Now that the 2014 midterm elections are just around the corner, right-wing media are dragging out some of their favorite attacks on voting rights, despite the fact that these myths have been thoroughly debunked.
While defending the Supreme Court's decision to undo decades of precedent and policy in campaign finance law, hosts of Fox News' The Five falsely suggested that unions can donate unlimited amounts of money to political candidates. In fact, unions are barred from directly donating to candidates and political parties.
In its April 2 decision on McCutcheon v. FEC, the Supreme Court decided that overall campaign contribution limits, previously set at $123,200 per individual per two-year election cycle, were unconstitutional. This allows future contributions to be spread among an unlimited number of political candidates, political parties, and PACs.
On April 4, as The Five co-host Bob Beckel criticized the decision and explained that these contribution limits were passed into law following the Watergate scandal, his fellow hosts Dana Perino and Eric Bolling claimed that unions face no limits on contributions, while there were limits on individuals.
But Perino and Bolling are incorrect. While unions, as well as corporations, can as of the 2010 Citizens United decision spend unlimited amounts on elections, they are still barred from direct contributions to candidates or political parties -- which is what the McCutcheon case was about. As USA Today explained:
It's the most important campaign-finance ruling since the high court's 2010 Citizens United v. Federal Election Commission ruling allowed corporations and unions to spend unlimited amounts independently to influence elections.
The limits on campaign contributions had stood for nearly 40 years. The high court drew a distinction between those contributions, which it said could lead to corruption, and money spent independently in its landmark 1976 Buckley v. Valeo ruling. Independent spending was expanded in the Citizens United case to include unlimited spending by corporations and labor unions.
Independent expenditures, which unions are allowed to make, are not the same as direct contributions to political candidates and political parties. A guide to federal election rules from The Campaign Legal Center states: "Corporations and labor unions are prohibited from using treasury funds to make a contribution to candidates, political parties, and many types of PACs."
Right-wing media champions of voter purges have been quiet in response to a federal appeals court's decision that Florida officials' attempts to remove noncitizens from voter rolls clearly violated federal law, which protects citizens from these overbroad and error-riden challenges.
Shortly before the 2012 election, Florida Governor Rick Scott (R) and his Secretary of State Kenneth Detzner (R) undertook an effort to purportedly purge the state's voter rolls of noncitizens. The Department of Justice challenged the purge in court, arguing that Florida had violated federal law that prohibits states from booting voters off the rolls within 90 days of a federal election. This law is in place to prevent depriving citizens of the vote because of faulty database checks, performed without enough time to correct the state's errors.
At the time, right-wing media outlets like The Wall Street Journal and National Review Online were overwhelmingly supportive of Governor Scott and his attempts to block people from voting. WSJ's senior editorial writer Jason Riley dismissed the DOJ's challenge, since "[t]he Obama Administration sees racial animus and voter-suppression conspiracies in any Republican-led effort to improve ballot integrity." NRO contributor Hans von Spakovsky also dedicated numerous posts to the issue, calling the DOJ's lawsuit "spurious," and evidence of "politics and ideology driving the legal decision-making" at the agency "as opposed to nonpartisan, objective analysis of the facts and the law."
Von Spakovsky had even more to say on the subject. In a different post about the case in 2012, he complained about the DOJ's "lawlessness" in its attempts to restore the voting rights of affected citizens in Florida:
Time and again, the Holder Justice Department has exhibited politically driven law enforcement. But its latest instance of lawlessness is absolutely brazen.
This goes far beyond Holder's previous actions, such as belittling claims of voter fraud and trying to stop voter ID and other reform measures intended to improve the integrity of the election process. This letter would directly abet vote thieves in a key state as Holder's boss seeks reelection [in 2012].
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.
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.
From the March 5 edition of Fox News' The Kelly File:
James O'Keefe, a right-wing performance artist known for his undercover videos that supposedly "expose" progressive "fraud," has released a new video falsely accusing conservative Rep. Jim Sensenbrenner (R-WI) of "excluding whites" from protection under his new Voting Rights Amendment Act (VRAA), a distortion of this bipartisan bill that has already been repeated in the National Review Online.
O'Keefe's new video shows him mysteriously dressed in camouflage, dancing to New Order's "Round and Round," and ultimately "confronting" Sensenbrenner at a town hall meeting about supposedly alarming anti-white language in the VRAA. Sensenbrenner, as he has in the past, began working on both sides of the aisle on this new VRA legislation last year, after the Supreme Court gutted crucial voter suppression protections in Shelby County v. Holder.
In the video, O'Keefe lectures Sensenbrenner on his own bill, claiming that "[i]n the legislation, it seems to contain language that explicitly removes white people from the protections of the Voting Rights Act." Sensenbrenner interrupts O'Keefe to correctly point out that the law "does not do that. There is nothing targeting people by race in the Voting Rights Act." O'Keefe eventually accuses Sensenbrenner of "doing the work of [U.S. Attorney General] Eric Holder and the race-hustlers with this language in the bill."
Fox News host Megyn Kelly hid the fact that her colleagues pushed baseless claims that conservative commentator Dinesh D'Souza was politically targeted by the FBI after he was indicted for breaking campaign finance laws.
