Conservative Supreme Court Justice Antonin Scalia is adopting right-wing media's talking points yet again, this time implausibly claiming that the Republican-controlled "Congress would act" with an alternative if the court strikes down the Affordable Care Act's health insurance tax credits.
On March 4, the justices heard King v. Burwell, a case that could make insurance subsidies unavailable to some Americans. At issue in the suit is whether a subclause in the law that says subsidies can be disbursed through "Exchanges established by the State" prohibits the IRS from providing tax credits to consumers who bought insurance over the federal exchange. Despite the fact that experts agree that the law clearly makes the subsidies available to everyone, right-wing media have called on the Supreme Court to rule otherwise.
Health and Human Services Secretary Sylvia Burwell has repeatedly said that there is no contingency plan in the event of an adverse decision in King, and that there is no fix the administration can make to remedy the problem without inviting further legal challenges. Right-wing media jumped at Burwell's comments, criticizing the administration for not having a back-up plan while promoting a series of Republican "alternatives" should the court ultimately strike the subsidies down.
Conservative outlets like The Wall Street Journal and Fox News have done their part to push these plans by hosting numerous op-eds and segments with the authors of these questionable proposals. On the March 4 edition of Fox & Friends, Sen. Bill Cassidy (R-LA) joined hosts Steve Doocy, Brian Kilmeade, and Elisabeth Hasselbeck to promote one such alternative. After Cassidy claimed that the Obama administration has "nothing to say" to consumers who might lose their subsidies, Doocy remarked that "the administration says they don't have a plan B, but apparently the Republicans do." National Review Online has also argued that the Republicans have a viable alternative plan, writing in a recent post that "Senate Republicans aren't leaving anything to chance" and that "there's some conservative intellectual firepower behind" their ideas.
As The Hill reported, these alternatives are "a direct appeal to the Supreme Court justices" that are "intended to make it easier for the court to strike down the subsidies, since Republicans believe the court is more likely to rule in their favor if it believes a plan is in place to limit the fallout."
The Wall Street Journal is once again promoting a right-wing challenge to the Affordable Care Act (ACA) by repeating misinformation about the case, calling on the Supreme Court to strike down some health care subsidies while falsely claiming the law's "plain text" renders them illegal.
On March 4, the Supreme Court will hear oral arguments in King v. Burwell, a case that could block the availability of federal health care subsidies. The plaintiffs in King argue that because a subclause of the ACA states that subsidies are available "through Exchanges established by the State," consumers who buy insurance over the federal exchange aren't eligible to receive tax credits from the IRS to offset the cost. Without subsidies, people who live in one of the 37 states that don't operate their own health care exchange would be unable to afford insurance.
In a March 2 editorial, the Journal made its final pitch before oral arguments, calling the challenge an opportunity for "the Justices to vindicate the law's plain text." The editorial, like the challengers in King, ignored the context of the ACA as a whole and claimed that the decision to strike down the subsidies should be an easy call for the Supreme Court because the "English language is clear" and the law is unambiguous:
In King, the High Court will scrutinize this IRS decree using the traditional canons of statutory construction. The English language is clear: Congress wrote that subsidies would be available on state exchanges only, so Washington cannot deputize itself as the 51st state -- especially when the black-letter law is as consistent, tightly worded and cross-referenced as the Affordable Care Act.
To take one example, the Secretary of Health and Human Services was empowered to grant unlimited sums of money to states to establish exchanges. But the law appropriated not a penny for the federal exchanges, and HHS raided internal slush funds to build them. If there is no legal difference between the federal and state exchanges, why did HHS need this budget ruse?
ObamaCare's history shows Democrats made a deliberate choice. As they tried to assemble 60 votes in the Senate, holdouts like then Nebraska Senator Ben Nelson intensely desired state partners. Because the federal government couldn't commandeer the sovereign states by mandating participation, the subsidy bait was Congress's constitutional option to encourage buy-in.
