Investigate This

Some of my best friends are investigative reporters, so what follows is argued with no small amount of trepidation.

My friends are a bit thin-skinned, you see, because their work is constantly criticized by those they investigate. But they are the stars of our profession, so they almost never get criticized by those of us stationed elsewhere along journalism’s far-flung ranks.

But here goes:  My friends, you are being played.

Most of your investigations are aimed at and focused upon the foibles of government — all levels of government — so effectively that most Americans now harbor a deep distrust of the public sector. You have prepared the garden, my friends, from which now sprouts the Tea Party, Glenn Beck, Sarah Palin and any number of Libertarians out to free America from the tyranny of Washington and Big Government.

This is no small achievement. And for this service your publisher or your station owner or your holding company’s board of directors ought to thank you. But they never will, for that would give the game away. You are idealists, after all, and you can’t stand being played.

I’m amazed you haven’t figured this out on your own. I’m talking about you hard-eyed nerds who comb through the classifieds every morning looking for public notices — of  prospective zoning changes, say, or  liquor license applications — that might signal some conflict-of-interest at City Hall. I’m talking about wily wonks who every three months, like clockwork, race to the county clerk’s
office or the state board of elections to grab those precious D-2 filings listing campaign contributors to elected officials and wannabes.

You don’t miss much, my investigative friends. Except, that is, the widespread and growing public cynicism about government that you have worked so diligently, if unwittingly, to create.

Mind you, I allege no conspiracy here, only a convergence of forces and circumstances that comfortably suit the powers that really be.

Forces? For one thing, investigating the public sector has become much easier than investigating the private. The federal government and virtually all the states now have on their books some version of an Open Meetings Act and a Freedom of Information Act.  This is good. Public dealings should be transparent.

Then again, one unintended consequence of open meetings laws has been to turn most official gatherings into stage-managed productions, the actual give-and-take of decision-making having been removed to cloakrooms or in camera one-to-ones or phone calls.

Among public officials there is now widespread distaste for making decisions in front of gotcha-obsessed journalists — journalists who may not understand the difference between a revenue bond and a general-obligation bond, or between a tax rate and tax levy, but who are more than willing to assign the worst possible motives to whatever is decided.

All those FOIA requests, meanwhile, have largely replaced the development of actual live sources as the basic tool of investigative reporting.  Today’s newsroom ethos is such that the cultivation of person-to-person relationships with public officials is generally considered a questionable practice. Gone is the “backgrounder” lunch or cup-of-coffee at which Mr. or Ms. Official explains what the real issues and influences are.

Better instead to stand off and dun public agencies with FOIA requests seeking expense accounts, or contract bids,
or consultancy agreements or whatever.  Even a green reporter can find something in the return mail that will spark public indignation.

As an indirect result of these conveniences, press coverage of our most complex societal issues — the problems of public education, say, or the construction and maintenance of public infra-structure — is increasingly crowded out by stories listing the names of school district superintendents earning six-figure salaries or of construction executives donating money to certain campaign funds.

All of this is fair game.  But the reader or viewer is left inevitably with the jaded view that school superintendents responsible for the education and safety of thousands of kids don’t deserve that $200,000, or that the main purpose of public works “pork” is to pad the political war chests of public officials.

If the news stories don’t sufficiently drive home these points, news columnists and editorial writers are sure to follow up — in the tradition of Chicago’s late Mike Royko — with even darker insinuations.

Another reason the public sector gets hammered by the press more than the private sector, (a reason almost never discussed at academic media conferences or panels) is the double standard that is U.S. law governing libel.

The average media consumer doesn’t understand, though virtually all media owners, publishers and senior editors assuredly do, that it’s almost impossible to libel a public official or public servant.  Ever since the landmark United States Supreme Court ruling of 1964 (New York Times Co. v. Sullivan) and lesser subsequent decisions, any public official claiming libel and seeking damages must first prove the journalist and/or publisher knew in advance  the libelous information was false. In First Amendment law, this is called “actual malice.”

In reality it is virtually impossible to prove.

Not so when journalists report on the private sector, whether

it’s a giant utility that cooks its books to get a rate increase or a surgeon who bills Medicare for more procedures than are humanly possible. Private plaintiffs can win judgments and collect damages — sometimes enough to bankrupt a reporter’s employer — if they merely show the reporting was untrue and that it cost them dearly.

