip-flopped, and he clowns in their faces. Cowards, they pretend not to notice.

CHAIT CHAT: Enjoy all four incomparable installments. And study Jonathan Chait’s helpful article:

CHAIT CHAT, PART 1: Bush is still lying, TNR’s cover says. Chait has some prime Grade A groaners.

CHAIT CHAT, PART 2: Reagan cut taxes and revenues soared! This foofaw is spread around daily.

CHAIT CHAT, PART 3: What really happens when tax rates are cut? Sometimes, cons come out and tell you.

CHAIT CHAT, PART 4: Whatever happened to Candidate Bush? Your press corps is too scared to ask.

THEY REPEAT, YOU DECIDE: Who will ask about Bush’s reinvention? Not that gang at Special Report. In recent days, their budget “reporting” has been pure propaganda. On Tuesday night, for example, Major Garrett reported on current budget battles in congress. Midway, he spoke with Rick Santorum, who voiced a prime RNC spin-point:

SANTORUM (6/2/03): Democrats play the game of class warfare, which is trying to take from some to give to others.

Dems are playing class warfare, he said. But on Fox, you don’t have to wait for Republican senators if you want to thrill to this GOP spin-point. Here was the increasingly egregious Brit Hume as he introduced Garrett’s report:

HUME (6/2/03): There were efforts in the House and Senate today to offer refundable tax credits to certain low-income families…Resurrecting the tax credits has become a political football in Washington’s seamlessly endless class warfare debate over taxes. Fox News correspondent Major Garrett reports.

Omigod! Brit called it class warfare too! But then, viewers got to hear the pleasing point last night too. This time, “reporter” Carl Cameron played Charlie McCarthy, mouthing the GOP’s spin:

HUME: There’s talk of a new economic stimulus package on Capitol Hill. For more, chief political correspondent Carl Cameron reports.

CAMERON: The class warfare is on. And Democrats who largely opposed the tax cut that president recently signed into law now want a tax break for working Americans who don't even pay income taxes.

“The class warfare is on,” Cameron instantly said, repeating prime spin of his net’s masters. We’re sure Cameron gets a nice pay-check from Fox. How much does the RNC pay him?

A last example to wrap up this sub-section:

We began our review with that Culture of Lying—the culture that now surrounds Bush (see THE DAILY HOWLER, 6/2/03). But Jonathan Chait had a different idea; in his TNR cover piece, he started with Reagan’s tax cuts. As the talk-show right has come to rule our deeply troubled public discourse, a Culture of Foolishness has taken hold; absurd accounts of Reagan’s work now play a key role in that discourse. Turn on talk radio and you will hear them—iconic accounts of his budget achievements. Reagan cut taxes and revenues soared—this well-spun tale is bruited daily. But this silly account has gone unchallenged by “good guy” pundits who snore inside logs. Many conservatives believe these stories, and indeed, why wouldn’t they do so? After all, Sean and Rush keep reciting the tales—and Big Mainstream Pundits just sit on the side, too effete to engage the real discourse.

That’s why we were mightily pleased to see Chait’s useful opening. It’s a very rare day when American citizens are asked to consider these facts:

CHAIT (from pgh 1): [I]n truth, Reagan reacted to the consequences of his 1981 tax cuts in a way that would have put him far out of step with Bush’s Republican Party. When the scope of the budget deficit [caused by his tax cut] became apparent, Reagan acceded to a series of tax increases in 1982 (in the midst of a severe recession, no less), 1983, and 1984. In 1986, reacting to complaints that his 1981 tax cuts opened too many loopholes for the rich, Reagan enacted a sweeping tax reform that liberals, including this magazine, hailed for making the tax code more progressive. Reagan’s record on taxes, in short, consisted of one year of unvarnished conservative ideological warfare followed by seven years of retreat and consolidation.

Those are facts which talk-show listeners never hear. For that reason, those are facts which you must learn—and recite, applying as needed.

Reagan cut taxes—and revenues soared. This silly tale is spun many ways. Fantasists like to ignore basic facts—that federal revenues almost always go up because of population growth and inflation. And they like to look at all federal revenues—adding in those payroll taxes, which Reagan actually raised. (Duh! We wonder why those “revenues soared.”) Meanwhile, snoring “liberals” don’t dirty their hands engaging in this crucial discourse. Sean and Rush keep pounding the piffle. Richard and William sleep in their logs. At THE HOWLER, we’re sick of this inane, corrupt culture. We were pleased to see Chait’s basic facts.

C. Failing to hold George Bush and the Republican party accountable for their long history of misleading, mendacity and fake promises on the topic of taxes (and the budget in general) 

How many people are told day in and day out that leading Republicans and conservative "experts" and "commentators" were featured repeatedly in the mainstream media predicting gloom and doom if Clinton's tax increases were passed and they were all full of s*** considering the exact opposite occurred? 

How many people are told day in and day out that leading Republicans and conservative "experts" and "commentators" were featured repeatedly in the mainstream media predicting fabulous job growth if Bush's tax cuts passed, and that they were all full of s*** considering that the job creation promised by Bush, repeatedly, when he sold his 2003 tax cuts spectacularly failed to materialize? 

How many people are told day in and day out about the serial misleading and lying by Bush and his administration on the topic of tax cuts (among other things)? (More here.)

The data is too vast to reproduce here, so I will just highlight a couple of examples to show you the tip of the iceberg. 

Bob Somerby:

As a candidate, George W. Bush paraded about, vowing to pay down debt. Like Candidates Bradley, McCain and Gore, Bush pledged to use Social Security surpluses ($2.4 trillion over ten years) for Social Security only. During most of the campaign, that seemed to mean that he’d use those surpluses to pay down federal debt. (Later, he quietly said that he might use $1 trillion of the $2.4 trillion to set up private accounts in SS.) And why had Bush set his proposed tax cut at $1.3 trillion? Because that was all we could afford, he said, or else we’d have to spend SS dough. Bush had counted every penny. $1.3 trillion was all we could manage.

But that was then, and this is hijacking. Bush got his $1.3 trillion in 2001; passed another small tax cut in 2002; and has just passed another cut which will likely cost $800 billion over ten years. His agents say more tax cuts are coming. And everyone knows that the Alternative Minimum Tax will have to be fixed; that will cost hundreds of billions more. Meanwhile, what else is happening while these tax cuts proceed? We’ll let Chait review it:

CHAIT: Although no one talks about it much, this year’s $400 billion (or more) deficit comes on top of the administration spending the Social Security surplus in its entirety—restraint has dwindled.

Let’s make sure we understand what this means. Throughout the campaign, Bush said that none of that SS surplus would be spent. That’s why his tax cut could only be $1.3 trillion. Now, the entire SS surplus is being spent (plus an extra $400 billion this year)—and he keeps trying to cut taxes more! It’s time to go searching for Candidate Bush. Someone else seems to be in the White House.

“No one talks about it much,” Chait says. And that is surely an understatement. Bush’s actual program has little to do with the picture he drew during Campaign 2000. As a candidate, Bush didn’t say the silly things he says now. He didn’t say that he’d keep cutting taxes in order to produce increased revenues. He didn’t say he’d present a new tax cut every single year he held office. As a candidate, Bush painted a pleasing portrait—one that fit the press corps’ CW. Now, he’s flip-flopped, and he clowns in their faces. Cowards, they pretend not to notice.

CHAIT CHAT: Enjoy all four incomparable installments. And study Jonathan Chait’s helpful article:

CHAIT CHAT, PART 1: Bush is still lying, TNR’s cover says. Chait has some prime Grade A groaners.

CHAIT CHAT, PART 2: Reagan cut taxes and revenues soared! This foofaw is spread around daily.

CHAIT CHAT, PART 3: What really happens when tax rates are cut? Sometimes, cons come out and tell you.

CHAIT CHAT, PART 4: Whatever happened to Candidate Bush? Your press corps is too scared to ask.

Another note:

What happens when the federal government cuts taxes? Duh! In almost all instances, revenues decline from where they would have been if tax rates had stayed the same. But over the course of the past quarter-century, the talk-show right has been fed some pure cant—cutting taxes increases revenues! This dogma makes little sense on its face. After all, if cutting the top rate to 33 percent increases revenue, why not cut it to 30 instead? But our discourse thrives on spin, lies and fable. And Bush likes to tell this tale too:

CHAIT: Bush and his allies have three responses to critics who point to the negative effects of long-term structural deficits. The first is that tax cuts will, over the long run, boost economic growth to such a degree that tax revenue actually rises. This is the most extreme claim of supply-side economics, and Bush makes some reference to it in nearly every speech he delivers. “The way to deal with the deficit is not to be timid on the growth package; the way to deal with the deficit is to have a robust enough growth package so we get more revenues coming into the federal Treasury,” he asserted earlier this month in California.

In recent weeks, top spinners have begun adding prime weasel-words—“eventually” is one—when they make this iconic presentation. This suggests that the government will lose revenue in the short run, but “eventually” it will come out ahead.

But as Chait points out in his TNR piece, conservatives sometimes speak more frankly, offering a completely different rationale. Sometimes they drop all the cant:

CHAIT (continuing directly): A second defense, put forward by Bush’s defenders but not by Bush himself, is that tax cuts will starve the government of revenue, thereby holding down spending and perhaps even leading to balanced budgets. (One notable thing about this justification is that it contradicts justification number one—either tax cuts cause revenue to rise, or they cause it to shrink; both cannot be true.)

As Chait notes, this contradicts the Bush rationale. Bush said he would cut taxes to bring in more revenue. Others recommend cutting taxes in order to bring in less.

Two weeks ago, a good example of this second school appeared on Andrew Sullivan’s eponymous dotcom. The blogger had criticized Bush’s deficits. A reader called Sully a chump:

E-MAILER: I’ve said this to you on more than one occasion—there is a singularly good reason for MASSIVE deficits...GW’s real job, like Reagan before him, is to ensure that all the money is spent, that when a Dem takes office, 33 percent or more is paying off debt. This is called preemptive handcuffs. [Sullivan’s deletion]

This e-mailer suggests that Bush is lying when he says he’s trying to increase federal revenues. And he suggests that Bush is lying when he says that he’s trying to get back in balance. Indeed, if this e-mailer’s understanding is accurate, Candidate Bush was probably faking when he promised to pay down trillions in debt. Indeed, if this e-mailer’s understanding is accurate, then the Bush Admin is probably trying to produce a train wreck—a fiscal train wreck which would curtail future spending, and lead to the changes in Social Security which Bush proposed in the 2000 campaign.

What makes this e-mailer’s outlook so intriguing? This e-mail—from a Bush supporter—implies that Paul Krugman is right on the money when he says that Bush is seeking that train wreck. Of course, when Krugman wrote such a column last week, conservative bootblacks flew into action, insisting the pundit was out of his mind. He was spinning “conspiracy theories,” they said. (The herd must always be fed.) But right there on Sullivan’s widely-read web site, an e-mailer showed how conservatives talk when they aren’t throwing feed to the herd. Chait’s TNR piece has a good many merits, but the strange dichotomy noted above is a valuable part of his primer. For our money, Chait is really too polite when he says the two tax-cut claims “contradict” one another. These explanations are in mortal combat—and as we’ve noted, the explanation given by Bush seems to fly in the face of all logic.

Does Bush really think that tax cuts increase revenue? Timorous pundits in DC’s inner circles will rarely address this claim’s absurdity; don’t expect to see the president asked about this in a press conference. But the next time you hear conservative bootblacks trashing Krugman for conspiracy theories, remember that mailer to Andrew Sullivan. On special occasions, conservatives have voiced this rationale for years. So which is it, cons—the lady or the tiger? It’s a simple question, lodged in Chait’s piece. It’s time that we all learned to ask.

D. Not reviewing history to see which party has done better on the economy overall, regardless of the tax policy used

As I have shown separately, the historical data shows no evidence that Republicans (and their tax cuts) are any better for the economy (jobs included) than Democrats. If anything, the data suggests that Democrats hold an advantage in almost every aspect of economic policy. The almost complete media blackout on this demonstrates unequivocally that the media tilts conservative on economic issues, including taxes. The mantra of "tax cuts to help businesses create jobs" has become fairly entrenched with little or no critical analysis of whether such tax cuts are really helping create jobs more effectively than other approaches. Not to mention, a lot of the coverage focuses on how things are great if they are "pro-business" and less so on whether they are "pro-worker".

4.2.4 Social Security

Bob Somerby's note is a good place to begin on social security because it reveals, once again, the "Millionaire Pundit Values" (Somerby's term) prevalent among prominent mainstream media types:

We’re sure [the New York Times'] Bill Keller’s a very nice guy. But we tried to warn you about his work when he penned that ludicrous column last summer—the one where he quoted his three-year-old daughter saying how boring Gore is. (Links below. Keller also trashed all other Dem hopefuls, complaining, for example, that John Kerry took home movies when he served in Vietnam.) Trust us—scribes who quote their three-year-old children are trying to tell you how silly they are, and Keller has surely completed the task with his pandering piece in this Sunday’s Times magazine [Jan 2003]. Profiling Bush, Keller fawns long and hard—and shows off those Millionaire Pundit Values. We’ve warned you that your millionaire scribes simply don’t care about normal people. But we don’t know when we’ve seen a pundit revel so much in that fact:

KELLER: Bush has already surpassed Reagan in advocating a shift of responsibilities from government to the private sector, and from the federal governments to the states…You could easily imagine Reagan’s husky chuckle the other day as Bush announced plans to outsource up to 850,000 federal jobs—about half the government’s civilian work force—to private contractors. This is on top of the 170,000 federal employees who will lose most of their contract protections when they are folded into the new Department of Homeland Security.

Nice guy! Keller pictures Reagan callously chuckling as hundreds of thousands of normal people lose job protections for which they have bargained. But why should we be so surprised at this image, when Keller—speaking with an approving tone, as he does throughout this piece—sketches out Bush’s bold vision:

KELLER: What Bush is striving for, on the evidence of the choices he has made so far, is bold in its ambition: markets unleashed, resources exploited. A progressive tax system leveled, a country unashamed of wealth. Government entitlements gradually replaced by thrift, self-reliance and private good will. The safety net strung closer to the ground.

Finally! Progressive taxation will finally end and wealth will again dare speak its name! Throughout this profile, Keller showers praise on this oddball vision, which he fawningly fobs off on Bush. You’ll have to read the piece yourself to take in Keller’s pandering tone. But through the course of his 8000 words, Keller never shows the slightest concern about these remarkable values.

But then, we’ve warned you about Millionaire Pundit Values. Like many high-toned modern pundits, Keller doesn’t seem to spend too much time worrying about normal people. Insouciance is his all. “There is little prospect…Bush will actually shrink the government,” he says at one point. “Reagan asked Americans to dream heroic dreams, but he rarely asked them to give up anything. President Bush, even with a war on, shows no greater desire to bet on sacrifice.” But is that true? A few paragraphs earlier, Keller discussed Bush on Social Security:

KELLER: Martin Feldstein, who was chairman of Reagan’s Council of Economic Advisers, said they couldn’t figure out a way to [privatize Social Security] without arousing a panicky backlash among elderly voters. When Feldstein worked with candidate Bush on the design of his tax and Social Security proposals, though, he was impressed that Bush had discerned a new political opportunity that may outweigh the fears of the elderly. Polls showed that younger and middle-aged voters were comfortable with individual retirement instruments like 401(k) programs. Moreover, the anxiety about whether Social Security will be around when they retire, which has always been seen as an argument for shoring up the status quo, is in Bush’s mind an argument for inventing something new.

