Right-Wing Media's Favorite Legal Myths Of 2014 Will Be Back in 2015
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Many of the same right-wing media myths about legal issues that dominated coverage in 2014 will continue to make headlines in the new year. Here are some of the worst that will make a comeback in 2015.
Lies About Voter Fraud, Voter Suppression, And Attacks On Voting Rights
Rarer than being struck and killed by lightning and far less common than UFO sightings, 31 out of one billion votes cast since 2000 was the number of credible allegations of in-person voter fraud that law professor Justin Levitt found nationwide in a 2014 report. But in the face of these findings and a constant parade of similar evidence, this phantom menace nevertheless was the bogeyman that right-wing media incessantly invoked in 2014 to justify their increasingly hostile assault on voting rights.
From strict voter ID to voter purges to Jim Crow-era "literacy tests," right-wing media championed unnecessary and redundant voting restrictions that have a disproportionately disenfranchising effect on Democratic voters of color. Despite criticism from leading conservative figures and smackdowns from federal and state courts, nothing seemed to dissuade right-wing media from twisting the truth and deceiving their audience to support a so-called solution to a virtually non-existent problem.
With a fix to the damage the conservative justices caused to the Voting Rights Act of 1965 still blocked in Congress, the misinformation is likely to only get worse, as legal challenges to the new wave of Republican-sponsored voting restrictions race to the Supreme Court and the 2016 presidential election cycle kicks into gear.
Right-Wing Media Will Push Repeal Of Obama's Executive Action On Immigration
In December, President Obama took executive action to expand the Deferred Action for Childhood Arrivals (DACA) program and temporarily suspend deportations for certain undocumented family members of U.S. citizens or lawful permanent residents. Even though some Fox News hosts seemed to understand that the exercise of prosecutorial discretion in this context was lawful, other conservative media figures were less sure.
Talk show host Rush Limbaugh immediately labeled Obama's temporary administrative relief "unconstitutional," despite overwhelming legal precedent to the contrary, as well as broad support from immigration experts who largely agree that the president has the authority to exercise prosecutorial discretion in prioritizing deportations. Joining Limbaugh was The Wall Street Journal, who originally complained that the Obama administration lacked the authority to take executive action because it hadn't received "written legal justification" from the Department of Justice's Office of Legal Counsel. Once the OLC released its opinion, the Journal still wasn't satisfied, erroneously claiming that the document didn't quote any "specific statutory language" to bolster its conclusion that the president's order was lawful.
Even mainstream media outlets like The Washington Post engaged in some questionable arguments to try to find fault in Obama's action by denying the clear similarities between this most recent relief and that of past Republican administrations, which a prominent immigration expert blasted as "breathtakingly short on both facts and logic."
Immigration will continue to be a target for right-wing media in 2015, as Republican officials from 17 states have already filed a federal lawsuit accusing the president of exceeding his executive authority. Although legal experts have said that these claims are "shaky" and "simply wrong," that hasn't stopped right-wing media from promoting dubious lawsuits in the past. Indeed, despite the serious flaws of these legal challenges, Fox News' Sean Hannity still proudly claimed their reasoning "could've been written by me."
Hobby Lobby Was Just The Beginning
In June, the conservative, male majority of the Supreme Court ruled in Burwell v. Hobby Lobby, holding that certain for-profit corporations were exempt from a provision of the Affordable Care Act (ACA) that requires employer-sponsored health insurance to cover contraception and other preventive health services, pursuant to the recommendations of the Institute of Medicine. Because the owners of Hobby Lobby "sincerely believed" that some forms of contraception cause abortions (they don't), the Court determined that the company didn't have to follow federal law and provide contraception coverage as part of its comprehensive health care plan.
Although the majority in Hobby Lobby purported to limit its holding only to "closely held" corporations (which isn't much of a limit), the Court seemed to walk back its "narrow" ruling just days later in Wheaton College v. Burwell. In that case, a college is successfully challenging the legality of the Obama administration's accommodation form that allows religiously-affiliated non-profits to exempt themselves from the contraception mandate, despite a short-lived endorsement of the accommodation's validity from the Hobby Lobby majority.