This sets up a pernicious but seldom-mentioned choice made every day, at least subliminally, by city editors and assignment desks in newsrooms across America: Should I assign my scarce investigative resources to, say, verify consumer complaints about out-of-date perishables being sold at our local chain supermarket?  Or should I have them go once again to City Hall and pull this month’s files on who’s getting the juicy consulting contracts?

When cautious editors consider the grief that could come from going after the private sector, the choice is a no-brainer.  Witness the ABC-TV editors who in 1992 okayed a couple of reporters hiring on at a North Carolina supermarket . . . only to see the network hit later by a $5.5 million verdict from a jury that decided such an undercover maneuver constitutes fraud. It’s true the mega-bucks award in Food Lion v. Capital Cities/ABC was struck down on appeal.

But who needs the annoyance, especially if readers or viewers would be just as entertained by the standard photo-spread about city workers loafing on the job. Even when a private company’s misdeeds can no longer be ignored, journalistic heat is more apt to be aimed at the government agency that was supposed to regulate them. Plane crashes and near-misses are laid at the feet of the FAA; fatal mining accidents are traced to lax inspection by OSHA or the Bureau of Mines; unsafe car brakes should have been detected and ordered fixed by the NHTSA.

Add it all up and it’s easy to understand why a large and growing segment of the voting public now thinks government is both stealing us blind and laying down on the job. We live now an Age of Anger. People are mad-as-hell about the way things are, about why gas costs $4-a-gallon and why their kids can’t find a decent job. And from what they’ve been reading in the papers and watching on TV, there’s little doubt about who’s to blame. Those anti-government zealots on talk radio surely must have it right.  And to some extent, they are right.

Public sector employee benefits have, in many cases, gotten out of line with those available on the private side. There are too many surly, clock-watching clerks at the DMV and not enough police when you need them. Taxes are too high on working families and too many folks on food stamps are buying stuff the rest of us can’t afford.

But does this mean the private sector – the sector led by those “free men and free markets” the Libertarians swear by – ought to be trusted to call more of the shots?  Should government back off and simply allow “the market” to decide where to drill for oil, where to move the factories and the jobs, where to book their equipment sales and record their stock options so as to minimize taxes?

There is no shortage of politicians now ascending who argue this, indeed, is the way America must go.  And they can point to scandal-after-public-sector-scandal, dutifully reported by the media to make their case (And all the while, with straight faces, also complain the country suffers at the hands of a “liberal” media.) Then again, I offer no hard proof that this is what’s going on. It’s not an organized conspiracy. There is no paper trail.

But as an urban affairs writer I watched the sub-prime mortgage crisis unfold over the past decade. I saw inner-city neighborhoods all-but-destroyed by fast-buck mortgage brokers and the Wall Street debt re-packagers. And I  watch now as the revisionist Right tries to blame the entire catastrophe on Fannie, Freddie, the FHA and even the federal Community Reinvestment Act.

There is a grain of truth to these assertions, but only a grain. If our mainstream journalism were better, such charges would be shown to be as crazy as Roswell UFOs or cold fusion. For that matter, if our journalism were as it should be, the entire sub-prime scam would have been exposed and stopped before collapsing of its own weight in the fall of 2008 with the failure of Lehman Brothers and bail-outs of the rest.  But that didn’t happen. That kind of journalism, especially that kind of investigative journalism, was too hard and too risky. So the scam went on and on until the crash, and only now, after it’s too late, are the best-seller lists filling with quasi-investigative post-mortems — stories based largely on the work of state attorneys general and a blue-ribbon Congressional commission.

Duped bond investors, meanwhile, are seeking billions in compensation from the big Wall Street investment houses via civil litigation. But the debt-busted families and foreclosure-ravaged neighborhoods, where do they go?

These are the people and the places our investigators are supposed to protect.  And yet, too many of the sub-prime “perps” are back in business, collecting their commissions and year-end bonuses . . . even as too many reporters are back to making their lists of overpaid school superintendents.

John McCarron is a freelance urban affairs writer and adjunct lecturer at DePaul University’s School of Communication. Previously he worked 27 years for the Chicago Tribune as reporter, financial editor and member of the editorial board.     

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