On February 21, Kelly hosted D'Souza to defend himself from a recent FBI indictment that charged him with campaign finance fraud and to promote his latest anti-Obama film. Kelly reported on a letter sent by four Republican senator to the FBI claiming there is a perception that D'Souza "may have been targeted because of his outspoken criticisms" of President Obama. Kelly then went on to list only Alan Dershowitz as among those who questioned the motivation behind the charges, saying the charges "immediately rais[ed] red flags for some because D'Souza, who has pleaded not guilty, is behind the box office hit 2016: Obama's America, a film that is very critical of the president":
Fox News hosts were among those that claimed the charges were politically motivated, a fact that Kelly failed to mention. While interviewing D'Souza on January 31, Sean Hannity said he was the "latest victim to be targeted" and that he was placed on the president's "enemies list." Hosts of The Five joined in by saying they believed the charges were "politically motivated" and that they are an example of liberals "rediscovering their inner Stalin." Others on Fox have criticized the indictment as an example of "conservatives under attack."
In its continued opposition to the Voting Rights Act (VRA) and a proposed amendment to this historic law, The Wall Street Journal published a misleading op-ed by Hans von Spakovsky, an unreliable contributor to the National Review Online.
The op-ed of von Spakovsky, a right-wing activist who has called the "modern 'civil rights' movement" indistinguishable from "discriminators and segregationists of prior generations" and whose attempts to fearmonger about "virtually non-existent" voter fraud have been repeatedly discredited, followed a WSJ editorial that compared the bipartisan attempts of Congress to update the VRA with that of "Jim Crow era Southerners."
Although this new effort to strengthen the VRA through the Voting Rights Amendment Act of 2014 has prominent Republican support, von Spakovsky claimed "[t]his bill really isn't about the [Supreme Court's recent Shelby County v. Holder] decision. It is about having the federal government manipulate election rules to propagate racial gerrymandering and guarantee success for Democratic candidates." From the WSJ op-ed, which defended the conservative justices' gutting of the VRA in Shelby County and smeared the subsequent bipartisan efforts to repair the damage:
Before Shelby County, Section 5 of the Voting Rights Act required certain states to get "preclearance" from the federal government before making any voting changes. But the Supreme Court ruled that the formula to determine which jurisdictions were covered was unconstitutional because it was based on 40-year-old turnout data that did not reflect contemporary conditions. Census Bureau data show that black-voter turnout is on a par with or exceeds that of white voters in many of the formerly covered states and is higher than the rest of the country. We simply don't need Section 5 anymore.
In Shelby County, a radical break from precedent that has been described by experts as "on a par with the Court's odious Dred Scott and Plessy decisions and other utterly lamentable expressions of judicial indifference to the ugly realities of racial life in America," the bitterly divided Supreme Court struck at the heart of the VRA's efficacy by dismantling its "preclearance" process.
Even as the conservatives did so, however, Chief Justice John Roberts explicitly told Congress to fix this formula that requires covered jurisdictions with a history of racial discrimination to submit election changes for federal review before implementation. Contrary to von Spakovsky's strange assertion that "this bill really isn't about" Shelby County and is "an attempt to circumvent" the decision, this new bipartisan legislation is actually a direct response to Roberts' invitation to Congress to "draft another formula based on current conditions."
Admittedly, this new formula is more complex than von Spakovsky's preferred method of determining voter suppression by "turnout data," a confusion between correlation and causation that has been described as a rudimentary failure of "Statistics 101." Rather, Section 5 of the VRA imposes the preclearance process on jurisdictions with an incorrigible track record of suppressing votes based on race, and the formula to determine this discrimination has been changed in the new legislation to incorporate a comprehensive and rolling 15-year record.
The claim of the op-ed that the old formula led to "unwarranted objections" on the part of the Department of Justice toward alleged voter suppression is also inaccurate; this preclearance mechanism has been extremely effective at stopping racially discriminatory election changes. In fact, the two cases that von Spakovsky highlights both involved Section 5 successes.
Fox News baselessly stoked fears that undocumented immigrants would be able to vote if they received identification cards in New York City.
Mayor Bill de Blasio gave his first State of the City address on February 10, in which he announced a plan to offer identification cards to all residents, regardless of their immigration status.
On the February 12 edition of Fox's The Real Story, host Gretchen Carlson reported on de Blasio's announcement and falsely suggested that the plan is intended to permit undocumented immigrants to vote. She asked guest Emily Tisch Sussman:
CARLSON: So, Emily, am I to assume that the reason that de Blasio would want this is so that people can move on to vote? I mean, I don't really understand -- what do you think his whole effort is in this?
SUSSMAN: We do really see that having these either ID cards or driver's licenses for the undocumented, does actually promote public safety. You know, those who are involved in fatal car crashes, one in five have not gone through the proper training of a driver's license, it would bring them into that kind of system. It would have more economic security for those. It would have better trust with the police -- it really does bring them in in a number of ways.
