The Wall Street Journal editorial board was quick to support a Supreme Court decision on campaign finance, in which the conservative justices once again ignored legal precedent and usurped the role of Congress to legislate complicated policy.
On April 2, the Supreme Court decided McCutcheon v. FEC (also known as "the next Citizens United"), and held that overall campaign contribution limits -- previously set at $123,200 -- were unconstitutional. Although the Court did not rule on the individual campaign limits of $5,200 per candidate in the two-year election cycle, the conservative justices struck down the aggregate limits, allowing future contributions to be spread among an unlimited amount of candidates, political parties, and PACs. Although Congress had set those overall campaign limits in the wake of the Watergate scandals to guard against institutional corruption or the appearance of corruption -- a goal repeatedly upheld by the Supreme Court -- the Court in McCutcheon ignored this precedent, judicially narrowing future regulation so that "Congress may target only a specific type of corruption -- 'quid pro quo' corruption."
The WSJ, which has been misinforming about this case from the beginning, was predictably pleased with the outcome in McCutcheon. Although the WSJ editorial board lectures about fidelity to the law when it comes to legal decisions that might affect corporate wealth, it was not so bothered at the Court's rejection of precedent in McCutcheon. In an April 2 editorial, it celebrated the decision as a win for "the core promise of American liberty" and applauded the Court for "walking back" a "historic blunder." In fact, the WSJ really only had one complaint about the McCutcheon decision: why didn't conservative Chief Justice John Roberts go even further?
In its original First Amendment sin, Buckley v. Valeo in 1976, the Court said government can regulate political contributions to limit the risk of "quid pro quo" corruption. That is, money in return for a political favor. But Congress has gone well beyond that narrow definition of corruption to include trying to limit some donors but not others or simply the amount of money in politics.
We wish the Court had gone further and overturned all of Buckley, as Justice Clarence Thomas urged in his concurring opinion. As he put it, Buckley is now "a rule without a rationale" given how much the Court has eroded its original logic. But the Justices didn't need to go that far to overturn overall donor limits, and Chief Justice Roberts prefers incremental legal progress. Justice Thomas is nonetheless a John the Baptist on political speech, and the current majority may vindicate his logic in a future case.
We hope it's soon given the pernicious doctrine laid out in the dissent joined by all four liberals. "The First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters," wrote Justice Stephen Breyer (his italics).
"Collective speech" sounds Orwellian as a legal doctrine that invites government as a leveller of free speech and is alien to the U.S. constitutional tradition. The scary thought is that the Court is only one heart attack away from gutting the core promise of American liberty.
The Wall Street Journal is so excited about a lawsuit that could gut the Affordable Care Act (ACA) that it has dedicated two editorials to lauding the challenge in the past week.
On March 25, the D.C. Circuit Court of Appeals heard oral arguments in Halbig v. Sebelius, a right-wing lawsuit based on a far-fetched anti-ACA theory that could make it impossible for some consumers to obtain tax credits from the federal government to purchase health insurance. The editorial board of the WSJ considers this counterintuitive goal of a law meant to make insurance affordable the "faithful interpretation of the statute."
The central argument of the suit is that a provision within the ACA can be misread to imply consumers who buy insurance from the federal exchange are not eligible for the tax credits that make health insurance affordable. Most legal experts, as well as those who helped draft the law, agree that this was nothing more than a drafting error, not evidence of Congress' alleged intent to deny subsidies to some consumers. But because many states (particularly those with Republican governors or Republican-led legislatures) refused to set up their own exchanges, conservatives saw an opening to attack this key part of the ACA.
Halbig's legal theory was cooked up by Michael Cannon of the Cato Institute and Jonathan Adler, a contributor to National Review Online and The Washington Post's libertarian legal blog The Volokh Conspiracy. Right-wing media have joined Adler and Cannon in vocally supporting the suit, even though legal experts have soundly rejected the challenge as "an absurd distortion of the law" and lacking merit.
But The Wall Street Journal continues to have a particular affection for Halbig. On March 23, the editorial board celebrated Halbig's potential to "vindicate the rule of law" in an Obama administration it characterized as "willful[ ] in defying limits on executive power."
