Investor's Business Daily published an Aug. 12 op-ed with the headline: "EPA Regulations Are 'Jim Crow' Laws Of 21st Century." The op-ed, written by a senior fellow at the oil-funded Heartland Institute, attacked the Environmental Protection Agency's (EPA) Clean Power Plan -- which places the first-ever federal limits on carbon pollution from power plants -- as harmful to minorities. To make his case, the author cited a National Black Chamber of Commerce study that relies on several thoroughly debunked studies and climate science denial. The op-ed also cited conservative author Deneen Borelli, who called the EPA climate plan "the green movement's new Jim Crow."
From the op-ed:
EPA Regulations Are 'Jim Crow' Laws Of 21st Century
In announcing EPA's new so-called "Clean Power Plan" regulations, President Obama repeatedly told us that by restricting power plant emissions of carbon dioxide (CO2), the plan would "cut carbon pollution." But that repeated phrase "carbon pollution" reveals fundamental, disqualifying ignorance.
As a new report from the National Black Chamber of Commerce documents, EPA's new regulatory requirements will result in estimated job losses reaching 7 million for blacks and 12 million for Hispanics, with the poverty rate increasing by more than 23% for blacks and 26% for Hispanics.
That's because the rules will ultimately more than double the cost of natural gas and electricity, adding over $1 trillion to family and business energy bills.
"A lot of people on the lower end of the socioeconomic spectrum are going to die," says Sen. Joe Manchin, D-W.V. African-American author Dineen Borelli calls EPA's overregulation "the green movement's new Jim Crow." National Black Chamber of Commerce President Harry Alford calls the EPA's regulatory overkill "a slap in the face to poor and minority families."
Right-wing media are falsely blaming the recent surge of undocumented children from Central America for spreading a deadly strain of the enterovirus. Conservatives are claiming the children are a form of "biological warfare" and President Obama and the government are "bringing in infected children and putting them in our public schools" because he's "so obsessed with winning Latino votes." However, the disease has been detected in the country for decades and the Centers for Disease Control (CDC) told Media Matters that there is "no evidence" of a link.
Fearmongering about undocumented children spreading enterovirus D68 is the latest chapter in the conservative media's book of xenophobic smears. The right-wing media, in their efforts to oppose immigration reform, have previously blamed undocumented immigrants for diseases such as Hansen's disease (leprosy) and tuberculosis.
This year, a surge of unaccompanied children fled violence-stricken Central America and crossed the border into the United States. Many of the children were relocated to various cities and are starting school.
The CDC has confirmed over 600 cases of EV-D68 since mid-August. The agency notes that "Almost all the confirmed cases this year of EV-D68 infection have been among children. Many of the children had asthma or a history of wheezing." While investigations are ongoing, the virus has been "detected in specimens from five patients who died and had samples submitted for testing."
Public health experts have debunked the alleged connection between the influx of undocumented children into the United States and the spread of EV-D68. CDC spokesperson Jeanette St. Pierre told Media Matters: "Currently, there is no evidence from testing at CDC that EV-D68 infections in the U.S. are a result of unaccompanied minors moving into the country."
MLive reported that conservatives "have implied a link between undocumented children from Central America and the spread of enterovirus, but public health experts say that's simply not the case." The Michigan-based site, which publishes The Grand Rapids Press and others, wrote:
In the weeks leading up to the release of the U.N. Intergovernmental Panel On Climate Change's (IPCC) fifth assessment report summarizing climate science on Monday, conservative media have spread a variety of myths about the process, credibility and findings of the group. Contrary to misinformation, the report reflects that scientists are more convinced than ever that manmade climate change is real and dangerous.
Conservatives are still turning to British tabloids for their climate science, most recently treating a single year's Arctic sea ice -- which is still far below previous and long-term averages -- to claim that the region is not melting.
The latest instance of tabloid-reviewed science began when the The Mail on Sunday -- a sister newspaper to serial climate misinformer the Daily Mail* -- published an article titled "And now it's global COOLING!" suggesting that an increase in Arctic sea ice cover between September 2012 and August 2013 is among "mounting evidence that Arctic ice levels are cyclical." The story was summarily picked up by other British tabloids and a variety of conservative outlets, all to cast doubt on climate change. Notably, Rush Limbaugh used the report to claim "the Arctic ice sheet is at a record size for this time of year. They told us the ice was melting in the Arctic Ice Sheet. It's not."
