The Sun/Sunday, February 16, 2014


VIEWPOINT


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C OurTown Page 9


A lawsuit's strange twist


en. Rand Paul,
 R-Ky., has been
 caught using pur-
loined passages in several
of his speeches. Now
the aspiring presidential
candidate stands accused
of filing a lawsuit stolen
from its author.
 Since December, the
libertarian lawmaker,
a tea party favorite,
had been working with
former Reagan adminis-
tration lawyer Bruce Fein
to draft a class-action
suit seeking to have
the National Security
Agency's surveillance of
telephone data declared
unconstitutional.
 But when Paul filed his
suit at the U.S. District
Court in Washington on
Wednesday morning,
Fein's name had been
replaced with that of
Ken Cuccinelli, the failed
Republican gubernatorial
candidate in Virginia who
until last month had
been the state's attorney
general. Cuccinelli has
never argued a case in
that courthouse, and he
isn't even a member of
the D.C. bar (he also filed
a motion Wednesday


seeking an exception to
allow him to argue this
case in D.C.). But he
is, like Paul, a tea party
darling.
 Fein, who has not been
paid in full for his legal
work by Paul's political
action committee, was
furious that he had been
omitted from the filing
he wrote. "I am aghast
and shocked by Ken
Cuccinelli's behavior and
his absolute knowledge
that this entire complaint
was the work product,
intellectual property and
legal genius of Bruce
Fein," Mattie Fein, his ex-
wife and spokeswoman,
told me Wednesday. "Ken
Cuccinelli stole the suit,"
she said, adding that
Paul, who "already has
one plagiarism issue, now
has a lawyer who just


takes another lawyer's
work product."
 After the morning news
conference announcing
the suit, Cuccinelli told
me that "Bruce Fein will
be brought in later."
 But a Jan. 15 draft of
the complaint written by
Fein has long passages
that are nearly identical
to those in the com-
plaint Cuccinelli filed
Wednesday. Except for
some cuts and minor
wording changes, they
are clearly the same
documents.
 For example, Fein's
version said, "When the
MATP was disclosed by
Edward Snowden, public
opinion polls showed
widespread opposition
to the dragnet collection,
storage, retention, and
search of telephony
metadata collected on
every domestic or inter-
national phone call made
or received by citizens
or permanent resident
aliens in the United
States."
 Cuccinelli's version
said, "Since the MATP
was publicly disclosed,
public opinion polls


showed widespread
opposition to the drag-
net collection, storage,
retention, and search of
telephone metadata col-
lected on every domestic
or international phone
call made or received by
citizens or permanent
resident aliens in the
United States."
 Fein wrote: "On
information and belief,
Defendants' Mass
Associational Tracking
Program since its com-
mencement in May 2006
has not stopped or been
instrumental in stopping
even one imminent inter-
national terrorist attack
or has otherwise assisted
Defendants in achiev-
ing any time-sensitive
objective."
 Cuccinelli's version:
"Upon information and
belief, since its com-
mencement in May 2006,
Defendants' Mass
Associational Tracking
Program has not stopped
or been instrumental
in stopping even one
imminent international
terrorist attack or other-
wise assisted Defendants
in achieving any


time-sensitive objective."
 The unceremonious
jettisoning of a constitu-
tional lawyer in favor of
the man best known for
his unsuccessful suit to
have Obamacare declared
unconstitutional suggests
that Paul's legal action has
more to do with politics
than the law. And there
are other clues. In Fein's
version, Sen. Mark Udall,
D-Colo., was listed as a
plaintiff along with Paul,
but in the final complaint
the Democrat was gone
and the tea party group
FreedomWorks was added
in his place. Both suits list
as defendants the director
of national intelligence,
the FBI director and the
director of the NSA, but
Fein's version had named
the defense secretary
and the attorney general.
Cuccinelli's version
dropped those two but
added President Obama
as a defendant, an incen-
diary change.
 A Paul adviser said
Fein was paid $15,000
and that "multiple
attorneys" were involved
in the complaint. Behind
the scenes, Paul's team


reacted angrily to Fein's
accusations.
 Doug Stafford, Paul's
top political operative,
sent Fein an email
Wednesday afternoon
saying he expected Fein
would be involved in the
future, but he criticized
Fein for complaining
publicly. "That is crazy
and makes no sense if
your interest is to work as
part of the team. None,"
he wrote.
 Cuccinelli, meanwhile,
complained in a separate
email to Fein that "our
clients don't want the
lawyers to become the
story."
 When Mattie Fein
responded in an email
to Cuccinelli calling him
"dumb as a box of rocks,"
Cuccinelli wrote another
email to Bruce Fein say-
ing, "I think this relation-
ship is untenable."
 Paul, for his part,
canceled plans to have an
afternoon conference call
with reporters.
 Dana Milbank is a
Washington Post colum-
nist. Readers may reach
him at danamilbank@
washpost.com.


