A Threat or a Promise? McBerry's Libel Claims

Recently the word "libel" has been thrown around a lot in the Georgia blogosophere in connection with one fringe gubernatorial candidate who allegedly had a past predilection for the young ladies. Very young ladies.

Ray McBerry was a teacher in the late 1990's when he got to know a student at his school fairly well. She moved on to a different high school, and to hear her and her parents tell it, she began a romantic relationship with McBerry that led to him leaving teaching and having a judge order him to stay away from the girl. To hear him tell it, he was just counseling the girl after her parents made her end an interracial relationship, and her parents got the wrong idea and now they are all defaming* him all over Georgia.

Meanwhile, a few weeks before the girl and her parents' story hit the pages of "respectable" media, the SWGA Politics blog threw its skirt over its head and called McBerry a child molester. When informed that the law in Georgia does not apply to victims over the age of 16, and that this girl was 16 when the alleged sexual contact began, the blogger in question basically said he didn't care because McBerry was a teacher and teacher-student sex is still some form of crime, even if not meeting the legal elements of child molestation. (Side note: it's unclear whether this is even accurate, since the girl claimed the sexual contact only occurred once McBerry was no longer her teacher, as she had moved to a different school.)

McBerry threw a hissy fit of his own the other day, and started making threats of litigation against online outlets and individuals. Some wondered if one target for a libel suit might be SWGA Politics itself. But despite all his bluster, I would bet a cool Benjamin that McBerry never files any sort of defamation lawsuit against anyone. Why?

1) Defamation suits are expensive, time-consuming, and generally not taken on contingency by the attorneys who file them. This means McBerry would probably have to pay a lawyer by the hour to file the lawsuit, unless he intended to proceed pro se (in which case he might as well not even bother). McBerry hasn't exactly been lighting up the fundraising in his gubernatorial race, and I don't think he's rolling in the dough personally either. Even litigating on the cheap is likely to cost upwards of $25K to take such a case to trial, which brings us to the next problem...

2) The targets of such a suit, for the most part, are judgment-proof or close to it. What assets do either the girl and her family, or the proprietors of SWGA Politics, really have to satisfy any judgment rendered against them? Lawyers are especially wary of taking such cases on contingency when they strongly suspect at most their clients will obtain a moral victory, but no real cash. Why spend $25K to win an apology and a judgment that allows you to garnish someone's wages until the end of time? Now, any media outlets that report the allegedly defamatory statements could also be sued, and would not be judgment proof by any means, but the standards for a libel suit against a newspaper are higher and they have more defenses. They also have more and better lawyers who have defended cases like this before. Does McBerry want to take on the AJC and the big firms that represent it? I doubt it.

3) Truth is a defense in defamation cases. I make no allegations about McBerry's veracity or the propriety of his past behavior. (See, I know how to stay on the good side of the defamation line!) But if the girl and her family have evidence to support their allegations, which it sounds like they might based upon the apology letter they have already produced, then they could defeat any defamation action simply by showing that McBerry really did the things they claimed he did. Even if they don't have evidence, if a jury were to determine that the girl and her parents were telling the truth, McBerry would lose. And on the way to presenting evidence of truth or falsity to a jury, the parties would have to engage in embarassing discovery in the form of depositions of those McBerry or the girl talked to about their relationship, people who may have found them in compromising positions, etc. Not exactly the sort of character evidence an aspiring politician wants to see put down on the public record, even if he did eventually prevail at trial.

4) Potentially, McBerry would have to show "actual malice"--knowledge the story is false, or reckless disregard for its truth or falsity--in order to prevail. There is little law out there on the question of whether blogs enjoy the same first amendment protections as "traditional press" like newspapers in defamation cases, so this one is sort of a guess. The Supreme Court famously ruled in New York Times v. Sullivan that in order for a newspaper to have libeled a public figure, it must have shown actual malice--meaning either the newspaper knew a published statement was untrue or showed a reckless disregard for its truth or falsity. McBerry is arguably a public figure by virtue of qualifying as a candidate for Governor. The question is whether the blogs that published this story showed reckless disregard for the truth of the story or knew it was false. Now, as discussed briefly above, if the story is true then McBerry has no case. And if the bloggers who published the allegedly defamatory statements are protected by Sullivan to the same extent the AJC and other traditional media outlets are protected, then McBerry would need to prove that they showed a willful disregard for the truth of this story, which is a high burden and highly subjective because it relies upon the knowledge and intentions of the publisher of the libel.

I could write an entire series of posts on whether Sullivan applies to bloggers, and whether it should, but that is a post for another day when I have more free time. For now, if we assume it applies, then it makes a tough case to prove nearly impossible.

And that, my 3 readers, is why Ray McBerry's threats to sue will never be more than threats.

