The Wall Street Journal continued its crusade against clean air, calling on the Supreme Court to put an end to centuries-old state lawsuits that hold polluters accountable for the "smoke, dust, poisonous chemicals, and noxious odors" they dump on their neighbors, despite previously arguing for state-level solutions to air pollution.
The WSJ has a long history of blanket opposition to class action lawsuits, regardless of the merits of the case. It has called class actions nothing more than a "windfall" for plaintiffs lawyers despite the fact that such lawsuits are often the only avenue for legal redress for many consumers. Class actions are often the most effective tool to punish corporate plaintiffs whose behavior cause Americans injury or harm, yet the WSJ has falsely accused federal judges (like conservative Seventh Circuit Court of Appeals Judge Richard Posner) of not following and having "disdain for" Supreme Court precedent, just for allowing class action lawsuits to proceed.
In its most recent editorial on the subject, the WSJ complained that the Supreme Court should "polish off" a new series of class action lawsuits that seek relief for injury caused by air pollution or the physical effects of climate change caused by such pollution. Based on long-established state common law -- judge created doctrine as opposed to legislatively-enacted law -- that redresses personal injury caused by nuisance, trespass, or negligence, these suits allow landowners to bring civil claims against factories and power plants whose air pollution has negatively interfered with their property rights.
In 2011, the Court ruled that federal common law does not provide for civil nuisance claims seeking injunctions against polluters because the federal Clean Air Act (CAA) displaced such litigation, but the question of whether the CAA applies to state common law was explicitly left unanswered. Although the 2011 case sought a court order to stop pollution that caused global warming, other lawsuits based on the state version of common law only seek damages for the air pollution itself, regardless of its contribution to climate change. But the WSJ complained that allowing these more traditional class actions to go forward would "lead to a state-by-state chopped salad of pollution controls," even though it has previously argued that managing pollution should be largely left to the states rather than the federal government.
While mainstream media coverage of the serious allegations of improper practices at certain Department of Veterans Affairs (VA) health clinics has been extensive in recent weeks, a bill to expand health care for veterans that was blocked by Senate Republicans in February received little attention.
The Wall Street Journal downplayed a recent report that found the impacts of global warming are being felt in every region of the United States. The latest National Climate Assessment, which forecasted dire predictions for the nation's economy if global warming remains unchecked, was highlighted above the fold on the front page of every major U.S. newspaper except for the Journal.
The U.S. Global Change Research Program released its third National Climate Assessment (NCA) on the morning of May 6, focusing on how global warming will affect different regions of the United States and what can be done about it. The report received widespread attention, with most of the major newspapers devoting above the fold coverage to the NCA on May 7. But readers of the Wall Street Journal might have missed the story -- the paper devoted a mere factbox to the report on the lower half of the front page, under the "World-Wide" sidebar:
The WSJ instead chose to highlight on the front page: the conversion of office buildings into high-end apartments, the regulatory investigation into large banks' hiring practices in Asia, a Chinese internet company's plans to expand its share offerings to the U.S., early primary results that are favorable to the Republican Party, and the "chic" fashion of the current Afghan president whose "Fur Caps Set Standard." Though front page placement might be less relevant as newspapers are shifting to digital, it is still telling of the paper's judgment of which stories are important.
The Wall Street Journal article that did run fittingly highlighted the dire economic aspects of the National Climate Assessment: the report states that climate change is already costing our economy billions. But by burying it, far fewer people likely saw this warning.
Ever since Rupert Murdoch took over the Journal in 2007, there have been worries that the conservative tilt of the editorial page is spreading into its news division. Downplaying the NCA corresponds with how the Journal's editorial page has covered the issue in the past: as something that can be easily dismissed. In 2011, for instance, the Journal's U.S. print edition did not publish an op-ed by a former climate "skeptic" whose Koch family funded research re-confirmed rising global temperatures, choosing instead to run a highly misleading column disputing the temperature record. The Journal also printed the most climate-denying letters to the editor of the top newspapers in 2013, and has published op-eds with statements that run counter to science, including one that suggested that "humanitarians" should be "clamoring for more" carbon dioxide because it is a "boon to plant life." Furthermore, the paper's editorial board has been criticized by environmental journalists for misleading on climate science.