Abandoning any pretense at understanding civil rights precedent or the bipartisan-supported Voting Rights Act (VRA), The Wall Street Journal condemned as "racial mischief" Congress' recent attempt to update this historic law pursuant to the Supreme Court's recent and explicit instructions.
In last year's bitterly split opinion of Shelby County v. Holder, the conservative justices of the Supreme Court gutted the most effective part of the Voting Rights Act - the "preclearance" formula by which jurisdictions with an incorrigible record of voter suppression must submit election changes to federal review before implementation. In his majority opinion, Chief Justice John Roberts invited Congress to "draft another formula based on current conditions."
On January 16, Congress did just that and submitted bipartisan legislation to update the previous formula, which itself was an overwhelmingly bipartisan effort signed into law by former President George W. Bush. In a February 3 editorial, however, the WSJ declared this legislation comparable to the efforts of "Jim Crow era Southerners" and declared "Congress should let it die":
Never underestimate Congress's ability for racial mischief. In the Jim Crow era Southerners blocked civil-rights progress. Now, 50 years after the Civil Rights Act of 1964, the liberal goal is to give national politicians more power to play racial politics in a few unfavored states.
Democrats and the strange bedfellow of Wisconsin Republican James Sensenbrenner have introduced a bill to revise Section 4(b) of the 1965 Voting Rights Act that the Supreme Court struck down last year. Chief Justice John Roberts wrote that the Act's coverage formula no longer made sense in light of current racial realities, and the new proposal isn't much better.
The good news is that the bill, sponsored by Democratic Rep. John Conyers and Senator Pat Leahy and endorsed in his State of the Union by President Obama, specifically exempts voter ID laws from the actions that could be counted as a demerit against the state's voting-rights record. That's a repudiation of Attorney General Eric Holder's politically motivated campaign against voter ID, and perhaps that's why Mr. Sensenbrenner came on board.
But that concession isn't worth the broader political intrusion that the new proposal would allow. The Voting Rights Act's current provisions still provide ample federal enforcement when local politicians limit minority rights. Federal preclearance was an extraordinary exception to the Constitution's command of equal treatment under the law, and the country's racial progress shows it is no longer needed. Congress should let it die.
The WSJ may be puzzled, but there is nothing "strange" about the fact that conservative Rep. James Sensenbrenner (R-WI) is leading Republican support for the latest renewal of the VRA. Support for the VRA and its preclearance mechanism - including the formula for determining covered jurisdictions - has historically been strongly bipartisan.
Sensenbrenner was the GOP's legislative leader the last time the VRA was reauthorized in 2006, when Congress passed updates to the preclearance formula by majorities of 98-0 in the Senate and 390-33 in the House. As former President Ronald Reagan had done before him with the 1982 reauthorization of the VRA (another bipartisan effort, also involving Sensenbrenner), Bush publicly and proudly signed into law the 2006 preclearance mechanism that Republicans (many still in Congress) overwhelmingly supported. The current bill is specifically crafted to repeat such long-standing bipartisan support, and House Majority Leader Eric Cantor has stated that his "experience with John Lewis in Selma earlier this year was a profound experience that demonstrated the fortitude it took to advance civil rights and ensure equal protection for all ... I'm hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected."
The WSJ not only botches civil rights law history, it also botches the substance of the new amendment.
From the January 31 edition of Fox News' Hannity:
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Right-wing media have sunk to new lows in smears against President Barack Obama's nominee to head the Department of Justice's Civil Rights Division, former NAACP Legal Defense Fund (LDF) top official Debo Adegbile, a highly-qualified and widely praised civil rights litigator who has been senior counsel to the Senate Judiciary Committee.
Scrambling to mitigate news that conservative filmmaker and Fox News darling Dinesh D'Souza was indicted for felony federal campaign finance violations, the network suggested that Democrat Pierce O'Donnell's 2012 misdemeanor convictions for the same crime is evidence that the Obama administration is targeting political enemies -- but O'Donnell was originally charged with even more felony counts than D'Souza.
D'Souza, known for his conspiratorial film 2016: Obama's America, was indicted this week "by a federal grand jury for arranging excessive campaign contributions to a candidate for the U.S. Senate," according to Reuters. D'Souza allegedly repaid people who, at his direction, contributed $20,000 to New York Republican senate candidate Wendy Long, well beyond the legal contribution limit.
His allies in the conservative media handled news of the indictment by accusing the Department of Justice of seeking to silence people on President Obama's "enemies list" in the custom of "Nazi Germany" and "Stalin."
Fox's evening news show Special Report attempted to further this conspiracy theory by pointing to the case of Pierce O'Donnell, an attorney who pled guilty to making approximately $26,000 in illegal campaign contributions to disgraced former Democratic presidential candidate John Edwards' 2004 campaign. The program repeatedly suggested political retribution was at play because O'Donnell "faced only a misdemeanor conviction" for a near identical crime to D'Souza's, who is charged with a felony. Correspondent Doug McKelway and contributor Charles Krauthammer raised these claims in different segments during the program.
But there is a fatal flaw in Fox's argument: O'Donnell was actually indicted for three felonies, more serious charges than D'Souza faces.
From the January 24 edition of Fox News' Hannity:
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