* I prefer to use the term "defamation" to cover both libel and slander, because people often erroneously use the two terms interchangeably and having one term that covers both is less confusing. Generally speaking, libel is written while slander is spoken, though the expanding definition of publication has led to libel also governing internet postings and TV/radio broadcasts. In the instant situation, the news stories containing the statements of the girl and parents about McBerry would be governed by libel laws, while the girl and her parents' actual spoken statements about McBerry would be governed by slander laws. However, because this gets confusing in a situation where slander is published in a potentially libelous news story, I'll just use defamation for both. The only real differences are that libel requires "publication" of the defamatory statement, slander requires actual damage to reputation through the spoken defamation, and there are some libel protections for press reports involving public figures as described above.

I do not think it means what they think it means

On several blogs today, I have seen the following scary warning about "secret language" that Harry Reid has somehow snuck into the Health Care Reform bill in the "dead of night" that will make it impossible for Congress to amend or repeal the bill later. Here's one example, taken from this comment:

Senate Majority Leader Harry Reid of Nevada buried this anti-democratic poison pill designed to prevent any future Congress from repealing the central feature of the Healtcare Bill.

Beginning on page 1,000 of the measure, Section 3403 reads in part: ". it shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment or conference report that would repeal or otherwise change this subsection."

In other words, if President Barack Obama signs this measure into law, no future Senate or House will be able to change a single word of Section 3403, regardless whether future Americans or their representatives in Congress wish otherwise!!

Note that the subsection at issue here concerns the regulatory power of the Independent Medicare Advisory Board (IMAB) to "reduce the per capita rate of growth in Medicare spending."

That is precisely the kind of open-ended grant of regulatory power that effectively establishes the IMAB as the ultimate arbiter of the cost, quality and quantity of health care to be made available to the American people.

And Reid wants the decisions of this group of unelected federal bureaucrats to be untouchable for all time.

No wonder the majority leader tossed aside assurances that senators and the public would have at least 72 hours to study the text of the final Senate version of Obamacare before the critical vote on cloture. And no wonder Reid was so desperate to rush his amendment through the Senate, even scheduling the key tally on it at 1 a.m., while America slept.

True to form, Reid wanted to keep his Section 3403 poison pill secret for as long as possible, just as he negotiated his bribes for the votes of Senators Mary Landrieu of Louisiana, Ben Nelson of Nebraska and Bernie Sanders of Vermont behind closed doors.

The final Orwellian touch in this subversion of democratic procedure is found in the ruling of the Reid-controlled Senate Parliamentarian that the anti-repeal provision is not a change in Senate rules, but rather of Senate "procedures."

Why is that significant?

Because for 200 years, changes in the Senate's standing rules have required approval by two-thirds of those voting, or 67 votes rather than the 60 Reid's amendment received.

Reid has flouted two centuries of standing Senate rules to pass a measure in the dead of night that no senator has read, and part of which can never be changed. If this is not tyranny, then what is?

DON'T SIT BY AND LET THIS HAPPEN IN THE DARK!!! FORWARD TO EVERYONE ON YOUR LIST!

Because these sorts of things tend to be total fabrication, I first went to check Snopes. Unfortunately their page lists the status of this story as "undetermined," because they are still researching it. I don't blame them for taking awhile, since the current HCR bill is 2500 pages long and not real fun to slog through. So, I did it for them. I read the relevant provision, which is over 30 pages of dull as hell. And the short answer is, the language quoted is in there, but it doesn't do what they say it does.

Section 3403 establishes an Independent Medicare Advisory Board that will study and submit proposals to the President and Congress each year, beginning in 2014, as to ways to contain costs in Medicare. Section (c)(2) specifies in subsection (A)(1) that the proposals submitted in each year must "include recommendations so that the proposal as a whole...will result in a net reduction in total Medicare program spending in the implementation year that is at least equal to [a savings target specified in another section.]" Also, "The proposal shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums...increase Medicare beneficiary cost-sharing...or otherwise restrict benefits or modify eligibility criteria." In addition, "the proposal shall not include any recommendation that would reduce payment rates for items and services furnished." Subsection (C) also requires that the proposal "be designed in such a manner that implementation of the recommendations contained in the proposal would not be expected to result...in any increase in the total amount of net Medicare program spending relative to the total amount of net...spending that would have occurred absent such implementation."

Later, in section (d)(3), the bill does state "It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, or amendment, pursuant to this subsection or conference report thereon, that fails to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2)." It also says "It shall not be in order in the Senate or House of Representatives to consider any bill, resolution amendment or conference report...that would repeal or otherwise change the recommendations of the Board if that change would fail to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2)." The bill then goes on to state that this particular provision cannot be repealed or changed except by a 3/5 vote, and specifies parliamentary rules limiting the length of debate on any such proposed changes.

So what does all this legal mumbo jumbo mean? Well, yes, the language cited above is really in the bill. But it doesn't prevent Congress from ever tinkering with healthcare reform as some would suggest, and it isn't designed to prevent oversight from a board intended to bring draconian healthcare rationing to Medicare. The bill's language expressly prohibits the board fromm implementing rationing, increase of premiums, and other scary things.