Its March 30 editorial was more of the same, but with even more misinformation about the legal issues underpinning the Halbig case:
Liberals keep dismissing challenges to ObamaCare, political and legal, so it's no surprise they mostly ignored last week's oral argument at the D.C. Circuit Court of Appeals that could send another case to the Supreme Court. Coming in the week the White House wheeled out its 38th rewrite of the law, Halbig v. Sebelius is even more important for the contours of executive power and the rule of law.
This ought to be a straightforward matter of statutory construction. Democrats put conditions on the subsidies to pressure Governors to join ObamaCare on the familiar U.S. federal-state cooperative model, but they never anticipated lasting unpopularity and opposition. To resolve this political problem, the IRS brushed off the statute and expanded the subsidies to both types of exchanges.
Arguing before a three-judge panel, Assistant Attorney General Stuart Delery pointed up "interpretive tension" among various complex provisions. But he also suggested that reading the text literally would undermine ObamaCare's purpose and structure of a nationwide system of subsidized health care. Try to parse that one: This is a law that its defenders argue will self-destruct if implemented as drafted by its architects.
As Chief Justice John Roberts famously wrote upholding the insurance purchase mandate, "It is not our job to protect the people from the consequences of their political choices." It is also not their job to protect politicians from the consequences of their policy choices.
Ramesh Ponnuru, senior editor at National Review Online, is again pushing misinformation about a significant reproductive justice case currently in front of the Supreme Court, which could grant unprecedented rights to secular, for-profit corporations at the expense of American workers.
The Supreme Court recently heard Sebelius v. Hobby Lobby, a case that could drastically rewrite First Amendment and corporate law to make it easier for religious business owners to deny their female employees comprehensive employer-sponsored health insurance. Hobby Lobby, owned by the conservative Christian Green family, specifically objects to the fact that the Affordable Care Act (ACA) newly accepts all of the Institute of Medicine's recommendations for crucial women's preventive services, including contraceptive methods and counseling. Right-wing media have repeatedly misled on this case, and were quick to parse the transcripts in the wake of the oral arguments to declare victory for Hobby Lobby.
Ponnuru weighed in again on the case in a March 27 post, oversimplifying the federal law that Hobby Lobby is suing under to ignore the rights of Hobby Lobby's thousands of female employees, and misrepresenting a scientific study to support his unscientific arguments.
During the oral argument Justice Kennedy asked whether, on the government's theory of the case, it would be permissible to force companies to cover abortion in their insurance policies for their employees. I think the answer to that question is clearly yes. ... The case itself concerns a company that objects to covering drugs that may cause abortion.
For the purpose of the Religious Freedom Restoration Act, it is a sufficient answer to these points that the owners sincerely believe that offering coverage for the disputed drugs would violate their consciences. They sincerely believe that stopping implantation is equivalent to abortion, that the drugs pose an unacceptable risk of stopping implantation, and that they would be unacceptably complicit in what they consider to be an evil if they offered the coverage. To judge the RFRA claim, judges must decide whether those beliefs justify an exemption from a legal requirement without evaluating the merits of those beliefs.
Pro-lifers object to "ending a pregnancy" and "abortion" because they entail causing the death of a living human organism, which is indisputably what the human embryo is pre-implantation. The "view" that preventing implantation causes the end of a human life in that sense is simply a fact. Of course the law does not define the human embryo as "a human life" in the sense of a person with rights, but of course it does not so define unborn children long past implantation.
Ponnuru is barely half-right on the law. It is not "sufficient" for the owners of Hobby Lobby to assert only that they "sincerely believe" that some forms of contraception cause abortions (even though they really, really don't) -- they also have to show that the government has substantially burdened those beliefs. Even then, these sincere, if erroneous, burdened beliefs still must outweigh Congress' reasons for enacting the challenged law in the first place. Under RFRA, the government can at times indirectly burden religious exercise in a generally applicable law if it is necessary to further a "compelling governmental interest."
After the Supreme Court heard arguments in the legal challenge to contraceptive coverage under the Affordable Care Act (ACA), The Wall Street Journal's editorial board was quick to celebrate by pushing tired myths about the case and encouraging the judicial creation of new rights for corporations.