Here's how the top U.S. newspapers covered the story in their May 7 print editions (images retrieved via Newseum front pages):
The Wall Street Journal mischaracterized Supreme Court Justice Elena Kagan's dissent in the Greece, New York, public prayer case, accusing Kagan and the other liberal justices who dissented of "working hard to push religion to the sidelines of American public life." In fact, Kagan made clear in her dissent that the town should lose the case because it failed to adhere to religious diversity; as she noted, the town "never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions."
On May 5, the Supreme Court ruled in Town of Greece v. Galloway that the prayer given before town meetings did not violate the Establishment Clause of the First Amendment. Kagan (joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor) dissented, arguing that based on the facts of the case, a constitutional line had clearly been crossed -- the town had invited predominantly Christian clergy to the meetings to give explicitly Christian invocations.
As Kagan wrote in her dissent, "the Town of Greece should lose this case" because "the invocations given -- directly to those citizens -- were predominantly sectarian in content." The dissent went on to explain that the prayers before the town meetings in Greece went beyond what the majority opinion called "a benign acknowledgment of religion's role in society." In the dissent's view, it was not the prayer per se that crossed the constitutional line, but the fact that the prayers "repeatedly invoked a single religion's beliefs." Prayers included a discussion of "the saving sacrifice of Jesus Christ on the cross" and "the plan of redemption that is fulfilled in Jesus Christ."
But the facts didn't seem to matter to the WSJ editorial board, which argued that Kagan's dissent was tantamount to "limit[ing] God in the public square."
From the May 5 editorial:
The High Court had upheld legislative prayer as recently as 1983 in Marsh v. Chambers, so this case was really about whether the Justices were going to restrict that precedent and further limit God in the public square. That's precisely what the four liberal Justices would have done, led by Elena Kagan, who argued in her dissent that even allowing a rabbi or cleric to make a sectarian reference is divisive and constitutes a state endorsement of that religion. Joined by the three other liberals, she said any prayer must be generic and entirely nonsectarian.
The town of Greece used mostly Christian prayers because its citizens are predominantly Christian. Yet when rabbis and clerics of other faiths asked to give the prayer, they were welcome. Even a Wiccan priestess was allowed to issue what we suppose was an anti-prayer. Council members and visitors were under no obligation to pray along and there was no evidence of punishment or even disapproval for anyone who didn't.
While the decision is welcome, the close vote shows that public prayer hangs by a single vote at the High Court. The liberal Justices were more than happy to modify a precedent to further restrict even the most passing public reference to a sectarian God. Religion is in no danger of imposing itself on Americans, but a dominant secular legal culture is still working hard to push religion to the sidelines of American public life.
The WSJ's characterization of Kagan's dissent in Town of Greece missed her point entirely.
The Wall Street Journal published an error-riddled piece claiming that increasing the federal minimum wage would force more Americans to rely on social safety-net programs when in fact the exact opposite is true.
In a May 5 opinion piece, New York lawyer John H. Heyer argued the minimum wage is a "scam." He then claimed increasing wages will force businesses to lay off employees and, in turn, swell the ranks of federal social safety-net programs, which Heyer refers to as the government "dole." From the Journal:
So the minimum wage, like so many government programs, is really a scam that never gets busted. Isn't that how these programs grow? There are always a few vocal supporters of any program and a lot of silent victims who mostly don't even know what effect the programs have on the public at large and the economy as a whole.
Minimum-wage laws raise business costs and increase unemployment. But they also require bureaucrats--who make a lot more than minimum wage--to administer the dole and regulate wages. So what's not for politicians to like?
Opponents of livable wages frequently claim that the minimum wage drives up unemployment, often citing the Congressional Budget Office's (CBO) most recent report on proposals to increase the federal minimum wage. The CBO report does project that total employment could decrease by between "very slight[ly]" and 1 million by the end of 2016, but that conclusion flies in the face of the overwhelming majority of economic evidence.