Instead, this language is intended to prevent Congress from rewriting the proposals to be drafted by a board whose sole job is to figure out ways to control healthcare costs. Controlling costs is often politically unpopular, so the fear would certianly be that a proposal would come to Congress and the politicians there would amend the proposal in perpetuity to add funding for all sorts of additional programs and violate the spending limits, in order to make their constitutents happy. We need only look at the way the closings of military bases were often botched or used as political footballs to see how easily cost cutting measures become viewed as political kryptonite for politicians to be wheeled and dealed away to nothing.

Also, this provision is limited solely to the section establishing the Independent Medicare Advisory Board. It does not apply to the rest of the bill, and it doesn't limit future tinkering with the rest of the legislation through amendments or even repeal.

Now, I do have a question as to whether this provision is Constitutional, so I am hoping the drafters of the bill included a severability clause making clear that just because one section might be thrown out by the courts, the rest of of the bill is unaffected and remains in place.

Still, if anyone tells you that Harry Reid and the Democrats are trying to pass healthcare reform that can never be amended or repealed no matter how much of a disaster it might be, you deserve to know what the bill really says. So, I read it so that you don't have to. Go forth and correct the misinformation, my readers.

What happens when you ignore "objective reality"

You may recall my little spat with Atlanta Progressive News' Matthew Cardinale last November over a misleading story he wrote about Kasim Reed's representation of the Cracker Barrel restaurant chain. In the story, Cardinale implied that Reed currently represented Cracker Barrel (my review of the docket showed he withdrew from the case in 2001 when he was still a young associate) and that he was defending Cracker Barrel against race discrimination claims brought by the NAACP (in fact it was a Fair Labor Standards Act case in which the NAACP filed an amicus brief). It took me all of half an hour reviewing the federal court's PACER docket to find that his story was full of misleading implications and omitted context. So, I called him a lazy biased fucking douchebag, which apparently offended his delicate sensibilities.

But Cardinale is SO committed to his irresponsibly slanted form of yellow journalism masquerading as progressive thought that he just fired one of APN's writers for insisting on a pursuit of "objective reality" (which apparently is pretty unwelcome at APN.) Ignoring objective reality in favor of a progressive slant is what allows Cardinale to write a story all about how Cracker Barrel is a big old racist company and Kasim Reed defends them in cases brought by the NAACP, while leaving out that this one case happened 9 years ago, had nothing to do with allegations of race discrimination, and the NAACP only played a tangential role. It also means that the stories coming out of APN must be viewed with an extremely critical eye, because there is no telling what facts have been emphasized or omitted depending on whether they do or do not support Cardinale's progressive vision.

I've long had concerns about APN's ethical integrity, only some of which I have publicly voiced on this blog. (Having friends in politics and journalism, and not wanting to throw stones without being sure *I* had a fully-sourced understanding of "objective reality" has caused me to hold my tongue when perhaps I shouldn't have.) The fact that Cardinale would and did fire a reporter for wanting to find the truth in a story does nothing to ease my concerns. Instead, it tells me exactly how it was possible to justify to himself the story he decided to tell about Kasim Reed last fall. Take any "news" reported by APN from this point forward with a massive heaping dose of salt...for we now know the rules of the game they are playing, and "objective reality" is not their goal.

Once again, Jon Stewart nails it

It would be pretty funny if it weren't so sad.

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Random Football Rant

Yesterday, longtime Florida State Defensive Coordinator Mickey Andrews finally put himself out of his own misery and announced he would retire after this season. This decision couldn't come soon enough, since FSU's defense is ranked 109th out of 120 teams...in other words, there's only 11 teams WORSE than we are on defense right now.

This creates an opening for next year, which poses a problem. Bobby Bowden only has one more year that he could possibly be head coach before FSU will have to pay Jimbo Fisher $5 mil. if they decide to keep Bobby. There is virtually no way that will happen, which means Bobby either retires this year, or next year. So, since Jimbo Fisher will apparently inherit the team after one more season, there is a question of who gets to pick the new Defensive Coordinator.

Normally the head coach gets to hire his coordinators, but if Bobby hired a new one, anyone interested in the job would have to realize they'd only have one year to prove themselves before Jimbo could replace them with whoever he wants. Who would take a job in that climate? Or, since Jimbo will be the coach after next season, FSU could let him choose the new Defensie Coordinator with the expectation that his choice would stay when Jimbo is elevated to Head Coach.

Today, Bobby Bowden announced he plans to select the next Defensive Coordinator. He might let Jimbo have some input, but he's still making the selection.

This makes me so angry I want to throw things. For starters, Bobby should be out at season's end. Our team is terrible, he's completely oblivious and saying things like how we're a few big plays away from being undefeated, and the boosters have lost faith in him. But he apparently intends to coach to the bitter end of his contract and continue to blindly believe that next year we'll magically have a good team even if all evidence points to Bobby and his handpicked staff having run the program into the ground.

