Romney Bain Capital Scandal: Why Possible Mitt Romney Lies Matter

For those of you unfamiliar with the emerging scandal involving Mitt Romney and Bain Capital, I have broken down the debacle into five convenient sets of bullet points:

Romney's Actions:

- In a federal disclosure form filed on August 12, 2011, Mitt Romney wrote that he had retired as CEO of Bain Capital to run the Salt Lake City Winter Olympics on February 11, 1999. Since then, Romney wrote, he had not "had any active role with any Bain Capital entity and has not been involved in the operations of any Bain Capital entity in any way."

- Last week, the Boston Globe revealed Bain Capital filed documents with the Securities and Exchange Commission (SEC) as late as 2002 reporting Romney as "sole stockholder, chairman of the board, chief executive officer, and president" of the company. Massachusetts financial disclosure forms also report that he earned at least $100,000 as a Bain "executive" in 2001 and 2002 and owned 100% of the company as of 2002.

- Independent sources are being discovered that also suggest Romney continued his involvement in the company after 1999. These include a Boston Globe article from 2002 in which Romney is referred to multiple times as the "CEO of Bain Capital until 2001" and testimony given by Romney that same year in which he mentions attending board meetings for at least three of Bain's companies, LifeLike Co., Marriott International, and Staples. At that same hearing, one of Romney's lawyers even declared that, “Now while all that was going on, very much in the public eye, what happened to his private and public ties to the Commonwealth of Massachusetts? And the answer is they continued unabated just as they had.

Romney's Motives:

- A decade ago, Romney would have had good reason to exaggerate his involvement with Bain Capital. Back when he was running for Governor of Massachusetts, a controversy emerged as to whether Romney still qualified as a state resident, given his extensive work in Salt Lake City. His continued business involvement with Bain Capital was cited as among the pieces of evidence proving that he had maintained sufficient ties with Massachusetts to be eligible for higher office in that state.

- Romney also had a motive for lying on his federal disclosure form last year. It is well-known that Bain Capital was responsible for numerous layoffs between 1999 and 2002, a fact that could work against Romney as he attempts to win over unemployed voters who blame corporate cupidity for their plight. Indeed, even Newt Gingrich briefly broached this subject during his campaign against Romney for the nomination last year.

- Now Romney has a motive to do everything in his power to reconcile the apparent inconsistency between what he said during the 2002 gubernatorial election (that he had been involved with Bain up to that year) and what he is saying during this election (that he left Bain in 1999). That is because, if he lied on any of the key government documents in question, he committed a felony.

The Law:

- If Mitt Romney lied on his SEC forms, it would constitute a violation of Rule 10b-5 of the Securities and Exchange Act of 1934.

- If Mitt Romney lied on last year's federal disclosure form, it would constitute a violation of the False Statements Accountability Act of 1996.

The Reactions:

- Obama's team is missing the point. In a statement made by campaign senior adviser Stephanie Cutter, they claimed that:

"Either Mitt Romney, through his own words and his own signature, was misrepresenting his position at Bain to the SEC, which is a felony, or he was misrepresenting his position at Bain to the American people to avoid responsibility for some of the consequences of his investments."

This isn't entirely accurate, since it depicts Romney as being either a criminal (if he lied on his SEC forms) or simply dishonest (if he lied on his his 2011 federal disclosure form). Clearly the Obama people need to read the False Statements Accountability Act of 1996, since if they did, they'd realize that both acts are illegal. If Romney lied on either one of those occasions, he broke the law.

- Romney's team, naturally, is trying to avoid the issue by blaming Obama for bringing it up. As Romney campaign manager Matt Rhoades put it:

"President Obama's campaign hit a new low today when one of its senior advisers made a reckless and unsubstantiated charge to reporters about Mitt Romney that was so over the top that it calls into question the integrity of their entire campaign. President Obama ought to apologize for the out-of-control behavior of his staff, which demeans the office he holds. Campaigns are supposed to be hard fought, but statements like those made by Stephanie Cutter belittle the process and the candidate on whose behalf she works."

Regardless of whether you feel Obama's campaign should have broached the possibility of criminal wrongdoing or allowed the media to explore that on its own, none of those questions have anything to do with whether Romney broke the law.

- The media's reaction to this can be summed up in one word: pathetic. Instead of simply reporting the relevant information as it comes out and demanding answers from the various parties involved, different outlets have taken sides, with Mother Jones, Talking Points Memo, and MSNBC blasting Romney while Fortune Magazine, FactCheck.org, and CNN's John King defend him. On all of these occasions, in lieu of definitive proof as to Romney's innocence or guilt, these publications instead rest on their own personal, and entirely subjective, interpretations of the law and existing evidence. Even the fact-checker for 'The Washington Post,' Glenn Kessler, had to rest his defense of Romney on the vague wording of the Massachusetts Ballot Law Commission report (even as ignored the testimony Romney had given at the same time) and on his belief that Romney would never have perjured himself on the 2011 financial disclosure form. While this would be appropriate in a political debate or a court of law, it merely serves to muddle the issues in the eyes of voters who depend on these news sources. All the media should do is (a) report the details of the alleged discrepancy in Romney's accounts of his career at Bain and explain the potential legal consequences of that discrepancy, (b) provide Romney with a fair forum with which to offer his own side of the story, and (c) ask him to defend his position should part or all of it be found wanting. The decision as to who is right and wrong here should be left to the people and, if necessary, the courts.

The Bottom Line:

The American people have the right to know if they are electing a potential felon before casting their ballots. We can't afford a repeat of the 1972 presidential election in which, despite the gradual emergence of details about the Watergate scandal, the reticence of journalists to delve deeply into the story (aside from Bob Woodward and Carl Bernstein) deprived Republican Party delegates, and eventually the voters themselves, of the information they needed to avoid electing a man who would be forced to resign less than two years later. As such, it behooves the Obama campaign and the media to do the following:

- They should demand that Mitt Romney release his tax returns tracing back at least to 1999. Not only would this answer other lingering questions about the degree to which his great wealth helped him to pay less in taxes than middle-class and working class Americans, but it would also provide new information that would help us understand his relationship with Bain Capital during the period in question.

- They should demand that all documents which are potentially germane to any role Romney might have played with Bain Capital between 1999 and 2002 be released to the public. This includes not only forms from that company, but those from LifeLike Co. and Staples.

- They should demand that Romney write an editorial, to be printed in the publication of his choice, explaining clearly and unambiguously how he can reconcile the seeming discrepancy between what he said a decade ago and what he is saying today. Rather than expecting the rest of us to parse through the facts and come to our own conclusions, he should step up and provide a thorough explanation of what he claims happened, so that we can compare his story to the facts and see if they match up.

- They should demand that Romney answer all reasonable questions about his career at Bain Capital between 1999 and 2002 and, more important, draw attention to any and all instances in which he evades certain questions or provides inaccurate responses.

Regardless of whether one supports or opposes Romney, there is no doubt that valid questions exist as to whether he broke the law. Until those questions are answered one way or another, we have a responsibility to make sure that America keeps hearing them being asked.