A February 2013 study by the Center for Economic and Policy Research (CEPR) reviewed nearly a decade of research on the minimum wage and concluded that "the minimum wage has little or no discernible effect on the employment prospects of low-wage workers." The Economic Policy Institute (EPI) similarly reviewed the available literature on the minimum wage and concluded that "raising the federal minimum wage to $10.10 will not lead to job loss." Conservative media jumped on a March 2014 survey by Express Employment Professionals claiming that businesses would cut jobs due to an increased wage, but even that survey found that 62 percent of minimum wage employers and 81 percent of all employers would not lay off workers as a result of increased wages.
Heyer's claim that increasing the minimum wage hurts the job market is arguable, but the claim that higher wages drive up reliance on federal safety-net programs is demonstrably false. The same CBO report that estimated 500,000 lost jobs from a $10.10 minimum wage also concluded that such a wage would lift 900,000 Americans out of poverty while boosting incomes for Americans living in poverty by $5 billion annually.
Increasing the minimum wage would definitively decrease America's reliance on the so-called government "dole." According to a March 2014 study by the Center for American Progress (CAP), a $10.10 minimum wage would decrease food stamp participation by up to $4.6 billion annually. An October 2013 study by the UC Berkeley Labor Center concluded that low wages in the fast food industry alone -- whose media wage is substantially lower than $10.10 -- cost taxpayers nearly $7 billion annually.
Contrary to Heyer' s allegation, increasing the minimum wage would significantly decrease reliance on "the dole," and significantly decrease the cost to taxpayers who subsidize the poverty wages paid by thousands of businesses around the country. A Media Matters analysis of broadcast evening news found that programs on ABC, CBS, NBC, and PBS largely ignored the high cost of low wages. The latest screed in The Wall Street Journal is not just ignoring the high cost of low wages; it is distorting the relationship entirely.
The Wall Street Journal editorial board is continuing to pretend that the EPA is acting against the law by regulating coal pollution, despite repeated Supreme Court rulings that conclude otherwise.
On April 29, the Supreme Court ruledin a 6-2 decisionto re-instate the EPA's Cross-State Air Pollution Rule, which regulates air pollution that crosses state lines and "significantly" prevents neighboring states from achieving national air quality standards. The rule, which is part of the Clean Air Act by way of the "Good Neighbor Provision," was delayed in 2011 for further review after being challenged by a major coal-fired operator -- to the delight of the Wall Street Journal, which lauded the decision to delay for showing "how out of bounds the cross-state regulation is." The board decided that the Supreme Court "should overturn [the Cross-State pollution rule] for violating the federalist intentions of Congress," adding it would "to show this increasingly rogue agency that it can't rewrite the law as it pleases."
Now that the rule has been reinstated (counter to the wishes of the Journal) in EPA v. EME Homer City Generation, the paper is scrambling to find wrongdoing. The board published an editorial titled "The EPA Unchained" recycling its own faulty arguments that concluded with the fear that "the Obama EPA will feel even less bound by legal restraints, if that's possible." Its claims, however, are extremely misguided.
The regulations of smog and soot pollution will yield up to $280 billion in health benefits nationwide by preventing hospital visits and avoiding lost work days, according to the EPA's cost-benefit analysis. The human benefits are just as stark, with The American Thoracic Society estimating the new transfer rule could prevent upwards of 40,000 premature deaths annually.
The WSJ summarily dismisses the court's defense of the EPA's use of cost-benefit analysis when considering the best regulatory action, calling it "ironi[c]" because "the EPA typically dismisses cost-benefit analysis unless a statute explicitly calls for it." However, according to an amicus brief from NYU's Institute for Policy Integrity, the EPA has been using cost-benefit analyses to guide inter-state air pollution regulations for decades. The "Good Neighbor Provision," for instance, does not explicitly call for cost-benefit analysis. The Court deferred to the EPA as the most appropriate body to determine whether or not to use cost-benefit analysis to regulate pollutants that are clearly covered by the Clean Air Act.
