A Wall Street Journal editorial used a little noticed Supreme Court decision on wiretapping to attack the liberal justices for engaging in an imagined "liberal legal war against U.S. antiterror policy," while ignoring how the decision could further shut out plaintiffs from litigating against more powerful defendants.
The case, Clapper v. Amnesty International, involved a constitutional challenge to the U.S. Government's secret global wiretapping under the Foreign Intelligence Surveillance Act and the Protect America Act. This legislation, broadened as part of the past two administration's counterterrorism efforts, now enables warrantless surveillance of American citizens participating in international communications with a person of interest. However, the challenge never made it to the constitutional merits of these laws.
Instead, the courts focused on whether the collection of lawyers and journalists who worked on topics of interest to the government's counterterrorism efforts were sufficiently affected - whether they had legal "standing" - to challenge the law. From the WSJ explanation of the ensuing ideologically split opinion in which the five conservative Justices prevailed:
The liberal legal war against U.S. antiterror policy continues, most of the time out of public sight. But on Tuesday Americans were able to see how small their margin of safety really is as a narrow majority of five Supreme Court Justices rejected an especially outrageous attempt to challenge wiretapping of foreign terrorists.
In Clapper v. Amnesty International, anti-antiterror journalists and activists claimed they had legal standing to sue the U.S. government to stop the surveillance of foreign terrorists. Though they aren't the intended targets of such wiretaps, and explicitly cannot be under the language of the law, the activists claim they are nonetheless harmed because they might communicate with foreigners who are targets and so be overheard.
This isn't even a close call, as Justice Samuel Alito explained for the majority. The Supreme Court's traditional standard is that a plaintiff must show evidence of actual harm or at least that the "threatened injury must be certainly impending to constitute injury in fact." Yet the plaintiffs in this case can't even show evidence that their communications have been overheard, much less that they were harmed.
A Wall Street Journal editorial blamed the federal government for an increase in student loan debt, ignoring higher levels of college enrollment and the effects of the economic downturn.
The Journal attributed an increase in student loan debt since 2008 to the "federal student-loan explosion" following the passage of the Affordable Care Act in 2010, which replaced government subsidies to private lenders with direct loans to students from the Department of Education. The Journal cited Federal Reserve Bank of New York data to claim the high levels of debt prove this new system has created "systemic risk":
The federal student-loan explosion means that this is the one giant exception to the needed consumer deleveraging that has occurred since the financial crisis. Americans have reduced their borrowing in most consumer markets. But U.S. student-loan debt increased 11% last year to $966 billion and has skyrocketed 51% since 2008, according to the New York Fed report. According to the Wall Street Journal, 43% of 25-year-olds had student debt in the fourth quarter of 2012, up from about 33% in the same period of 2008.
Talk about creating systemic risk.
But the Federal Reserve Bank of New York data that the Journal cites reveals that total student loan debt has steadily increased since 2005, years before the passage of the Affordable Care Act. The Federal Reserve attributed this upward trend in student loan debt to increased college enrollments and higher tuition rates.
The Wall Street Journal ran an editorial praising the right-wing effort to gut the Voting Rights Act in Shelby County v. Holder and focused on the claim of Chief Justice John Roberts that Mississippi has the best African-American voter participation in the country. But the editors' claim that such turnout is evidence that Section 5 of the Voting Rights Act is no longer necessary is directly refuted by Mississippi itself.
Section 5 of the Voting Rights Act requires certain jurisdictions with a past and present history of voter suppression on the basis of race or language to submit election changes for federal review before enactment. Although the historic law overall prohibits racial discrimination in election practices across the country, Section 5's power to stop proposed voter suppression before it goes into effect originally focused on the worst offenders, since updated to reflect recent evidence of disenfranchisement. As a member of the Old Confederacy with a sordid Jim Crow history, Mississippi is one of those bad actors.
Nevertheless, ignoring the fact that jurisdictions can choose to "bail-out" of Section 5 if they prove they no longer discriminate against voters of color, the WSJ editors held up Mississippi as a bizarre example of how the best way to "honor American racial progress" is to strike down the heart of the Voting Rights Act:
Is the American South--and for that matter the South Bronx--still so uniquely racist that it requires special supervision by the federal government over its election laws? That's the nub of the Supreme Court case that, judging by Wednesday's oral argument, could be another watershed in the American march toward racial equality.
[W]hy should Mississippi be treated differently than Massachusetts if its practices show better racial outcomes? Chief Justice John Roberts made this point forcefully Wednesday when he asked Solicitor General Donald Verrilli: "Do you know which state has the worst ratio of white voter turnout to African American voter turnout?"