Writing off the unemployed


ack in 1987 my
 Princeton col-
 league Alan Blind-
er published a very good
book titled "Hard Heads,
Soft Hearts." It was, as
you might guess, a call
for tough-minded but
compassionate econom-
ic policy. Unfortunately,
what we actually got
- especially, although
not only, from Republi-
cans was the opposite.
And it's difficult to find
a better example of the
hardhearted, softheaded
nature of today's GOP
than what happened last
week, as Senate Repub-
licans once again used
the filibuster to block aid
to the long-term unem-
ployed.
 What do we know
about long-term unem-
ployment in America?
 First, it's still at
near-record levels.
Historically, the long-
term unemployed -
those out of work for
27 weeks or more have
usually been between
10 and 20 percent of
total unemployment.
Today the number is
35.8 percent. Yet extended


unemployment benefits,
which went into effect in
2008, have been allowed
to lapse. As a result,
few of the long-term
unemployed are receiving
any kind of support.
 Second, if you think
the typical long-term
unemployed American is
one of Those People-
nonwhite, poorly educat-
ed, etc. you're wrong,
according to research
by the Urban Institute's
Josh Mitchell. Half of the
long-term unemployed
are non-Hispanic whites.
College graduates are
less likely to lose their
jobs than workers with
less education, but once
they do they are actually
a bit more likely than
others to join the ranks
of the long-term un-
employed. And workers


older than 45 are espe-
cially likely to spend a
long time unemployed.
 Third, in a weak
job market long-term
unemployment tends
to be self-perpetuating,
because employers in ef-
fect discriminate against
the jobless. Many people
have suspected that
this was the case, and
last year Rand Ghayad of
Northeastern University
provided a dramatic con-
firmation. He sent out
thousands of fictitious
r6sum6s in response to
job ads, and found that
potential employers were
drastically less likely to
respond if the fictitious
applicant had been out
of work more than six
months, even if he or she
was better qualified than
other applicants.
 What all of this
suggests is that the
long-term unemployed
are mainly victims of
circumstances ordi-
nary American workers
who had the bad luck
to lose their jobs (which
can happen to anyone)
at a time of extraordinary
labor market weakness,


with three times as many
people seeking jobs as
there are job openings.
Once that happened, the
very fact of their unem-
ployment made it very
hard to find a new job.
 So how can politicians
justify cutting off modest
financial aid to their
unlucky fellow citizens?
 Some Republicans
justified last week's
filibuster with the tired
old argument that we
can't afford to increase
the deficit. Actually,
Democrats paired the
benefits extension with
measures to increase tax
receipts. But in any case
this is a bizarre objection
at a time when federal
deficits are not just
falling, but clearly falling
too fast, holding back
economic recovery.
 For the most part,
however, Republicans
justify refusal to help
the unemployed by
asserting that we have
so much long-term
unemployment because
people aren't trying hard
enough to find jobs, and
that extended benefits
are part of the reason for


that lack of effort.
 People who say things
like this people
like, for example, Sen.
Rand Paul probably
imagine that they're
being tough-minded and
realistic. In fact, how-
ever, they're peddling a
fantasy at odds with all
the evidence. For exam-
ple: if unemployment
is high because people
are unwilling to work,
reducing the supply of
labor, why aren't wages
going up?
 But evidence has a
well-known liberal bias.
The more their economic
doctrine fails re-
member how the Fed's
actions were supposed
to produce runaway
inflation? the more
fiercely conservatives
cling to that doctrine.
More than five years after
a financial crisis plunged
the Western world into
what looks increasingly
like a quasi-permanent
slump, making nonsense
of free-market orthodoxy,
it's hard to find a leading
Republican who has
changed his or her mind
on, well, anything.


 And this impervious-
ness to evidence goes
along with a stunning
lack of compassion.
 If you follow debates
over unemployment,
it's striking how hard it
is to find anyone on the
Republican side even
hinting at sympathy for
the long-term jobless.
Being unemployed is
always presented as a
choice, as something
that only happens to
losers who don't really
want to work. Indeed,
one often gets the sense
that contempt for the
unemployed comes
first, that the supposed
justifications for tough
policies are after-the-fact
rationalizations.
 The result is that mil-
lions of Americans have
in effect been written off
- rejected by potential
employers, abandoned
by politicians whose
fuzzy-mindedness is
matched only by the
hardness of their hearts.
 Paul Krugman is a
columnist for The New
York Times. He can be
reached via www.new
yorktimes.com.


Obama's lawmaking from on high


We were told
 that President
 Barack Obama
would wield his executive
power this year to defy
Congress. Instead, he is
defying his own health
care law.
 The Obama admin-
istration announced
this week it is delaying
and changing the law's
employer mandate, the
latest in a series of seat-
of-the-pants revisions to
Obamacare.
 The president was
eager to highlight steps
he was taking to bypass
Congress in his State of
the Union last month,
but left this one out. If he
OF.T.M. .T. rM2


had demanded congres-
sional action to delay the
employer mandate, he
surely would have gotten
a bipartisan bill on his
desk forthwith. His call
for executive unilateral-
ism should be amended:
"Even if Congress will act
... I still prefer to act on
my own.


 Congress long ago ced-
ed too much authority to
the regulatory apparatus
of the administrative
state, but this is different.
This is the executive
branch affirmatively re-
writing law in defiance of
our constitutional system
and the rule of law.
 Obamacare is quite
clear that the employer
mandate "shall apply"
after Dec. 31, 2013.
Nonetheless, the Obama


administration delayed
it for a year last July.
The latest move is even
more brazen. It creates
a distinction between
employers with fewer
and more than 100 em-
ployees that doesn't exist
in the law, and delays the
mandate for another year
for businesses with
50-99 employees. At the
same time, it changes
the obligation on em-
ployers with more than


100 employees.
 These aren't waivers
or delays, but detailed
revisions. Last year, the
Treasury Department
justified the delay as
"transition relief," a
euphemism right up
there with "shared


responsibility payments,"
the administration's
favored term for fines on
employers.
 The examples that
the department cites of
prior transition relief

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