Thus while the administration is still debating the timing of an assault on Social Security—are voters ready for it before 2004? How big a setback was the implosion of Enron’s retirement plan?—the president no longer regards Social Security as the lethal “third rail” of American politics. It is likely to be one of the big bets of his presidency.

But what kinds of “sacrifices” might privatization involve? Keller shows no sign of knowing or caring. As pundits did throughout Campaign 2000, Keller skims the surface of Bush’s ideas. Meanwhile, he assures us that Bush will require no “sacrifice.” We doubt that he has the slightest idea whether or not this is accurate.

Why is Keller so free-and-easy? Here at THE HOWLER, we don’t really know. But during Campaign 2000, pundit opinion strongly favored Bush’s ideas on Social Security (links below); the likely explanation had already been limned by Julie Kosterlitz in the National Journal. Kosterlitz wrote on January 9, 1999, before Bush’s ideas became an issue:

KOSTERLITZ: Social Security increasingly strikes the affluent as a bad financial deal. When the program was newer, it could offer generous benefit increases by increasing taxes on a fast-growing crop of young workers—creating large windfalls for rich as well as poor retirees. But as the program ages and demographics change, it’s not feasible to raise taxes enough to sustain such windfalls. For new retirees, particularly the affluent, the benefits of Social Security are fading in relative importance to other retirement income; this may diminish political support for the program among wealthy elites and opinion makers.

As Kosterlitz suggested, “wealthy elites and opinion makers” like privatization because it’s a good deal for them. And by the time Bush proposed his ideas in May 2000, the pundit class was clearly behind them. On the Beltway Boys, Fred Barnes laid it out for Mort. “Elite opinion—in other words, the bigwigs, the opinion-makers, people like you, Mort—have changed their mind, and are now, I think, sympathetic to the Bush plan and think that Gore is just being a reactionary liberal” for opposing privatization. On Capital Gang, Al Hunt said much the same thing. “Bush is winning among the elites, and I think in the press coverage” of his proposal, Hunt said. Now Keller seems to say that there’s no risk in the plan. And it’s quite true—there’s no risk for him.

You’ll have to read this piece for yourself to pick up its remarkable tone. Why does Keller fawn so fully? Here at THE HOWLER, we don’t have a clue. But dudes! Would Reagan have laughed at those laid-off workers? We doubt it. But Bill Keller will!

The fact that George Bush faked his way through Election 2000 on social security, as the mainstream Press Corps slept and bashed Gore instead, itself reveals the media's conservative tilt on social security reporting. As usual, Bob Somerby has chronicled this extensively. This summary is a good place to start:

Was May 2000 a season for spinning? Social Security proved it. On May 15, Candidate Bush delivered a major speech laying out his ideas for reform of the program. His proposal? Younger workers should be allowed to use roughly sixteen percent of their payroll taxes—the taxes that normally fund Social Security—to set up personal investment accounts. The money accrued in these accounts would be used for the individual’s retirement. One key point: As was widely noted in the press, Bush didn’t offer a fully-formed plan. "Bush offered few specifics about how his ideas would work," Judy Keen wrote in USA Today. The hopeful had only "outlined broad principles." But everyone agreed that Bush had endorsed the most sweeping reform in Social Security’s long history. In a rebuttal speech given two hours later, Gore opposed the use of personal accounts; he said the risks involved in private investment would "take the ‘security’ out of Social Security." Puffing and posturing as is its wont, your press corps swore that a "great debate" was surely going to follow.

That "great debate" never happened. Reporters did present the general outlines of Bush’s historic proposal. Bush pledged not to reduce Social Security benefits for current retirees or for those near retirement. He said that use of personal accounts would be voluntary for younger workers. He promised to keep Social Security surpluses "locked away" for the program’s sole use. And he wouldn’t increase payroll taxes, he said. Bush also explained what he did want to do. He would let workers put part of their payroll taxes into "steady, reliable" investments—investments that could be used "only for retirement or passed along as inheritance."

As such, the general outlines of the proposal were known. And why was this reform now needed? According to Bush, "We are nearing Social Security’s greatest test…If we do nothing to reform the system, the year 2037 will be the moment of financial collapse." His reforms would somehow address this problem (how, he didn’t specifically say). Meanwhile, the reforms would be great for younger workers. "The reforms I have in mind will actually increase their retirement income," he said. Indeed, workers would end up with substantially more money because of the personal accounts. "Right now, the real return people get from what they put into Social Security is a dismal 2 percent a year. Over the long term, sound investments yield about a 6 percent return…A worker who invests even a limited portion of his or her paycheck could, over a career, end up with hundreds of thousands of dollars for retirement." There was one last bonus in Bush’s speech; as noted, the money could be left to the worker’s heirs. Nothing like that was allowed under Social Security.

One thing was clear about Bush’s ideas; as presented, they were hard to dislike. Individuals would gain hundreds of thousands of dollars. They could pass the money along to their heirs. Meanwhile, the personal accounts would somehow extend the solvency of Social Security itself. Indeed, in the weeks which followed Bush’s speech, enthusiasts wrote paeans to his brilliant proposal. In a column in U. S. News, for example, David Gergen pictured a 25-year-old worker earning $30,000 a year. Under the current Social Security system, the money at question in Bush’s plan would earn that worker $153,000, Gergen said. Under Bush’s plan, the same money would earn $297,000—about twice as much. Unless Americans hated free money, it was hard to see what was wrong with this plan. "There is a good reason why Governor Bush is forging ahead," Gergen wrote. "He is becoming the candidate of fresh ideas."

But was anything suspect about those ideas? To be honest, not since the Music Man hit River City had anyone offered so much for so little. Indeed, Bush’s budget plan seemed to be nothing but gain. Individuals would gain large sums from Social Security reform; meanwhile, his across-the-board tax cuts meant that every worker would have to pay fewer taxes. Given this pair of rosy scenarios, the press would surely want to examine Bush’s Social Security proposal—especially since, in unveiling his plan, he had "offered few specifics about how [it] would work." It may have been that Bush’s ideas would work out just as he had described. But any press corps worth its salt would surely want to look at them closely. Surely, the Washington press corps began working hard to examine this key Bush proposal.

In fact, nothing of the sort occurred. How thoroughly did the press corps nap? Because Bush’s proposal lacked key details, it was hard to know just how it would work. But twenty-one countries around the world had experience with similar retirement plans; examination of the foreign experience could have been a source of valuable perspective. More significantly, six plans involving personal accounts had already been presented in Congress. Unlike Bush’s hazy offering, these congressional plans were fully formed. If the corps had examined these real-world proposals, voters could surely have gotten a better idea of how Bush’s "broad principles" might work.

How did the press corps handle the matter? For starters, no newspaper or magazine ever presented an article on the foreign experience. How had personal accounts worked in Chile? How had the system worked in Great Britain? There was simply no way to find out. For the record, in the few cases where some slight reporting was done, the foreign experience didn’t sound reassuring. "Chile’s plan thrived for a decade or more through an economic boom," the Chicago Tribune said in a brief May 7 report, "but has since suffered with a downturn in the economy." (On May 28, the Tribune interviewed Kenneth Apfel, U.S. Commissioner of Social Security. Apfel said that the Chilean government "had to urge workers nearing retirement to delay retiring because of the drop.") Meanwhile, a few scribes noted a significant problem with use of personal accounts in Great Britain; administrative fees had burned up roughly forty percent of individuals’ profits. But reporting on the foreign experience was extremely hard to find. The press corps simply took a pass on this possible source of information and perspective.

Much more remarkably, no one ever did a report on those real-world congressional plans. Rep. John Kasich (R-OH) had authored one plan; almost no one ever mentioned it. Democratic senators Moynihan and Kerrey had offered a plan; no paper or magazine ever explained it. How might personal accounts really work? There was simply no way for a voter to know. The simplest information was missing in action as the press corps yawned, napped, snored and slumbered.

Without question, the press corps’ refusal to examine these plans robbed voters of valuable insights. Indeed, as in the case of the foreign experience, some of the bloom came off the rose when one looked at these real-world proposals. When Kasich and others developed real plans, they were forced to deal with real-world concerns which Bush had ignored in his cheerful speech. And alas! Though the Texan painted a pleasing picture of younger workers raking in dough, the actual picture was substantially different when one looked at the real-world proposals.

On September 28, 2000, for example, Glenn Kessler penned one of the only reports on the Kasich proposal. Kessler, the Washington Post’s budget reporter, offered a mordant assessment. "The fine print of the [Kasich plan] might temper public enthusiasm for Bush’s Social Security approach," he wrote. "[A]ccording to the deputy chief actuary of Social Security, which evaluated the Kasich plan last year, some baby boomers would see little or no advantage from individual accounts, and workers who invested conservatively in bonds would fare relatively poorly." Another sobering assessment followed. "[T]he actuary’s report suggests the Kasich plan would bring relatively little gain in benefits compared with the current system, while adding a new element of risk," Kessler said. This picture, of course, was vastly different from the cheerful portrait painted by Bush. Kessler noted another fact; none of the six congressional plans had been able to honor all of Bush’s pledges against tax increases and benefit cuts. It was, of course, those very pledges which made his ideas seem so "fresh" in the first place.

One other paper mentioned Kasich’s plan; on October 26, the Chicago Tribune’s William Neikirk offered a bit more detail. Why would individuals gain so little? According to Neikirk’s brief report, the plan "would reduce the [guaranteed] Social Security benefits of future retirees by a total of about 45 percent." Ouch! But would income from the personal accounts replace the loss in guaranteed benefits? "[T]he accounts would for the most part earn back the cuts for workers and in some cases put them ahead," Neikirk wrote, citing Kasich staffers as his source. "In general, younger workers came out even or slightly ahead, while middle-age workers still did not earn back all their benefit cuts." And even this unexciting result was based on "an assumption open to challenge," Neikirk noted—the assumption that workers would earn a seven percent return on their investments. Need one other obvious point be made? Those who fared poorly on their investments could be faced with serious losses. These were some of the actual facts of one actual, high-profile plan.

Somerby also chronicled how Bush misled citizens repeatedly and the Press Corps decided not to notice:

For the record, Bush’s presentation was built on two claims; each claim was perfectly accurate. It’s true—an individual worker might well earn a six percent return on investments. And a second fact was true as well; the average worker is expected to receive SS benefits which represent the equivalent of a two percent return on the payroll taxes he has paid through his lifetime. Deroy Murdock limned it in Wednesday’s Washington Times: “A typical, two-earner couple born in 1970 can anticipate a 2.24 percent return on their payroll taxes, the Social Security Administration estimates.” Throughout the election, Bush conjoined this pair of facts to make a pleasing presentation. He compared the six percent you could get from investments to the two percent you’d get from SS, and he implied that free money was there to be had if you’d just use them personal accounts.

But why is Social Security so stingy? Why will Murdock’s couple receive the equivalent of a 2.24 percent return from SS? Presumably, the country’s budget reporters all knew the answer: In effect, this is all the program can afford to pay, because the program has past debts and responsibilities for which it has to account. Under Bush’s plan, personal investments might yield nice returns—but those outstanding debts would still exist, and they would have to be paid by the very same citizens who were getting six percent on investments. That six percent would dwindle back down when they had to make good on the outstanding debts. Bush’s “six percent versus two percent” was a comparison of apples to kumquats.

Campaign reporters were surely aware of the problem with Bush’s presentation. In May and June, the point was discussed three separate times by award-winning economist Paul Krugman; his columns appeared on the New York Times’ op-ed page, American journalism’s highest-profile bit of real estate. Krugman explained the point on May 28, then again on May 31. (Krugman: “[L]et me assure you that I too would have no trouble devising a painless plan to save Social Security, if you let me assume that a large part of the system’s obligations would magically disappear.”) The third time allegedly being the charm, he even explained it again on June 21. (Krugman: “[T]he salesmanship surrounding George W. Bush’s Social Security plan is all about the meaningless contrast between the returns that an unburdened individual can get on investments and the implicit return that a very-much-burdened Social Security system can offer.”) Though Krugman never found the perfect way to explain the somewhat confusing conceptual point, every reporter must have known that something was shaky about Bush’s key pitch. For the record, this basic point was also made in a May 29 New York Times editorial. Bush’s key comparison was “highly misleading,” the editorial said; “the [six-versus-two] advantage that proponents cite on behalf of private accounts is an optical illusion.”

In an actual “great debate,” this would have called for discussion. Bush had proposed an historic change in what he himself called “the single most successful government program in American history.” And an honored economist had said, three times, that his key pitch on the matter was hokum. (Krugman: “Mr. Bush’s advisers understand [that] very well, even if the governor does not.”) But so far as a NEXIS search can determine, Krugman’s columns were completely ignored by the rest of the press corps. No reporters questioned Bush about his “six-versus-two” presentation. And no campaign reporter raised this point in dispatches from the road—even as Bush’s claim was being quoted. Free money, anyone? Enabled by the press corps’ indifference, Bush kept telling voters that they could get six percent on their retirement dollar instead of the current “dismal” two. And little effort was ever made to conduct a debate about this great claim. Instead, pundits recited pleasing spin-points about the Texas governor’s bold plan.

With Bush's push for social security privatization ongoing (as of the time of this writing in March 2005) using a mix of misleading and outright fraudulent statements, the mainstream media coverage on Social Security has continued to extensively recite the GOP spin points and fakery, often without fact-checking. (Even the fact-checking that is being done would probably not have occurred if Democrats and a few Republicans had not opposed Bush's plans). I captured a sample of the media misinformation favoring Bush in my page, Myths v. Realities on Social Security in the United States:

The links below highlight some of the cases where the coverage was distorted or free of fact-checking or propagandizing in favor of the Bush administration.