The board also repeated its tired claim that the EPA is "ignor[ing] the federalist obligations of the Clean Air Act," suggesting the EPA is going over the heads of individual states. But states have tried and failed at coming up with their own solutions to this interstate phenomenon, and Congress and the Supreme Court determined that the issue of cross-state pollution is an inherently nationwide problem that prompts federal regulation. As Justice Ruth Bader Ginsburg outlined in her majority opinion for the Court, the air pollution of "upwind" states is inescapably a "combined and cumulative effect" that may significantly pollute several "downwind" states at different proportions, so regulating emissions based on each individual state's pollution levels (as WSJ suggests) simply doesn't work. This was not only the conclusion of the EPA, but also of leading atmospheric scientists and air quality modeling experts, who submitted an amicus brief arguing that the WSJ's preferred solution was likely "impossible." The complexity of the scenario is illustrated by this EPA graphic showing "linkages" between "upwind" and "downwind" states in what they have called a "spaghetti-like matrix":
The revival of the cross-state pollution rule was timely -- one day after the Court's ruling, the American Lung Association (ALA) released the findings that nearly half of Americans currently live in areas with high levels of pollution from smog and soot particles. The ALA report also illustrates the necessity of the EPA air pollution rules: 18 of the 25 cities with the highest pollution rates have seen a drop in pollutants, partly thanks to the EPA regulations.
The Supreme Court has repeatedly ruled on the side of the EPA, despite WSJ's constant criticisms -- two weeks prior, the Court upheld a separate EPA rule to cut mercury emissions from coal plants. Will the newspaper continue to claim that coal pollution regulations are unlawful?
Cliven Bundy's abhorrent, racist comparison of slavery to federal poverty assistance bears a striking resemblance to common claims from conservative media, who have frequently invoked slavery to describe the supposed damage "the welfare state" has done to black Americans.
Nevada rancher Bundy, who was praised by conservative media for engaging in an armed standoff with federal agents after refusing to pay decades worth of federal grazing fees on public land, on April 19 questioned whether black Americans were "better off as slaves" or "better off under government subsidy," telling a reporter in a racist rant:
"I want to tell you one more thing I know about the Negro," he said. Mr. Bundy recalled driving past a public-housing project in North Las Vegas, "and in front of that government house the door was usually open and the older people and the kids -- and there is always at least a half a dozen people sitting on the porch -- they didn't have nothing to do. They didn't have nothing for their kids to do. They didn't have nothing for their young girls to do.
"And because they were basically on government subsidy, so now what do they do?" he asked. "They abort their young children, they put their young men in jail, because they never learned how to pick cotton. And I've often wondered, are they better off as slaves, picking cotton and having a family life and doing things, or are they better off under government subsidy? They didn't get no more freedom. They got less freedom."
As Slate's Jamelle Bouie noted, Bundy's repugnant rhetoric sounds familiar -- it's the same logic behind many right-wing criticisms of the social safety net. Media Matters has been tracking this type of offensive rhetoric for years.
During the fight over health care reform, Rush Limbaugh claimed that "It won't be a matter of whether you have coverage or don't have coverage. What'll matter is that all of us will be slaves; we'll become slaves to the arbitrary and inhumane decisions of distant bureaucrats working in Washington where there's no competition, nobody you can go to if you don't like what you hear from the bureaucrats that you have to deal with."
When Glenn Beck was a host on Fox News, he had an obsession with comparing things to slavery, including the claim that progressive policies created "slavery to government, welfare, affirmative action, regulation, control," and that "big government never lifts anybody out of poverty. It creates slaves." In 2008, Jim Quinn, the co-host of the radio show The War Room with Quinn & Rose, was forced to apologize for comparing "slave[s] in the Old South" to welfare recipients today, when he claimed that the only "difference" was that the "slave had to work for" the benefits Quinn said they received.
