On That Lawsuit Saying the GOP Is a Racketeering Organization: A Dissenting View

Posted at 5:30 pm on August 06, 2017 by Patterico

My colleague streiff posted on Friday about a lawsuit filed by a retired attorney (who else?) accusing the GOP of doing THE RICO!!!1! As a reminder, here is a quote from the article streiff cited:

A retired attorney in Virginia Beach is so incensed that Republicans couldn’t repeal the Affordable Care Act he’s suing to get political donations back, accusing the GOP of fraud and racketeering.

Bob Heghmann, 70, filed a lawsuit Thursday in U.S. District Court saying the national and Virginia Republican parties and some GOP leaders raised millions of dollars in campaign funds while knowing they weren’t going to be able to overturn the ACA, also known as Obamacare.

The GOP “has been engaged in a pattern of Racketeering which involves massive fraud perpetrated on Republican voters and contributors as well as some Independents and Democrats,” the suit said. Racketeering, perhaps better known for use in prosecuting organized crime, involves a pattern of illegal behavior by a specific group.

streiff opined:

I think this is inspired and no matter what happens to this lawsuit–and I think a jury should be allowed to hear the case–other Republican lawyers across the nation should do the same. And they should also do it with the ‘defund Planned Parenthood’ bullsh**, too.

The GOP has used ObamaCare and Planned Parenthood to raise tens of millions of dollars with no intention of repealing one and defunding the other, not because the votes can’t be whipped, but because if they actually do those things they will have killed the Goose that Laid the Golden Egg.

I strongly agree with the second paragraph of that quote. I think it is well stated and it is absolutely, positively, 100% correct. (By the way, I would add “repealing Roe v. Wade” among the list of things that the GOP claims as a goal for fundraising purposes, but does not actually want to achieve. More on that some other time.) I do not think it’s going too far to call what the GOP did a “fraud.” That’s strong language (although not so much in today’s rhetorical climate), but in this case it feels apt. The image of Lucy taking the football away from Charlie Brown comes to mind. Republicans promised repeal for seven years. The electorate kept giving them everything they asked for. They never had any intention of delivering. Yes, it was a fraud.

So what’s my problem? Calling it “fraud” does not mean it’s the sort of “fraud” that is actionable in court. And the use of the almost-always-abused RICO statute is the cherry on top. That’s the detail that confirms your suspicion that this lawsuit is insane headline-grabbing B.S. by an attention seeker.

Ken White at Popehat once had a lawsplainer about RICO. The short answer is: it’s never RICO. I’m going to clean up Ken’s language a little bit for our family site, but perceptive readers will easily fill in the blanks:

That’s not what RICO means. RICO is not a [expletive deleted]ing frown emoji. It’s not an exclamation point. It’s not a rhetorical tool to convey you are upset about something. It’s not a petulant foot-stomp.

RICO is a really complicated racketeering law that has elaborate requirements that are difficult to meet. It’s overused by idiot plaintiff lawyers, and it’s ludicrously overused by a hundred million jackasses on the internet with an opinion and a mood disorder.

Ken has a full and detailed explanation of what RICO actually is at the link. Suffice it to say: this is not RICO. This lawsuit is not going anywhere. Might the retired lawyer be able to extract a “go away” settlement? Sure. That happens all the time. Far more often than you may realize, in fact. Will he get the case to a jury, obtain a favorable verdict, and have that verdict upheld on appeal? Absolutely not. There is zero chance of that. None. Zilch. Trust me on this.

And what’s more, like many abuses of process to vindicate interests you agree with, it’s a gun that can be turned around and pointed at you at any time. Imagine a candidate who actually does believe in a bold political idea. Say Senator Mike Lee — who, unlike most GOP politicians, is a man of principle — runs on doing everything he can to reduce the federal debt. But then he fails to turn it around — because, frankly, in today’s climate, it can’t be turned around. Can some clown sue him for fraud?

The bolder your vision, the less likely you are to succeed. If a politician sees that any broken promise (no matter the reason it is broken) can lead to a lawsuit — worse, one that actually makes it past a motion to dismiss — that state of affairs will have an unintended consequence: causing politicians to make fewer bold claims. It is a situation that favors the status quo.

In the end, I think this is similar to that “is it OK to punch a Nazi?” debate that sprang up after that clip of a guy sucker-punching Richard Spencer went viral. In one corner, you had people who hate Nazis and enjoyed seeing one get his comeuppance. In another corner, you had people like me — who also hate Nazis, but believe that sucker-punching people for their speech is a bad idea, and a slippery slope that may result in the other side squelching speech that we want to protect.

I applaud this retired attorney’s argument that the GOP never meant to repeal ObamaCare. I agree with this 100%.

But he should not be suing over it.

Full disclosure: I probably have a different perspective on this from many, because I have actually been on the wrong end of a frivolous lawsuit alleging fraud and RICO violations for simply expressing opinions on the Internet. (I won — thanks for asking! — but it took years.) That sort of experience tends to make a person very, very skeptical about the motives of those who use the courts to make political arguments.

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