On March 25, the Supreme Court heard Sebelius v. Hobby Lobby, a case that could allow secular, for-profit corporate employers the ability to deny their employees preventive health insurance coverage based on their owners' religious objections. The owners of Hobby Lobby, the Green family, identify as conservative Christians who oppose some forms of birth control that they have decided -- in the face of scientific evidence to the contrary -- cause abortions.
Right-wing media have relished this opportunity to reject reproductive rights and come out in support of the Green family and Hobby Lobby. In their first editorial since oral arguments, the WSJ's editors were predictably pro-Hobby Lobby, calling the Obama administration's argument that a for-profit, secular corporation is incapable of religious belief "remarkable":
[T]he Administration's remarkable argument is that if a business is incorporated and for-profit, it forfeits normal constitutional rights. Hobby Lobby is a chain of craft stores that is a closely held, family-run corporation that tries to operate in accord with biblical principles.
Trying to distinguish between for-profit and nonprofit corporate forms for this regulatory purpose is constitutionally unprecedented. Corporations are often treated as "persons" for legal purposes, such as protecting free speech, and prosecutors can indict entire corporations for breaking laws. As Chief Justice John Roberts observed, minority-owned businesses can bring racial discrimination lawsuits. So why can't Christian- or Muslim-owned businesses exercise religion? Solicitor General Donald Verrilli had no good answer.
Liberal Justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn't it also refuse to pay for blood transfusions or vaccinations? "Could an employer preclude the use of those items as well?" asked Justice Sonia Sotomayor in the day's first question.
Yet no one is "precluding" anything. Contraception is cheap, plentiful and covered by most health plans. Most corporations are run for profit, not piety. Mr. Verrilli claimed the mandate is necessary to promote public health and gender equality, but HHS could have aided those goals without forcing a minority of business owners with moral aims to implicate themselves in what they consider to be grave moral wrongs.
But the fact that "most health plans" cover contraception is precisely the point, just not in the way the WSJ thinks.
On the same day the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby, a significant reproductive rights case under the Affordable Care Act (ACA), right-wing media continued to push discredited misinformation about a different ACA case that could do even more damage to health care reform.
On March 25, the D.C. Circuit Court of Appeals (finally fully-staffed) heard oral arguments in Halbig v. Sebelius. Unlike Hobby Lobby, Halbig has the potential to undermine the ACA as a whole by rendering the new federal health insurance marketplaces of the exchanges useless.
Since 2012, right-wing media have engaged in a loud campaign to push this challenge all the way to the conservative justices of the Supreme Court, even though legal experts agree this lawsuit is far-fetched and a distortion of the text, history, and purpose of the ACA. In the wake of yesterday's appellate arguments, conservative media is continuing to lecture Congress that legislators really meant to counter-intuitively destroy the ACA when they passed it, a bizarre argument that the editors of the National Review Online claimed "Democrats might have anticipated if they'd bothered reading the law." The Wall Street Journal took it as an opportunity to again accuse Obama of executive overreach, and invited the judiciary to "check on those abuses" and "vindicate the rule of law" by rewriting history to pretend Congress never intended tax credits in the federal exchanges.
A federal district court has already ruled against this unlikely argument, holding their "unpersuasive" legal theory about Congress' true intention contrary to common sense, because it would lead to "strange or absurd results."
Before the Supreme Court even heard oral arguments in the next big challenge to reproductive rights, National Review editor Rich Lowry was already misinforming about the facts of the case.
On March 25, the Supreme Court heard Sebelius v. Hobby Lobby, a case that could grant the owners of for-profit, secular corporations the ability to deny their employees preventive services in employer-sponsored health insurance, contrary to federal law. The owners of Hobby Lobby, the Green family, incorrectly believe that some forms of contraception are "abortifacients" (even though they aren't). So, the Greens argue, because their religious beliefs prohibit any support of abortion, they cannot comply with the Affordable Care Act (ACA) provision that requires American health insurance to cover preventive services, like birth control, at no cost.
Right-wing media has been all too happy to advance Hobby Lobby's arguments and ignore the scientific consensus disproving the corporate owners, framing the issue as evidence of President Obama's supposed hostility to religious freedom. National Review's Lowry, who is no stranger to misinforming about the contraceptive cases in front of the Supreme Court this term, was quick to join the pro-Hobby Lobby chorus.