The Journal's attempt to make the plaintiffs' case by arguing that the subsidies are illegal because the Department of Health and Human Services had to rely on a "budget ruse" to build the federal exchanges ignores the facts. According to a report from The Washington Post, the Republican-controlled Congress "repeatedly rejected the Obama administration's requests for additional funds" to implement the ACA, including those exchanges Republican-controlled states refused to set up.
Fox News and owner Rupert Murdoch's newspapers The New York Post, and The Wall Street Journal have all fallen silent as more questions emerge about Bill O'Reilly's claims about his reporting career.
The New York Post has never reported on any of the recent revelations that O'Reilly has inflated tales of his journalism career, while the Wall Street Journal provided just one article right as the controversy began, and Fox News' scant coverage has disappeared as they now ignore all new developments, according to a Media Matters review.
O'Reilly has come under heavy criticism for multiple lies and exaggerations, after a Mother Jones report first noted the Fox host has a history of misleadingly claiming to have been "in the Falklands" and in "combat" during the Falklands War. Media Matters has also identified serious discrepancies in O'Reilly's stories about witnessing nuns being shot in El Salvador, and overhearing the suicide of a figure linked to President John F. Kennedy's assassination.
When the original Mother Jones piece broke, Murdoch's Fox News went to war with the magazine. O'Reilly immediately gave a series of interviews to other news outlets, denying the allegations by saying he had never said he was on the Falkland Islands themselves, and launching personal attacks.
On Fox News itself, O'Reilly first lashed out at critics during his February 20 show and dismissed the Mother Jones report as "garbage," and later used his February 24 show to try to shift the focus away from the scrutiny. Fox's MediaBuzz also covered the story, giving O'Reilly another platform to attack his critics. No other Fox News program covered the story, according to a search of the Nexis and Snaptream databases.
The Wall Street Journal, which is also owned by Murdoch, similarly reported on O'Reilly's initial denials.
When Media Matters further reported on February 25 that O'Reilly had fabricated the claim that he personally "saw nuns get shot in the back of the head" in El Salvador, O'Reilly also offered a statement to Mediaite claiming that when he said "I was in El Salvador and I saw nuns get shot in the back of the head" he was referring to seeing "horrendous images" of nuns murdered, not personally witnessing their deaths.
He did not, however, mention the El Salvador controversy that night on his show, and Fox's PR department released a statement the same day suggesting they would not continue to respond to the "accusation du jour." Additionally, neither Fox nor O'Reilly have directly addressed Media Matters' report on the substantial evidence undermining O'Reilly's claim that he "heard" a shotgun blast when a figure linked to the assassination of President John F. Kennedy committed suicide.
Outside of O'Reilly's own program, no Fox News show has even hinted at these developments, according to a search of the Nexis and Snaptream databases.
Similarly, other Rupert Murdoch-owned media properties have fallen silent or failed to mention the controversies entirely.
Though the Wall Street Journal reported on February 20 on O'Reilly's initial denials of the Falklands story, the paper hasn't mentioned O'Reilly since. According to a search of the newspaper's website and Factiva, the paper has not reported any of the new developments.
And The New York Post hasn't published any stories about O'Reilly this month, except for a brief mention in an Inside Edition anniversary special piece.
The evidence of O'Reilly fabricating and exaggerating past experiences has sparked national news coverage in other non-Murdoch outlets, including CNN, MSNBC, Politico, The Washington Post, The Daily Beast, The Huffington Post, and more.
Previously, Murdoch-owned properties have not shied away from reporting on O'Reilly controversies. For example, the New York Post published multiple reports in 2004 on the alleged $60 million dollar settlement over an O'Reilly a sexual harassment lawsuit filed by Andrea Makris, a former O'Reilly producer.