Mr. Verrilli: "I do not."
Chief Justice Roberts: "Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi."
The Wall Street Journal published an op-ed on the Voting Rights Act by Edward Blum, founder of the in-house legal project of the right-wing's Donors Trust, but failed to disclose his ties to the Supreme Court's VRA case, Shelby County v. Holder. The op-ed, which identifies Blum as a fellow at the conservative American Enterprise Institute and director of the Donors Trust-supported Project on Fair Representation, recycles misinformation about the challenge that has been extensively and widely debunked.
China is reportedly set to impose a modest carbon tax, as well as effectively increase taxes on its coal industry. As the world's largest emitter of greenhouse gases continues to take steps to curb climate change, the oft-repeated conservative argument that the U.S. can't act until China does becomes increasingly tenuous.
In 2011, the International Energy Agency warned that unless dramatic action is taken by 2017, it will be effectively impossible to meet the international commitment to limit warming to 2 degrees Celsius (3.6°F) -- a goal that many nations said still would not be enough to guarantee their survival. Experts say that the longer we delay, the more it will cost to reach the target. In light of this, arguing that we can't work to reduce the greenhouse gas emissions until other nations agree to do the same could be seen as immoral.
But in recent years, it's also become nearly counterfactual: China has been taking steps, including investing more in clean energy than the U.S. and creating a long-term, comprehensive plan for expanding its renewable energy industries. Now this developing nation is set to put a price on carbon -- a move that most economists from across the ideological spectrum agree is one of the best ways to reduce carbon dioxide emissions (along with cap-and-trade). Yet the U.S. -- a much wealthier nation -- is no closer to making such a move.
It is true that China will play a critical role in whether we are able to limit catastrophic climate change. In 2007, China overtook the U.S. as the largest contributor to global carbon emissions (although the U.S. still emits far more per person), and its emissions are expected to grow until at least 2030. If China goes through with plans to expand coal production, it will emit more carbon than any other planned energy project in the world. However, China has recently signaled that it will take steps to limit its coal consumption.
Right-wing media have been looking to anyone for talking points about the purported "unconstitutionality" of gun violence prevention. Frequent Wall Street Journal contributor David Rivkin Jr. recently took his turn in an op-ed, and his junior associate repeated the argument on a NRA news show. But Supreme Court precedent does not support their confused generalizations and multiple legal experts have explained how current proposals are constitutional under District of Columbia v. Heller.
Former Reagan and Bush I White House official Rivkin now publishes regular attacks on the Obama Administration in the editorial pages of The Wall Street Journal. Frequently debunked, even by other conservative media, his claims of President Obama's "lawlessness" now extend to the gun violence prevention measures under consideration in response to the Sandy Hook massacre.
In a recent WSJ op-ed with colleague Andrew Grossman, Rivkin called these attempts to prevent future violence uninformed and claimed: "what government cannot do is deny the individual interest in self-defense. As a legal matter, that debate is settled. The president and his allies seem to have missed the message[.]" Grossman then appeared on the NRA's televised news show, Cam & Company, to defend this misinformation about the Supreme Court's decision in Heller and misrepresent case law on exceptions to fundamental rights. On the show, Grossman claimed a renewed assault weapons ban and capacity limits for magazines were not permitted by Heller:
Conservative media voices have insisted that an increase of the federal minimum hourly wage from $7.25 to $9 would harm the economy. However, a wealth of economic evidence disputes the claims that minimum wage hikes are job killers, that the minimum wage is already high, and that it only applies to jobs held by relatively young workers.
The Wall Street Journal ignored key parts of Senator Marco Rubio's (R-FL) Senate record to promote him as "bipartisan" and in "pursuit of legislative harmony." In fact, Rubio has a history of obstructionism, voting against major bipartisan legislation, blocking nominations, and filibustering Democratic initiatives in the Senate.
The Wall Street Journal recently joined Fox News in attempting to rewrite a radical and unprecedented federal appellate court opinion to fit their caricature of a "lawless" President Obama. But even as a WSJ editorial picks up Fox News' misrepresentation of the appellate court's sweeping decision on the constitutional legitimacy of presidential recess appointments as a narrow swipe at Obama, the Fox-fueled version is starting to unravel.
