Caught “Red-Handed?”

Summary

A MoveOn.org Political Action ad campaign says four House Members have been “caught red-handed” accepting money from energy companies, and voting “against bills that would have penalized those companies for price gouging.” The ads compare the four with convicted former lobbyist Jack Abramoff.

In fact, none of the four members have done anything illegal. They opposed Democratic legislation that would have made it a crime punishable by up to 10 years in prison to charge an “unconscionably excessive” price for gasoline, whatever that means.

Rep. Nancy Johnson responded with an ad saying MoveOn “compared America’s leaders to Nazis,” which isn’t exactly true. MoveOn.org Voter Fund did show a digital ad on its Web site for a time in 2004 comparing President Bush to Hitler. However, the ad was not paid for or produced by MoveOn; it was produced by another group as a contest entry, and MoveOn pulled it and apologized when objections were raised.

Update April 28: MoveOn.org unveiled another version of the “red-handed” ad, targeting the same House Republicans for supporting President Bush’s Prescription Drug Plan. It says they voted for “a law that actually prevents Medicare from negotiating lower drug prices for seniors.” That’s true, but ignores evidence that the new plan is saving several hundred dollars per year on the prescription bill of the average senior who enrolls.

Update April 12: MoveOn.org wrote us calling our article “substantially off the mark” regarding their ad. For their objections and our response see “Footnote” at the end of the Analysis section.

Analysis

On April 3, MoveOn.org Political Action announced they would be airing television ads against four Republican House members: Deborah Pryce of Ohio, Chris Chocola of Indiana, Nancy Johnson of Connecticut, and Thelma Drake of Virginia. The ads are called “Red Handed – Energy” and they are scheduled to air on local television stations in the members’ districts.

The ads say the four were “caught red-handed, protecting oil company profits,” and that they “voted against bills that would have penalized [energy] companies for price gouging.” The message is reinforced by a powerful visual image of black and white photos of each member – their hands stained a vivid red – along with similar crimson-stained images of Jack Abramoff, Rep. Tom DeLay, and Vice President Cheney.

NBC stations in Hartford, CT and Columbus, OH have said they will not be running the MoveOn ads. Neither station specified what they found objectionable.

Red-Handed?

These ads strongly imply that the four House members have been caught committing a crime, which isn’t true.

The Oxford English Dictionary defines the term “red-handed” as being caught “in the very act of crime.” In fact, one meaning given by the OED is, “fresh from the commission of murder or homicide; having the hands red with blood.”

The ad’s implication of a crime is strengthened by the juxtaposed images of Abramoff, who has been convicted of fraud, tax evasion and other corruption charges, and of DeLay, who was indicted in Texas and accused of laundering campaign money, which DeLay denies.

Unlike Abramoff and DeLay, however, none of the four House members has been accused of any crime, and we could find no mention of any of the four in news stories about Abramoff’s illegal and questionable activities. Pryce returned $8,000 in donations she received from Indian tribes represented by Abramoff, The AP reported. The Columbus Dispatch also reported that Pryce was among dozens of House Republicans who held fundraisers at Signatures, a restaurant once owned by Abramoff.

The Legislation

The ad also mischaracterizes the price-gouging legislation that the four Republicans opposed, saying that the measures “would have penalized those (energy) companies for price gouging.” In fact, it’s not clear the legislation would have penalized anybody.

Support for the legislation was divided along party line.  It was unanimously supported by House Democrats and opposed by almost every House Republican. Three similar measures came to a vote, and all were defeated. One attracted three Republican votes, another two, the most stringent measure was killed on a pure party-line vote. All would have established staggeringly large penalties for “price gouging” in the future – the most stringent provided for fines up to $100 million and prison terms of up to 10 years. But all three would have defined “gouging” in hazy and subjective terms that could prove difficult to enforce or uphold in court.

What the legislation would have prohibited is selling petroleum products at a price that is “unconscionably excessive” or “indicates the seller is taking unfair advantage.” What’s “unfair” or “unconscionable” is of course a matter of opinion. And there’s no clear economic definition of what constitutes an “unconscionable” price.

As the Federal Trade Commission’s chief economist Michael A. Salinger noted in a Feb. 27 speech to the Boston Bar Association:

FTC’s Michael Salinger: Just down the road at Boston University, where I have taught for many years, we do not teach “unconscionable” as a well-defined economic term. . . As far as I can tell, placing the term in a statute gives a district attorney or, in the case of a federal statute, a US attorney the right to go after whichever gas stations charge the highest prices.