Media are recycling old news that The Clinton Foundation accepts foreign donations when neither Bill nor Hillary Clinton hold political office to fearmonger over "ethical concerns" surrounding the donations, ignoring the fact that it is not unusual for foundations to receive foreign donations and that Clinton's record as Secretary of State makes clear that she was not politically influenced by previous donations to the Foundation.
Conservative media figures criticized the Obama administration for suggesting terrorism is tied to poverty, ignoring the fact that former President George W. Bush also explicitly cited alleviating poverty as a fundamental tool to fighting terrorism.
Right-wing media are celebrating Gov. Bruce Rauner's (R-IL) executive order blocking public-sector unions from collecting "fair share" fees from the state employees they represent, even though there is no precedent for such a move. National Review and The Wall Street Journal are praising Rauner for "thinking creatively" by effectively turning Illinois into a "right-to-work" state without legislative approval, even though those same outlets have criticized President Obama for issuing lawful executive orders without Republican input.
Rauner's order specifically targets "fair share" dues that nonmembers in unionized workplaces pay to cover the cost of union representation for their collective bargaining agreements. Illinois law already prohibits fair share fees (as opposed to full membership dues) from being used to fund union political activities, but Rauner nevertheless issued his executive order and wrongly claimed that "an employee who is forced to pay unfair share dues is being forced to fund political activity with which they disagree." A number of states have passed "right-to-work" laws that target these kinds of dues with the express purpose of weakening the bargaining power of unions. But Rauner saved himself some time by ignoring decades of Supreme Court labor-law precedent and imposing the "right-to-work" standard on state employees without running it past the legislature first.
Right-wing media are not particularly concerned with Rauner's unilateral and legally questionable antics. Rauner's lawyers, however, apparently realize the unusual nature of this executive action. On the governor's behalf, they have defensively filed a lawsuit asking a district court to preemptively declare his order legal on the radical assumption that all union activity -- even that related to collective bargaining -- is inherently political.
In a February 11 post, National Review writer Patrick Brennan applauded Rauner's "daring" and legal manuevering, celebrating that "Rauner's Illinois is in limbo -- and, duly elected, he deserves credit for putting them there." The Journal also praised Rauner in a February 10 editorial for "thinking creatively" since the "Democrats who have a supermajority in the state legislature won't make Illinois a right-to-work state."
This is an interesting about-face on executive orders from these outlets, which have attacked Obama's executive action on immigration in the face of an obstructionist GOP-controlled House as an "abuse of power" and "executive overreach" -- despite there being plenty of legal and historical precedent to support Obama's orders. In a November 16 editorial, the Journal argued that it would "support more liberal immigration but not Mr. Obama's means of doing it on his own whim because he's tired of working with Congress." Similarly, in a November 6 editorial, National Review complained that for Obama to "act on immigration without engaging the country's new congressional majority would be a defiance of the legislative branch, and of the American electorate."
But Rauner's order gets a pass from National Review now, because it is enough that "after a deep legal review, he thinks the fair-share fees are unconstitutional forced expression."
Apparently Rauner's deep legal review involves rewriting the basics of labor law. As the Illinois Economic Policy Institute explained, Rauner's claim that "state workers are forced to pay union dues for political purposes" is "false":
Illinois law does not prohibit labor organizations with state collective bargaining agreements from contributing to elected officials, but it also does not mandate that workers must pay for political activities that are endorsed by their representative union. The Illinois Public Labor Relations Act requires all employees covered by a collective bargaining agreement to pay their "fair share" of the cost of collective bargaining and contract administration. Fair share dues "shall not include any fees for contributions related to the election or support of any candidate for political office" but an employee can make "voluntary political contributions in conjunction with his or her fair share payment" [emphasis added]. Since the 1988 Communications Workers of America v. Beck case in the U.S. Supreme Court, unions are authorized to collect from non-members only fees and dues necessary to perform collective bargaining operations, and workers can object to paying a portion of their dues toward political activities.