• CBS
  • Link 1, Link 2
  • John Roberts: Link 1, Link 2, Link 3, Link 4
  • Rene Syler (Early Show): Link 1
  • Dick Meyer
  • Trish Regan, CBS Evening News
• ABC
  • Link1, Link 2
  • Good Morning America
  • David Brooks (New York Times) on Nightline
• New York Times
  • David Brooks: Link 1, Link 2
  • Elisabeth Bumiller: Link 1, Link 2
• NBC
  • Link 1
  • David Gregory: Link 1, Link 2
  • Brian Williams
• MSNBC
  • Chris Matthews: Link 1, Link 2, Link 3, Link 4, Link 5
  • Tim Russert: Link 1, Link 2, Link 3, Link 4, Link 5, Link 6, Link 7, Link 8, Link 9, Link 10
  • Monica Crowley
• CNN
  • CNN
  • Tucker Carlson
  • Paula Zahn
  • Kyra Phillips: Link 1, Link 2
  • Bruce Morton: Link 1, Link 2
  • Wolf Blitzer
  • Kelly Wallace
  • Lou Dobbs: Link 1
  • Kathleen Hays: Link 1, Link 2, Link 3
  • Suzanne Malveaux
  • Dana Bash
• Fox News
  • Brit Hume: Link 1, Link 2, Link 3, Link 4
  • Fred Barnes: Link 1, Link 2, Link 3, Link 4
  • Juan Williams, NPR/Fox News
  • Charles Krauthammer, Washington Post/Fox News
  • Jeffrey Birnbaum, Washington Post/Fox News: Link 1; Link 2
  • Bill O'Reilly: Link 1, Link 2, Link 3
  • Carl Cameron: Link 1, Link 2
  • Sean Hannity: Link 1, Link 2
  • Jim Angle: Link 1, Link 2
• Washington Post
  • Link 1; Link 2
  • Howard Kurtz
  • Peter Baker
  • Jonathan Weisman
  • Jim VandeHei
• USA Today
  • Stefani Carter
  • Judy Keen
• Associated Press
  • Leigh Strope: Link 1, Link 2
• Wall Street Journal
  • Editorial: Link 1

Reporters would be well advised to heed Columbia Journalism Review's CJR Daily's call not to fall for the Bush administration's propagandizing on the topic of "personal" v. "private" accounts - but it does not appear that they take such advice very well. More here, here, here, here and here.

Let's just say that there's a vast amount of evidence showing that the mainstream media also reports on social security with a conservative tilt.

4.2.5 Illegal Immigration

I have long been against illegal immigration (on principle), but it is not difficult to notice that media coverage of this topic tends to be in the direction of ignoring or downplaying an entire aspect of the illegal immigrant problem - the role played by corporations that hire them and how a solution to this problem has to involve stringent penalties for those corporations. Rather, reports focusing on the welfare and crime aspects of illegal immigration, a favorite point of contention from conservatives, tend to dominate the so-called debate.

I have commented on this in my post on illegal immigration:

As stated earlier, the fiscal impact estimates, based as they are on taxes paid and Government spending, do not account for seemingly intangible monetary benefits that illegal immigrants may bring to residents/citizens by way of lower commodity prices. While this may seem small comfort for critics of illegal immigrants, understanding the reasons why illegal immigrants lower costs for consumers reveals why they end up being disproportionate burdens on local and state governments. One of the books that partly covers this issue is Eric Schlosser's superlative tome (if you will) Fast Food Nation, which is one of the eRiposte Recommended Books.

A fact often ignored by critics of illegal immigrants is that illegal immigrants come to this country because there is history of people - usually corporations (including agribusinesses) - hiring them. I am willing to bet that the supply of illegal immigrants into the U.S. would abate significantly (of course it won't disappear entirely) if they were not really needed and used. Expressed in another way, it is a matter of supply and demand. There will be little in the way of supply if real demand did not exist. 

Clearly, if one believes that illegal immigration has to be stopped, merely penalizing those who enter the country illegally will not solve the problem - penalizing those who hire them all the time (mostly businesses/companies) is also a must. This is not simply a matter of punishing companies/businesses for committing an illegal act. Rather, it has more to do with the fact that such companies boost their profit margins by paying illegal immigrants egregiously low salaries with limited or no benefits, thereby forcing the state or local governments to bear much of the costs of living (including education) of the immigrants and their families. As Schlosser points out in his book, some of these (e.g., meatpacking) companies have been brazen enough in the past that they assume that the localities that these immigrants are brought into for work will automatically cover their welfare costs. This is obviously problematic for several reasons, that go well beyond the illegal immigration debate.

If a worker is paid a pittance and yet expected to work with minimal or no healthcare benefits, whose responsibility is it to ensure the worker remains in good enough health to continue working? If the worker's pay is insufficient to pay enough in local/state taxes to support the education of his or her child(ren), whose responsibility is it to ensure that the families of the kids get educated and turn into tax-paying, productive workers that benefit the country in the future? If the living conditions of the worker are below par and he or she is forced to consider crime as a way to meet their basic food or health needs, then who is responsible for preventing or reducing this tendency and to minimize crime? Now, I certainly concede that illegal immigrants come to the U.S. at their own risk/peril and should therefore have no RIGHT to expect a JOB, let alone decent pay or benefits. But, at the same time, even if you ignore the unfairness in the way the illegal immigrant is treated by his or her employer, it would be foolish and irresponsible for legal residents/citizens to ignore the unfairness that this treatment inflicts on *themselves*. "How?", you ask. If the answer is not obvious from the above comments, I will explain it again. 

When companies employ, but refuse to pay decent wages to, illegal immigrants, this is a multiple-whammy to legal residents and citizens.
(i) They have less jobs available as a result.
(ii) Companies are able to depress wages overall, reducing the bargaining power of legal employees - thereby gradually lowering the latter's quality of life.
(iii) By paying illegal immigrants poor wages, they create a poor quality of life for illegal immigrants. This has cascading effects. Local/State Governments may be forced to pay for the welfare or education (usually the latter dominates) of the immigrants' families using taxpayer funds that are disproportionately from legal residents/citizens. In cases where the illegal immigrants' localities are subject to high crime driven by sheer poverty, the State Government is also forced to use taxpayer money (disproportionately from legal residents/citizens) to build more prisons.

All of the above just because some corporate executives or business owners can reap in the big bucks and because the consumer may see somewhat lower costs (assuming the consumer still has his or her job). Get the picture?

The most-recent case involving Wal-Mart's hiring of illegal immigrants as essentially slave labor is a case in point.

Since 1998, federal authorities have uncovered the cases of at least 250 illegal immigrants who were employed by janitor contracting services and hired by the giant retailing chain in 21 states. Many of the janitors — from Mexico, Russia, Mongolia, Poland and a host of other nations — worked seven days or nights a week without overtime pay or injury compensation, said attorney James L. Linsey. Those who worked nights were often locked in the store until the morning, Linsey said.

Eric Schlosser has covered the abuses of corporations that hire illegal immigrants by the dozens or hundreds and also pointed out how Congress as a whole had given short shrift to holding them accountable (by making the penalties harsher). Since neither political party wants to screw with their corporate donors on this, and the media downplays this angle, important facts rarely come into public view. Schlosser, using the case study of the California strawberry industry, made a number of important points in his book Reefer Madness, which I had previously summarized/paraphrased (brown text is taken directly from Schlosser's book):

A. Illegal immigrants subsidize an important sector of California's economy, but drive down wages for almost all farmworkers

Agriculture is still California's largest industry. Since the late 1940s California has led America in agricultural output; it now produces more than half the fruits, nuts, and vegetables consumed in the United States. Hundreds of commodities, from the mundane to the exotic, are grown in California, primarily in the Central Valley, an area that contains some of the world's most productive farmland.
...
Meanwhile, the fastest-growing and most profitable segment of California's farm economy - the cultivation of high-value specialty crops - has also become the one most dependent on the availability of cheap labor. Nearly every fruit and vegetable found in the diet of health-conscious, often high-minded consumers is still picked by hand...As the demand for these foods has risen, so has the number of workers  necessary to harvest them. Of the migrants in California today, anywhere from 30 to 60 percent, depending on the crop, are illegal immigrants. Their willingness to work long hours for low wages has enabled California to sustain its agricultural production, despite the loss since 1964 of more than nine million acres of farmland. Fruit and vegetable growers now rely on a thriving black market in labor - and without it even more farms would disappear. Illegal immigrants, widely reviled and often depicted as welfare cheats, are in effect subsidizing the most important sector of the California economy.
...
Not only are there far more migrants today, but they are being paid far less. The hourly wages of some California farmworkers, adjusted for inflation, have dropped more than 50 percent since 1980. Migrants are among the poorest workers in the United States. The average migrant is a twenty-nine-year-old male, born in Mexico, who earns less than $7500 a year for twenty-five weeks of farmwork. According to one estimate, his life expectancy is forty-nine years.

B. The inherent risks in strawberry cultivation are hedged by the growers using ultra-cheap laborers (illegal immigrants) who are unlikely to complain about their abysmal pay, lack of benefits or unpleasant working conditions

The strawberry has become the focus of a California industry whose annual sales are about $840 million. American farmers now receive more money for fresh strawberries each year than for any other fresh fruit grown in the United States, except apples. And strawberry pickers are not only the poorest migrants but also the ones most likely to be illegal immigrants. 
...
As in most fruit and vegetable production, the steady profits are usually earned by the middlemen - processors, cooling houses, supermarket chains - and not by the growers. In the strawberry industry, a grower's annual losses can be huge...The only cost over which a grower has any real control is the cost of labor.
...
Since labor costs constitute between 50 and 70 percent of the total cost in strawberry production, cutting labor costs can sometimes mean the difference between a profit and a loss, or between a bad year and a disastrous one.
...
The growers are often obligated to pay unemployment taxes and workers' compensation premiums for each of their employees, in addition to Social Security and Medicare taxes. Paying an "invisible worker" in cash lowers the cost of that worker by at least 20 percent. Ignoring California's rules about overtime effectively cuts those wages by 50 percent. And failing to pay any wages brings the greatest savings of all. The vast number of illegal immigrants in the migrant work force is an invitation to break the law. They are unlikely to approach authorities about a violation of the labor code. 

Sharecropping is the most insidious means by which growers avoid responsibility for their workers. The sharecropper is a straw man, an intermediary, usually a middle-aged farmworker, to whom the grower shifts many of the legal and financial risks.
...
The sharecropper became the employer of record, responsible for hiring strawberry pickers, paying their wages, withholding their taxes, and checking their green cards. The grower was responsible for all other production costs and for the overall management of the farm. By setting up farmworkers as supposedly independent operators, growers shielded themselves from labor and immigration laws - and from heavy losses. The sharecropper assumed a large part of the risk. He or she had no way of knowing whether there would be profits in a given year or whether the grower would share them fairly. 
...
Instead of paying the operating costs of a strawberry farm, these growers - now called commission merchants - lend sharecroppers the money for operating costs at interest rates as high as 19 percent. Under the old arrangements if things went wrong, sharecroppers simply would not be paid for their hard work; under the new one, they are being saddled with thousands of dollars in debt. 
...
Some of the worst violations of state and federal labor laws are being committed by sharecroppers overwhelmed by the pressure to repay their debts.
...

C. Over the decades, California's lawmakers (especially Republicans) have played a key role in gutting labor rights and tacitly encouraging the increasing use of illegal immigrants in the agriculture industry

Illegal immigrants from Mexico have long been a mainstay of California's rural economy. Anglo migrant workers, the "Okies" immortalized by John Steinbeck in The Grapes of Wrath, were a historical anomaly. For almost a century, the vast majority of California's migrant workers have been Mexican immigrants, legal and illegal. 
...
During the 1970s, the United Farm Workers (UFW) achieved great success organizing migrants in the California grape and lettuce industries. The influence of the UFW extended far beyond these crops; simply the threat of unionization persuaded many growers to raise wages, offer benefits, and improve working conditions. At about the same time, California adopted some of the most pro-union legislation in the country, guaranteeing farmworkers the right to collective bargaining, a minimum wage, and unemployment compensation. As labor costs increased, mechanization became a top priority for California growers. But successive Republican governors, George Deukmejian and Pete Wilson, gutted the Agricultural Labor Relations Board and relaxed enforcement of the state's tough labor laws. Union worsens were fired; illegal immigrants replaced them; and growers avoided prosecution for workplace violations by hiding behind legal fiction that labor contractors and sharecroppers were the actual employers of migrants. Hard-won benefits such as sick leave, vacation pay, family housing, and health insurance were eliminated. The living and working conditions of migrants steadily declined. 
...
Harvest work in the strawberry fields, like most seasonal farmwork in California, is considered "at will." There is no contract, no seniority, no obligation beyond the day-to-day. A grower hires and fires workers as necessary, without need for explanation. It makes no difference whether the migrant has been an employee for six days or for six years. The terms of employment are laid down on a daily basis.
...
This system did not arise because growers are innately mean and heartless. Harvests are unpredictable from beginning to end. 
...

D. Illegal immigrants are not just underpaid; they are very likely to suffer work-related disabilities which are not covered by insurance. They often do not have a place to live. Since they usually do not get any benefits, their care increasingly has become the responsibility of the state government.

The strawberry has long been known to migrants as la fruta del diablo - the fruit of the devil. Picking strawberries is some of the lowest-paid, most difficult, and therefore least desirable farmwork in California. Strawberries are fragile and bruise easily. They must be picked with great care, especially the berries that will be sold fresh at the market. 
...
You must bend at the waist to pick the fruit, which explains why the job is so difficult. Bending over that way for an hour can cause a stiff back; doing so for ten to twelve hours a day, weeks at a time, can cause excruciating pain and lifelong disabilities. Most strawberry pickers suffer back pain.
...
Another constant worry is finding a place to sleep. 
...
The determination to preserve agricultural land has not, however, extended to providing shelter for agricultural worriers. Since 1980 the acreage around Watsonville and Salinas devoted to strawberries has more than doubled and the tonnage of strawberries produced there has nearly quadrupled. But the huge influx of migrant workers required to pick these berries has been forced to compete for a supply of low-income housing that been inadequate for decades. 
...
Migrants routinely pay $100 to $200 a month to sleep in a garage with anywhere from four to ten other people. A survey of garages in Soledad found 1,500 inhabitants - a number roughly equal to one-eighth of the town's official population. At the peak of the harvest the housing shortage becomes acute. Migrants at the labor camps sometimes pay to sleep in parked cars. The newest migrant workers, who lack family in the area and haven't yet learned she ropes, often sleep outdoors in the wooded sections of Prunedale, trespassing, moving to a different hiding place each night. On hillsides above the Salinas Valley, hundreds of strawberry pickers have been found living in caves.
...
By relying on poor migrants from Mexico, California growers established a wage structure that discouraged American citizens from seeking farmwork. The wages offered at harvest were too low to sustain a family in the United States, but they were up to ten times as high as any wages Mexican peasants could earn in their native villages. A system evolved in which the cheap labor of Mexican migrants subsidized California agriculture, while remittances from that farmwork preserved rural communities in Mexico that otherwise might have collapsed. For decades the men of Mexican villages have traveled north to the fields of California, leaving behind women, children, and the elderly to look after their small farms. Migrant work in California  has long absorbed Mexican surplus labor, while Mexico has in effect paid for the education, health care and retirement of California's farmworkers. 

Whenever migrants decided to settle in California, however, they interrupted the smooth workings of this system, by imposing higher costs on the state - especially if they married and raised children. That is why the Immigration and Naturalization Service (INS) used to round up and deport illegal immigrants in California immediately after the harvest. 
...