In his 2008 book Let Them In, The Wall Street Journal editorial board member Jason Riley argued that the Great Society programs of the 1960s were ultimately worse for black families than slavery, writing "The black family survived slavery, Reconstruction, and Jim Crow, but the well-intentioned Great Society sounded its death knell."
More recently, Riley promoted the twisted logic of George Mason University's Walter Williams (who has often guest-hosted The Rush Limbaugh Show), who claimed that because more black children live in single-mother families now, welfare "destroy[ed] the black family" more than slavery:
During Reconstruction and up until the 1940s, 75% to 85% of black children lived in two-parent families. Today, more than 70% of black children are born to single women. "The welfare state has done to black Americans what slavery couldn't do, what Jim Crow couldn't do, what the harshest racism couldn't do," Mr. Williams says. "And that is to destroy the black family."
Ted Nugent, National Rifle Association board member and a favorite of conservative media, has become infamous for his extreme racism for calling President Obama a subhuman mongrel -- but Nugent also used the 50th anniversary of Dr. Martin Luther King Jr.'s "I Have a Dream" speech to claim that the Great Society programs were "responsible for more destruction to black America than the evils of slavery and the KKK combined." In a 2011 Washington Times column, Nugent also suggested that the Democratic Party is the "modern-day slave master" to low-income Americans.
Vox's Matt Yglesias noted the irony of Bundy criticizing the government for assisting Americans through federal programs, when he himself has benefited from federal subsidies which keep the cost of grazing low for ranchers like himself. And though the abhorrent comparison of slavery to welfare is ridiculous on its face, it's worth noting that federal benefit programs have been vital in keeping Americans out of poverty -- in fact, federal programs today are cutting poverty nearly in half, whereas in 1967 they only reduced poverty by a single percentage point.
Conservative media may finally renounce Bundy and his lawless cause following his racist remarks; but they should also renounce this harmful, inaccurate comparison.
The Wall Street Journal is misleadingly defending a highly controversial and recently abandoned surveillance program that targeted innocent American Muslims.
Earlier this week, New York City Mayor Bill de Blasio announced the city planned to dismantle the constitutionally-questionable "Demographics Unit" of the New York Police Department (NYPD), a secretive program that relied on blanket surveillance and racial profiling of Muslim American communities both within and without the city. The program's indiscriminate spying on innocent Muslims on the basis of ethnicity and religion raised red flags not only among civil liberties advocates, but also among counter-terrorism experts. As The New York Times explained, the FBI was so alarmed about this CIA-initiated program that "F.B.I. lawyers in New York determined years ago that agents could not receive documents from the Demographics Unit without violating federal rules." The top FBI official in New Jersey, where the Demographics Unit conducted "surveillance of mosques and Islamic student organizations," pointed out that this widespread "police surveillance had made Muslims more distrustful of law enforcement and made it harder to fight terrorism."
Nevertheless, the WSJ editorial board was quick to defend these newly discontinued tactics.
In an April 17 editorial, the WSJ praised the former surveillance unit, calling the program "strikingly successful." The editorial went on to lament de Blasio's decision to scrap the program as "a bow to political correctness."
This is being hailed by the usual suspects as a triumph for civil liberties, but it's really a bow to political correctness that removes an important defense for a city that has stopped at least 16 terror plots since 9/11. It's also more fallout from a series of sensationalist Associated Press stories from 2011 that were riddled with distortions and have since been rebuked by a federal judge.
The result [of the surveillance program] was a strikingly successful effort, under former police commissioner Ray Kelly, to keep all New Yorkers safe. Part of that effort involved a small "Demographics Unit" (later renamed the "Zone Assessment Unit") to keep an eye on "hot spots" and "venues of radicalization," including mosques, bookstores, barbershops and other public places. The point wasn't to spy on entire communities, which the unit -- with never more than 16 officers -- lacked the resources to do in any case. It was to keep an eye on places where terrorists would seek to blend in.
Also false is the claim that the unit was ineffective. "The Demographics Unit was critical in identifying the Islamic Books and Tapes bookstore in Brooklyn as a venue for radicalization," Mitchell Silber, a former NYPD director of intelligence analysis, noted in Commentary magazine. "Information the unit collected about the store provided a predicate for an investigation that thwarted a 2004 plot against the Herald Square subway station."
