by: Dr. Ken Broda-Bahm
Here is a litigation lesson from the world of politics. The Vice President, along with many other Americans, described it as ‘incredibly insensitive, outrageous, and astounding,’ but last Thursday, in the U.S. House of Representatives, Texas Congressman Joe Barton was facing BP CEO:
“I’m ashamed of what happened in the White House yesterday. I think it is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown — in this case a $20 billion shakedown. … I’m not speaking for anybody else, but I apologize.”
Hours later, Representative Barton was taking back that statement in order to deal with the ensuing uproar from both Democratic and Republican circles.
“I apologize for using the term ‘shakedown’ with regard to yesterday's actions at the White House in my opening statement this morning, and I retract my apology to BP.”
What we see here is an unsuccessful attempt by Rep. Barton to reframe the issues. On the 59th day of the continuing Deep Horizon oil spill, and two days after President Obama’s oval office speech asking BP to set up a $20 billion dollar fund in order to deal with the consequences of the oil spill, the Congressman seemed to sense a chance to focus the public’s attention on something other than the flowing oil, suffering wildlife, and spoiled beaches. The President’s demand was unprecedented, and on the heels of an unpopular health care reform law and in the run up to a climate bill being successfully framed as an “energy tax,” the public might have seemed primed to accept Barton’s characterization of the fund request as yet another example of an outrageous power grab by the Democratic President.
So why did Barton’s gambit fail so badly? Simply because the party that would have benefitted from this re-framing, BP, is so profoundly unsympathetic in the public eye, and that made Representative Barton look like a friend of the devil. This failed reframing exercise carries some important reminders for litigators.