This letter was written to Jerry Ceppos, editor of the San Jose Mercury News, out of frustration with the news coverage for the various propositions on the ballot during the 1996 elections. The letter was submitted as a proposal, not for publication. I received no reply and have not seen the proposal adopted.
For reference, Proposition 211, which is mentioned in the text, proposed to undo recent court rulings which made it more difficult for shareholders to sue companies over volatile stock prices. It was considered by business leaders in the Silicon Valley to be an invitation to ‘blackmail’ suits, in which companies are threatened with expensive and time-consuming litigation over routine fluctuations of their stock price unless they settle up- front; lawyers and consumer activists considered the proposition to be a necessity to restore the rights of shareholders to sue for fraud.
12 October 1996
Dear Mr. Ceppos,
I met you several years ago when I participated in a forum at the Mercury News about journalistic ethics. I am now writing to you because of a concern about the way controversial legislative issues, particularly ballot initiatives, are presented and debated for public judgement. I have a proposal for augmenting the public debate to clarify the issues involved; I hope you will find this proposal of sufficient interest to bring it to fruition.
Recent and past press coverage of proposed legislative action on high-profile issues — from the 1992 “civil rights” bill in congress to the current proposition 211 here in California — has left me convinced that the standard approach to public discussion and reporting on such issues will never provide the public enough information to make informed and intelligent decisions on the merits of the legislation. Typical reports either merely restate the fears of the most extreme proponents/opponents, supported by untested assumptions and contradictory statistics of murky origin and even murkier meaning, or analyze the political efforts for/against the proposal with no reference to its underlying policy value. Even in the rare cases when the actual text of a proposed bill or initiative is published for public scrutiny, it is usually presented in isolation, with minimal or no historical context, legal precedent, or independently-verified statistical evidence from which we may infer with any certainty the true effect the proposal will have if it becomes law.
The problem, of course, is that the benefit (or cost) of such legislation frequently hinges not on what the legislation says but on how its (typically) vague directives will be applied to real-world situations, by the people directly under its jurisdiction and by the courts who will be asked to arbitrate the details. For instance, the crux of the argument against the 1992 civil-rights bill was that it would lead to quotas, not because the bill required official quotas (it expressly forbid them, although how that clause was to be applied was not clear), but because it seemed to opponents that the most cost-effective and least risky — and, therefore, the most likely — way for organizations to avoid running afoul of the law would be to implement unofficial quota systems. In other words, the objection was not the specific words of the bill but the anticipated reaction of those to whom it would apply. In the case of proposition 211 this year, the controversy is over whether or not the courts will interpret current law to allow redress for people who have truly been defrauded, and whether or not the proposed law will induce and support expensive lawsuits in cases for which no reasonable claim of fraud may be made. The answers to neither of those questions may be found in the text of the proposition — or through purely intellectual (or statistical) analysis and posturing — and all possible answers have been claimed as self-evidently correct by one or another party to the debate.
Accordingly, I have a proposal for a method better to evaluate the actual impact we may expect from these legislative activities:
- Solicit from the opposing sides of the debate some concrete examples of the worst-case problems they expect under the existing and proposed laws. For example, for proposition 211, proponents might provide scenarios under which pensioners are defrauded and have no legal recourse under existing law while opponents might provide scenarios in which unavoidable market fluctuations in stock prices trigger wholly unwarranted lawsuits. In both cases, make the examples detailed and concrete so they may be evaluated on specific merits rather than on general principles.
- Have reporters, academicians, or other “disinterested” parties propose a few “typical” scenarios which are likely to occur, but in which the bounds between ‘right’ and ‘wrong’ are less clear-cut.
- Create a panel of “real-world actors”, people who are/will be directly involved in the implementation of the laws — for instance, in the case of proposition 211, a panel of tort lawyers who file securities cases and of judges who sit on securities fraud cases — and let them describe what they would do in these hypothetical scenarios under existing and proposed law. Would they file a suit? Would they allow a case to go to trial? At what cost? Would they bring back a judgement for or against a particular party? Who would they hold liable and to what extent? How big a judgment would they award? Under what circumstances would they declare a case “frivolous”? What punishments would they impose, either for a finding of fraud or for a finding of frivolity?
- Open up the entire process to public viewing, either (or both) in live discussion formats or/and in written reports in the press. Let people evaluate the impact of the proposed legislation on the basis of these concrete examples decided by the actual participants, rather than on the basis of nebulous academic arguments and untested predictions of future behavior.
This process is general and complementary to existing approaches. With proper analysis and effort it could be applied to almost any complex legislative proposal, to augment the philosophical, political, and strategic debate currently at the core of reporting on such issues.
Such a process is , of course, not a perfect measure of a proposal’s value because it is impossible to envision and test every possible nuance of every possible scenario. It would, however, provide a reasonable and common-sense feel for the typical and extreme results we might expect, and several concrete examples against which to test the ephemeral theories promulgated by each side of the debate.
I urge you, as the major source of information about the governmental process in the south bay area, to consider this proposal for future coverage of the complex ballot initiatives and legislative battles which will continue to plague us in these politically unsettled times.
© Copyright 1996, 2005, Augustus P. Lowell