Washington Post columnist and Fox News contributor George Will joined right-wing media celebrating a lawsuit he believes will "blow [the Affordable Care Act] to smithereens," even though legal and policy experts agree that the theory the lawsuit is based on is ridiculous.
In a January 29 column, Will cheered the efforts of Oklahoma Attorney General Scott Pruitt, who is challenging the legality of tax credits the IRS provides to consumers who buy health insurance on the new federal exchange. According to Pruitt's lawsuit, which is the brainchild of Michael Cannon of the conservative Cato Institute and the National Review Online's Jonathan Adler (also a blogger at the right-leaning Volokh Conspiracy, which makes him a new colleague of Will's), the IRS has no authority to offer the tax credits in the federal exchange. Instead, according to the theory, Congress somehow intended the credits only for exchanges set up by the states.
Will ignored the fact that a federal court recently ruled against this type of far-fetched challenge.
Yet the case still sounds pretty good to Will, who used his column to not only celebrate this dubious lawsuit, but to complain about the IRS' "breezy indifference to legality":
The four words that threaten disaster for the ACA say the subsidies shall be available to persons who purchase health insurance in an exchange "established by the state." But 34 states have chosen not to establish exchanges.
So the IRS, which is charged with enforcing the ACA, has ridden to the rescue of Barack Obama's pride and joy. Taking time off from writing regulations to restrict the political speech of Obama's critics, the IRS has said, with its breezy indifference to legality, that subsidies shall also be dispensed to those who purchase insurance through federal exchanges the government has established in those 34 states. Pruitt is challenging the IRS in the U.S. District Court for the Eastern District of Oklahoma, and there are similar challenges in Indiana, Virginia and Washington, D.C.
The IRS says its "interpretation" -- it actually is a revision -- of the law is "consistent with," and justified by, the "structure of" the ACA. The IRS means that without its rule, the ACA would be unworkable and that Congress could not have meant to allow this. The ACA's legislative history, however, demonstrates that Congress clearly -- and, one might say, with malice aforethought -- wanted subsidies available only through state exchanges.
Congress made subsidies available only through state exchanges as a means of coercing states into setting up exchanges.
In Senate Finance Committee deliberations on the ACA, Chairman Max Baucus (D-Mont.), one of the bill's primary authors, suggested conditioning tax credits on state compliance because only by doing so could the federal government induce state cooperation with the ACA.
A review of claims made by the Cato Institute's Patrick Michaels over the last quarter century shows that he has repeatedly been proven wrong over time. Michaels is one of a few contrarian climate scientists who is often featured in the media without disclosure of his funding from the fossil fuel industry.
Mainstream media outlets should be aware of damaging economic attacks leveled by anti-immigrant groups in an attempt to derail comprehensive immigration reform. In reality, research indicates that comprehensive immigration reform would improve the U.S. economy, create jobs and boost American wages. Moreover, new findings show that immigrants are less likely to rely on public benefits than native-born Americans.
In the wake of a milder-than-expected snowstorm, the president of the American Meteorological Society has batted aside claims that balky short-term weather forecasts undermine long-term climate models.
Last week, a snowstorm forecast for the Mid-Atlantic, the "Snowquester," petered out in some areas expected to be hit hard. The incident served as another reminder that, as the Washington Post's Jason Samenow explained, short-term weather prediction is difficult, and carries a certain pressure to arrive at "the bottom line" for the benefit of viewers without qualification or explanation of uncertainties (of which there are many).
You may already know how this next part goes: writing in Forbes, the Cato Institute's Patrick Michaels suggested the "busted forecast" of the storm was actually a lesson that "Our "best science" can be wrong," and that in this sense there were "parallels with global warming." He allowed that this was a "statement of the human condition" -- presumably, rather than another example of scientists acting "Like lab rats that will do anything to keep the cocaine flowing." Unfortunately for a guy who invoked "The Natural" in his column, Michaels' logic was about as persuasive as that of a scout deciding that a .335 lifetime hitter may bat .111 the next few years based on a single 1-for-9 doubleheader.
Dr. J. Marshall Shepherd, the president of the American Meteorological Society, wrote in an email to Media Matters that Michaels' argument indicates a "fundamental [...] misunderstanding of weather and climate models," an "apples vs. oranges comparison." Weather models try to predict the weather at a specific place and time, while climate models project the average of those weather events over a longer time period and larger area, which is more predictable.