On January 29, the WSJ published an editorial that claimed "the latest disdain for the Constitution's checks and balances" was the Obama administration's response to a recent outlier opinion of the D.C. Circuit Court of Appeals. This decision broke with centuries of practice and case law by holding presidents can only make recess appointments when both a vacancy and appointment occur in-between congressional sessions. Specifically, the WSJ was offended that the National Labor Relations Board accurately pointed out the opinion was technically limited to the party that brought the case - despite its serious implications for all other similarly situated plaintiffs - and not only was it not currently in effect, it might be overturned on appeal. From the WSJ editorial, which accused the NLRB of planning to "ignore" the opinion:
So, let's see. First, President Obama bypasses the Senate's advice and consent power by making "recess" appointments while the Senate was in pro-forma session specifically to prevent recess appointments. Then when a federal court rules the recess appointments illegal, the NLRB declares that it will keep doing business as if nothing happened.
Without Mr. Obama's illegal appointments, the board would have been without a quorum and unable to decide a single case. That lawless behavior means more than 200 of the NLRB's rulings in the past year are in limbo. It's bad enough to force those 200 litigants to appeal rulings that are sure to be overturned. But the board wants to keep issuing new rulings though it now knows that a unanimous appeals court has declared them illegal, pending a Supreme Court review that may never happen.
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.
A Wall Street Journal editorial scolds communities of color for protesting New York City police "stop-and-frisk" tactics, failing to mention that the police are changing this policy in response to successful challenges to its constitutionality. The WSJ also incorrectly claimed these warrantless street detentions have "a track record of saving lives and making ghettos safer" and falsely equated constitutional gun violence prevention strategies with unconstitutional search and seizure violations.
In the past decade, despite evidence of its inefficacy, the NYPD has dramatically increased stop-and-frisk, which overwhelmingly targets young men of color. Support for this police tactic is not strong, receiving the most significant opposition in the communities of color where it is most prevalent. Recent lawsuits alleging this police practice is not only impermissibly racially discriminatory, but also a systematic violation of the Fourth Amendment's prohibition on unreasonable searches and seizures, are succeeding.
Nevertheless, the WSJ argued that black and Hispanic New Yorkers should be "thankful" that the police are targeting them for pat-downs without reasonable suspicion of illegal activity. From the editorial:
Mayor Mike Bloomberg and Police Commissioner Raymond Kelly credit "stop and frisk" police tactics with the drop in homicides, and rightly so, but it's worth noting that Gotham has a slew of Democrats running to succeed Mr. Bloomberg next year and promising to repeal "stop and frisk" if they're elected. The left claims to care so deeply about the welfare of minorities and the poor, yet they oppose policies that have a track record of saving lives and making ghettos safer for the mostly law-abiding people who live in them.
By the way, many of these same liberal opponents of "stop and frisk" support stricter gun control laws. But as commentator David Frum recently asked, how can you support gun control and oppose "stop-and-frisk"?
The WSJ does not cite evidence for its claim that the "drop in homicides" is due to the past decade's stop-and-frisk policing. In fact, the evidence does not support this much-repeated right-wing talking point. In addition to the NYPD admission that "nearly nine times out of ten" the individuals detained under the policy are innocent and that police discover "guns in only about one of every 666 stops--or 0.15 percent," claims that stop-and-frisk is responsible for the drop in homicide are spurious. As explained by The New York Times:
[Proponents of stop-and-frisk] applaud the mayor for inventing "a new statistic": 5,600 "fewer murders in the past decade" because of stop-and-frisk.
The mayor's math is certainly inventive, as well as deeply ahistoric. He takes the high point for homicides, which hovered around 2,200 in the late 1980s and early 1990s. Then he points to the number of homicides each year since he took office in 2002, which has hovered near 500, and claims 5,600 lives saved.
Where to begin?
The early 1990s represented a high-water mark for urban bloodshed. Boston, Miami, Chicago, Los Angeles, Richmond, Washington: all became caldrons of violence.
The wave of homicides subsided most substantially in New York, but violence slid in most cities. Smart policing helped a lot. So did the waning of the crack epidemic, the decline of drug turf wars, and tens of thousands of citizens who refused to stay locked in their homes.
New York experienced its sharpest drop before 2002, the year Mr. Bloomberg took office. Since then, homicides have fallen about 11 percent, while stop-and-frisks increased sevenfold.
The NYPD has already begun changing its stop-and-frisk policy in recognition of the increasingly successful challenges to its constitutionality. Although brief police detentions of individuals on the street are not automatically unconstitutional, in certifying a class action lawsuit against the NYPD's specific stop-and-frisk practices, a federal court warned the NYPD last summer that its use of the practice appeared to go far beyond what was constitutionally reasonable. Furthermore, on the same day the editorial page of the WSJ published support for stop-and-frisk, a federal court struck down part of it as unconstitutional, a major news story the WSJ covered in its straight news section:
In the first judicial rebuke of the city's stop-and-frisk practice, a federal judge ordered the New York Police Department to end what the ruling described as "unlawful trespass stops" outside some private buildings in the Bronx.