Actually, Arctic sea ice is nowhere near "a record size." A graph from the National Snow & Ice Data Center (NSIDC) illustrates that 2013 Arctic sea ice extent minimum (beige line), while not as low as last year's record (dotted line), is still tracking well below the 1979-2000 average (as have the minimum extents of every year since 1997). It is on track to be the sixth-lowest in satellite annals:
As 2012 was a record low, it is not terribly surprising that 2013 looks like it will be higher. This is due to a phenomenon known as regression to the mean, eloquently illustrated by this Skeptical Science graphic:
Right-wing media have attempted to manufacture the claim that President Obama is abusing executive power by delaying implementation of the health care law's employer mandate and directing federal prosecutors to avoid maximum drug sentences in some cases, despite the legality of both practices.
From the National Review Online's "Cartoon of the Day" by Investor's Business Daily's Michael Ramirez:
Right-wing media are rejecting the Congressional Budget Office (CBO) analysis of the Senate immigration reform proposal, claiming that the CBO's conclusion that the proposal reduces the deficit is "false" because immigrants' reliance on Social Security as citizens would eventually outweigh their contributions. In fact, the myth that the legalization of undocumented immigrants would negatively impact Social Security has repeatedly been discredited by the Social Security Administration.
In anticipation of President Barack Obama's announcement of measures to reduce carbon emissions, conservative media outlets are once again attempting to cast doubt on the science behind climate change. But despite their claims, a substantial majority of scientists acknowledge the evidence that the earth is warming largely due to human activity.
Serial health care misinformer and right-wing media figure Betsy McCaughey pushed the conspiracy theory that health care outreach efforts are a secret plan to register voters as Democrats.
In an Investor's Business Daily column, McCaughey attacked grants that fund outreach and education about President Obama's health care law. McCaughey claimed, "The lion's share of the money is going for what the exchange budget terms 'outreach.' In truth, the money is going to build Democratic Party enrollment." She continued:
Assisters will also guide the uninsured to sign up for whatever non-health social services they may be eligible for, including welfare, food stamps and housing assistance, according to the manual prepared by the Community Health Councils for California's implementation.
Anyone who remembers the days of James Curley, Boss Tweed and Tammany Hall gets the picture. If you were poor or a newcomer to this country, you went to the local ward boss and got whatever you needed in exchange for your vote.
The difference is that back then, politics was local. Now the Obama health law is institutionalizing this corrupt style of politics across the country. Whether you live in California or New York, local community activists and unions will be recruiting people to enroll in ObamaCare and sign up to be part of the permanent, beholden Democratic voting majority.
McCaughey is not the first right-wing media figure to push this claim despite lack of evidence to support it. Fox News host Megyn Kelly and contributor Michelle Malkin have both attacked outreach efforts in an attempt to push a political agenda. Rush Limbaugh also claimed that officials employed by the government to help Americans evaluate health care options will register voters as Democrats and "smear Republicans." But outreach efforts for health care legislation are not new -- the State Health Insurance Assistance Program has been conducting similar outreach for Medicare Advantage and Medicare Part D programs.
McCaughey has a long history of misinforming about health care, including the claim that the health care law will lead to euthanizing seniors, that the law contains "death panels," and that it will limit preventive care
News outlets have largely ignored the legal barriers that the Supreme Court has erected in between injured consumers and access to compensation - including a current case that could give big business the power to place themselves beyond the reach of federal laws by preventing consumers and small businesses from bringing class action lawsuits.
That's surprising, considering the extensive media coverage of the story of 3,000 passengers on Carnival Cruise Line's Triumph who spent five days floating in the Gulf of Mexico with no power or plumbing, and finally disembarked in Mobile, Alabama. On February 20, attorneys for the passengers filed a class-action lawsuit against Carnival, claiming that the cruise line acted negligently by sending the Triumph to sea when they knew the ship had mechanical problems. It was the second major crisis on a Carnival ship in a year.
Thanks to a series of Supreme Court cases limiting class actions and upholding arbitration agreements, those passengers are facing an uphill climb with their lawsuit. Carnival's ticket contract itself contains an arbitration clause requiring customers to waive their right to bring claims against Carnival in court. It also includes a "class-action waiver" that states:
This contract provides for the exclusive resolution of disputes through individual legal action on guest's own behalf instead of through any class action."
If enforced, a class-action waiver creates a David and Goliath dynamic. As legal expert Dahlia Lithwick has explained, class actions often level the playing field between individual claimants and big defendants such as employers. The Supreme Court has made it increasingly difficult to pursue class actions. For example in Wal-Mart v. Dukes, the Court rejected a class-action suit brought by female Wal-Mart employees who claimed they were subjected to discrimination in pay and promotions. The practical result: Wal-Mart employees would have to jump over significant hurdles to pursue class action; otherwise, they are forced to go it alone against the number two corporation in the Fortune 500. Lead plaintiff Betty Dukes explained that the Court took "an opportunity to give corporate America a huge advantage over everyday American citizens."