But even if he wanted to coach one more year (something I wish the administration would strongly discourage), why the hell does he get to pick the Defensive Coordinator who will only coach under him for one dadgum year? When will he start acknowledging that starting in 2011 this is Jimbo Fisher's team, and his era is over?

There have been rumblings on the internets that Bobby intends to appoint Chuck Amato to the Defensive Coordinator position for 1 year. Amato was a former defensive assistant at FSU before he left to become head coach of NC State, where he was horrible. Now he's back with some bullshit title like "Executive Head Coach (who also pretends to coach linebackers)." Given how bad our defense is, I don't want anyone currently affiliated with the defensive coaching staff to even be in the running. In fact, I'd like to see virtually all of them replaced when Andrews leaves, hopefully with the input of the new DC.

But if Bobby appoints Amato to DC, nothing will change. The team will still suck. And all of us who care about FSU football will be sitting here twiddling our thumbs for another wasted year waiting for him to finally retire or die so that we can start rebuilding.

We have a fantastic quarterback in Christian Ponder, something that has been completely lost in this waste of a season. Ponder has the potential to be Heisman-worthy next year, if he could get the defensive support he needs to win games. By all but announcing his intention to stay next year, Bobby is probably dooming Ponder to the trash heap of wasted potential behind an inadequate defense. In all likelihood even the best Defensive Coordinator on the market wouldn't be able to turn around this shitty defense enough to help Ponder make a run at major glory next year, but at least we'd have a fighting chance and wouldn't be stuck in defenseless shootouts against the likes of USF, Georgia Tech, and N.C. State.

I wish someone in the Athletic Department or administration of FSU would FINALLY draw a line with Bowden. It's time, because this is unacceptable. If he stays next year and hand selects a Defensive Coordinator, I will not renew my season tickets or give another dime to the school until he's gone.

Legal Bullshit

Given my chosen profession, I have a natural fundamental respect for the rule of law. I believe that it must be adhered to unless adherence is either impossible or unconstitutional. But sometimes, law creates impossible situations, little cracks where a few unlucky citizens can fall in and become trapped. At those moments I feel some personal responsibility for being part of a profession that tries to improve lives but often ends up being the source of so much strife.

Wendy Whitaker is the latest victim of well-meaning but bad law. She made the mistake of performing oral sex on a 15 year old boy when she was 17 years old. She was convicted under a sodomy law later ruled unconstitutional, and now she must follow the many onerous regulations and rules for sex offenders for the rest of her life while in Georgia.

Whitaker has been lead plaintiff in a suit challenging the constitutionality of Georgia's sex offender laws that prohibit her from living near virtually any place that a child might occasionally inhabit, which has left her with only tiny pockets of the state that are not off-limits. While that suit has been creeping through the courts for the past 3 years, she has been trying to comply with the laws as best she can (with help of a temporary injunction), but she was just rearrested for failure to register a new address. She remains in jail, with bail set at $10,000. This is an outrage.

While I know many people will make the argument that Whitaker should just keep her nose clean while her case is pending and make sure all laws are complied with, this is a law that Whitaker should never have been forced to operate under. On the flip side, I could easily argue that it borders on malicious prosecution to rearrest someone for failing to comply with a law to which they have made a pending constitutional challenge. To throw her in jail for non-compliance while she is challenging a law that shouldn't apply to her amounts to some very dirty pool.

The Southern Center for Human Rights has been handling Whitaker's constitutional challenge for the past three years, but I'm not sure if they have a mechanism or the funding to pay for bail money for Whitaker. I hope someone will create a way for people like me who agree this case is bullshit to donate to a legal defense fund to pay Whitaker's bail and her defense costs in the new criminal case. I have little doubt that the eventual outcome of Whitaker's pending case will be a vindication of her constitutional right to live wherever she chooses, but that may take more than a decade to accomplish. In the meantime, she needs our help to keep her out of jail for something that should never have been imposed upon her.

If you have any details about a legal defense fund, please post in the comments. If I learn anything about such a fund, I will pass it on. And I will donate.

Cheaters Sometimes Win

As a diehard Red Sox fan, I was crushed to read yesterday that both Manny Ramirez and David Ortiz tested positive for banned substances in 2003. Manny wasn't all that surprising given his suspension this season, but Big Papi was a huge blow. Ortiz was the heart and soul of that 2004 team that broke the curse, and now everyone would assume it was fueled by the juice.

Jmac at Beyond the Trestle argues today that it's not really cheating if everyone's doing it. While I get the point he is trying to make, I still think it's despicable and worthy of punishment. I also think that trying to defend this behavior as "well, everyone was doing it" will only make Red Sox fans look like idiots willing to break that curse at any cost. It reminds me of this great Bill Simmons column that he wrote after Manny's bust back in May.

