Surprise! Republican attack ad distorts truth

By Julie Hirschfeld Davis and Greg Stohr

Bloomberg News

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31 March 12 - A Republican Party Internet advertisement altered the audio of U.S. Supreme Court (1000L) oral arguments in an attack on President Barack Obama's health-care law.

In a web ad circulated this week, the Republican National Committee excerpts the opening seconds of the March 27 presentation by Obama's top Supreme Court lawyer, Solicitor General Donald Verrilli. In the ad, he is heard struggling for words and twice stopping to drink water.

"Obamacare," the ad concludes, in words shown against a photograph of the high court. "It's a tough sell."

A review of a transcript and recordings of those moments shows that Verrilli took a sip of water just once, paused for a much briefer period and completed his thought - rather than stuttering and trailing off as heard in the edited version.

The ad marks a blurring of the line between the law and politics, in which the nation's highest court - and the justices and lawyers who decide and argue cases - are becoming fodder for Republicans' and Democrats' arguments over the validity of the president's signature domestic legislative achievement.

RNC Communications Director Sean Spicer said the video was a "mash-up," condensing and splicing together several separate pauses and stutters by Verrilli during the first two minutes of his argument, produced to illustrate how much difficulty he had defending the health-care law.

Multiple Clips

"Are there multiple clips in that video? Yes," Spicer said. "The point was that he continually had to stop because he was having trouble making the case for why Obamacare was valid."

The Democratic National Committee declined to comment. Obama's re-election campaign also said it wouldn't respond to a query dealing with a matter currently before the Supreme Court. White House spokesman Jay Carney told reporters yesterday that Obama was "pleased" with the presentation Verrilli made, which was criticized by Supreme Court watchers and some media outlets.

Tracy Schmaler, a spokeswoman for the Justice Department, which includes the solicitor general's office, declined to comment.

The RNC said Verrilli's halting performance is evidence that the 2010 law he is arguing to uphold is invalid.

Less Water, Shorter Pauses

"It seems that Obama's lawyer hit a bit of a snag trying to defend the constitutionality of Obama's health-care takeover," the RNC said in a statement accompanying the ad. "Maybe he's beginning to realize something the American people already know: It's hard to defend a law that is indefensible."

Recordings of the court proceedings reviewed by Bloomberg News reveal that the audio has been edited. While Verrilli paused once to drink water during the opening moments of his presentation, he stopped talking for only a few seconds before continuing with his argument. In the RNC ad, he pauses for about 20 seconds, coughs, sips water and stutters.

In the RNC's transcript of its ad, it quotes Verrilli as follows: "For more than 80 percent of Americans, the ah insurance system does provide effective access [pause]. Excuse me. Ah [cough] it ah be-be because the ah the ah the [pause]. Excuse me."

Finishing His Thought

In the actual proceedings, Verrilli finished his thought. "For more than 80 percent of Americans, the, ah, insurance system does provide effective access," Verrilli says, pausing briefly and saying, "Excuse me. But for more than 40 million who do not have access to health insurance, either through their employer or through government programs such as Medicare or Medicaid, the system does not work."

While such unflattering editing isn't unusual for a political campaign advertisement, it is atypical in the legal world.

"Unbelievable," said Walter Dellinger, who served as solicitor general under Democratic President Bill Clinton. "It's a dramatic instance of the politicization that has surrounded this challenge, and totally unfair to one of the most widely admired lawyers in public service."

Peter Keisler, a former Republican federal judicial nominee, said the ad could set back efforts to open the court - which does not allow its proceedings to be televised, videotaped, or recorded by the media or spectators - to camera coverage.

'Selective and Misleading'

"The selective and misleading editing of a Supreme Court argument to make a political point is going to confirm the worst fears of those who oppose cameras in the court," said Keisler, a partner at Sidley Austin LLP in Washington, who served as acting attorney general and was nominated to the U.S. Court of Appeals in Washington by former President George W. Bush.

The RNC ad wouldn't have been possible a dozen years ago - at least not this quickly. Before 2000, the court didn't make its audio recordings available until the beginning of its next term; in this case that would have been in October.

Starting with the 2000 Bush v. Gore ruling, which halted the Florida presidential voting recount and made Republican George W. Bush the winner, the court began releasing its recordings in select cases at the end of the day.

Timothy R. Johnson, a University of Minnesota political science professor who researches and writes about Supreme Court arguments and decision-making, said the ad is the first to use the Supreme Court's audio recordings.

'Worst Nightmare'

"This ad is the justices' worst nightmare," he said. "It's the reason why they don't want cameras in the court."

Spicer said the RNC is proud of the video and the attention it has generated.

"Is it novel? Are we ahead of the curve at the RNC? I hope so," Spicer said.

He said the Republican Party would continue to mine the Supreme Court case for material that can be used in its political attacks on the Obama health-care measure.

"The issue of Obamacare will unequivocally be a major issue for this campaign," Spicer said. "If there are great pieces of the written opinion that talk about what an unbelievable takeover of our health-care system and our economy this has been, I strongly suspect we will use it."

Legal specialists across the ideological spectrum said they expect the health-care case and others dealing with such issues as immigration to figure in the presidential campaign.

"We can be pretty confident no one is going to vote for or against Obama based on how good or bad his solicitor general is at arguing, but the bigger question of Obamacare's constitutionality certainly will play out in the campaign," said Curt Levey, executive director of the Republican-aligned Committee for Justice.

"The attention to this argument and this case around the Affordable Care Act is emblematic of the fact that courts matter," said Marge Baker, executive vice president for Policy and Program at the Democratic-aligned People for the American Way in Washington. "No matter how this particular case comes out, it's very clear that voters understand that."