Romney’s Bain Years: New Evidence, Same Conclusion

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July 12 ,2012


New reporting cites strong evidence that Mitt Romney wasn’t actively managing Bain Capital while he was running the Olympics, despite what the Obama campaign (and some news reports) would have voters believe.

Dan Primack, a senior editor at Fortune Magazine, reports on previously confidential “offering documents” that Bain circulated to potential investors in June 2000, September 2000 and again in January 2001. And he says that in each of those three documents Romney’s name is conspicuously absent from lists of senior investment managers at Bain.

Dan Primack, July 12: [T]he contemporaneous Bain documents show that Romney was indeed telling the truth about no longer having operational input at Bain…

This has become a key point of contention, because Obama TV ads accuse Romney of shipping U.S. jobs overseas. We reported that the Obama campaign had failed to back up its claims (“Obama’s ‘Outsourcer’ Overreach,” June 29), partly because Romney had left Bain in February 1999 to run the 2002 Winter Olympic and wasn’t actively in charge of the company at the time.

But the Obama campaign objected, claiming that Romney remained a part-time manager even while he was living in Utah and running the Olympics. We responded, finding the campaign’s evidence “weak or non-existent.”

Since then some other reporters have weighed in on Obama’s side. Articles in Mother Jones magazine and the Talking Points Memo website, and most recently a front-page Boston Globe story on July 12, all cite documents filed by Bain with the Securities and Exchange Commission.

The TPM piece noted that in documents from July 2000 and February 2001 Romney listed his “principal occupation” as “Managing Director” of Bain, for example. And the Globe story reported that Bain repeatedly listed him on government filings as the man in charge.

On a media conference call about the Globe story, Stephanie Cutter, Obama’s deputy campaign manager, said the story proves that Romney had “full control” of Bain during this time and “therefore directly responsible” for decisions made at companies in which Bain invested. “Either Mitt Romney, through his own words and his own signature, was misrepresenting his position at Bain to the SEC, which is a felony. Or he was misrepresenting his position at Bain to the American people to avoid responsibility for some of the consequences of his investments,” Cutter said.

But we see little new in any of these SEC filings, and a University of Pennsylvania Law School professor we spoke to sees no basis for the Obama campaign’s claim that Romney committed a felony.

None of the SEC filings show that Romney was anything but a passive, absentee owner during that time, as both Romney and Bain have long said. It should not surprise anyone that Romney retained certain titles while he was working out the final disposition of his ownership, for example. We see nothing to contradict the statement that a Bain spokesman issued in response to the Globe article:

Bain Capital, July 12: Due to the sudden nature of Mr. Romney’s departure, he remained the sole stockholder for a time while formal ownership was being documented and transferred to the group of partners who took over management of the firm in 1999. Accordingly, Mr. Romney was reported in various capacities on SEC filings during this period.

Jill E. Fisch, a professor at the University of Pennsylvania Law School and co-director of the Institute for Law and Economics, said Romney would not have committed a felony by listing himself as managing director — even if he now claims he had no role in running the company after February 1999. There is no legal obligation to describe how active one is in the day-to-day management of the company, she said. And just because he held title of managing director doesn’t necessarily mean that he’s responsible for decisions like layoffs or outsourcing.

“If that really mattered to investors, they might consider that a civil liability, but we wouldn’t be talking about a felony,” she said.

We would reassess our judgment should somebody come up with evidence that Romney took part in specific management decisions or had any active role (not just a title) at Bain after he left to head the Olympics. But nothing we’ve seen directly contradicts Romney’s statements — which he has certified as true under pain of federal prosecution — that he “has not had any active role” with Bain or “been involved in the operations” of Bain since then.

And we wish to note, we’re not alone in this judgement. Others include:

Fortune’s Dan Primack — who covers Wall Street “deals and dealmakers” — addressed the Mother Jones reporting in a July 2 article that came to the same conclusion we do. Primack’s more recent reporting we’ve already noted.
The Washington Post‘s Fact Checker, Glenn Kessler, rebutted the Boston Globe story in a July 12 piece. “Just because you are listed as an owner of shares does not mean you have a managerial role,” Kessler writes. We agree.
Before the Globe story broke, the Columbia Journalism Review’s Brendan Nyhan stated: “[T]he specific cases cited by the Obama campaign largely concern actions taken by those companies during a period in which Romney was not making operational decisions at the firm. Journalists must be clear about this distinction.” After the Globe story, CJR’s Greg Marx wrote “there’s less new in the Globe article than the attention it has drawn suggests.”
ABC News’ Devin Dwyer reported July 12, after the Globe‘s story appeared: “Team Obama does not provide any specific evidence to back up claims that Romney was actively managing Bain between 1999 and 2002.”

I am RIOT and I am wrong again.