Yes, many of us who prayed we would see the curse broken in our lifetimes would probably gladly say, just like Bill's dad, "I'd do it again!"...even dirty. But we should hate ourselves for thinking that way. Really, does it matter that we "broke" the curse if we had to do it on the backs of guys who had career years under mysterious circumstances and who we now know were potentially still playing on the residue of 2003 juicing? If we found out that the entire team was playing with corked bats for the 2004 season, would we be OK with that too? Even though I love the New England Patriots and don't really believe they only won three Super Bowls because they taped other teams' signals, I still recognize that I can't defend that behavior to the rest of the league's fans. Similarly, I am not about to try and defend a juicer even if he happens to be my favorite current Red Sox player.

And as for the others who will now assert that the two Red Sox titles in this decade are now tainted, all Sox fans can do now is hope that enough information about other users comes out that EVERY title in the steriods era ends up tainted. Then, we can hopefully get baseball and its fans to recognize that we either have to accept that performance enhancing drugs are part of the game and have changed it forever, or get them to commit to cleaning up the game at any cost and start testing players religiously throughout the season. This crisis threatens to ruin not just the relief of Sox fans, but all of baseball if it continues on its present path.

Quote of the Day

From Glenn Thrush at Politico:

When do we start a serious dialog about the Birther movement being a proxy for racism that is unacceptable to articulate in more direct terms?

Now.

Disgusting

This will be the last and only time this blog links to Peach Pundit.

This is simply disgusting. I refuse to associate myself in any fashion with a race-baiting crazy person or any site that he runs.

It would be nice if the Republican party had the same no-tolerance policy for hateful crazy, but the sad events of the past few weeks have proven otherwise. Given that 28% of them also believe the complete whackjob nonsense about Obama being born outside the U.S., they deserve all the decades of wandering in the wilderness and being forced to pander to a lunatic fringe base that they're about to get.

Anyone who makes excuses for or is willing to tolerate the insanely offensive shit spewed at Peach Pundit today is also on my ignore list. I'm done with you folks.

Kenya smell the crazy?

Slowly but steadily over the past few weeks, the so-called "birthers" (people who believe Barack Obama was not actually born on U.S. soil and is therefore ineligible for the presidency) have picked up recruits to their cause. Just this week, both CNN's Lou Dobbs and right wing fire breathing radio host Rush Limbaugh signed on to the rumbling hordes demanding proof of citizenship.

But Gawker has a damn good point: even if you believe that the birth certificate that Obama's campaign produced last year was faked or created after the fact, how do you explain the birth announcement in the Honolulu paper that's been available on microfiche for decades?

Regardless, I agree with what Marc Ambinder wrote yesterday. The rise of this movement is more problematic for Republicans than Democrats:

Republicans have to be extra careful. If they give credence to the birthers, they're (not only advancing ignorance but also) betraying the narrowness of their base. If they dismiss this growing movement, they might drive birthers to find more extreme candidates, which will fragment a Republican political coalition.

Shameful, Shirley

There is no excuse for this. I understand why she doesn't want people to see it, though...how would Atlantans react if we knew people who had risked their lives to protect the rest of us were being treated in such shameful fashion?



Background here.

Jobs I've Had Part IV: the Lobbyist

When I returned to FSU for my junior year, I unfortunately had far less money saved from my summer job than I'd hoped. I had moved into an expensive apartment with my crazy friend Amanda (crazy like she went to a Bush concert while tripping and believed for over a year afterwards that Gavin Rossdale was in love with her crazy, not like haha wacky crazy) and knew that at some point during the school year I would need to get a job. Unfortunately I'd also gotten roped into running for and winning a Student Senate seat, thanks to Amanda signing us up to volunteer for a student political party and saying yes on behalf of both of us when they called to ask if they could run us as candidates instead. It was fun, but it was time-consuming and made even moreso because I met the man who I would almost marry, Gabe, while campaigning for the seat. So suddenly I had this extra-curricular activity and this boyfriend, and a full courseload, and no money. It was kind of a problem.

Luckily in January I heard about a friend who had been working for a lobbyist in the Florida legislature. He had fired another employee because she dared to get mononucleosis, which when you are working to accomplish lots of legislative priorities in a session that is only three months long is apparently an unforgiveable sin. The friend managed to talk me up as the sick girl's replacement, and I was hired for what at the time was the obscene rate of $10 per hour. There were two drawbacks: first, I'd have to be there every day at 7am to open the office. Second: I had to agree to work whenever he wanted, or I'd be fired just like the last girl. I was desperate for money, so I didn't mind. As added bonus, we were all paid under the table so I wouldn't have to worry about taxes.