E. In spite of a Presidential Commission's recommendation that employers using illegal immigrants be penalized heavily, Congress and past Presidents have largely ignored this part of the Commission's recommendations, and through such inaction (and other actions) set the stage for the use of illegal immigrants to flourish

In 1951 THE PRESIDENT'S COMMISSION on Migratory Labor condemned the abysmal living conditions of illegal immigrants employed as migrant workers in the United States. At the time, workers were found living in orchards and irrigation ditches. They lived in constant fear of apprehension, like fugitives, and were routinely exploited by their employers, who could maintain unsafe working conditions, cut wages, or abruptly dismiss them with little worry of reprisal. In many cases, the life of these migrants was, according to the commission, "virtually peonage." The commission estimated that 40 percent of the migrants in the United States - at least 400,000 people - were illegal immigrants. Their presence in such large numbers depressed wages for all farmworkers; that fact was "unquestionable." Indeed, illegal immigrants had begun to displace native-born workers not only in agriculture but in nonfarm occupations such as construction. The commission argued that the only way to stop the flow of illegals was to impose harsh punishments on growers who employed and exploited them. It suggested fines, imprisonments and a strict prohibition on the shipment in interstate commerce of any goods harvested by illegal immigrants. "We depend on misfortune to build up our force of migratory workers,'' the commission concluded, "and when the supply is low because there is not enough misfortune at home, we rely on misfortune abroad to replenish the supply."

Congress ignored the commission's recommendations, and for the next two decades it was a crime to be an illegal immigrant in the United States but not a crime to employ one. In 1986, Congress passed the Immigration Reform and Control Act (IRCA), which demanded broad sanctions against the employers of illegal immigrants. But these sanctions have rarely been applied. There are about a minion private employers in California - and about 200 federal inspectors to investigate workplace violations of the immigration code. Moreover, the federal penalties for employing an illegal immigrant are rather mild. A first offense may result in a fine of $250, a third offense, in a fine of $3,000. 

Instead of stemming illegal immigration, IRCA actually encouraged it. In response to growers' fears that the new sanctions on employers would create a shortage of farmworkers, Congress included in the bill a special amnesty for illegal immigrants who could prove they had done farm work in the previous year. It did not demand much proof. Backed by Congressman Leon Panetta and Senator Pete Wilson, both from California, the Special Agricultural Worker (SAW) program was expected to grant legal status to 350,000 illegal immigrants. Instead, almost 1.3 million illegal immigrants - a number roughly equivalent at the time to one-sixth of the adult male population of rural Mexico - applied for this amnesty, most of them using phony documents in what has been called one of the greatest immigration frauds in American history. More than a million illegal immigrants were eventually granted legal status; many were soon joined illegally by their wives and children. 
...

F. Is this problem going to be solved? Not without significant changes in the kind of people we elect to power.

At the moment an estimated 7 to 8 million illegal immigrants live in the United States. About half of them are Mexican. While some advocates of immigration reform call for another large amnesty, granting green cards or full citizenship to millions, California growers prefer a new guest-worker program. It would recruit migrant workers through an international agreement and would guarantee their wages, their living conditions - and their return to Mexico at the end of the harvest.
...
Opponents of guest-worker programs have long based their objections on principle. More than two decades ago, Sidney Weintraub and Stanley R. Ross, then at the University of Texas, suggested that "guest worker" is simply a modern euphemism for an indentured laborer. A guest-worker program legally embraces the concept of second-class citizenship in the United States. It creates a group of people who have limited rights. Aside from the philosophical objections that can be raised, many argue that such programs just don't work. "There's nothing more permanent," one economist said, "than temporary workers." 
...
Mexican farmworkers have long dominated the agricultural labor force in California and the Southwest, but only recently have they begun to migrate throughout the United States... Moreover, the same methods long used to employ illegal immigrants in California agriculture - the reliance on intermediaries, such as labor contractors - are being used to employ them in the meatpacking industry, construction work, janitorial service, and the garment industry. The majority of illegal immigrants in California now work in nonfarm occupations and come from regions throughout Mexico, including urban areas such as Mexico City.
...
Despite the many policy options regarding farmworkers, the most likely scenario is that, at the federal level, nothing will be done...Except for a flurry of attention every few decades, the American people have greeted the whole subject with indifference. The nation's fresh produce is less expensive as a result - but not much. Maintaining the current level of poverty among migrant farmworkers saves the average American household about $50 a year. 
...
The suburbanites do not like living beside Mexican farmworkers. Instead of providing low-income housing, local authorities have declared states of emergency, passed laws to forbid curbside hiring, and bulldozed many of the large encampments. San Diego growers appalled by the living conditions of their migrants have tried to build farmworker housing near the fields - only to encounter fierce resistance from neighboring homeowners. Although the shantytowns lower nearby property values, permanent farmworker housing might reduce property values even more. "When people find out you want to build housing for your migrants," one grower told me, "they just go ballistic." 
...
We have been told for years to bow down before "the market." We have placed our faith in the laws of supply and demand. What has been forgotten, or ignored, is that the market rewards only efficiency. Every other human value gets in its way. The market will drive wages down like water, until they reach the lowest possible level.

Corporations in the U.S. routinely hire illegal immigrants and get off with slaps on their wrist. This has been going on for so long and the full facts are so well hidden that most people I talk to about illegal immigration are barely aware of these things.

How likely is it that all the facts will be reported on this every time, rather than a pro-corporate /conservative tilt in the reporting that largely hypes the welfare and crime aspects of illegal immigration? Not very.

On the whole, there is no evidence that the media's coverage on illegal immigration is "liberal biased" overall. The positive coverage given to the Minutemen (recently) epitomizes this. There is enough evidence to suggest that the media's coverage tilts conservative.  

4.2.6 Bankruptcy

All we need to know here is the weak-to-poor publicity that the recent, egregious Bankruptcy Bill received in the media - the Bill that severely gutted protections for consumers (many of whom file for bankruptcy because of unforeseeable medical costs) while continuing to drastically favor big business. The Special Bankruptcy Edition of TPM provides the gory details and points out that many rank-and-file conservatives were themselves against this Bill, not just liberals. Having said that, the Bill was pushed through by a Republican majority with a few conscience-free Democrats supporting it.

If the media were indeed liberal, it would have mounted a crusade to get information out on this Bill to the public, considering how deeply unpopular it was. That it did not, showed yet again that our media is no liberal media.

4.2.7 Tort Reform

This is another classic case where the media's reporting is dramatically skewed to the conservative viewpoint. Time and again, leading mainstream media outlets spread irrational fears about trial lawyers, plaintiffs and jury awards, mentioning precious little about one of the main reasons for lawsuits - actual malpractice - or about the key reasons for rises in malpractice insurance rates - insurance industry practices and serial malpractice by a small percentage of doctors. On top of this, media outlets continue to spread myths about "frivolous lawsuits" and barely mention that the Republican proposal to cap malpractice awards will do next to nothing to solve the problem of high malpractice insurance rates, while having the effect of curbing meritorious lawsuits - which is what the GOP and its medical/corporate contributors are after. It is easy to write an entire book on the media malpractice on this subject, but due to space considerations I will highlight some aspects and provide a few links for those who want to read more about the actual facts.

The U.S. media tilts strongly conservative on its "tort reform" coverage in multiple ways. Some of them (A, B, C, D, E, F, G, H, I, J) are as follows:

A. Spreading myths about "frivolous lawsuits"

Long Story Short Pier pointed to a circulating email containing fake "frivolous lawsuits" (nominated for "Stella Awards") while noting how the Stella Liebeck (McDonald's coffee) case is anything but frivolous (as even the creator of the "Stella awards" admitted). Off the Kuff has more on the real facts on Liebeck v. McDonald's.

Stephanie Mencimer mentions some examples in the Washington Monthly:

Unfortunately, Newsweek's one-sided coverage of the civil justice system is the rule, not the exception. Every few months, one or another newspaper, magazine, or television show does a story just like it. They all hew to a standard line, starting with a juicy but misleading--or even fictitious--lawsuit horror story typically describing an irresponsible plaintiff, followed by "studies" on the economic damage of the tort system published by corporate front groups, finally ending with calls for "reforms" to rein in mushy-headed juries and greedy trial lawyers. Such skewed coverage represents a victory in a sustained, 50-year public relations assault on the civil justice system by the insurance industry, tobacco companies, and other corporate giants. It's helped fuel political support for curtailing Americans' right to hold corporations and individuals accountable for negligence, fraud, and other malfeasance in court. Perhaps more serious, journalists' willingness to perpetuate anti-lawsuit propaganda has gravely jeopardized Americans' unique democratic right to participate on civil juries.

Runaway hedge-clippers

The current PR campaign by the insurance industry and other big corporations is just the latest iteration of a long fight tracing back to the 1950s. That was when plaintiffs' lawyers started breaking down some of the legal barriers that had long protected industry from responsibility for injuries to workers and consumers and opened up jury pools to make them more representative of the general public. The blood bath on the nation's highways during the post-war auto boom also created a whole new arena of litigation over who should pay for the injuries and deaths caused in car accidents. Auto insurance companies were frequently in the middle of these disputes (as they are today; insurance companies are the defendants in 90 percent of all auto-accident lawsuits).

With their profits threatened by unfavorable jury verdicts, the insurance industry started running anti-lawsuit ads targeted at jurors. For instance, in 1953, the industry ran ads in Life magazine and The Saturday Evening Post that declared, "ruled by emotion rather than facts, [jurors] arrive at unfounded or excessive awards--verdicts occasionally even higher than requested!" The ads implored potential jurors to remember that "you pay for liability and damage suit verdicts whether you are insured or not."

The industry also successfully planted articles in national magazines and TV shows that were designed to look like investigative reporting. In 1962, CBS broadcast "Smash-Up," a fictionalized docudrama that portrayed sleazy lawyers faking auto accident cases. The Insurance Information Institute, the industry's public relations arm, helped write the script. In 1977, the venerable insurance company Crum & Forester sponsored one of the first print ads that included what would become a staple of anti-lawsuit rhetoric: the fictional lawsuit horror story. The ad told the story of a guy who collected a $500,000 jury verdict after he was injured using a lawnmower as a hedge clipper. The agency later conceded that it had no factual basis for the story, but that didn't keep it from circulating widely in the media and in conservative political speeches.

The industry knew what it was doing. In 1979, Elizabeth Loftus, the famous memory researcher and University of California psychologist, tested the effects of this kind of advertising on potential jurors and their decision making in the jury box. At the time, the industry was spending $10 million on a series of ads in a host of national magazines. In an article in The American Bar Association Journal, Loftus reported that potential jurors who were exposed to even one insurance ad awarded much less for pain and suffering than those who weren't.

In the mid-1980s, with insurance companies hitting a slump, the insurance industry's "tort reform" movement, as it became known, broadened its emphasis. Instead of limiting itself to targeting individual jurors through mass media advertising, the industry began to heavily lobby legislators to restrict citizens' ability to sue. The movement pursued strict caps on damage awards, tougher standards for proving liability, and caps on plaintiffs' attorney fees. The industry's crusade was taken up by small government conservatives, who believed that tort reform paralleled their own efforts to fill the federal bench with pro-business jurists and roll back government regulations. They were also upset by changes in the 1960s and 1970s that broadened legal protections for women and minorities, such as the 1964 Civil Rights Act, and the expansion of product liability doctrines that made it easier for injured consumers to force companies to compensate them for faulty products. Politically, it was a lot easier to attack juries and trial lawyers than the popular consumer, civil rights, and environmental protection laws they enforced--or the injured victims they represented.

Advertising was a key component of those efforts. In 1986, Newsweek ran a series of ads sponsored by the insurance industry under the heading, "We all pay the price." The ads warned that lawsuits were driving ob/gyns out of business, shuttering local school sports programs, and scaring the clergy out of counseling their flocks--though few of these assertions turned out to be true. That same year, 1,600 tort reform measures were introduced in 44 state legislatures, 21 of which passed significant restrictions on lawsuits and jury awards before adjourning.
...
One of the most influential of those groups is the Manhattan Institute, founded by the late CIA director William Casey.
...
Over the next decade, the institute produced a blizzard of reports, conferences, op-eds, books, and mailings all decrying the "litigation explosion" and greedy trial lawyers. They cultivated sympathetic and influential journalists such as "20/20"'s John Stossel, then-New Republic editor Michael Kinsley, and TNR columnist Fred Barnes, and more recently, Stuart Taylor, who frequently cites their work in his columns for Newsweek, The National Journal, and The Atlantic Monthly. The "research" conducted by the institute usually purported to show how lawsuits impact the average consumer's daily life by raising the cost of groceries or auto insurance or driving their favorite physicians out of business. But some of the institute's "scholars" played a little fast and loose with the facts.

...

[In another case involving CBS's broadcast of a hit piece]....Those facts weren't included in the story. Meanwhile, the florist, Beau Strittman, retracted his comments about the payoffs, telling the AP, "I just said it as a joking statement." CBS spokesman Kevin Tedesco said the network could not comment on the segment because several jurors have sued CBS for libel over the broadcast.

It wasn't the first time "60 Minutes" got duped in an anti-lawsuit segment. Back in 1986, the show profiled the owner of a ladder manufacturing company who claimed his company had been hit with a $300,000 jury verdict in a suit by a man who fell off a ladder because he set it in a pile of manure. The business owner claimed the lawsuit alleged the company should have warned buyers of the dangers of setting ladders in dung. The real lawsuit had nothing to do with manure; the ladder had broken with less than 450 pounds on it, even though it had a safety rating that said it could support up to 1,000. Tedesco says the show never ran a correction.

The print media, mostly opinion columnists, have proven even more gullible in publishing stories about lawsuits that are simply fictional. For instance, in June 2003, in a column entitled, "Welcome to Sue City, U.S.A.," U.S. News & World Report owner Mort Zuckerman claimed that "litigation has become our national pastime." As proof, he offered several examples of lawsuits that illustrated the nation's "enormous inflation of rights over responsibilities." Zuckerman wrote, "A woman throws a soft drink at her boyfriend at a restaurant, then slips on the floor she wet and breaks her tailbone. She sues. Bingo--a jury says the restaurant owes her $100,000! A woman tries to sneak through a restroom window at a nightclub to avoid paying the $3.50 cover charge. She falls, knocks out two front teeth, and sues. A jury awards her $12,000 for dental expenses."

The anecdotes were catchy. Unfortunately, they weren't true. The stories had been circulating in an email for two years and had made it into several mainstream news outlets, including another Zuckerman property, The New York Daily News, which had published an email containing one of the fake lawsuits in the sports section a year earlier (with no correction). When The Washington Post's Howard Kurtz called him on the U.S. News error, Zuckerman was unapologetic. The magazine only published a brief clarification about the fictional suits, which ended by saying, "Mr. Zuckerman continues to believe, and most Americans agree, that we live in a country where far too many frivolous lawsuits are filed each year." When contacted by The Washington Monthly, a spokesperson for Zuckerman refused to disclose the source of the lawsuit anecdotes or to offer an explanation as to why Zuckerman would publish anything from a spam email without checking it out first.

Small-town papers seem even more vulnerable to such fabrications than the national media, yet their impact is substantial, as battles over most tort reform laws are fought in state legislatures, and juries are drawn from local pools.
...

As Dwight Meredith also notes:

Zuckerman choose those examples for his column because the cases, if real, are obviously ridiculous. No one could possibly think that either of the plaintiffs cited by Zuckerman deserves to be compensated in any way.