In a recent post, Lowry portrayed the Greens as "law-abiding people running an arts-and-craft-chain," "minding their own business," until "Uncle Sam showed up to make an offer that the Greens couldn't refuse -- literally."
After the conservative justices gutted the Voting Rights Act in Shelby County v. Holder, right-wing media complained that criticisms of the legal challenge were overblown because other provisions of the VRA remain intact to fight voter suppression. But now some of those same right-wing media figures have begun to flip-flop on that position, arguing that another crucial component of the VRA is unconstitutional as well.
The Wall Street Journal doesn't understand how a federal anti-discrimination law that protects firefighters of color actually works, but that didn't stop one of its editorial board members from complaining about it.
On March 18, New York City Mayor Bill de Blasio announced that the city had settled a twelve-year lawsuit with a group of black firefighters who alleged that the entrance exams the department used resulted in impermissible racial discrimination that was unrelated to the skills necessary for the job. The group that filed the suit argued that the entrance exam had an unjustified disparate impact on black and Hispanic firefighters, a legal doctrine that has been codified in federal employment discrimination law and upheld repeatedly by the Supreme Court. In NYC, according to The Associated Press, the discriminatory effect occurred because "black firefighters have never made up more than 4 percent of the department's total," even though "more than half of residents identify with a racial minority group."
But the Wall Street Journal, whose editorial board is clearly no great fan of disparate impact litigation, was unimpressed by the numbers. In a recent post, the WSJ's Jason Riley argued that Mayor de Blasio's support of the settlement was misplaced since, despite the fact that the federal courts found the exams had an illegal disparate impact under Title VII of the Civil Rights Act, "the city might have won" the case. Riley proceeded to label the long-standing legal doctrine prohibiting the city's illegal disparate impact on firefighters of color as "nonsense" (emphasis added):
"I think the numbers speak for themselves," said New York Mayor Bill de Blasio in announcing that the city had settled a discrimination lawsuit against the fire department. The mayor was suggesting that the FDNY's written exam is biased because blacks and Hispanics pass it at lower rates than whites.
But the numbers don't speak for themselves. Intent matters. Racially disparate outcomes alone are not proof of discrimination, yet advocates of such nonsense continue to exploit our legal system. "No speck of evidence is required from those who implicitly assume that employee composition would be similar to population composition, in the absence of discrimination," writes Thomas Sowell in "Intellectuals and Race." "Moreover, not one flesh-and-blood human being who even claims to have been discriminated against is necessary for 'disparate impact' cases to go forward in a costly legal process."
As the Supreme Court prepares to hear arguments in the next big reproductive rights case, Sebelius v. Hobby Lobby, some of right-wing media's favorite talking points about women and sex have made their way into amicus briefs filed with the Court.
On March 25, the Supreme Court will hear oral arguments in Hobby Lobby, a case that could allow secular, for-profit corporate employers to impose their religious beliefs about birth control on employees by blocking their right to obtain contraceptives on company insurance plans. A ruling in favor of Hobby Lobby would not only significantly impact the religious freedoms of employees who have no moral objection to preventive health services like birth control, it would have a sweeping effect on years of corporate law precedent. But that hasn't stopped conservative, religious, and anti-reproductive rights groups from filing amicus briefs with the Supreme Court in favor of Hobby Lobby's position, parroting arguments often heard in right-wing media.
In a recent article in Slate, legal expert Emily Bazelon detailed how many of these amicus briefs, filed largely by religious conservatives, voiced arguments from a bygone era when it comes to reproductive rights. Bazelon wrote, "If it sounds like I'm describing a 1960s enraged sermon about the pill, I guess that's the point[.] I could be":
The Supreme Court will soon hear Sebelius v. Hobby Lobby, a case that could allow secular, for-profit corporations an unprecedented religious exemption from the Affordable Care Act's "contraception mandate," which requires all health insurance to cover preventive services like birth control without co-pays. A wide spectrum of scholars and experts have filed amicus briefs explaining that a ruling in favor of the corporate plaintiffs would not only rewrite First Amendment law, but also undermine decades of anti-discrimination and reproductive rights precedent.