Back to that baseball analogy: Minnesota Twins' first baseman Rod Carew went 0-for-5 on April 26, 1977. On the season, he hit .388, leading the league. Carew finished his 19-year career with a .329 average, about 1.6 hits for every 5 at-bats. Given all this, it would have been very hard to predict his performance in any one game -- but easier to predict how he would hit generally.
Shepherd added that the "somewhat bad" Snowquester forecast was being "cherry-picked" from several "great" recent weather forecasts.
Michaels is among the professional climate "skeptic" world's few actual climate scientists, and has been paid handsomely by the fossil fuel industry for this dubious distinction, but making such a fundamental mistake in his column further undermines his credibility.
A group named Donors Trust has been funneling far more money than ExxonMobil ever did to climate denial groups, but because the source of the funds remains largely hidden, the public has been unable to pressure the donations to stop as they did with Exxon. A small portion of Donors Trust's funding was recently revealed by the Center for Public Integrity, yet even that small portion has significant ties to the Koch brothers and other fossil fuel interests.
Between 2008 and 2011, Donors Trust doled out over $300 million in grants to what it describes as "conservative and libertarian causes," serving as "the dark money ATM of the conservative movement." Donors Trust enables donors to give anonymously, noting on its website that if you "wish to keep your charitable giving private, especially gifts funding sensitive or controversial issues," you can use it to direct your money.
One of the "controversial issues" that Donors Trust and its sister organization Donors Capital Fund have bankrolled is the campaign to cast doubt on the science of climate change and delay any government action to reduce emissions.* The following chart created by The Guardian based on data from Greenpeace shows that as ExxonMobil and the Koch Foundations have reduced traceable funding for these groups, donations from Donors Trust have surged:
Several of these organizations have sown confusion about the science demonstrating climate change. The Heartland Institute, which The Economist called the "world's most prominent think tank promoting skepticism about man-made climate change," received over $14 million from Donors Trust from 2002 to 2011, making up over a quarter of Heartland's budget. in 2010. In 2012, Heartland launched a billboard campaign comparing those that accept climate science to The Unabomber, Charles Manson, and Fidel Castro. Several corporate donors distanced themselves from the organization, but Donors Trust made no comment. Heartland removed the billboard soon afterward but refused to apologize for the "experiment."
Meanwhile, The Committee for a Constructive Tomorrow (CFACT) received over $4 million from Donors Trust from 2002 to 2011, accounting for over 45 percent of CFACT's budget in 2010. The highest-paid member of CFACT's staff is Marc Morano, who runs a website that pushes misleading attacks on climate science. Morano defended Heartland's billboard and said that climate scientists "deserve to be publicly flogged." Despite Morano's sordid background, CNN twice hosted him to "debate climate change and if it is really real" without disclosing that he has no scientific training and is paid by an industry-funded organization. CFACT lists the Forbes columns of Larry Bell, who calls global warming a "hoax," as "CFACT research and commentary." The organization is advised by several prominent climate misinformers, including Lord Christopher Monckton and Willie Soon.
The Center for Public Integrity (CPI) has revealed the sources of approximately $18.8 million of Donors Trust's funding from 2008 to 2011, culled from Internal Revenue Service filings. That leaves over $281 million in anonymous funds during that period, assuming that the organization gives out approximately as much as it takes in each year.
While the individuals and corporations funding Donors Trust remain largely hidden, we know that at least five separate foundations connected to Koch Industries have given over $3.8 million to Donors Trust in recent years. Koch Industries, owned by brothers Charles G. and David H. Koch, is the largest privately owned company in the U.S. and controls several oil refineries and pipelines.
Described as the crown jewel of civil rights law, the Voting Rights Act has been the target of right-wing misinformation for decades, and a parallel legal assault against its constitutionality will be argued before the Supreme Court in Shelby County v. Holder on February 27. The VRA, enacted to stem voter suppression on the basis of race in the South, contains a provision within it - Section 5 - which identifies the worst historical offenders and requires that election changes in those jurisdictions pass federal review. The current legal challenges to the VRA focus on Section 5, and are the continuation of the same discredited claims lodged against this anti-discrimination law since its inception.
In response to a compromise on tax policy, conservative media are again comparing the United States to Greece. According to right-wing logic, the deal brings America even closer to the violence and discord in Greece, Italy, Ireland, France, and just about every European country whose citizens have protested austerity measures.