As conservative Justice Antonin Scalia explained in a 1991 labor law case, nonmembers who don't pay dues "are free riders whom the law requires the union to carry -- indeed, requires the union to go out of its way to benefit, even at the expense of its other interests. In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others." Without compulsory fair share dues for the collective bargaining agreement from which both non-members and members benefit, unions face a serious "free rider" problem and threat to their financial viability.
Which, for the National Review and the Journal, is clearly the point.
There's no question that the current makeup of the Supreme Court is less sympathetic to the labor movement than it has been in the past. In 2014, the conservative majority ruled that home care workers in Illinois (who are paid with state Medicaid funds but are not full-fledged public employees) cannot be compelled to pay dues to a union they don't want to join, but ultimately declined to strike down a 1977 case that allows public-sector unions to collect "fair share" dues from nonmembers. Even though Justice Samuel Alito's majority opinion questioned the "foundations" of that 1977 ruling -- basically inviting a challenge like Rauner's -- the case is still good law.
In light of this precedent, some might call Rauner's actions an appeal to the "judicial activism" they frequently condemn. The WSJ, on the other hand, is calling this "thinking creatively."
The Wall Street Journal glossed over Jeb Bush's close ties to the neoconservative movement that shaped the foreign policy of his brother, former President George W. Bush, suggesting that Jeb Bush's foreign policy would be more moderate than that of his brother's. But Jeb Bush has praised his brother's foreign policy, specifically the decision to invade Iraq, and even signed a founding neoconservative document.
Early news coverage of the 2016 presidential campaign has tacitly allowed the GOP to disingenuously rebrand itself as a party of the middle class, despite the fact that the party's new rhetoric doesn't align with its policy positions that continue to exacerbate income inequality. When highlighting Republican rhetoric about the need to reduce income inequality, media should take care to hold the GOP accountable for its actions, not just its words.
Recent Gallup polling shows "two out of three Americans are dissatisfied with the way income and wealth are currently distributed in the U.S.," and Republicans have taken note. Prospective GOP presidential candidates have suddenly started talking about income inequality ahead of the 2016 elections, apparently heeding advice from the Republican National Committee's (RNC) post-mortem of the 2012 election, which warned that the GOP had been "increasingly marginalizing itself" and urged the party to improve its optics by recognizing the fact "that the middle class has struggled mightily and that far too many of our citizens live in poverty."
During the January 25 Koch brothers-sponsored Freedom Partners Forum, Republican Sens. Ted Cruz (TX), Rand Paul (KY), and Marco Rubio (FL) each took the opportunity to bemoan income inequality and blame the Obama administration for a growing income gap. Mitt Romney claimed that "income inequality had worsened" during President Obama's time in office in a January 28 speech at Mississippi State University, while Jeb Bush's "Right to Rise" PAC has declared that "the income gap is real."
The Washington Post, Politico, USA Today, and Bloomberg Politics each reported on the 2016 hopefuls' Freedom Partners comments, highlighting the senators' statements lamenting income inequality and focusing on "issues such as the minimum wage ... [and] tax reform." The Wall Street Journal featured Republican policy proposals "aimed at boosting the middle class," and applauded Bush, Romney, Rubio, and Paul for "promoting or seeking ideas for shoring up the middle class." The Post's Post Politics blog and NBCNews.com's "First Read" emphasized Romney's recent focus on income inequality and poverty, pointing to speeches at the RNC and Mississippi State University.
These media outlets acknowledged the fact that Republicans are changing their rhetoric on inequality -- but it's actions and policies that count, not just rhetoric. Media cannot take GOP candidates at their word when their policies continue to exacerbate inequality and burden the middle and lower class.