This was about 1996, and Florida's legislature had just gone Republican for the first time in ages. The lobbyist I worked for was from South Florida and was also a political consultant to various Democratic politicians in the area. He was still coping with the change in the power structure, as were we all by extension. Most of my day was spent sending faxes on upcoming votes, important legislative priorities, and other news items to the various legislators' offices. Any fax that we sent out had to go to well over a hundred people, and it could take hours to complete. I remember on one occasion being called in early on a Saturday morning for a faxing project, and the document I was sending was so long that it took roughly 10 minutes to send to each recipient. I would type in the number, put the document in, and hit send and take a nap on the floor. When the fax was done it would beep, I'd wake up, and send the next fax. I did this for 10 hours straight.

At the time, many of the people who are now making a name for themselves nationally were in the Florida legislature. Charlie Crist, Katharine Harris, Debbie Wasserman-Schultz, and Robert Wexler all started out as state legislators and were serving in about this time period. Katharine Harris in particular stands out to me because she had this hilarious official portrait of herself hanging in the Capitol. She had her hair in a bun with a massive bubble at the top, looking like she was a librarian or a school principal (think the principal's hairdo in the movie "Pump Up the Volume"). Even then the rumor was that she was crazy. Charlie Crist was known as "Chain Gang Charlie" back then for repeatedly introducing legislation to bring chain gangs to Florida.

In addition to the endless faxing, we also ran various errands at the Capitol for the lobbyist. Often it was delivering donation checks or picking up revised versions of legislation. I recall two legislative initiatives that he was really working hard that session: viaticals, and tow trucks. I don't really recall the particulars on the tow truck issue but I know that a lot of tow truck owner organizations were donating a lot of money that session so they were obviously working some issue hard.

Viaticals were a much more compelling story. The viatical industry essentially buys up the beneficiary rights to a terminally ill person's life insurance policy and pays them out a portion of the proceeds in advance while they are still alive. The company makes its money when the person dies and they collect the full value of the policy. At the time, the industry was flourishing primarily by contracting with individuals with HIV. In the mid-1990's HIV was still considered a certain death sentence within a decade, and many of the individuals who were diagnosed did not have children or any other family that they particularly wanted their life insurance proceeds to go to. They argued powerfully and persuasively that they should be allowed to enjoy the fruits of their life insurance now to make their remaining years more comfortable, rather than living austerely and then seeing the money go to next of kin once they were gone. It was a tough issue and there were strong opinions all around. We were lobbying in support of the industry and against legislation that would have prohibited viatical contracts in Florida, and the strategy was to put the real stories of people who had entered into these contracts before the legislators and allow them to hear how the availability of this option had improved their last few years of life. We were able to defeat the legislation, though the industry has been under continued attack in Florida since then.

This job was certainly interesting and it looked good on a resume, but it wreaked complete havoc on my life that semester. My work hours were supposed to be from 7-10, go attend classes until 1, come back and work until the lobbyist told me I was done. I frequently worked until 9 or 10, sometimes later. Instead of going to classes during my midday break, I was often so tired that I went home and slept from 10-1, and I started missing a ton of class time. I was also so constantly exhausted from waking up at 6 to get to work by 7 that I would fall asleep in my car at red lights, or at the table when we were out at a restaurant. Gabe and I went to a Barnes and Noble one Saturday and I ended up sleeping in a chair for three hours. I normally am awakened at the slightest noise or movement in the room, so I have to be completely wiped out to sleep in a public, bright place. It was then that I decided being a morning person was never going to be my thing.

I'd stopped going to all of my classes by midway through the semester, and I expected to fail all of them. This was supposed to be my last semester in school, because I had been on track to graduate a year early. Instead, I had flunked out. I was a complete mess about it, but sort of felt immobilized about the whole thing. I would ultimately take the next semester off, convince the school to let me retroactively withdraw from all of my Spring 1996 classes, and restore my GPA to its former respectability before applying to law schools in spring of 1997. I was extremely lucky in that regard, as law school would not have been an option if a flunked out semester had stayed on my transcript. It helped that my grades had been fantastic except for that one abberration, so I'd been able to argue that I was working too much and that it was completely out of character for me to miss so much class. Thankfully I was able to get my transcript fixed BEFORE my parents found out about that semester, so I could tell them that the situation was already taken care of. I thought they were going to absolutely lose their shit when they found out. To this day, I still have nightmares about that time in my life and all the anxiety I felt about having screwed my future.

After the legislative session ended in May, there was talk of me continuing to work part time for the lobbyist while he was down in South Florida, checking the mail and completing various administrative tasks. I didn't particularly want to keep working there, and I was not at all disappointed when the lobbyist never contacted me with details about continuing part-time work. I turned in my key and started looking for something else.


Rusty's posts inspired this topic, and Garrett and Thomas are writing about their former jobs as well. Join in the fun, and I'll link to you too!

Quote of the Day

In a world gone mad, can you really afford to NOT give money to the troops, if it means that Sean Hannity gets waterboarded by the star of the Great Muppet Caper?

--Jason Linkins at Huffington Post.

Yes, Sean Hannity apparently agreed without thinking to let Charles Grodin waterboard him. They could put this on pay per view and make a trillion dollars.