Of course, conservative media figures have spent at least three years ringing this same alarm. Economic experts have spent just as much time dismissing this panicked comparison, but to little avail. This Media Matters video, drawing on three years of television coverage of deficits and spending, shows the prevalence and longevity of the Greece talking point:
Fox News is promoting another legal challenge to the Affordable Care Act that originated in a right-wing think-tank and was hyped by conservative blogs. The State of Oklahoma filed a lawsuit based on a problematic theory that alleges tax credits within federally-run health insurance marketplaces called "exchanges" are unauthorized, which was developed by Michael Cannon, Director of Health Policy Studies at the Cato Institute, and National Review Online contributing editor and Case Western Reserve University School of Law professor Jonathan H. Adler. But Fox News has not only failed to report the extensive debunking of this tax credit theory, it has also mischaracterized this challenge to tax credits offered in exchanges as a "serious" constitutional one, although the new constitutional arguments are even more far-fetched than the original statutory claims.
Despite the overwhelming consensus among climate experts that human activity is contributing to rising global temperatures, 66 percent of Americans incorrectly believe there is "a lot of disagreement among scientists about whether or not global warming is happening." The conservative media has fueled this confusion by distorting scientific research, hyping faux-scandals, and giving voice to groups funded by industries that have a financial interest in blocking action on climate change. Meanwhile, mainstream media outlets have shied away from the "controversy" over climate change and have failed to press U.S. policymakers on how they will address this global threat. When climate change is discussed, mainstream outlets sometimes strive for a false balance that elevates marginal voices and enables them to sow doubt about the science even in the face of mounting evidence.
Here, Media Matters looks at how conservative media outlets give industry-funded "experts" a platform, creating a polarized misunderstanding of climate science.
The Economist has called the libertarian Heartland Institute "the world's most prominent think tank promoting skepticism about man-made climate change." Every year, Heartland hosts an "International Conference on Climate Change," bringing together a small group of contrarians (mostly non-scientists) who deny that manmade climate change is a serious problem. To promote its most recent conference, Heartland launched a short-lived billboard campaign associating acceptance of climate science with "murderers, tyrants, and madmen" including Ted Kaczynski, Charles Manson and Fidel Castro. Facing backlash from corporate donors and even some of its own staff, Heartland removed the billboard, but refused to apologize for the "experiment."
Heartland does not disclose its donors, but internal documents obtained in February reveal that Heartland received $25,000 from the Charles Koch Foundation in 2011 and anticipated $200,000 in additional funding in 2012. Charles Koch is CEO and co-owner of Koch Industries, a corporation with major oil interests. Along with his brother David Koch, he has donated millions to groups that spread climate misinformation. Heartland also receives funding from some corporations with a financial interest in confusing the public on climate science. ExxonMobil contributed over $600,000 to Heartland between 1998 and 2006, but has since pledged to stop funding groups that cast doubt on climate change.
Despite their industry ties and lack of scientific expertise, Heartland Institute fellows are often given a media platform to promote their marginal views on climate change. Most visible is James Taylor, a lawyer with no climate science background who heads Heartland's environmental initiative. Taylor dismisses "alarmist propaganda that global warming is a human-caused problem that needs to be addressed," and suggests that taking action to reduce emissions could cause a return to the "the Little Ice Age and the Black Death." But that hasn't stopped Forbes from publishing his weekly column, which he uses to spout climate misinformation and accuse scientists of "doctoring" temperature data to fabricate a warming trend. It also hasn't stopped Fox News from promoting his misinformation.
Opponents of health care reform have opened up a new front in their relentless campaign, receiving extensive media attention for their claim that only state-created exchanges can legally offer tax credits for health insurance. This contested reading of the health care reform law would leave consumers in states with federal exchanges -- the default marketplace for states that decline to set up their own exchanges -- without access to affordable health insurance.
Exchanges have become the latest bogeyman in the right-wing media, but a just-released report by the Center on Budget and Policy Priorities explains why a legal challenge to them is unsupported by both the clear language of the Affordable Care Act and relevant case law.