These decisions, which leave plaintiffs to go it alone against corporations and waive their day in court based on agreements they didn't have an opportunity to negotiate, set the stage for an upcoming Supreme Court case that could shift the balance even further in favor of big business, allowing them to use these form agreements as an end run around federal law.
On February 27, the Court will hear oral arguments in American Express Co v. Italian Colors Restaurant, in which it will weigh whether class-action waiver provisions in an arbitration clause are enforceable even when refusing to allow the class action to go forward would make it functionally impossible to vindicate federal statutory rights at all.
Businesses that accept American Express charge cards must agree to a class-action waiver and waive any other means of sharing the cost of legal proceedings against the company. American Express insists that businesses accept their unpopular credit cards if they want to accept the popular ones, which the businesses claim is a "tying arrangement" that violates the antitrust laws. Because pursuing antitrust claims is expensive, the cost of arbitrating an individual case would dwarf any possible recovery--meaning that if the plaintiffs cannot proceed as a class or share expenses, the antitrust claim is dead in the water.
The US Court of Appeals for the Second Circuit held that Am Ex's arbitration agreement, which includes a class-action waiver, was unenforceable because it would prevent the merchants from effectively vindicating their federal statutory rights. Importantly, the court noted that enforcing the waiver would prevent an antitrust claim from being litigated at all:
Amex has brought no serious challenge to the plaintiffs' demonstration that their claims cannot reasonably be pursued as individual actions, whether in federal court or in arbitration, we find ourselves in agreement with the plaintiffs' contention that enforcement of the class action waiver in the Card Acceptance Agreement "flatly ensures that no small merchant may challenge American Express's tying arrangements under the federal antitrust laws."
The bottom line is this: if the Supreme Court reverses the Second Circuit's decision, small businesses and consumers could be forced to waive--through form contracts--longstanding statutory rights in order to do businesses with large corporations. This gives corporations significant power to evade federal law. As the Supreme Court explained in Reiter v. Sonotone (1979), even though the Department of Justice may also enforce antitrust laws, private litigation is important because
These private suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations. Indeed, nearly 20 times as many private antitrust actions are currently pending in the federal courts as actions filed by the Department of Justice.
When the Court strikes down or blunts the power of duly-enacted legislation, legal commentators - conservative and progressive alike-- often invoke the term "judicial activism," charging that the Court overstepped its bounds. But in AmEx, the Court will consider whether corporations can wield that power. While big business and consumer groups recognize what's at stake -the U.S. Chamber of Commerce and Public Citizen both filed amicus briefs- the media apparently does not. Even The Wall Street Journal's Law Blog's post on the Carnival Triumph debacle, while accurately noting that the cruise industry has adopted mandatory arbitration clauses, didn't note that the scope of these clauses is currently before the Court.
There are exceptions, such as conservative attorney Theodore H. Frank. Frank is an adjunct fellow at the Manhattan Institute's Center for Legal Policy, which according to its website "has been a leader in analyzing class action abuses and developing solutions."* In an Investor's Business Daily op-ed, Frank attempts to turn attention away from the problem of illegal tying arrangements, pointing out that the real problem is class actions themselves. He writes "[i]n reality, consumers would be better off if they had the right to promise that they would avoid bringing the class action in the first place." According to Frank, lawyers who pursue class actions are interested because these cases are lucrative for them.
Former Solicitor General Paul Clement, who is representing the merchants in AmEx, doesn't see it that way. His firm often represents big corporate clients like Exxon Mobil. Clement, whose strong oral argument performance attacking the Affordable Care Act was the talk of the last Court term, and who is in the headlines again for defending the Defense of Marriage Act before the Court this term, is not a class-action attorney. He has made clear that the case is not about attacking arbitration provisions, but preserving the merchants' statutory rights: "This is thus truly a case in which the alternative to litigation is not arbitration, but nothing."
Frank also claims that those who are concerned about the dangers of reversing the Second Circuit's decision are "Chicken Littles," and recasts the AmEx case as a struggle to preserve arbitration itself. That would probably come as a surprise to the group of professional arbitrators, mediators, and arbitration professors who filed an amicus brief in support of the merchants. They state that
[American Express's] argument that the [Federal Arbitration Act] requires enforcement of an arbitration clause even where it is undisputed that the consequence is that the resolution of the underlying claims in arbitration is impossible, if adopted, will reduce public confidence in the arbitration system and leave it a more weakened institution.