In her harshly worded ruling, the judge wrote that "while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it."
Finally, the WSJ recycled journalist David Frum's question, "How can you support gun control and oppose stop-and-frisk?"
The answer is simple. First, even if stop-and-frisk was an effective gun violence prevention measure, as right-wing media erroneously claim, it does not follow that it is a necessary tool to enforce gun laws. Second, as conservative Supreme Court Justice Antonin Scalia concluded, "gun control" is constitutional. According to yesterday's federal district court ruling, NYPD's stop-and-frisk policy is not.
The Wall Street Journal published an editorial defending the latest report by StudentsFirst, an education reform group run by former Washington, D.C., schools superintendent Michelle Rhee, and failed to disclose the education interests of its parent company, News Corp., and its reported financial link to the advocacy organization.
In an editorial titled, "Where Failure Is a Virtue," the Journal is critical of Richard Zeiger, California's chief deputy superintendent, for making light of his state's "F" grade on the StudentsFirst report and calling it a "badge of honor." StudentsFirst ranked and graded each state's education policy on categories such as "value effective teachers" and "empower parents with information." California was one of 11 states to receive an "F." From the editorial:
Mr. Zeiger claimed to be elated by the failure. He called StudentsFirst "an organization that frankly makes its living by asserting that schools are failing," adding to the New York Times that "I would have been surprised if we had got anything else."
Mr. Zeiger is a factotum of the teachers unions that dominate California politics, so he naturally dislikes StudentsFirst because it advocates evaluating teachers based in part on student performance on standardized tests. Ms. Rhee and her reform group also want teacher evaluations to be made available to parents, among other policies to improve accountability. Unions don't like accountability.
In coming to Rhee's defense, the Journal failed to disclose links between News Corp. and the education reform industry. CEO Rupert Murdoch, who has expanded his media empire to include a digital education company, has reportedly donated to StudentsFirst. According to journalist Steve Brill's book Class Warfare: Inside the Fight to Fix America's Schools, Rhee "had gathered more than $100 million in donations or pledges from heavy hitters such as ... Rupert Murdoch." Fox News' Neil Cavuto has similarly reported that Murdoch is a StudentsFirst donor. Murdoch has also publicly supported Rhee in her advocacy efforts, reportedly calling her "a bona fide reformer."
The Wall Street Journal argued in an editorial that the National Labor Relations Board, which is charged with protecting workers' right to organize, has overstepped its authority to do unions' bidding regardless of the law--particularly in its approach to employers' social media policies. A review of the NLRB Office of the General Counsel's memos, however, demonstrates that the WSJ's characterization of the body's policies is without merit.
The January 6 editorial, titled "Another NLRB Power Grab," accused the body of becoming "a wholly-owned subsidiary of Big Labor, rather than a neutral arbiter of fair labor practice." In support of this claim, the WSJ presented blatantly false statements about the NLRB's approach to employers' social media policies:
Also insidious is the NLRB's effort to regulate how companies handle social media. In the Facebook and Twitter age, employers have an obvious interest in rules that prohibit their employees from defaming colleagues, or broadcasting confidential information. The NLRB has nonetheless decided that even reasonable restrictions impinge on concerted activity.
In fact, both the NLRB's Office of the General Counsel (OGC) and the Board itself have explicitly stated that employers may set certain limits on their employees' social media activities as long as they do not prohibit activities protected under the National Labor Relations Act. Three OGC memos provide guidance about what types of employer policies pass muster under the NLRA.
In the most recent memo, dated May 30, 2012, the OGC examined seven cases about employer social media policies and concluded that one of the employer policies was lawful in its entirety, while some provisions of the remaining six policies "are overbroad and thus unlawful under the National Labor Relations Act."
Although the OGC concluded that some aspects of a confidentiality policy were invalid, it also recognized that a policy that "admonishes employees to '[d]evelop a healthy suspicion[,]' cautions against being tricked into disclosing confidential information, and urges employees to '[b]e suspicious if asked to ignore identification procedures' " is lawful.
Nor did the OGC state that all social media posts are "concerted activity" that is protected under the NLRA. In fact, although it concluded that employees' Facebook posts can be protected if they meet the requirements applicable to communications outside of social media, it defined such posts narrowly. In a January 2012 memo, the OGC restated the NLRA requirement that protected activity must be "concerted," meaning that it seeks to involve other employees in a discussion of the terms and conditions and employment, and advised that an employee's online discussion would not be protected just because fellow employees "liked" a post.