As described in a June 25 USA Today op-ed, opponents of exchanges are claiming that their reading of the health care reform law reveals that "[c]redits are [legally] available only in states that create an exchange themselves. The federal government might create exchanges in states that decline, but it cannot offer credits through its own exchanges." Right-wing activist groups have jumped on this argument and are already clamoring for lawsuits to be filed over the administration's interpretation of the law to the contrary. A July 9 article in Congressional Quarterly Today (subscription required) reported the director of policy at the Koch-backed Americans for Prosperity as adamant that litigation would "absolutely" ensue.
The idea of suing to block exchange implementation and hamstring affordability programs designed to help low- and moderate-income persons afford coverage in the private insurance market appears to have originated with two frequent National Review Online contributors, Jonathan Adler, Professor of Law at Case Western Reserve University, and Michael Cannon, Director of Health Policy at the Cato Institute. Long-time opponents of the Affordable Care Act and authors of the USA Today op-ed, the two first presented this questionable theory to the mainstream press through a November 16, 2011, op-ed in The Wall Street Journal. Cannon, in particular, seems to have made exchanges his personal target, barnstorming the country along with other Koch-backed organizations.
Experts on health care law and policy are highly critical of the proposed anti-exchange lawsuits. However, although the challenge might be a long shot due to its debatable reading of the statute and disregard of congressional intent, even far-fetched legal challenges have legs in today's increasingly conservative courts. Remember broccoli? Amplified by the increasing synergy between right-wing academics and media, the "broccoli" and "inactivity/activity" argument in the health care reform cases rocketed from the fringe to the mouths and pens of Supreme Court Justices.
Judith Solomon, vice president for health policy at the Center on Budget and Policy Priorities, wrote the report yesterday that rebuts Adler and Cannon's claims:
Opponents of health reform apparently intend to file a legal challenge to the law on behalf of one or more employers who are penalized for not providing coverage in a state with a federal exchange, based on the claim that the federal exchange was not authorized to provide the subsidies. A court considering such a claim would almost certainly defer to the Treasury Department interpretation that subsidies are fully available through federally operated exchanges.
In providing for a federal exchange, Congress clearly intended that it substitute for a state exchange. One of the primary functions of an exchange is to determine eligibility for, and the amount of, advance premium tax credits so that people can afford to buy coverage. The language of section 1321 of the ACA establishing the federal exchange is clear on that point, as is the reference in section 36B of the Internal Revenue Code to credits being provided through a federally operated exchange. But even if the statute were ambiguous, a court examining whether the Treasury regulations are valid would certainly defer to the agency's interpretation of the statute because it is both permissible and reasonable. [Center on Budget and Policy Priorities, 7/16/12]
The Prius is now the world's third best-selling car line, but before it became a clear success story, it was the target of attacks from conservative media similar to those now being leveled against electric vehicles.
In 2000, the year the Prius was released in the U.S., Diane Katz and Henry Payne wrote at the Wall Street Journal that hybrid cars are not "what the public wants." The next year, the Cato Institute's Patrick Michaels declared the Prius would "never" deliver a profit for Toyota and hyped how "demand has been weak" for hybrids. That these conservative pundits have clearly been proven wrong with time is a lesson for today's pundits who suggest that current electric car sales mean that electric cars will never be successful. As Bloomberg reporter Jamie Butters noted in a video report, "a lot of people will criticize the sales of the Chevy Volt by GM or the Nissan Leaf, but when you really look back they're selling at significantly higher opening volumes than the Prius when it came out 15 years ago."
Even after Prius sales had significantly ramped up, conservative media were still downplaying the market for hybrids in the U.S. In 2004, a Fox News guest declared that "Americans don't want hybrids":
As automakers are starting to bring electric vehicle (EV) technology into the mainstream, conservative media outlets have repeatedly misled consumers about electric cars by trying to paint them as environmentally harmful and unsafe, among other false claims.
In response to the suspension of federal scientist Charles Monnett, who authored a 2006 article documenting polar bear deaths, conservative media have claimed that the case exposes "the global warming fraud" and that polar bears are not threatened by climate change. In fact, extensive research establishes that polar bears are vulnerable to extinction due to decreasing sea ice, and human-induced global warming is supported by a robust body of evidence independent of any polar bear studies.
After the U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of the individual mandate provision of the Affordable Care Act, many right-wing bloggers criticized the decision or downplayed its significance. But one of the judges who voted to uphold the statute was Jeffrey Sutton, an appointee of President George W. Bush who was such a proponent of states' rights during his legal career that he once proclaimed that he became involved in states' rights issues because "I really believe in this federalism stuff."