With less than a week left until oral argument, AmEx is something of a sleeper case. But that has everything to do with inadequate media coverage and nothing to do with how much is at stake.
*This post previously linked to reports that Mr. Frank's organization, the Center for Class Action Fairness, was funded by Donors Trust that Media Matters for America did not independently verify.
As the State Department nears a decision on whether or not to approve the Keystone XL pipeline, the media is exaggerating its economic benefits and downplaying environmental risks to advocate for the project. Here, Media Matters takes on five of the prevailing media myths about Keystone XL.
Conservative media have denigrated solar energy by denying its sustainability, ignoring its successes, and arguing the U.S. should simply cede the solar market to China. Yet this booming industry has made great strides, and with the right policies can become a major source of our power.
Conservative media outlets are claiming that a leaked draft of the UN climate panel's upcoming report undermines previous predictions of rapid warming driven by rising CO2 emissions. But scientists say these claims are "nonsense" and that the draft report only adds to the existing body of evidence that manmade climate change is a serious problem.
A draft of the Intergovernmental Panel on Climate Change (IPCC) fifth assessment report, due to be published in fall 2013, was leaked by Alec Rawls, a blogger who volunteered to review the report despite having no scientific expertise. In a blog post on Watts Up With That, Rawls claimed that the draft report contains a "game-changing admission" that galactic cosmic rays have significantly contributed to global warming, undermining the scientific consensus that climate change is driven by human activity. But experts say Rawls "completely misrepresented the IPCC report," noting that he ignored a paragraph that explicitly states there is "high agreement" among scientists that cosmic rays do not have a meaningful impact on global temperatures. Dr. Steve Sherwood -- a lead author of the chapter in question -- told Australia's ABC News that Rawls' claim is "ridiculous," adding: "we conclude exactly the opposite, that this cosmic ray effect that the paragraph is discussing appears to be negligible."
Furthermore, as Skeptical Science pointed out, even if cosmic rays did influence global temperatures, "they would currently be having a cooling effect." Dr. John Abraham of the Climate Science Rapid Response Team told Media Matters:
The IPCC report certainly was not saying the changes in the sun were causing the earth to warm. In fact, if the leaker was correct in his interpretation, the earth should be cooling right now!
But that didn't stop Investor's Business Daily from echoing his misinformation, claiming that the leaked draft "indicates the IPCC is actually admitting that a factor outside man's activities is playing a significant role in our climate." IBD quoted Rawls' claim that the section on cosmic rays "completely undercuts" the IPCC's conclusion that manmade climate change poses a significant threat, without noting that Rawls is not a scientist and has been thoroughly discredited.
Meanwhile, climate contrarian blogger Anthony Watts claimed to have discovered the real "bombshell" in the draft report: a chart comparing observed changes in global average surface temperatures with projections from the four previous IPCC reports. The chart indicates that early UN projections may have slightly overestimated warming because they did not take into account natural factors like solar forcing or aerosols, which tend to have a cooling effect. But the draft notes that "observations through 2010 generally fall well within the projections made in all of the past assessments."
The Drudge Report hyped an Investor's Business Daily claim that President Obama has hired an average 101 new federal employees a day. But federal employment is not keeping pace with population growth and a significant number of those new jobs are necessary to handle the care of returning and wounded veterans.
A headline on the Drudge Report linked to an Investor's Business Daily article by Andrew Malcolm under the headline "Obama has hired 101 new federal employees A DAY since taking office..." The article claimed that during the Obama administration, "the federal government has daily hired on average 101 new employees. Every day. Seven days a week. All 202 weeks":
But both Drudge and Malcolm ignored that a significant portion of the increase in federal jobs are a result of defense spending, including an increase in hiring associated with caring for military personnel returning from the wars in Iraq and Afghanistan.
Examining claims about increased federal employment, PolitiFact found that "all told, national defense, assisting veterans, and protecting the national borders account for close to 90% of all federal civilian employee growth." PolitiFact quoted John Palguta, vice president for policy at the Partnership for Public Service, a nonpartisan group that studies the federal workforce, as saying, "Just about all of the increases are at the Defense Department, Veterans Affairs, Homeland Security and the Department of Justice."
Conservative media outlets pushed at least eleven misleading attacks on President Obama's energy policies that have become talking points used by Mitt Romney's campaign. The conservative media bubble has largely prevented voters from hearing the facts about clean energy programs, fossil fuel production and environmental regulation under the Obama administration.