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Rebuttal to D.C. Examiner’s so-called “Editorial” of May 6, 2008



While I am as big a fan of the D.C. Examiner as anyone–and I especially enjoy the work of William Flook, one of their staff writers–I cannot let the blather that was passed off as an editorial yesterday stand without comment.

Of course, I realize that editorials are specifically intended to take controversial positions on pressing issues of the day.  Editorials are intended to spark letter writing, discussion, and debate.  Moreover, there is no doubt that the False Claims Correction Act of 2007 is among the pressing issues of the day, regardless of whether you agree or disagree with it, so it is fair game for editorial writers. 

My problem–and the reason I label the editorial as blather–is not that the article takes a position I disagree with.  The article yesterday is blather because it is not an editorial at all.  In fact, the article yesterday does a grave disservice to the art and tradition of editorializing in the American press. I would have enjoyed reading a well-written, intelligent editorial raising good arguments against the False Claims Correction Act–although I would still reserve the right to blog in response. 

The simple fact is that this editorial was written by someone without any understanding at all of basic legal terminology and basic legal concepts–never mind the political history and economics of the False Claims Act.  It was obviously written by someone with an obvious bias who was not concerned with being taken seriously by educated readers–in other words, someone with no business writing editorials for a D.C. area newspaper.     

First, the author’s complete ignorance of basic legal terminology is offensive.  The article consists of 408 words total, and the words “class action” appear no less than seven times.  This is complete stupidity, because the FCA does not, never has, and never will, have anything to do with class actions.  Rather, I mention this first because it shows the author’s obvious ignorance, and highlights his or her efforts to trot out the old familiar terminology instead of actually contributing something to the debate.  Any further discussion of this logical error would quickly devolve into dry legal stuff, so I will move on. 

Second, the politics and history of the False Claims Act was profoundly botched. The author fails to recognize that the FCA is a bipartisan issue that crosses party lines.  The author refers to Sen. Grassley (R-IA) and Sen. Specter (R-PA), both Republicans, as if they were turncoats who are hurting their own party in an effort to cater to “plaintiffs lawyers.”  (By the way, the phrase “plaintiffs lawyers” is used no less than eight times in the 408 word essay.) 

Leaving aside the fact that the FCA enjoys bipartisan support, Republicans have often been at the forefront of the FCA.  The primary proponent of the original statute was Abraham Lincoln, the very founder of the Republican Party.  In fact, the FCA was known for years as “Lincoln’s Law.”  In 1986, Ronald Reagan breathed new life into the FCA by signing the 1986 FCA amendments.  John Ashcroft, the first Attorney General under President Bush, was a zealous advocate for the FCA–and he was in no way in favor of class actions or plaintiffs lawyers.  These are just two examples that occur to me off the top of my head–the list could go on and on. 

The most offensive part, however, is the following: 
  
   The details [of the FCA] are a bit abstruse; what’s important is that the bill would enrich 
    the class action plaintiffs’ bar, while encouraging witch hunts against businesses 
    for alleged fraud that in most cases doesn’t even exist.


Fraud against the federal government doesn’t exist?  The author obviously has no clue–about government contracting, healthcare, social security, the budget process, politics, or anything else.  I wonder why the Department of Health and Human Services bothers to publish all of those work plans for fraud investigations if there is no fraud?  Why do we even have an Office of the Inspector General at all?  Why do we have so many criminal laws criminalizing Medicare and Medicaid fraud if there is so little fraud? 

And then I saw the next page, and everything became clear.  The next page features a quarter-page advertisement from the U.S. Chamber of Commerce and the Institute for Legal Reform, two voices against the FCA.  Obviously, this ignorant editorial was quickly written to pander these deep-pocket advertisers, whom the D.C. Examiner can scarcely afford to lose.  

I cannot resist the urge to throw in a jab at the U.S. Chamber of Commerce here.  Government, in all of its forms, does not create wealth; rather, government redistributes wealth.  A large part of politics today turns on the who, where, when, why and how the wealth of the American people is redistributed.  Players like the U.S. Chamber of Commerce, I think it is fair to say, are generally against increased government, and in favor of the privatization of government functions. 

The U.S. Chamber of Commerce would, I think, agree with me that private industry is, as a rule, more efficient and cost effective than government.  So I find it interesting that the U.S. Chamber of Commerce protests so vehemently against the privatization of law enforcement by statutes such as the FCA. 

Could we not get more efficient and cost effective law enforcement through privatization?  You bet, and that is why we have laws such as the FCA.  The U.S. Chamber of Commerce is only in favor of some privatization, however, and they are all in favor of redistribution of wealth, so long as the money is redistributed to business.  

The False Claims Correction Act of 2007, like everything in civil society, is and should be the subject of intelligent debate and discussion.  The D.C. Examiner’s Editorial of May 6, 2008 contributes nothing to the public debate about the False Claims Correction Act.  Moreover, by trotting old familiar emotion-laden words like “class action” that have nothing to do with the FCA, the editorial became nothing more than a rant–and a pandering one designed to keep a deep pockets advertiser happy, at that. 

What a shame.

Zachary A. Kitts
Cook & Kitts, PLLC


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