Indeed, Zuckerman is quite sure that the examples will be viewed as ridiculous by all of his readers. I wonder, then, why he thinks a jury would view the case any differently? Juries are made up from a cross section of the community. I have selected many juries. I have never had a jury that did not include at least a few people who are readers of U.S. News and World Report or similar publicatons.

I also can not help but wonder why so many examples of alleged ridiculous jury verdicts turn out to be false. Zuckerman’s spokesman contends that there were dozens of examples that could have been used. If that is true why do we so often hear about the McDonald’s coffee case (which was real but not frivolous), the mythical driver of the RV who set the cruise control and left the wheel and sued when a wreck occurred and many other bogus examples of frivolous suits. See Kip's post for a listing and a debunking of those mythical suits.

Perhaps obviously ridiculous jury verdicts providing huge judgments for undeserving plaintiffs are sort of like UFO’s. Many people know many people who claim to have seen them but it is hard to find a person who can deliver the proof.

Myths about frivolous lawsuits are spread more commonly in the mainstream media than one would imagine - even today. Take, for example, Newsweek's terrible cover story (and joint effort with NBC), which was analyzed by Public Citizen:

Newsweek’s Dec. 15 cover story entitled “Lawsuit Hell/Civil Wars” is a one-sided diatribe masquerading as investigative journalism. The editor wrote of the issue, “we hope you’ll find our report provocative but fair.” Provocative? Incendiary is more like it. Fair? Not at all.

The article reads like tabloid journalism – designed to excite and sell magazines rather than inform. It pushes readers’ emotional buttons rather than providing balanced analysis that informs the public about a critical policy issue.

Moreover, by declining to present a more balanced picture of the legal system other than including a pro forma acknowledgment that some lawsuits have benefit and a three-sentence quote from Ralph Nader secured just before deadline, Newsweek piles on to such an extent that it fails to meet the test of fairness and objectivity.

In adding a partnership with NBC for week- long broadcast tie-ins and on-line chats, including one with the lead author and lawsuit “victims” described in the article, Newsweek has gone beyond advocacy journalism to crusade against consumers’ access to the courts – a crusade without precedent even among news outlets with overt conservative leanings.

From a journalistic point of view, the article suffers from major reporting deficiencies, including an extreme lack of due diligence. The article includes:

• Many false and exaggerated anecdotes that present an unbalanced and negative caricature of the legal system.

• Major factual inaccuracies about the legal system and lawsuits.

• Proposed solutions that have no basis in experience.

Finally, the article’s lead author, Stuart Taylor Jr., a commentator rather than a news reporter, is heavily biased towards business interests on tort issues and has a history of advocacy on this issue. His viewpoints, which rely largely on corporate lawyer Philip K. Howard and his book, “The Collapse of the Common Good,” should have been relegated to a column. Instead, Taylor hijacked all but 10 sentences in an eight-page article to present a narrowly sourced story espousing an extreme and biased political viewpoint.

Newsweek has fallen hook, line and sinker for the myths and distortions spread by a well organized campaign funded by the American Medical Association, insurers, tobacco companies, auto manufacturers and others to strip consumers – but, notably, not businesses – of their legal rights. Since big business dominates the political system, the civil justice system is the one branch of government in which ordinary citizens can hope to get a fair shake. That’s why these entities are hell-bent on slamming the courthouse door shut. [eRiposte emphasis]

[eRiposte note: Read the entire piece and you'll see example after example after example of false or erroneous reporting dramatically skewed towards the conservative viewpoint]

Stephanie Mencimer also wrote about this in the Washington Monthly about "How the GOP milks a bogus doctors' insurance crisis" and another article, covering the Newsweek cover story. This link provides a rebuttal from Stuart Taylor Jr. and Mencimer's response to Taylor's rebuttal showing how misleading Taylor's claims were.

B. Spreading myths about trends in the number of filed malpractice lawsuits and their associated costs

Public Citizen's report provides an example:

Newsweek’s Article Contains Major Factual Inaccuracies About the Legal System and Lawsuits
The article made numerous factual assertions that portrayed the legal system in a very negative light and added credibility to the outrageous claims being made by the authors. No sources were given for the claims. For good reason – they are erroneous.

• [NEWSWEEK] "And the ‘litigation explosion’ of the past 30 years may be leveling off…" [p. 45] 

Tort filings in state courts were down from 1992-2001: 
The National Center for State Courts has done a study of filings in state courts from 1992-2001, which found:

• In the 30 states that keep track of such data, whose populations comprise 74 percent of the U.S. total, tort filings were down 9 percent.⁸ 

• In the 17 states that keep track of such data, whose populations comprise 53 percent of the U.S. total, automobile filings were down 14 percent.⁹ 

• Automobile filings comprised 60 percent of the tort filings in 2001.¹⁰ 

• In the nine states that kept track of such data from 1992 and the 17 that kept track since 1997, medical malpractice filings were down 1 percent adjusted for population growth (there are increases without adjusting for population growth).¹¹ 

Tort filings in federal courts are down: 
The Federal Judicial Caseload Statistics, kept by the Administrative Office of the U.S. Courts, show downward trends in both personal injury and civil filings from 1998-2002.

• Civil cases filed in federal court were down 5.4 percent from 1998-2002. ¹² 

• Personal injury cases declined as a portion of civil cases from 21.2 percent in 1998 to 18.3 percent in 2002. ¹³ 

• [NEWSWEEK] "The cost to society cannot be measured just in money, though the bill is enormous, an estimated $200 billion a year, more than half of it for legal fees and costs that could be used to hire more police or firefighters or teachers…" [p. 45]

This estimate comes from a study by an insurance industry consulting firm, Tillinghast-Towers Perrin, which estimated that in 2001 the "cost" of the U.S. tort system was $205 billion. ¹⁴ Such an analysis is highly misleading for several reasons. First, 35 percent of this study’s puffed-up cost estimate are for insurance industry overhead (21 percent) and defense costs (14 percent). Much of this insurance overhead would exist anyway because it is unrelated to lawsuits (setting rates, administering policies, marketing, profit taking, etc.) or is a result of negligence by insurance companies’ clients.
Second, 46 percent of the "costs" are for payments made to injured plaintiffs for lost wages, medical care, and pain and suffering. These costs are the result of injuries caused by defendants and would be borne by society anyway either through government programs, charities or absorbed by the victims and their families and friends. Recently, the Congressional Budget Office (CBO) suggested that these "transfer payments" to compensate victims are not in fact "costs" because they "do not involve any use of resources to produce goods or services."¹⁵ By mischaracterizing compensation as costs, Tillinghast inflated by nearly double its sensational $205 billion estimate, providing the raw material for a misleading public relations campaign on a so-called "tort tax." 
Finally, Tillinghast acknowledges that the tort system provides indirect benefits to society that are not measured in the study. These include acting as a deterrent to unsafe practices and products.¹⁶ While we don’t encourage a monetaristic view of this issue, it’s quite likely that the benefits of lawsuits – in terms of forcing changes to defective products and making professionals alter their harmful actions – result in much larger savings (in terms of lives saved and injuries prevented) than the tort system costs. This prevention argument is best illustrated by a recent study by the Bush White House examining the costs and benefits of 107 federal regulations – primarily health, safety and environmental protections – covering a 10-year period. The analysis found that: "The estimated total annual quantified benefits of these rules range from $146 billion to $230 billion, while the estimated total annual quantified costs range from $36 billion to $42 billion."¹⁷ 

• [NEWSWEEK] "…according to one estimate, doctors waste $50 billion to $100 billion on ‘defensive medicine’…" [p. 48]

The source of this research was a 1996 study by Mark McClellan – a Bush administration economic advisor in 2001 and now head of the U.S. Food and Drug Administration. Both the General Accounting Office (GAO) and the Congressional Budget Office have derided his assertions. Although the study found that tort law changes could deliver 5 to 9 percent in savings on defensive medicine, the GAO noted that "this study did not control for other factors that can affect hospital costs, such as the extent of managed care penetration in different areas. When controlling for managed care penetration in a 2000 follow-up study, the same researchers found that the reductions in hospital expenditures attributable to direct tort law changes dropped to about 4 percent. Moreover, preliminary findings from a 2003 study [by CBO] that replicated and expanded the scope of these studies to include Medicare patients treated for a broader set of conditions failed to find any impact of state tort laws on medical spending."¹⁸
When CBO replicated and expanded the study in 2003, its results contradicted McClellan’s 1996 study: "CBO found no effect of tort controls on medical spending in an analysis that considered a broader set of ailments. Moreover, using a different data set, CBO could find no statistically significant difference in per capita health care spending between states with and without malpractice tort limits. …A few studies have observed reductions in health care spending correlated with changes in tort law, but that research was based largely on a narrow part of the population and considered only spending for a small number of ailments."¹⁹ 
"Malpractice costs account for a very small fraction of total health care spending; even a very large reduction in malpractice costs would have a relatively small effect on total health plan premiums. In addition, some of the savings leading to lower medical malpractice premiums – those savings arising from changes in the treatment of collateral-source benefits – would represent a shift in costs from medical malpractice insurance to health insurance."²⁰ 

• [NEWSWEEK] "Various studies have shown that the vast majority of medical errors go undetected by patients and that nine out of 10 are never compensated. (And when patients do sue, their malpractice allegations are unfounded in as many as 80 percent of the cases, other studies suggest; [medical malpractice] insurance companies pay to settle the vast majority of claims anyway, rather than risk a big hit.)" [p. 48]

We agree that most medical errors go undetected by patients and that too few patients are ever compensated. If anything, such conditions require strengthening the civil justice system, not taking away patients’ legal rights as Howard proposes. 
With regard to whether malpractice allegations are unfounded, in a study of closed medical malpractice claims, University of Washington Medical School researchers found no settlements paid or damages awarded in "cases in which there were no significant deviations from prevailing standards of care. For those cases in which payments were made, there was general consensus among insurance company staff, medical experts, defense attorneys and the physician defendants that some lapse in the standard of care contributed to the outcome."²¹
With regard to the claim that insurance companies pay to settle the vast majority of claims, insurance industry data refute such a claim. According to the Physician Insurers Association of America (PIAA), which through 60 member insurance companies covers 60 percent of America’s private practice physicians,²² only 33 percent of claims are paid. This figure is readily ascertainable by reading PIAA’s testimony before Congress earlier this year.²³ 
When Professor Neal Vidmar, who is at the North Carolina Medical Malpractice Project at Duke University Law School, performed a study of medical malpractice lawsuits he found that, "In interviews with liability insurers that I undertook, the most consistent theme from them was: ‘We do not settle frivolous cases!’ . . . [Insurers’] policy on frivolous cases is based on the belief that if they ever begin to settle cases just to make them go away, their credibility will be destroyed and this will encourage more litigation."²⁴ 

C. Exaggerating the size of malpractice awards

Kevin Drum, writing at Calpundit, pointed out a prominent example:

And while we're on the subject of torts, remember that $28 billion verdict in a local Orange County smoking suit against Philip Morris? That was only two months ago and the award has already been slashed to $28 million. That's a 99.9% cut.
This is pretty typical of "runaway jury" awards and highlights one of the problems with media coverage of court cases. The original verdict was widely covered and got front page treatment, but the reduction is likely to be either completely ignored or else buried on an inside page. And so the urban legend of the $28 billion smoking award will take on the status of urban fact.
The appeal, of course, is yet to come, and will probably see the award either thrown out or else reduced yet again. But that probably won't even rate a wire service dispatch, let alone the front page.

Off the Kuff has more:

Oh, and if you think that there are plenty of other cases that show abuse of the system even if this one isn't so bad, think again:

Huge punitive damage awards, for example, have become everyday events, right? Actually, a study of courts in the nation's 75 largest counties conducted by the National Center for State Courts found that only 364 of 762,000 cases ended in punitive damages, or 0.047 percent.
OK, but isn't it true that more and more liability claims are filed every year? Actually, a study of 16 states by the same center showed that the number of liability suits has declined by 9 percent since 1986.

As with many things, the facts often belie the hype. Don't you believe it.

Dwight Meredith noted the following (at Wampum):

In Scare Tactics, I argued that the media and the tort reform lobby had used scare tactics to blow the issue of tort reform way out of perspective. Those tactics include the use of inaccurate anecdotes and outright misrepresentation to present a picture of the tort system that is downright scary. It is little wonder that many people think the civil justice system is out of control when they are constantly bombarded with inaccurate information about the results of that system.

In comments, Jane Galt of Asymmetrical Information took exception to my post...

When discussing tort reform, and particularly medical malpractice reform, it is helpful to know the size of the problem. How much money is paid out each year in medical malpractice judgments and settlements? That would seem to be a basic fact that needs to be established at the beginning of a public policy debate. After all, if we do not know the size of a problem, how can we ever decide on a solution?

The tort reform lobby and the scare tactic media almost never report that basic fact. If you do not believe me, go to Google News or Google and try to find the answer...

In my post, I noted that medical malpractice payments total a little over $4.2 billion per year. As I have previously noted, the total of all sums paid out in medical malpractice settlements and judgments is approximately the same as Estee Lauder’s sales of makeup. The total of payments in 2002 would have paid interest on the national debt for about eight days.

Jane Galt thought that I was spinning that number by including payments made pursuant to judgments but not including settlements. Jane wrote:

It's much like, for example, choosing a dollar figure for litigation costs that includes only verdicts, when something like 95% of cases settle out of court.

Jane, apparently, thinks that $4.2 billion per year is the amount paid out in medical malpractice judgments and that additional amounts are paid out in settlements.
The amount of money paid out in medical malpractice cases is not a matter of opinion. It is a fact. Was my figure of $4.2 billion accurate or is Jane correct that I was just trying to spin the debate by failing to include the amounts paid in settlements?

Federal law requires that payments in medical malpractice cases be reported to the National Practitioners Data Bank. Let me emphasis that the NPDB collects data on all payments in medical malpractice cases including both judgments and settlements.

Last summer, Kevin Drum posted the NPDB information on payments for the period from 1990 through 2002. (Thanks Kevin). That data can be found here.

For the year 2002, the total of all payments (in 2002 dollars) made pursuant to medical malpractice judgments was $228,726,987. Jane thought that number was approximately $4 billion. She was off in her reckoning by more than a factor of sixteen.

The total of all payments made in 2002 pursuant to med mal settlements was $3,981,304,551. The total of both judgments and settlements was $4,210,031,538 which, of course, is where the reference in my post to “a little over $4 billion per year” came from...

If the public knew that the payouts in medical malpractice suits is about one tenth of the cost to the public of farm subsidies (including both direct payments and higher food prices), the tort reform movement could lose a lot of steam...

See Public Citizen's report for more data.

D. Rarely covering a key reason for malpractice lawsuits, i.e., malpractice

Dwight Meredith (P.L.A.):

...A 1999 study by the Institute of Medicine, an arm of the National Academy of Sciences, blamed medical mistakes for the deaths of 44,000 to 98,000 hospitalized Americans each year...

Kevin Drum (Washington Monthly):

MALPRACTICE....William Falk highlights a new report on medical care in America:

A new survey of data from 50 states concluded that medical errors are killing 195,000 people a year in American hospitals — double the previous estimate. HealthGrades, a private company that rates hospitals for insurers and health plans, said that if hospital errors were included on the nation's list of the leading causes of death, they would show up as No. 6 — ahead of diabetes, pneumonia and Alzheimer's.