Cruz, Paul, and Rubio all oppose recent calls to raise the minimum wage. At a January 25 private donor event, each of these senators argued that raising the minimum wage would eliminate jobs. Cruz claimed "the minimum wage consistently hurts the most vulnerable," while Rubio called focus on raising the minimum wage "a waste of time." During the same event, none of the senators "said they could stomach any tax increases," and Rubio called the ACA a "perfect example" of "cronyism," blaming health reform for halting job creation. Just this month, Cruz introduced a bill to repeal the health care law, while Paul echoed calls to repeal and suggested instead to "try freedom for a while." Such positions are consistent with the GOP's historic stances on these issues. As MSNBC's Steve Benen noted, supposed Republican attempts to address income inequality, "in practice, ... apparently mean endorsing an agenda that cuts off unemployment benefits, slashes food stamps, cuts funding for public services, eliminates health care benefits, and rejects minimum wage increases."
Economists have often noted that wage stagnation has a profound impact on aggravating income inequality, and as the Economic Policy Institute (EPI) has pointed out, raising the federal minimum wage just to $10.10 per hour by 2016 would "raise the wages of 27.8 million workers." The Congressional Budget Office has also reported on the "ripple effect" of raising the minimum wage, saying it would benefit 16.5 million workers and lift nearly one million people out of poverty. And according to a Center For American Progress report, a $10.10 minimum wage would cut food stamp participation and taxpayer expenditures by $4.6 billion annually. Support for anti-poverty government programs -- like SNAP, unemployment benefits, school lunch programs, and the like -- cut the country's poverty rate "nearly in half," according to research from the Institute for Research on Poverty.
Rather than alleviating income inequality, lawmakers have worsened inequality by consistently cutting taxes on the wealthiest Americans, according to a 2013 EPI study. Economist Larry Summers has emphasized the importance of "closing [tax] loopholes that only the wealthy can enjoy," noting that would "enable targeted tax measures such as the earned-income tax credit to raise the incomes of the poor and middle class more than dollar for dollar by incentivizing working and saving."
And despite countless Republican attempts to repeal the Affordable Care Act (ACA), the health care law will reduce income inequality, boost the incomes of lower and middle-class Americans, and extend coverage to 15.1 million uninsured adults with incomes at or below 138 percent of the federal poverty level.
Media acknowledging the GOP's new talking points and mottos is one thing. But given the 2016 hopefuls' apparent commitment to policies that stand in contrast to their rhetoric on income inequality, media should make sure and hold these Republicans accountable for their actions, not just their words.
A Media Matters review of several major newspapers found that their coverage of congressional efforts to force approval of the Keystone XL pipeline has been missing an essential component of the story: the hundreds of millions of dollars that the fossil fuel industry spent in the midterm elections to elect members of Congress who support Keystone XL and other aspects of the oil industry's agenda. Of the newspapers reviewed, only The New York Times tied congressional support for Keystone XL back to the fossil fuel industry's campaign contributions.
The Wall Street Journal adopted the language of net neutrality critics to describe the Federal Communications Commission's (FCC) net neutrality proposal, deeming the new potential rules an "intrusive regulation."
On January 30, the FCC announced that it would "introduce and vote on new proposed net neutrality rules in February." Although the official proposal has yet to be released, according to The Huffington Post, FCC Chairman Tom Wheeler "suggested that Internet service... should be regulated like any other public utility."
In a February 3 article discussing the FCC's plans, The Wall Street Journal wrote that the proposed net neutrality measures would "subject" companies "to more intrusive regulation" (emphasis added):
The move would fully embrace the principle known as net neutrality, and if enacted, would bring a new definition to the economics of the Internet industry: Rather than regulating broadband firms lightly, as has been its practice so far, the FCC would treat them like telecommunications companies and subject them to more intrusive regulation, especially in areas relating to how they manage traffic on their networks.
But The Wall Street Journal's rhetoric is borrowed directly from net neutrality critics who oppose such measures. Later in the same article, a lobbyist for the wireless industry was quoted as calling such a move an "intrusive public utility regulation" (emphasis added):
Meredith Attwell Baker, CEO of CTIA--The Wireless Association, the Washington lobby for the wireless industry, said, "We have significant reservations with any approach that applies intrusive public utility regulation on mobile broadband for the first time, which is why Congress's consideration of net neutrality legislation is the best path forward to provide certainty to all stakeholders."