(Via Left on Lanier)

"It's supposed to taste like a shit taco"

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I love Jon Stewart.

Via BfD

Hey, you're a crazy bitch

Now that Sarah Palin has been relegated back to Alaska at least until late 2010, Congresswoman Michele Bachmann would like to reassert her prior role as the crazy bitch standard bearer of the Republican party, one carefully wrestled from the clutches of one Katharine Harris.

Bachmann has been known for saying whacked out or stupid things for years now, (really, the list is too long to recount but you can peruse it here) but having another pretty face in the party really put a damper on her profile for awhile.

Well, take a listen to this insanity and see if she hasn't put herself back on your radar screen (the good stuff is at about the 2 minute mark).

Yes, she actually thinks that we might turn Americorps into mandatory reeducation camps. It is a bad sign when you make Rush Limbaugh appear eminently reasonable.

The Bonus Brouhaha

People are uniformly and understandably angered by the news this week that AIG, recipient of tens of billions in federal bailout money, recently paid its executives millions of dollars in bonuses. While I get the reason why so many commentators, citizens, and even members of Congress are outraged, I also think it's important to talk a little bit about how "bonuses" like this often work in the corporate world.

My law firm has shareholders rather than partners, and their compensation is essentially made up of two parts. First, they receive a base salary or "draw," which is paid monthly. The base salary is often only a small fraction of their total compensation. In addition, at the end of each fiscal year, each shareholder receives what is termed a "bonus," which is a percentage both of the billings by that attorney that the law firm has been paid for, and also the billings by other attorneys and staff on matters that the shareholder originated for the firm. I put bonus in quotation marks, because even though it is paid as such, it is pretty obvious that this payment is really compensation for specific work brought into the firm. However, there is a performance component as well, since a partner who does not hit their billable hours target and does not originate work by other attorneys in the firm may not be paid a bonus above their base salary. Under such a system, Some shareholders may have only a $200,000.00 annual draw, but will receive a "bonus" of $ 2million each year. (Yes, I say "only" $200,000.00. If it was 9% of your annual income you'd consider it small too. Let's save the argument about over-compensation of BigLaw attorneys for another time.)

I don't know the specific bonus structure or compensation scheme in use at AIG. But when I first heard about the bonuses paid by Merrill Lynch last year just before they were bought by Bank of America, I figured a similar compensation structure was in use in the financial markets industry. These executives may have contracts with their employers that specify a "bonus" equal to a portion of the deals completed, or assets traded, or some other pre-set percentage qualifier, will be paid at the end of the year as a portion of their total compensation. In the event the person actually hit their pre-specified targets (just as a partner at my firm, say, might bill 2500 hours for the year or originates billings of $5 million), why shouldn't that person be paid that portion of their compensation that they earned? Even if the entire company as a whole did badly, if that person qualified for their lump sum payout through their own performance, I do not think it as much of a problem for them to receive what is inartfully termed to be a "bonus" for that work.

Most of us when we think of bonuses think they are tied to the performance of our company and are paid to show employee appreciation. In many industries and in many companies, that is how it works. Every employee is paid $2000 at Christmastime, or every employee is paid $500 for every year they have worked with the firm. Or, every employee is paid a percentage of a company's profits for the year. Any of those scenarios, were they what happened at AIG, would be much more indefensible given a) the massive amounts paid out (73 employees received bonuses over $1 mil.) and the poor performance by the company requiring it to be bailed out by the feds. But we should be sure that is what actually happened before we grab our torches and pitchforks.

When Obama talked about not having the power to undo contractual arrangements when the first TARP money was paid out, this is what he is talking about. The issue is a little bit more complex than telling the company that you won't bail them out unless they refuse to pay bonuses. A person who has complied with the terms of their contract and, under those terms, is entitled to a set payment would have a valid right to sue AIG for refusing to pay their earned bonus. And does the federal government have the power to require a company to preemptively breach its contracts if it is going to receive federal money? These are slightly more complex questions than the top level outrage and vitriol the media is currently throwing at the issue.

It may also be that the AIG bonuses are indefensible corporate waste and greed, and if that is the case I will grab a pitchfork and join the march. But let's find out a little bit more first.

And Back to Bleh

While I've been slaving over an emergency motion, the Georgia Senate invalidated my brief glimmer of non-hatred by taking back up the embryo bill and passing it.

I hate them all.

Um, no.

You are not putting 28 miles of tunnels underneath my 'hood. Sorry.

Need I remind you that the last major tunnel-under-a-big-city project KILLED SOMEONE?

Why is it always the guy from some two stoplight town I've never heard of (in this case Pine Mountain, GA) who proposes to dig up the city of Atlanta to build these deathtrap tunnels?

Update: Rusty has also written about the rampant stupidity of this idea here.