Over at Aspasia, Jonathan, who is four weeks into his surgery clerkship, responds to this news:

This is curious, because just last night I was telling a friend how there's "no way" malpractice is as uncommon as popularly imagined. Four weeks of surgery and I've seen shit that's turned me white. Now if someone did a study looking at non-lethal complications, just imagine what that number would be.

So maybe ambulance chasing lawyers aren't the biggest cause of malpractice suits after all. Maybe malpractice is.

Kevin Drum (Washington Monthly):

Here's an interesting tidbit in the debate about medical malpractice: a new study that suggests one of the causes of malpractice lawsuits is — surprise! — malpractice.

David Phillips of UC San Diego examined all deaths from medication errors between 1979 and 2000 and discovered that deaths spike around the beginning of the month:

“Government assistance payments to the old, the sick and the poor are typically received at the beginning of each month. Because of this, there is a beginning of the month spike in purchases of prescription medicines,” Phillips says. “Pharmacy workloads go up and — in line with both evidence and experience — error rates go up as well. Our data suggest that the mortality spike occurs at least partly because of this phenomenon.”

....The beginning of the month mortality spike was particularly pronounced in people for whom the mistakes proved rapidly fatal — those who were dead on arrival at a hospital, died in the emergency department or as outpatients. In this category, deaths jumped by 25 percent above normal.

In other words, part of the reason for the increased death rate is that when workloads increase at the beginning of each months, many pharmacies react by rushing orders instead of increasing staffing levels.

This is far from the whole story, of course, but it's definitely part of it: one way to cut down on medical malpractice suits is to cut down on medical malpractice. And the sad fact is that we have some pretty good ideas about how to do this, too. If only it got as much attention and lobbying as the insurance industry brings to bear on tort reform, we could cut down on both malpractice and malpractice suits. Quite a concept, eh?

Stephanie Mencimer has also pointed out in Washington Monthly how some of the prominent spokespersons against malpractice lawsuits have a personal history of serial malpractice:

When he went out on strike last January, Dr. Robert Zaleski had his 15 minutes of fame. The Wheeling, W. Va., orthopedic surgeon was one of two dozen surgeons to walk off the job in January to protest his state's high costs of malpractice insurance. Arguing that "frivolous lawsuits" were driving up insurance premiums and forcing physicians to leave the state, Zaleski and his colleagues threatened to stay out for 30 days unless the legislature passed a bill that would cap non-economic damages in such suits at $250,000. As the walkout turned into a national story, Zaleski became one of its most visible faces, making the rounds of TV news shows and telling CNN, "I would certainly jump in front of a bus if I could to continue to serve my patients as I have for 23 years." Just a few weeks later, Zaleski's mug shot appeared with those of five other doctors in The New York Times Magazine, where he claimed to be "on the brink" of moving out of state because of high insurance rates and lawsuits.

Zaleski and his colleagues are the leading edge of a much broader movement. All across the country, doctors like him are telling reporters, legislators, and even their patients that frivolous lawsuits are driving up insurance costs and driving doctors out of practice and out of state, threatening access to care. They've mobilized around state legislation to limit malpractice lawsuits and linked arms with President Bush and Republicans in Congress who have been pushing similar bills in Washington. Indeed, Zaleski himself was even personally invited to attend a speech President Bush delivered in Scranton, Pa., where he railed against the threat to patient care posed by out-of-control lawsuits.

Upon closer inspection, however, it appears that Zaleski may be more a source of the problem than a victim of it. Between 1987 and 2002, according to the West Virginia Board of Medicine, patients filed 14 lawsuits against Zaleski, eight of which resulted in payouts that together came to $1.7 million. By contrast, according to a Public Citizen study, only 1 percent of the state's doctors made five or more malpractice payouts over the past decade. And while Zaleski says the settlement figures are misleading because they also include defense costs, his record is hardly squeaky clean. In a 1985 lawsuit (one not among the 14 reported to the Board of Medicine), he admitted in a deposition to being addicted to prescription painkillers for a substantial part of the time that he was operating on people in the early 1980s. Not only was he a drug addict, but to maintain his Percodan habit, Zaleski allegedly wrote prescriptions for other local addicts, who filled them and kicked back some pills to the doctor, according to court documents that include copies of the prescriptions and depositions from some of the addicts.

Yet even though a suspicious police officer reported him to the state medical board, Zaleski was never disciplined by his fellow physicians. (He says he does not remember the specifics of the case, and while he acknowledges a past substance-abuse problem, insists that he has been clean and sober for 21 years.) Given this history, the real scandal may not be how high Zaleski's insurance premiums are, but the fact that he can get insurance at all. Zaleski's malpractice record may have been extreme, but it was not unusual among the doctors who walked out of West Virginia hospitals in January. According to a Charleston Gazette report, nine of the 18 doctors striking at Wheeling Hospital, including Zaleski, had cost their insurers more than $6 million in malpractice settlements and judgments. At least some of the suits don't seem to merit the adjective "frivolous." In one case, a doctor had left a clip on an artery, eventually forcing the patient to have a liver transplant. In another, a surgeon cut into his patient's stomach wall during surgery, causing a massive, fatal infection. Indeed, a number of those doctors leading the protest movement include former drug addicts, felons, doctors whose licenses have been revoked, and many, many others who get sued a lot--and far more than most of their colleagues.

Not all the physicians angry about malpractice lawsuits and high insurance rates have such checkered histories as Dr. Zaleski. Many ethical and responsible doctors say the system invites frivolous litigation, subjecting them to considerable hassle and anxiety. One result, they argue, is an increase in "defensive medicine"--when doctors schedule too many tests, just to be safe--which contributes to higher health care costs for everybody. But even the respected General Accounting Office (GAO) has recently concluded that there's little evidence to back the striking doctors' main claim, which is that lawsuits are forcing many of them to abandon the practice of medicine or to avoid high-risk procedures. And while there's no doubt that malpractice insurance is getting more expensive across the board--about 30 to 40 percent, on average, during the last three years--this increase is largely due to the ailing stock market and poor business practices in a virtually unregulated industry. As a result, there's no reason to think that capping jury awards would bring premiums down, a fact the insurance industry itself acknowledges. Robert E. White Jr., president of First Professional Insurance Company, the leading medical malpractice insurer in Florida, told the Palm Beach Post in January, "No responsible insurer can cut its rates after a [medical malpractice] bill passes." The one surefire way to bring down the number of big-payout lawsuits is to reduce the number of those doctors who inspire most of them. But state medical boards--which are run by doctors--have been notoriously reluctant to aggressively police their own.

...

While the jury verdicts aren't nearly as outrageous as the doctors make them out to be, there have been a few whoppers in Ohio County--albeit usually in cases involving egregious malpractice--and these seem to be what really riled the doctors. The case that really sticks in their craw is that of Dr. Fred Payne. Like his colleague Robert Zaleski, Payne had been sued a dozen times over the past decade, and had paid out settlements of at least $7.3 million, according to the Charleston Gazette. In 1998, Payne operated to repair a minor spine injury on a spry 76-year-old World War II veteran who had fallen out of a tree. On his way to the operating room, he ran into a medical-equipment salesman who encouraged him to try out a new type of clamp. The patient hadn't consented to the procedure, nor had Payne ever even seen the tool used or studied its use; but he tried it out anyway. After Payne left the hospital, a nurse paged him to let him know that the patient wasn't doing well in recovery. An examination found that the clamp had slipped into the spinal canal and paralyzed the man from the neck down--a hideously worse injury than he had initially sustained. He died a year later. A lawsuit over the case, which charged that the man didn't even need surgery in the first place, was settled for $4.6 million.

The Ohio Valley Medical Center agreed to pay $3.5 million of the settlement, but insisted that Payne was responsible for the rest. But Payne's minimal insurance didn't cover the balance, so the judge on the case, Fred Risovich II, insisted that he use his personal assets to pay his share of the settlement, a rare move in a malpractice case. "The negligence was so gross, and the injury so bad that justice required that he pay something," says Risovich. Payne has not practiced medicine since.

Doctors in Wheeling had not been particularly politically active before this, but they were outraged by the case--not by Payne's behavior, but by Risovich's. The doctors organized to oust him in a nasty campaign that would foreshadow the tenor of the battle over malpractice suit caps two years later. According to Risovich and people in the local medical community, during the 2000 judicial race, anonymous flyers appeared on the windshields of cars at the local supermarket, accusing Risovich of beating his wife and being a racist. Risovich says one night someone set fire to his campaign materials in his front yard and urinated on his stoop. "Someone sent investigators to call my children at college, asked my stepchildren if they'd ever been molested. It was horrible," says Risovich. Dozens of Republican physicians changed their party affiliation so they could vote against Risovich in the Democratic primary, and many today take credit for his crushing defeat.

Dwight Meredith has more examples at P.L.A. of doctors committing serial malpractice.

E. Rarely covering two of the main reasons for high malpractice insurance rates in some area/states - insurance industry losses/practices and serial malpractice by a small percentage of doctors

Public Citizen:

Most malpractice is caused by just a small number of doctors. Public Citizen has learned by analyzing data in the National Practitioner Data Bank that in Washington, just 3.5 percent of the state’s doctors, all of whom have made two or more malpractice payouts, have been responsible for 43 percent of all payouts since September 1990.

In Public Citizen’s annual ranking of state medical boards, Washington state’s medical board came in 41st – one of the worst. That reflects the rate of serious disciplinary actions (such as license revocations, surrenders, suspensions and probation or restrictions) per 1,000 doctors in the state.

Mencimer:

Not all the physicians angry about malpractice lawsuits and high insurance rates have such checkered histories as Dr. Zaleski. Many ethical and responsible doctors say the system invites frivolous litigation, subjecting them to considerable hassle and anxiety. One result, they argue, is an increase in "defensive medicine"--when doctors schedule too many tests, just to be safe--which contributes to higher health care costs for everybody. But even the respected General Accounting Office (GAO) has recently concluded that there's little evidence to back the striking doctors' main claim, which is that lawsuits are forcing many of them to abandon the practice of medicine or to avoid high-risk procedures. And while there's no doubt that malpractice insurance is getting more expensive across the board--about 30 to 40 percent, on average, during the last three years--this increase is largely due to the ailing stock market and poor business practices in a virtually unregulated industry. As a result, there's no reason to think that capping jury awards would bring premiums down, a fact the insurance industry itself acknowledges. Robert E. White Jr., president of First Professional Insurance Company, the leading medical malpractice insurer in Florida, told the Palm Beach Post in January, "No responsible insurer can cut its rates after a [medical malpractice] bill passes." The one surefire way to bring down the number of big-payout lawsuits is to reduce the number of those doctors who inspire most of them. But state medical boards--which are run by doctors--have been notoriously reluctant to aggressively police their own.

More here, here, here, here and here.

F. Rarely pointing out that
(i) damage caps will act to deter meritorious lawsuits rather than reduce malpractice premiums, which they rarely do
(ii) there are much better ways to reduce frivolous lawsuits, allow meritorious lawsuits and reduce malpractice insurance rates

Off the Kuff's post on Texas is a good place to start:

This would be funny if it weren't so utterly pathetic.

House lawmakers sent a stern message to insurance companies Thursday: Medical malpractice lawsuit reforms passed last year were meant to help doctors -- not boost profits.

Republicans and Democrats who supported the legislation suggested that lawmakers might consider mandatory rate rollbacks if doctors don't get significant rate relief soon.

Lawmakers nearly approved a rate rollback last year but stopped short when insurance companies promised reductions.

"Some of us put ourselves way out on the line for our doctors," said Rep. Joe Nixon, R-Houston, author of the bill and the constitutional amendment that allows a cap on jury awards and limits insurance companies' liability.

"Profits for (the companies) is not what we intended."

Imagine that. The Lege passed a law that reduced the costs of a bunch of profit-maximizing firms, and they had the gall to go and use it to maximize their profits. Maybe next time, the legislation ought to match the intent, you know?

This is even more precious.

The House Civil Practices Committee on Thursday heard updates on the fallout from a sweeping lawsuit reform bill enacted after a bitter legislative struggle last year.

[...]

At the hearing, [State Rep. Patrick] Rose sharply challenged [State Insurnce Commissioner Jose] Montemayor over a letter the commissioner wrote to the committee in March 2003, when emotions over the reforms were approaching white heat.

Montemayor wrote that if the reforms were enacted, "this would translate to a 17 percent to 19 percent reduction in rates."

Montemayor's projections were cited by many lawmakers and reform supporters, especially during the campaign that persuaded voters to approve damage-award caps.

But Montemayor testified Thursday that his letter was not meant to promise that rates actually would go down by that or any amount. The numbers were theoretical and did not allow for a surge in malpractice lawsuits filed before the new laws took effect, Montemayor said.

Yo, Jose: The "bad intelligence" defense works best if you aren't the actual source of that intelligence. You said rates would go down. They haven't. Maybe they will eventually - and "eventually", I remind you, is not what you promised - and maybe if they do this ridiculous piece of legislation will be partly responsible for it. But the bottom line is, you were wrong. Now admit it.

Dwight Meredith's post at P.L.A. provides additional perspective:

In this post, we noted that medical malpractice premiums for Doctors were about 3% of revenue. On average, Doctors pay less for malpractice coverage than rent on their offices.

In comments, PLA reader GP took issue with our post. GP raised two issues that need to be addressed. The first issue involves Doctors leaving practice because of high malpractice premiums. As GP wrote:

If you live in Las Vegas and you can't find an OB because they've all left town, will you wave these stats around when you are in labor in a crowded ER? If you have a severe head injury, will your economic figures be of any comfort to your family when the ER physician tells them they need to fly you somewhere else because the last neurosurgeon moved away a month ago?

GP is correct that a bunch of statistics will be cold comfort if one cannot find an Emergency Room Doctor when one is needed. He (or she) is also correct that Nevada is experiencing difficulty finding general surgeons to man the ERs.

Via, the Bloviator, we noted this article in the Las Vegas Review Journal.

Desert Springs Hospital has not had general surgeons available to care for emergency room patients this week and doctors who operate at the facility say it's a blow to the quality of health care in the Las Vegas Valley.

Hospital administrators said Monday the facility still had enough general surgeons to operate normally, but Tuesday in a written statement acknowledged that the hospital lacks surgeons to provide immediate care to emergency room patients.

An emergency room schedule from the hospital also indicates that there have been no general surgeons on call since Sunday. No surgeons are scheduled to be on call for the remainder of this month and all of April, according to the hospital's schedule…

Currently, the emergency department at Desert Springs is closed to patients with broken bones because the hospital lost nearly all of its orthopedic surgeons in January.

We agree with GP that the Nevada situation is terrible and needs to be addressed. The problem with GP’s argument, however, is that Nevada has already passed tort reform capping non-economic damages.

Last summer, Nevada passed a tort reform measure. That law:

Places a $350,000 cap on noneconomic damages in medical malpractice cases, creates a shorter statute of limitations and establishes a standard that holds physicians liable only for the damages for which they are responsible.