So, saying that the anti-gouging proposals “would” penalize energy companies is misleading. It might or it might not. The ad would have been accurate to say the legislation “might have” penalized future price gouging. It certainly would not have penalized prices charged in the past, since none of the measures would have taken effect until enacted, and could not be applied retroactively.

Campaign Money

The ads begin by saying how much each of the four Representatives have received from energy companies. It’s true that all four did receive political donations from energy companies as described, but so did many Democrats. According to The Center for Responsive Politics, Rep. Bart Stupak of Michigan, who sponsored two of the three price-gouging amendments favored by MoveOn, received $292,826 from energy and natural resources PAC’s since his election in 1992, more than any of the four Republicans targeted by MoveOn’s ads.

Johnson Responds

Rep. Nancy Johnson responded with an ad including still photos from the MoveOn ad along with photos of her Democratic challenger, Chris Murphy. Johnson’s district is one of the two where NBC’s local stations refused to air the MoveOn ad, though other stations in the district are running it.

Johnson’s ad begins by saying MoveOn is “at it again – helping politician Chris Murphy,” and that “[MoveOn] compared America’s leaders to Nazis.”

That’s a reference to one of two ads that appeared for a time on MoveOn’s Web site, comparing Bush to Hitler. Johnson’s ad shows clips of one with footage of Hitler and a picture of President Bush. It said, “What were war crimes in 1945 is [sic] foreign policy in 2003.” The ad wasn’t produced by MoveOn, however. It was produced by an outside group and entered in a MoveOn competition for anti-Bush commercials. When Republicans objected, and the Anti-Defamation League called it “vile,” MoveOn quickly removed the ad and apologized, saying it “slipped through [their] screening process.”

Price Gouging

Johnson’s current ad also says she “voted to penalize oil companies for price gouging.” That’s not quite true. In fact, what Johnson supported would make price gouging a civil offense, not a criminal offense as in the Democratic legislation. It would provide a maximum fine of $11,000 with no possibility of a prison term for anyone convicted. It does not attempt to define “price gouging” but leaves that to the Federal Trade Commission. The measure was approved by the House but has yet to be taken up by the Senate. Whether it would actually “penalize” anybody in the future, even if passed, is unclear.

Update: Rx Drugs

Update April 28: MoveOn.org released on April 26 a second version of their “Caught Red-Handed” ad targeting the same four Republican House Members, faulting them for supporting President’ Bush’s Medicare Prescription Drug Bill.

The ads say that although “seniors relied” on them, the four Representatives “got caught red-handed voting for a law that actually prevents Medicare from negotiating lower drug prices for seniors.”

It is true that the bill prevents the federal government from negotiating for discounts from drug suppliers. Nevertheless, evidence to date shows seniors are saving money under the new drug program even without the government’s ability to negotiate lower prices.

A Washington Post – ABC News poll found that 63 per cent of seniors who have enrolled in the program say they are saving money.  Another survey conducted by Medicare RX Education Network, a coalition of 79 national organizations led by former U.S. Senator John Breaux (D-LA), found that 80 per cent of seniors like the new prescription plan.

Critics of the bill argue that enrollment is too confusing, yet that opinion is not held by seniors who have enrolled in the program. The Kaiser Family Foundation, a non-profit independent foundation that focuses on healthcare issues released a survey this month which found that 51% of seniors found enrollment to be “very easy” or “somewhat easy” while only a quarter of those surveyed found the process “very difficult.”  Further, 82% of enrollees said they encountered “no problems” filling their prescriptions under the new program.

The Kaiser foundation has estimated the average senior who enrolls will spend $465 less in 2006 for drugs than they would have done without the new benefit, after taking all co-payments and premiums into account. That’s a saving of 37 per cent. It will take some time to determine what the average savings turn out to be in actual practice. The program took effect Jan. 1, and seniors have until May 15 to sign up without penalty.

 

FOOTNOTE April 12: MoveOn.org Political Action’s executive director, Eli Pariser, wrote us saying this article is “substantially off the mark in several important respects.” We disagree, for reasons given below. However, as a courtesy to MoveOn.org and as a service to our readers we are posting Pariser’s letter here.

Pariser says: “Our ads never say that the four members of Congress did anything illegal, only that they did something wrong. . .” He cites a definition of “red-handed” that is milder than the one we quoted, saying Merriam-Webster defines the phrase as caught “in the act of committing a crime or misdeed.” 