Target Acquired

Most of the Republican senators who I'd most like to see replaced in 2010 have already done us the favor of announcing they are not seeking re-election, so I've had a hard time lately figuring out who I'm going to root against. Jim Bunning just decided to stand up, wave his hands in the air, and announce "Yoo-Hoo, look over here!!!" with this choice quote from a recent speech:

During a wide-ranging 30-minute speech on Saturday at the Hardin County Republican Party's Lincoln Day Dinner, Bunning said he supports conservative judges "and that's going to be in place very shortly because Ruth Bader Ginsburg … has cancer."

"Bad cancer. The kind that you don't get better from," he told a crowd of about 100 at the old State Theater.

"Even though she was operated on, usually, nine months is the longest that anybody would live after (being diagnosed) with pancreatic cancer," he said.

Ignoring the appalling insensitivity of the statement for a moment, and ignoring that the statistics for survival of pancreatic cancer are skewed by how often it is discovered in the late stages, Bunning is still a total moron. We have a Democratic president now, who gets to nominate a justice to fill any vacancy that might come up on the Court. We only have 41 Republican senators (assuming Norm Coleman will eventually lose the election battle in Minnesota.) So how, exactly, does Bunning think this conservative majority on the Court is going to come about? Does he honestly believe that the 41 will filibuster every liberal or moderate nominee that Obama might bring them?

Now, in addition to his apparent stupidity over how the process works, Bunning is also dancing dangerously close to the line in his barely-concealed glee over Ginsburg's health woes. Why isn't the press and public calling this guy out on his inappropriate comments? Like her or loathe her, Justice Ginsburg is still a respected jurist on the highest Court in our country. No elected public official should have the complete lack of class and grace to publicly hope for her death.

Bunning is up for re-election in 2010 and has been an attractive target in the past. He's a bad fundraiser, and prone to saying dumb and offensive things. Time magazine named him one of the 5 worst Senators in 2006, and noted that in 2004 he won by only 2 points when President Bush carried Kentucky by 20. He is not known for any legislative achievements or particular policy expertise, apart from knowing a thing or two about baseball. Even his own party appears to want him out of the race because they think he is a sitting duck.

So, here is the first big target of the 2010 election. Several good Democratic candidates are jockeying for position to take Bunning on, including the man who almost beat him in 2004. Let's make it happen.

What can be done?

Creative Loafing's Thomas Wheatley has an eerily appropriately timed piece today about how violent crime is becoming more brazen in the Atlanta intown neighborhoods previously thought to be "safer" than some of the tougher neighborhoods in the city. He speaks to a victim of a robbery at gunpoint who listened as his robbers discussed whether to shoot him. It is a chilling tale, and I hope it will serve as a wakeup call to many that violent crime is becoming a very serious threat to all of us here in the city.

I have been quietly worried for well over a year that violent crime was on the rise in the city of Atlanta. Each time I heard a story about a violent crime that happened near my house, or in a place that I have been to before, or in a way that makes me think "that could have been me," I shuddered and resolved to be a little safer and smarter.

But, I still walk alone at night through my neighborhood (Virginia-Highland), I still have walked alone in downtown Atlanta at night, and I still don't have my alarm system at home connected anymore. I drive to Grant Park and the Old Fourth Ward every once in awhile to play poker, and I walk to my car alone afterwards. I recognize that I have been lucky, even as a steady stream of violent crimes in places near my house or where I spend time have been occurring since 2007:

A man was shot and later died after leaving the Euclid Avenue Yacht Club in Little Five Points.

A man was shot and killed less than half a mile from my house, at the corner of Monroe Dr. and Amsterdam Ave., in summer of 2007.

Women were attacked and sexually assaulted in the parking lot of the Amsterdam Walk shopping and dining area last January.

Two lawyers were kidnapped outside an East Atlanta bar last summer and held for 13 hours.

Last month, armed robbers walked into a crowded Fellini's in Decatur and robbed the place at gunpoint.

Why do I say that Wheatley's piece is appropriately timed? Because last night armed robbers broke into the Standard, a bar on Memorial Drive near Grant Park. They shot employee John Henderson in the head and he later died. I probably don't know John Henderson, but I have spent some time at the Standard and have a lot of friends who know the people there very well. I know people who will be grieving for Henderson, and who will also be thinking today about how easily this could have happened to them. I have friends who are bartenders, who close bars late at night and could be in the wrong place at the wrong time. Just like I have friends who eat at Fellini's in Decatur, or walk to their cars in Grant Park, or walk from Euclid Ave. Yacht Club to apartments in Little Five.

We should all be scared by this trend, not just when it happens to someone we know but because it could happen to any of us.

What can be done? We have a city and county in budget freefall that's scaling back patrol hours for police. We have a police department and sherriff's department that have been marked primarily by ineptitude for years. We have an economic disaster that is causing more and more people to turn to crime to make ends meet. And we have criminals who are becoming more brazen because they know they can get away with it in this environment.

I'm scared and pissed off, and I don't know what to do. Is there any realistic solution that actually reduces violent crime? (Short of moving to a farmhouse in the country and buying 87 shotguns?)