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Despite concerted attempts by the Media and its "factcheckers" to dismiss the Bain story, Mitt Romney has blown it so badly that it is now the Media issue of the campaign. While Romney is clearly suffering badly under the Obama onslaught on Bain (mostly I submit, due to his own political incompetence -- how in blazes does he expect to distance himself from Bain - the company he founded, owned and ran for 25 years? The very company that is basically his "economic" credential? Incredible political incompetence), so too are the "factcheckers", who have become subjects of ridicule and lampooning at this point.

The tipping point was the Boston Globe story on Bain's SEC's filings from 1999 to 2002, which listed Romney as the CEO, Chairman of the Board and sole stockholder of the company while earning at minimum, $100,000 a year for serving as Bain CEO. Since then other articles and information have come out that pretty much point to Romney having a continuing involvement with Bain during that period. Let me say that that is as it should be given Romney's retention of the titles mentioned above. If he wasn't involved, one would have to question Romney's basic competence. But for whatever reason, Romney has chosen to lie about his role in Bain from the 1999 to 2002 period, making the story much bigger than it would have been -- it now becomes about Romney's character as well as his policies (See Krugman for why discussion of Bain by the Obama campaign makes sense in the larger political narrative regarding the GOP-Romney policy of taking from the poor and the middle class to give more to the rich.)

A somewhat surprising casualty of the Bain story is the "factcheckers", who look like complete fools (or worse.) In particular, Glenn Kessler of the Washington Post, who has been bombarded with ridicule for his assertion that the Bain SEC filings describing Romney as CEO, Chairman of the Board and sole stockholder as not being relevant to whether Romney was involved with Bain. It's gotten so bad that Kessler wrote a personal defense of his writings on the subject:

It’s not often that one of my columns gets more than 5,000 comments, many of them angry. I tried responding via Twitter and various e-mail exchanges but eventually gave up because I was overwhelmed. My analysis was also roasted on the web by various people I often admire, and the Huffington Post rewrote my column to highlight exclusive material that they thought I had played down. My best friend from third grade even sent me a message on Facebook saying I “was carrying the Republicans’ water.”

It was that kind of day!

I always value informed critiques. Given the many comments, I will try to make a general response.

The most amusing part of his "general response" is this:
For some readers, this may not be important. He is listed as chief executive in SEC documents, he hired the people at Bain, and so they might believe he bears responsibility for these deals. End of story. But that’s really an opinion, not a fact. [Emphasis supplied.]
Actually, that's a fact, not an opinion, as a legal matter. Kessler's actual argument is HIS OPINION that even though Romney was legally responsible for Bain decisions from 1999 to 2002, there is no evidence that Romney actually made any Bain decisions in that period.

Beyond being a perverse way to think about the issue, it also misses this very important point - as long as Romney remained the CEO, Chairman of the Board and sole stockholder of Bain, it was within his power to dictate what deals and actions Bain did or did not do. Being charitable, let's assume that Romney did not formulate any policies or actions for Bain during that 3 year period.  This does not mean he could not have. He clearly had the legal power to act. If he chose not to, then that is an act of control. Romney "controlled" Bain as we understand the term legally and as a matter of common sense.

Kessler wrote "The years 1999-2002 are a gray period in Romney’s life." Perhaps in some ways, but not regarding the fact that Romney had the power at Bain during that period. It seems clear that Kessler consulted experts to support HIS OPINION, not to actually discover the facts:

I consulted with securities law experts who have many years of experience with these particular SEC filings. One expert pointed out that the titles are basically meaningless, that someone can be listed as a chief executive and have no responsibilities whatsoever.
This is nonsense. If someone is listed as CEO and has "no responsibilities whatsoever," then THAT FACT needs to be disclosed. It is a material issue and listing someone as CEO who has "no responsibilities whatsoever" without explaining this reality is a false and misleading statement that violates the securities laws.

Beyond that, a CEO serves at the pleasure of a Board of Directors (Romney was Chairman of the Board), who in turn serves at the pleasure of the stockholders (Romney was the sole stockholder of Bain.) It requires strains that would make political campaigns red faced to make the argument that Kessler, ostensibly a "factchecker," makes here.

The question is why did Kessler destroy his own reputation on this story? Personally, I have hard time explaining it. I predict it will get worse for Romney AND Kessler on this story.  

Originally posted to Discussing The Law: TalkLeft's View On Law and Politics on Sun Jul 15, 2012 at 07:46 AM PDT.

Also republished by The Bain Files.

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