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.
One of right-wing media's favorite myths about class action lawsuits -- their supposedly frivolous nature -- is now permeating respectable news sources.
On March 5, the Supreme Court heard oral arguments in Halliburton v. Erica P. John Fund, a case about securities class actions in which the conservative justices could make it practically impossible for average shareholders to effectively sue large corporations who distort the company's stock price through fraud. Plaintiffs in these lawsuits -- increasingly institutional investors like large pension funds -- have traditionally been able to join together as a class action to even the odds against these deep-pocketed corporate defendants.
Right-wing media have steadily pushed the myth that these types of equalizing lawsuits are ineffective or frivolous. For example, The Wall Street Journal editorial board has long stoked fears inaccurately and inconsistently about class actions, and has been highly supportive of the conservative justices' attempts to shut the courthouse doors to this type of collective action. In a recent editorial, the WSJ attacked the shareholder lawsuits at issue in Halliburton as "economically destructive" and beneficial only to plaintiffs lawyers, who have "dined out for years on the windfall of securities class-action suits."
Based on Supreme Court precedent, securities class action plaintiffs can file suits based on the "fraud on the market" theory. This is a 25-year-old legal doctrine that assumes for the purposes of class certification that all publicly available information is reflected in a company's stock price. Rather than forcing plaintiffs at this pre-trial stage to show that they relied on any one fraudulent statement made by a corporate officer, the fraud on the market theory assumes that in a relatively efficient market, those statements affected and unjustly inflated the company's stock price. These presumptions are later rebuttable at trial, where the merits of this alleged fraud can be litigated.
Pro-business groups like the U.S. Chamber of Commerce share the WSJ's point of view that despite these decades of precedent, shareholders should no longer be able to proceed to trial as a class in this fashion. In fact, the Chamber dedicated a day-long event to the Halliburton case, calling lawsuits based on the fraud on the market theory "a situation basically directly out of a Kafka novel" because it makes it too easy for plaintiffs to bring class actions. The Chamber has been clamoring for the Supreme Court to overturn Halliburton, at least in part because it contends securities class actions are meritless and abusive. Right-wing media frequently repeat the Chamber's spin to pretend class actions are an unjustified "cash cow for trial lawyers."
This myth has been pushed so aggressively that it has cropped up in well-respected publications like The American Prospect, which recently wrote that such lawsuits are "now routinely filed by class-action lawyers any time the stock price takes a sudden dive." The Prospect also argued that "most of these [lawsuits] are frivolous," without providing evidence to support that claim.
The Department of Energy's clean energy loan program helped fuel the achievements of electric car company Tesla Motors, yet the major broadcast, cable and print media only mentioned the loan in 20 percent of their coverage of Tesla in 2013 (and in only 7 percent of coverage of Nissan's best-selling electric car, the Leaf). Meanwhile, 84 percent of coverage of Fisker, an electric car company that declared bankruptcy, mentioned its federal loan. This skewed coverage may have misinformed the public about the overwhelmingly positive success rate of the program.
Media reports on the Senate vote to renew long-term unemployment benefits established a false contrast between providing a safety net for unemployed Americans and policies designed to create jobs. In fact, experts note that unemployment benefits boost job creation and economic growth.
According to the Wall Street Journal's Peggy Noonan, if you just ignore the millions of Americans who have gained insurance through the Affordable Care Act, then it's clear that the law is a huge mess.
Over seven million Americans enrolled in health insurance through the ACA's exchanges by the end of the open enrollment period last week, a number that met the Congressional Budget Office's original sign-up estimate.
But if we "put aside" that success and "step back," Noonan argued in her April 3 column, then it becomes clear that the ACA is a "huge, historic mess." In other words, if you pretend that millions haven't been insured by the ACA, it's obvious that the law is an utter failure.
And trying to repeal this mess is comparable to fighting a "manic" sea creature underwater:
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.