The law also puts a $50,000 limit on damages for hospitals and physicians who treat trauma patients, creates a medical error reporting system, requires more training for judges handling medical malpractice cases and holds lawyers responsible for costs of frivolous lawsuits.

If a cap of $50,000 on damages against doctors treating trauma patients still leaves Nevada hospitals without general surgeons to staff the Emergency Rooms, why does anyone think that the President’s proposed cap of $250,000 will solve the problem?

Our post also noted that some specialties such as obstetricians paid higher premiums for malpractice coverage. That may make sense in that a mistake by an OB can cause permanent damage to a newborn resulting in very expensive life long disability. On average, we noted, OB/GNYs nationwide pay 6.7% of their revenue for coverage.

GP took exception to that statistic as well:

although OB-GYN's nationwide may have a malpractice % of revenue rate of 6.7%, in Florida, even if they are pulling in a million dollars a year, their % of revenue rate is 20%.

Many media reports note that in South Florida, OBs are charged $200,000 for malpractice coverage. The problem with that argument is that Florida has already enacted tort reform for injuries caused by negligence in the birth process.

Under Florida law, non-economic damages are already capped at $100,000 in any instance in which, during birth, an infant sustains a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and the infant is rendered permanently and substantially mentally or physically impaired.

If a damages cap would reduce the medical malpractice premiums for OBs in Florida, they would not now be paying $200,000 premiums.

The President’s proposal will not keep Doctors from leaving Emergency Rooms. It will not lower malpractice premiums for OBs. Exactly what is the purpose of his proposal?

Kevin Drum (Washington Monthly) notes:

A few days ago I wrote a post about a study on medical malpractice premiums done by Weiss Ratings. You should read that post before you go any further in this one.
...

• The statistic you want to look at is average malpractice payout per doctor, and to take into account the possible effect of a small number of very large payouts, you want to use the mean, not the median. Has that number gone up faster or slower in states with payout caps?

• Answer: in states with caps, it's gone up 24% and in states without caps it's gone up 54%. So caps appear to have had some effect on keeping down payouts. [eRiposte note: As I have stated before, such caps make it possible to suppress meritorious lawsuits.]

• OK, but how about the cost of premiums compared to the average payout per doctor? You'd expect that the higher the average payout, the higher the premium. So let's take a look at the ratio of premiums to payouts.

• It's just the opposite of what you'd expect: in states with caps, premiums are higher, and the ratio is increasing faster than in states without caps.

The following links/posts provide more details and proposals: Dwight Meredith (P.L.A.), Dwight Meredith (P.L.A.), Dwight Meredith (P.L.A.), Charles Kuffner (Off The Kuff), Stephanie Mencimer (Washington Monthly), Dwight Meredith (P.L.A.)

G. Rarely mentioning that businesses are among the largest filers of actual (and frivolous) lawsuits, and that the Republican party has no intent of making them accountable for it

Public Citizen:

American businesses file four times as many lawsuits as do individuals represented by trial attorneys, and they are penalized by judges much more often for pursuing frivolous litigation, according to a report issued today by Public Citizen.

The survey of case filings in two states (Arkansas and Mississippi) and two local jurisdictions (Cook County, Ill., and Philadelphia, Pa.) in 2001 found that businesses were 3.3 to 5.8 times more likely to file lawsuits than were individuals.  This comes as businesses and politicians are campaigning to limit citizens’ rights to sue over everything from medical malpractice damages to defective products. By way of comparison, the number of American consumers (281 million) outnumbers the number of businesses in America (7 million) by 40 times.

The report also found that businesses and their attorneys were 69 percent more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses. The report, Frequent Filers:  Corporate Hypocrisy in Accessing the Courts, is available by clicking here.

“Corporations think America is too litigious only when they are on the receiving end of a lawsuit,” said Joan Claybrook, president of Public Citizen. “But when they feel aggrieved, businesses are far more likely to take their beef to court than are consumers.”

Dwight Meredith:

I have previously commented that the popular notion that plaintiffs receive large judgments and settlements as a result of frivolous suits is largely myth.

That is not to say that frivolous suits are not filed. Many are filed. My point is that overwhelming majority of frivolous suits just lose. They lose on motions to dismiss. They lose at summary judgment. They suffer directed verdicts. They lose before juries and they lose on appeal.

There is one circumstance in which frivolous suits can lose and the plaintiff still win. That circumstance is when the objective of the suit is other than actually prevailing on the merits in court.

For instance, pharmaceutical companies have a monopoly on patented drugs for a specified period of time. One quirk in the law is that if a company sues a generic manufacturer for patent infringement, the patent holder gets an automatic 30 month extension of the patent by simply filing suit regardless of whether or not the suit has merit. See this NY Times editorial:

Some brand-name manufacturers have been extending the effective lives of their patents by tactics that are underhanded at best and appear fraudulent at worst.

Ordinarily manufacturers are granted patents that give them a monopoly for 20 years, which is ample time to recover development costs and make a profit before generic competitors are allowed on the market. But through loopholes in current law, the companies can get an automatic 30-month extension simply by filing suit against a generic manufacturer asserting that the generic product will infringe secondary patents on packaging and other minor items.

In some cases, manufacturers have been able to get even longer extensions by filing multiple patent-infringement suits. A study by the Federal Trade Commission issued in July cited eight cases since 1982 where brand-name companies got additional delays, beyond the first 30-day stay, ranging from 4 to 40 months. In the four cases that have reached a court decision, the brand-name manufacturers lost each time, suggesting that their suits were little more than legal ploys to gain additional time to reap monopoly profits, not serious litigation.

The purpose of those suits is not to win the patent infringement case but rather to extend the life of the patent on profitable drugs. As long as the litigation costs are lower than the profits earned by the extension of the monopoly, the suit makes economic sense regardless of whether it has legal or factual merit.

Via Ampersand I learned of another suit that may be frivolous legally but might succeed in accomplishing other objectives.

Oakhurst Dairy of Portland, Maine chooses not to sell milk from cows that have been given artificial hormones.

Oakhurst requires each of its milk suppliers to sign an affidavit swearing that they do not give their cattle artificial hormones. The affidavit must be updated every six months. Oakhurst pays a premium for milk from cows that are not given hormones. Last year, the premium amounted to about half a million dollars.

Oakhurst advertises the fact that its milk comes from cows that are not given artificial hormones. Oakhurst’s milk has a label proclaiming “"Our Farmers' Pledge: No Artificial Growth Hormones."

Oakhurst’s policy was implemented in reaction to consumer preference. Oakhurst’s President is quoted as follows:

Consumers have let us know since the advent of these artificial growth hormones that they don't want to have to worry about (them). If consumers tell us they don't want anything added to the milk, or if they have a concern about something, we're going to respond to them as a company.

Oakhurst had revenues of about $85 million in 2002. It employs 240 people. It is not a large company.

Monsanto is a large company. According to its 2002 Annual Report, Monsanto had revenue in excess of $4.6 billion.

Among Monsanto’s products is an artificial hormone given to cattle to help increase milk production.

Monsanto took exception to Oakhurst’s “no artificial hormone” policy and filed suit against Oakhurst. According to one report:

The suit against Oakhurst claims unfair competition, unfair business practices and interference with advantageous business relationships. According to the suit, the business relationships between Monsanto and dairy producers who use the artificial growth hormone have suffered because the farmers will stop using the treatments.

Another report notes:

Monsanto claims that Oakhurst is misleading customers with labels and a marketing effort that includes the statement, "Our farmers' pledge: No artificial growth hormones."

Monsanto said Oakhurst's slogan implies there's something wrong with milk produced by cows that have been injected with the growth hormones, even though the federal Food and Drug Administration has found that the milk is not affected by the hormones.

Does giving dairy cows Bovine Growth Hormone make their milk any less safe? I do not have a clue. The FDA approved the use of BGH here but it is banned in Canada and Europe.

An Oakhurst spokesman makes clear that he doesn’t know either:

"We have said from the beginning that we make no claims to understand the science involved with artificial growth hormones," he said. "We're in the business of marketing milk, not Monsanto's drugs."

I think that Monsanto’s claim is frivolous. First, it has not been alleged that Oakhurst’s claim that its milk is from dairy cows not injected with artificial hormones is false. Thus, the statement on its milk jugs is perfectly accurate. Secondly, Oakhurst makes no claims that its milk is safer than milk from cattle treated with BGH. It makes no mention of Monsanto or any Monsanto product.

Oakhurst is simply responding to customer preference. It is using advertising to accurately state the nature of its product. It is doing so in an effort to distinguish its product from other, similar products. That is what advertising is supposed to do. It is hard for me to see how Oakhurst did anything other than promote its product through truthful advertising.

I predict that Monsanto’s suit will go down in flames if Oakhurst chooses to fight.

The amount of additional revenue Monsanto would earn if Oakhurst accepted milk from dairy cows treated with BGH is tiny. The effect of such revenue on the bottom line of a company the size of Monsanto is infinitesimal. Why would Monsanto incur the costs of suing to stop one small dairy in Maine from advertising artificial hormone free milk?

One report suggests an answer:

To some Maine dairy farmers, there's clear reason why Monsanto Corp. sued Oakhurst Dairy last week over its marketing of milk produced without artificial hormones: Monsanto is staging a last-ditch effort to save a product that seems to be losing favor among New England farmers and consumers alike.

"They're doing this out of desperation," said John Nutting, a dairy farmer from Leeds and former state legislator. "Most of us farmers don't want to do anything to cause concerns among consumers." ...

The chemical industry as a whole, though, worries that resistance to bioengineered food products - rampant in Europe and some other regions - could spread to the United States. American consumers have been buying more products that are marketed as organic or all-natural in recent years.

It appears that Monsanto may be using litigation not to vindicate its rights but rather to intimidate. Monsanto may hope to gain not from the success of the suit but rather from the costs such a suit will impose on Oakhurst. The cost of winning the suit may be more than Oakhurst can afford.

Monsanto may be trying to send a message not only to Oakhurst, but also to many other small dairies. The message might be “If you advertise that your milk is from hormone free cows, you will have to spend a lot of money on lawyers instead of your business.” If that is in fact Monsanto’s intent, the suit was brought for an improper purpose.

Will Oakhurst spend the money to fight Monsanto? Oakhurst is clearly concerned about litigation costs:

Yet Bennett (President of Oakhurst) noted … what could be an expensive legal battle with a much larger company.

"That's a $4 billion company and one that's losing a lot of money," he said. "When a company that size brings a lawsuit against a little company like ours, sure I'm concerned, because who knows how much it will cost to litigate. But we feel very strongly that we're doing the right thing."…

Frivolous litigation is often discussed only in the context of personal injuries claims. Some frivolous and abusive litigation arises in completely different contexts. To close, I would like to pose one question.

Will a cap on damages for pain and suffering do anything whatsoever to prevent the type of frivolous litigation exemplified by suits designed only to extend drug patents or intimidate small dairies?

H. Rarely pointing out the hypocrisy (and fakery) from Republicans about the unreliability of civil juries compared to criminal juries, when assessing guilt of defendants

Dwight Meredith:

George W. Bush has a perverse view of juries. Some people think that juries make essentially random decisions and have no trust in the accuracy of jury verdicts. Others, myself included, think that juries generally find the truth. George W. Bush is firmly in both camps.

While Governor of Texas, Mr. Bush showed an abiding faith in the unerring accuracy of jury decisions in death penalty cases. While Governor more than 130 death penalty cases came before the Governor. He granted a reprieve in exactly one case. Mr. Bush has said that he is:

confident that every case that has come across my desk -- I'm confident of the guilt of the person who committed the crime.

Salon reports that Mr. Bush was so confident of the accuracy of jury decisions in death penalty cases that as Governor he spent less than 30 minutes reviewing each such case.

Mr. Bush has much less confidence in the accuracy of the verdicts of civil juries. Mr. Bush has proposed that politicians and not jurors decide the amount of non-economic damages due to the most seriously injured victims of negligence.

Mr. Bush has said that poor jury decisions are “devastating the practice of medicine” and ruining many an “honest business.”

Mr. Bush’s belief in an almost Biblical inerrancy of death penalty juries but his complete lack of faith in civil juries is exactly backwards.

It is obvious, of course, that juries do not make perfect decisions. One of the most important factors leading to jury error is imperfect information. Like any decision-maker, jurors must rely on the information available to them. Since jurors are prohibited from performing independent investigations, they must rely on the information presented by the parties through the lawyers.

If a teacher does not cover a subject included on a test, the failure of the students to know the material is the fault of the teacher and not the students. If lawyers do a poor job of discovering and presenting information needed by a jury, it is the fault of the lawyers and not the fault of the jury.

We often hear that persons convicted of crimes are later exonerated by DNA evidence. Does anyone think that those convictions would have occurred had the juries been provided with the exculpatory DNA evidence at trial? The failure in those cases is in the quality of the information presented to the jury and not in the jury’s decision-making process.

The chances of a jury reaching a just result increase when both sides have highly skilled lawyers with the resources needed to investigate, prepare and present their side of the case. Conversely, when one side has experienced, highly skilled lawyers with plenty of resources and the other side has overworked lawyers of lesser skill operating without needed resources, the chances of a just verdict diminish.

The chances of both sides having highly skilled advocates with adequate resources is far higher in big money civil cases than in criminal cases. Thus, the chances that juries will make wrong decisions as a result of having incomplete information is much higher in the criminal arena than on the civil side.

Mr. Bush is concerned that juries are unfair to medical malpractice and other civil defendants. The defense of big money civil cases usually falls to insurance companies. Insurance companies have an army of investigators, adjusters, jury selection consultants and expert witnesses at their disposal. They have the resources to conduct mock trials, focus groups and polling. They have a stable of highly skilled, experienced trial counsel. It is highly improbable that juries make incorrect decisions because civil defendants do a poor job of investigating, preparing and presenting their side of the case.

The situation in criminal cases is quite different. Criminal defendants do not have the resources of huge insurance companies supporting their case. The defense in criminal cases usually falls either to overworked and underpaid public defenders or to less experienced and less skilled lawyers willing to take low paying criminal appointments.

In one Texas murder case, the defense attorney slept through portions of the trial.

Some advocates point out that the defense lawyers in Gary Graham’s Texas murder trial failed to even question a number of witnesses. That simply would not happen in a large civil case.

In Odell Barnes’ Texas capital case, defense lawyers neglected to conduct any scientific tests on crucial blood and semen evidence that allegedly linked him to the crime. That would not happen in an important civil trial.

Andrew Cantu was executed by the State of Texas despite the fact that, as Salon reports:

(He) ended up representing himself after two lawyers assigned to his case withdrew and a third never even interviewed the defendant, claiming he didn't know where to find him. (He apparently didn't try death row.) Cantu was executed without either state or federal habeas corpus review of his claims.

My experience is with civil juries. That experience convinces me that juries almost always make good decisions. I have yet to try an important civil case in which the defense lawyer slept through the trial, failed to interview witnesses or failed to present crucial evidence.