Policies that are sufficiently clear and not limited in scope can pass muster in their entirety. The OGC advised that policies "that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful."
In short, the WSJ's characterization of the NLRB's positions on social media bears no resemblance to the guidance it has publicly shared.
The Wall Street Journal endorsed the Republican strategy of using the debt ceiling to extract spending cuts from Democrats, so long as Republicans are prepared to let the United States default on its debt and obligations. Economists have warned that a default would create a new national and global recession and have other catastrophic effects.
The GOP congressional leadership has said that it will demand spending cuts in exchange for raising the debt ceiling -- a measure that allows Congress to pay for past spending, and until recently a measure that was routinely passed by Congress -- even though President Obama has said he will not bargain for a debt ceiling increase. During a May 2012 speech, Republican House Speaker John Boehner pledged to again use the debt ceiling as a method to cut federal spending. In the past month, Boehner's spokespeople have told media outlets that he is still committed to using the debt ceiling as leverage for spending cuts. Republican Senate Minority Leader Mitch McConnell wrote an op-ed on Thursday where he stated that the debt ceiling "is the perfect time" to push for spending cuts.
A Journal editorial advised Speaker Boehner and his fellow Republicans that if they were to again use a vote to raise the borrowing limit of the United States as a way to pass spending cuts, they cannot bluff about the threat of default. The Journal stated:
We'll support efforts to cut spending and reform entitlements, but the political result will be far worse if Republicans start this fight only to cave in the end. You can't take a hostage you aren't prepared to shoot. Do the two GOP leaders have a better strategy today than they did in 2011, and do they have the backbench support to execute it?
But economists have warned that not raising the debt ceiling would be catastrophic to the economy. When Republicans threatened in 2011 to not raise the debt ceiling, Moody's analytics chief economist Mark Zandi warned that after the possibly resultant default, "financial markets would unravel and the U.S. and global economy would enter another severe recession." A June 2011 letter to congressional leaders and signed by 235 prominent economists warned:
Failure to increase the debt limit sufficiently to accommodate existing U.S. laws and obligations also could undermine trust in the full faith and credit of the United States government, with potentially grave long-term consequences. This loss of trust could translate into higher interest rates not only for the federal government, but also for U.S. businesses and consumers, causing all to pay higher prices for credit. Economic growth and jobs would suffer as a result.
The Economic Policy Institute warned that even if the federal government could stave off default by prioritizing interest payments, the resultant ceasing of government spending would create "a massive demand shock to the economy" because:
[T]he government would have to immediately cut expenditures by roughly 10 percent of that month's GDP, and more than that as time went on. This means Social Security checks would be cut, doctors would not be reimbursed in full for seeing Medicare and Medicaid patients, and private contractors doing business with the federal government would not be paid.
Following the resolution of the 2011 debt ceiling fight, in which the debt ceiling was ultimately raised before the U.S. defaulted on its debt, the credit rating agency Standard & Poor's downgraded the U.S. credit rating and released a statement citing "political brinksmanship" and the threat of default as "political bargaining chips" among its reasons for the downgrade. The Bipartisan Policy Center estimated that "the ten-year cost to taxpayers caused by the delay in raising the debt limit will amount to $18.9 billion."
An analysis by the Checks & Balances Project finds that 60 major newspapers frequently quote fossil fuel-funded think tanks on energy and environmental issues without disclosing their industry ties. Further research by Media Matters finds that the Wall Street Journal's lack of disclosure has been especially glaring.
The Checks & Balances Project found that between 2007-2011, industry-funded organizations like the Heartland Institute, Competitive Enterprise Institute, and the Heritage Foundation were cited or quoted over 1000 times in 60 publications, often to attack environmental regulations or renewable energy technology. Their ties to fossil fuel interests were disclosed only 6 percent of the time, despite the fact that 17 percent of mentions promoted fossil fuels. The analysis concluded that "a transactional relationship of contributions in exchange for national media traction is playing out" between these groups and their corporate benefactors.
Expanding on these results, Media Matters found that the Wall Street Journal cited, quoted or featured these think tanks on energy issues more than 100 times between 2007-2011 -- more than any of the other other major papers evaluated by Checks & Balances. But the Journal -- which has a history of failing to disclose fossil fuel ties - mentioned the funding sources for these groups just under 4 percent of the time, slightly worse than the average disclosure rate for the other 60 publications.