We agree that definitions vary, and so “caught red-handed” doesn’t always mean caught in a criminal act. What we said was that the ad “strongly implies” a crime. We continue to believe that MoveOn invited that interpretation by visually comparing their targets to a convicted felon and a congressman under indictment while saying “another Republican caught red-handed.”

Pariser also says of his targets, “By voting yes on HR 3893, the four members performed ‘wrong deeds.'” In support of that idea, he quotes a “dear colleague” letter from Republican Rep. Sherwood Boehlert as saying HR 3893 “will increase the deficit, harm the environment, undermine the states and give charity to the oil companies.” Boehlert was one of a dozen Republicans voting against the refinery measure.

We think it is Pariser who’s off the mark here. He is certainly entitled to his opinion about HR 3893, and so is Rep. Boehlert. However, HR 3893 is not the price-gouging legislation mentioned in MoveOn’s ad. Furthermore Rep. Boehlert’s “dear colleague” letter makes no reference at all to the price gouging legislation that was the subject of the ad. In fact, Boehlert voted against all three Democratic price-gouging amendments.

HR 3893 was a measure to grant regulatory relief for companies building new refineries, to grant subsidies to small refiners, and to make certain federal lands available for siting new refineries. MoveOn’s ad said the four targeted Republicans “voted against bills that would have penalized (energy) companies for price gouging.” The ad made no mention of HR 3893, and all four targeted Republican voted for the bill.

Pariser states that “HR 3893 is the price gouging legislation,” but that is misleading. The bill as passed by the House does contain a section with Republican language making price gouging a civil offense and leaving it to the Federal Trade Commission to define, the language we noted in our comments on Rep. Johnson’s response ad. It is not the legislation the four targeted Republicans “voted against.”

Media

Watch MoveOn.org “Red Handed-Energy” (Chocola)

Watch MoveOn.org “Red Handed-Energy” (Drake)

Watch MoveOn.org “Red Handed-Energy” (Johnson)

Watch MoveOn.org “Red Handed-Energy” (Pryce)

Watch Nancy Johnson For Congress Ad: “Vile”

 

Supporting Documents

View “Red-Handed Energy” scripts for Reps. Chocola, Drake, and Johnson here.

View Rep. Boehlert’s “Dear Colleague” Letter here.

View MoveOn.org’s response to our article here.

Sources

“Violence Against Women and Department of Justice Reauthorization Act of 2005,”  HR 3402.  109th Congress.  1st Session.

Congressional Record. 28 Sept 2005. H8478

Congressional Record. 7 Oct 2005. H8785 – H8786

Congressional Record. 7 Oct 2005. H8790

“The Gasoline for America’s Security Act of 2005,” HR 3893.  109th Congress. 1st Session.

House Amendment No. 589. Text. Congressional Record. H8778-H8780

House of Representatives Roll Call Vote No. 500.

House of Representatives Roll Call Vote No. 517.

House of Representatives Roll Call Vote No. 518.

House of Representatives Roll Call Vote No. 519.

Kessler, E.J. “Bush Campaign Refuses to Pull Nazi Web Ad Despite Criticism,” Ethics NewsWatch.  2 July 2004.  Vol. CVII; No. 31; Pg. 1.

Kurtz, Howard. “Anti-Bush Ad Contest Includes Hitler Images,” The Washington Post. 6 January 2004.

Lester, Will. “2 TV Stations Reject Move-On Ads Against GOP Lawmakers,” The Associated Press State & Local Wire.  4 April 2006.

Michael A. Salinger, Director, Bureau of Economics, Federal Trade Commission, “Address to Antitrust Committee of Boston Bar Association,” 27 Feb 2006.

O’Dell, Larry.  “Liberal PAC launches ad campaign against Drake,” The Associated Press State & Local Wire. 4 April 2006.

York, Byron.  “For MoveOn.org, what’s wrong with Hitler TV ads?,” The Hill. 7 January 2004. pg. 13.

Jim Mays, Monica Brenner, Tricia Neuman, Juliette Cubanski and Gary Claxton, “Estimates of Medicare Beneficiaries’ out-of-pocket drug spending in 2006: Modeling the Impact of the MMA,” Kaiser Family Foundation, Nov. 2004.

“Survey: Seniors like new prescription plan,” United Press International , 3 Apr 2006.