A person whose experience is only on the criminal side could feel differently. Overworked and underpaid lawyers without the resources to investigate, prepare and present a case may not give juries the information needed to make an accurate decision. That increases the likelihood of jury error.

George Bush’s blind faith in the inerrancy of death penalty juries combined with his distrust of civil juries is perverse.

Public Citizens' response to Newsweek is also appropriate:

Newsweek’s Proposed Solutions to the Problems It Claims Exist Have no Basis in Experience
Newsweek not only has subscribed to Howard’s fallacious claims about the state of the civil justice system, but Taylor’s praise also extends to the "solution" for medical malpractice claims proposed by Howard. Those proposals include removing most claims "to a special court of medical experts" where "expert judges" rather than juries would review doctors’ decisions. This prescription is pushed by Howard with no evidence to demonstrate that juries are not capable of fairly deciding medical malpractice cases and with no real-world experience to show that his "solutions" will work.

• [NEWSWEEK] "Rather than allow juries ignorant of medical procedure to be swayed by sympathy, judges who are experts would follow established medical standards." [p. 51]

Physicians may not be any more expert than juries when it comes to assessing accountability. This idea was tested a decade ago, with disappointing results. The American Society of Anesthesiologists conducted an experiment, giving closed malpractice claim files to pairs of neutral medical experts, to see if they agreed on whether the standard of care was violated. These pairs of doctors disagreed 38 percent of the time, eve n though the experts were not the "hired guns" who typically testify at trials.²⁵ The researchers concluded: "These observations indicate that neutral experts (the reviews were conducted in a situation that did not involve advocacy or financial compensation) commonly disagree in their assessments when using the accepted standard of reasonable and prudent care."

 

Jury Competence. With regard to jury competence, empirical analysis of jury verdicts suggests that juries take care in assessing pain and suffering damages in medical malpractice cases by arriving at awards that bear a reasonable relationship to the severity of the harm suffered. This finding comes from a comprehensive study of California jury verdicts in medical malpractice cases from 1993 to 1999. ²⁶

 

The authors examined jury verdicts in medical malpractice cases in California. The authors reviewed 1,283 medical malpractice cases dating from January 1, 1993, to March 10, 1999. These cases were drawn from the Westlaw database for the California Jury Verdict Reporter. The analysis showed a consistent relationship between the amount of the verdict awards and the seriousness of the injury suffered by the plaintiff. The authors concluded, "The results reported above do not appear to support the contention that juries are systematically over-compensating plaintiffs for pain and suffering or emotional distress in medical malpractice cases."²⁷ 

Similar results were obtained in a study by Neil Vidmar, a nationally recognized expert on jury competence.²⁸ His Medical Malpractice Project at Duke University attempted to review every malpractice suit filed in North Carolina between July 1, 1984, and June 30, 1987 – 895 cases. In compiling and analyzing these cases, Vidmar viewed court files, conducted attorney interviews, and arranged to view the closed file claims of three insurers. Information was also gathered on an additional 300 cases between 1987 and 1990. The project concluded that, "empirical evidence from multiple sources does not support claims that medical malpractice juries are consistently pro-plaintiff, incompetent, or unjustifiably generous in determining awards."²⁹

The results in California and North Carolina are consistent with later research by Professors Vidmar, Gross & Rose on medical malpractice verdicts in New York and Florida that also documented a consistent relationship between the amount of non-economic damages awarded and the seriousness of the injury suffered by the plaintiff.³⁰

In a study of jury verdicts from New York City and the surrounding metropolitan areas, jury verdicts increased with severity of injury except when death occurred, which resulted in a substantially lower award.³¹ In death cases, it’s not surprising that the size of the award is less than in a case of grave injury. In those who sustain grave injuries, economic costs of medical treatment for that life-altering injury are likely to be greater, and the pain and suffering would exist over a longer time period than in the case of death. ³² 

Like New York, Florida law requires juries to render a verdict that specifies the individual amounts of special (economic) and general (non-economic) damages. The authors reviewed 525 medical malpractice verdicts reported by judges and their law clerks to the Florida Jury Verdict Reporter that is archived in Westlaw. The period covered was 1987 through 1996. According to the authors, it seems plausible that the judges and law clerks were likely to report plaintiff wins rather than losses, because the wins were associated with damage awards. Nevertheless, the amount of these awards, like New York (and North Carolina and California), were positively related to the severity of injury assessed on the National Association of Insurance Commissioners (NAIC) scale.³³

In a recent Iowa Law Review article entitled, "The Role of the Jury in Modern Malpractice Law," by Philip G. Peters, Jr., claims about jury competence were carefully considered.³⁴ The criticisms included several related threads, two of which are summarized here. First, lay jurors lack the capacity and training needed to evaluate complex medical treatment decisions. Second, juries are more sympathetic to injured plaintiffs and biased against wealthy defendants.

Jurors have the capacity to decide medical malpractice cases. Those who question jury capacity fear juries will be confused by scientific evidence and, in their confusion, will be vulnerable to manipulation by plaintiffs’ attorneys and their experts, who will elicit sympathy for injured plaintiffs. One common method used to evaluate jury capacity is to compare the outcomes reached by juries with those reached by judges. Researchers have repeatedly found that juries and judges reach extremely similar conclusions about tort liability. As a consequence, these studies provide support to the contention that juries have the capacity to understand and decide complex medical malpractice cases. In one famous study, 4,000 civil trials were reviewed and the reactions of judges and juries were compared. In nearly four out of five cases (78 percent), the judge and jury agreed, thus refuting fears about unpredictability and incompetence.³⁵ According to the authors, "this agreement rate is better than the rate of agreement between scientists doing peer review, employment interviewers ranking applicants, and psychiatrists and physicians diagnosing patients."³⁶ In another interesting study the outcomes reached by juries were compared with those reached by physician reviewers. The researchers found a surprising agreement between physician reviewers and juries. Where juries differed from the physicians, juries were consistently more lenient toward malpractice defendants than were the physician reviewers.³⁷

Jurors are not biased against physicians. An expanding body of evidence suggests that rather than being biased against physicians, jurors begin their deliberations favoring physician-defendants and doubting the motives of plaintiffs in medical malpractice cases. Findings reveal that jurors are even more distrustful of plaintiffs’ lawyers and believe medical malpractice suits ruin the health care system by driving up costs. This may be due in part to the constant media bombardment by the corporate interests that attack and ridicule plaintiffs and their lawyers, as in the Newsweek article. Peters concluded after reviewing the available studies that there is simply no evidence that juries are prejudiced against physician defendants or that their verdicts are distorted by their sympathy for injured plaintiffs. Instead, the existing evidence strongly indicates that jurors begin their task harboring sympathy for the defendant physician and skepticism about the plaintiff.³⁸ 

These studies demonstrate that juries are fulfilling their intended role in our civil justice system. Juries are not wildly and irrationally over-compensating injured plaintiffs with huge non-economic damage awards. Juries do bring community wisdom, experience, values and common sense to their deliberations...

As Dwight Meredith also notes:

Zuckerman choose those examples for his column because the cases, if real, are obviously ridiculous. No one could possibly think that either of the plaintiffs cited by Zuckerman deserves to be compensated in any way.

Indeed, Zuckerman is quite sure that the examples will be viewed as ridiculous by all of his readers. I wonder, then, why he thinks a jury would view the case any differently? Juries are made up from a cross section of the community. I have selected many juries. I have never had a jury that did not include at least a few people who are readers of U.S. News and World Report or similar publicatons.

I also can not help but wonder why so many examples of alleged ridiculous jury verdicts turn out to be false. Zuckerman’s spokesman contends that there were dozens of examples that could have been used. If that is true why do we so often hear about the McDonald’s coffee case (which was real but not frivolous), the mythical driver of the RV who set the cruise control and left the wheel and sued when a wreck occurred and many other bogus examples of frivolous suits. See Kip's post for a listing and a debunking of those mythical suits.

Perhaps obviously ridiculous jury verdicts providing huge judgments for undeserving plaintiffs are sort of like UFO’s. Many people know many people who claim to have seen them but it is hard to find a person who can deliver the proof.

I. Rarely, if ever, mentioning that malpractice cases are not, in general, cases with high profitability for plaintiffs attorneys

Dwight Meredith:

Zuckerman becomes even more absurd when he discusses the economics of contingency fees:

The right to sue has been exploited by lawyers. They can gamble on taking cases on a contingency basis because they need only 1 win in 10 to score that big judgment that will make up for the other losses.

The only “big judgment” in a frivolous suit that he cites is the $100,000 for the lady who threw her drink and slipped in the spill. Even putting aside the fact that that story was made up, the economics are simply wrong.

It would be difficult for a lawyer, working by himself, to handle more than twenty such suits at a time. Assume first that the lawyer took all twenty such cases to trial in a year. That is a very a dubious assumption because 1) the time from filing to trial, at least in this jurisdiction, is closer to 2 years and 2) the lawyer would never get such a case before a jury as the judge would grant the defendant’s summary judgment motion. Next assume that the lawyer had a 33% contingency fee.

If the lawyer succeeded in one case in ten, he would have total revenue for the year of $67,000 out of which he would get to pay for all of the expenses of his practice. It is unlikely that such a lawyer would net $50,000 for his effort.

If the lawyer, however, could discern which of the twenty cases was the winner, he could accept that case and reject the rest. With 20 such winning cases, he would have earnings of $667,000 of which he would net more than $600,000 for the same amount of work. The contingency fee lawyer, therefore, has every incentive to make sure that each and every case he accepts is a winner.

I know of no plaintiff’s attorneys who take cases in which they estimate a 10% chance of success. A lawyer taking contingency fee cases that have a 10% chance of success is much more likely to face a bankruptcy judge than a civil jury.

The use of contingency fees arrangements gives the lawyer every incentive to only take cases that are sure winners. The only lawyers who make money from frivolous personal injury cases are lawyers for the insurance companies.

The conventional wisdom is exactly backwards with regard to contingency fees. The use of such arrangements acts as a filter to prevent frivolous cases from being filed. A lawyer being paid on a hourly rate for every hour worked on a case may be willing to take a chance with a small probability of success but a lawyer who assumes the risk of losing must be more selective. [eRiposte emphasis]

What, you say, you do not believe me? Then try a little experiment. Call a plaintiff’s lawyer and tell him that you suffered a fractured tailbone when you slipped in a restaurant on a drink that you threw at your boyfriend. Tell him that you know the case has only a 10% chance of winning and that, if successful, the case will generate an award of $100,000. Tell the lawyer that you are unwilling to risk any of your money for the suit but that you want him to risk his time and money and that he can have 1/3 of any settlement he secures. If you are not listening to a dial tone pretty quickly I will be greatly surprised.

Next, call up a lawyer who bills by the hour. Tell him the story and add that you know the case has little chance for success but that you are willing to pay $250 per hour for every hour worked. I expect that your reception will be a bit friendlier.

J. Rarely pointing out that the proponents for malpractice award caps are usually lying through their teeth (as an experiment in Florida showed, where people was asked to testify under oath)

Dwight Meredith:

Kevin Drum has often remarked at how difficult it has been for him to get solid data on the issue of tort reform in the context of medical malpractice suits.

Via the Bloviator, I learned that Kevin’s frustration was shared by certain legislators in Florida.

Florida Governor Jeb Bush, like his brother, is pushing for legislation that would establish a $250,000 cap on awards for non-economic damages as a “solution” for the medical malpractice insurance “crisis.”

Jeb Bush called a Special Session of the Florida Legislature to consider the measure. A number of Florida State Senators felt that they were having a difficult time getting straight answers to their questions.

They then took an obvious but rare step. They required the witnesses to swear an oath to tell the truth before testifying.

In Florida, witnesses before the Legislature rarely have to swear to tell the truth. According to this report, it was only the “third time in the past decade that witnesses were sworn, other than cases in which agency heads testify at confirmation hearings.”

According to one columnist:

What happened after that "was pretty scary," said Sen. Ron Klein, D-Boca Raton, the Senate minority leader.

"People who had testified before us on previous occasions got up there and told us different things."

Among the revelations (culled from various articles and columns) that occurred after the lobbyists were faced with possible penalties for perjury:

* "I am not aware of any instance where we said the problem was the enormous amount of frivolous lawsuits," said Jeff Scott, legal counsel for the FMA (Florida Medical Association).

* When Sandra Mortham of the Florida Medical Association testified, Campbell demanded to know why Mortham had blamed "frivolous lawsuits" for the rise in malpractice rates. "Certainly, I've never said that," replied Mortham, a former House member from Largo and the FMA chief executive officer. "I don't feel I have the information to say whether or not there are frivolous lawsuits in the state of Florida."

* A state regulator said no, there hasn't been an explosion of frivolous lawsuits.

*Witness after witness denied a crush of frivolous lawsuits has crippled the state's medical malpractice tort system.

* We fixed the frivolous lawsuit problem" in past legislative sessions, testified Bob White, president of First Professionals Insurance.

* Insurers didn't need a cap on jury awards to be profitable.

* State data shows malpractice claims have not skyrocketed and that Florida has more physicians than ever.

* There has been no sharp rise in medical malpractice settlements made by insurance companies.

* A state insurance regulator surprised senators by saying he often depended on insurance companies' information when deciding whether to raise rates.

*Contrary to stories of doctors quitting the business, the number of licensed doctors is increasing. A Health Department official said new applications for new medical licenses in Florida rose from 2,261 in fiscal 2000 to 2,658 in fiscal 2003.

*Bob White, president of First Professionals Insurance Co., the state's largest malpractice insurer, surprised senators by blaming rising premiums mainly on new medical technologies and procedures...

*The hearings also revealed that White's company pays $500,000 a year as an "endorsement fee" to the Florida Medical Association, the doctors group that rallied for the cap.

*First Professionals was lobbying for the damages cap at the same time it has “boasted to stockholders of its profits in Florida.”

* The Florida Medical Association received $4.5 million in endorsements from insurance companies to lobby for tort reform. That represents about 10% of the FMA budget.

It seems that the prospect of spending a few years incarcerated in the Florida penal system for perjury tends to focus the minds of the lobbyists/witnesses on the truth.

Update: I notice that Kevin Drum is also writing about the Florida revelations.

It is probably appropriate to end this section with a reference to the latest tripe to appear in a mainstream media publication. The March 14, 2005 issue of Business Week displays the general conservative tilt in the media reporting on tort reform, in their cover story "How to fix the tort system". Here's their "four-point plan"?

Pay for Performance
Plaintiffs' lawyers sometimes earn millions while clients get pennies. Attorneys should make money only to the extent that their clients do.

Punishment That Stings
Lawyers who file frivolous suits usually get wrist slaps. Judges need to make them pay fines or some of the other side's expenses.

Curb the Duplication
When regulators bust companies for wrong-doing, plaintiffs' lawyers often get easy money filing redundant lawsuits. That needs to end.

Exiting the Tort System
When all else fails, problems can be kicked from the courts into specialized tribunals with less cumbersome procedural rules.

Wow! Notice how actual malpractice and how to deal with it doesn't actually figure in this "four-point plan" (among other things)? What a piece of nonsense!

Illiberal Conservative Media (ICM) - or is it Insidious Corporatist Media?