In contrast, The New York Times described the coming proposal as a move to regulate "Internet service like a public utility," noting that it will actually take a less intrusive approach than previous plans. The article explained that Chairman Wheeler "will advocate a light-touch approach" to net neutrality, "shunning the more intrusive aspects of utility-style regulation."
Some conservative media figures have touted the intensity of the recent blizzard that hit the northeast, some have claimed that it is no different than snow storms from the past, and others have deemed the blizzard much less severe than originally forecast. But the one thing they all agree on is that the blizzard somehow disproves the firmly established science of global warming.
Media outlets are falsely alleging that President Obama's plan for free community college will hurt the middle class because it makes changes to 529 college savings plans. In fact, those who use 529 plans tend to be wealthy, and the changes will help build a broader tax credit for college savings.
Wall Street Journal editorial board member Mary Kissel is misinforming about a new fair-housing case under consideration by the Supreme Court, scaremongering that a decision to uphold half a century of civil rights precedent could force sellers, lenders, and landlords to establish policies that amount to "informal quotas."
On January 21, the Supreme Court heard oral arguments in Texas Department of Housing v. the Inclusive Communities Project, a fair-housing case that could make it more difficult for victims of discrimination to bring legal challenges against policies that reinforce decades of racial segregation, unintentionally or not. The Inclusive Communities Project argues that the way the Texas Department of Housing administered an affordable-housing plan had a discriminatory effect by entrenching racially segregated housing patterns in the Dallas area. This kind of lawsuit is known as "disparate impact" litigation, which has long been used under various civil rights statutes, including the Fair Housing Act (FHA). It does not require that intentional discrimination be demonstrated, rather that the challenged policies had an unjustified and disproportionate, negative impact on vulnerable groups protected by the FHA. Even though the Department of Housing and Urban Development (HUD) and other fair-housing advocates have successfully relied on disparate-impact litigation for almost 40 years, Texas is arguing that lawsuits under the FHA should newly be required to provide evidence of intentional racial discrimination.
On the January 21 edition of the Journal's WSJ Live video series, Kissel used a hypothetical about the government forcing a bank to make mortgage loans to attack the logic of disparate-impact analysis. Kissel said in this scenario, "Effectively, the government is saying, 'We want informal quotas. You have to lend x to Hispanics, y to blacks, and z to whites.' That doesn't sound constitutional to me." Kissel then went on to say that the Obama administration had "used this theory to shake down banks for millions of dollars. Let's hope the justices actually read the text of the law":
Right-wing media have long objected to the use of disparate impact in fair-housing litigation, calling it a "dubious legal theory." In fact, every one of the 11 federal circuit courts that have considered the question over the last 40 years have reaffirmed that the amelioration of discriminatory effects is a core component of both the intent and text of the FHA, and Congress specifically amended the statute in 1988 in recognition of the fact. Such overwhelming consensus was unsurprising -- the need to begin the slow process of integration after centuries of residential apartheid was specifically designed to be a systematic task, and not a game of Whac-A-Mole aimed at individual bad actors. It was anything but a fringe theory, but rather the product of bipartisan efforts, including those of the Republican HUD chief George Romney in the Nixon administration.
The Wall Street Journal editorial board used a misleading comparison of graduation rates to attack community colleges as "inferior" to for-profit schools. In reality, for-profit schools have significantly higher costs and employ questionable business practices that translate to lower employment and earnings for their graduates.
In 2014, right-wing media attacked immigrants and immigration reform by pushing baseless claims, relying on debunked research, and using misleading statistics about immigrants and the impact of immigration on the United States. Here is a look back at the most absurd anti-immigrant myths of 2014.