Wheaton College, as well as a group of nuns from the Little Sisters of the Poor charity, argues that signing a one-page accommodation form -- which allows insurance providers to offer contraceptive coverage independent from the religious objectors -- is still an undue burden on their religious freedom because of their objections to contraception for women, no matter the provider.
The Wheaton case is just one of many new attacks on the ACA that could make it more difficult for women to obtain birth control in 2015. In addition, the holding in Hobby Lobby has already been expanded in a number of "religious freedom" cases seeking exemptions from broadly applicable federal law, including one where the Fort Wayne-South Bend Diocese claimed that it would be a violation of religious liberty to even appear in court and defend itself against a discrimination lawsuit.
Will Media Better Cover Campaign Finance Deregulation In Advance Of The 2016 Presidential Election?
The 2014 elections were the most expensive midterms ever, due at least in part to the conservative justices' steady dismantlement of campaign finance precedent in the wake of Citizens United. In April's McCutcheon v. FEC, the conservative majority of the Supreme Court further added to the unraveling of sensible bipartisan regulation and ruled that aggregate campaign contribution limits were unconstitutional, paving the way for wealthy donors to give even more hundreds of thousands of dollars to an unlimited number of candidates, political parties, and PACs.
But the media rarely covered the crisis of big money in politics. In fact, a Media Matters study found that PBS Newshour covered campaign finance reform more than all the other networks combined -- and that Fox News Sunday provided its viewers with no comprehensive segments on campaign finance at all. As Senator Bernie Sanders pointed out, this paltry coverage amounted to "each network devot[ing] less than [a] single minute per month to talking about campaign finance reform" in the past year and a half. To the extent that The Wall Street Journal editorial board discussed campaign finance, it was to suggest that the Supreme Court should have gone further in McCutcheon, and to call on federal courts to legalize banned coordination between candidates and outside groups that spend millions on state-level elections.
In the run-up to the 2016 presidential elections, based on their current track record, there's no reason to expect right-wing media to start to tell the truth about dark money and the growing influence the extremely wealthy (and often anonymous) exert over the democratic process.
Right-Wing Attempt To Gut The Affordable Care Act Will Be Decided In 2015
The Supreme Court is expected to hear oral arguments in King v. Burwell in early 2015. That case, based on a fringe legal theory developed by right-wing attorneys and trumpeted by conservative media, claims that Congress never intended for the law to make tax credits available to consumers who purchased insurance over the federal health care exchange. Based on a reading of the ACA that has been widely critiqued as wrong on both the interpretation of the text and intent of the law, the challengers still argue that the IRS is prohibited from providing subsidies to Americans who live in states that refused to set up an exchange, which would make health insurance unaffordable for millions.
Right-wing media have gleefully seized on King's potential to "topple Obamacare," but have ignored the human consequences of its outcome. In the lead up to oral arguments in 2015, there's no reason to expect right-wing media to stop hyping this potentially devastating lawsuit.
Obama Administration's Nominees Will Face More Obstruction From A Republican-Controlled Senate
In November, President Obama nominated U.S. Attorney Loretta Lynch to replace outgoing U.S. Attorney General Eric Holder. Right-wing website Breitbart.com was in such a hurry to discredit Lynch that it dug up "dirt" on the wrong Loretta Lynch - mistakenly claiming that the nominee Lynch was the same attorney who represented the Clintons during the Whitewater real estate probe in the 1990s. Once right-wing media figured out which Loretta Lynch to attack, they shifted gears to claim she was instead a partisan "radical" because she supported the Justice Department's legal challenges to potentially illegal and unconstitutional strict voter ID laws.
Such attacks were reminiscent of the outrageous right-wing media smear campaign earlier in the year against the president's unsuccessful nomination of Debo Adegbile to lead the civil rights division of the Department of Justice, attacks sparked because this accomplished Senate counsel had the temerity to also be a highly accomplished civil rights litigator.
Even though Lynch is highly-regarded by the likes of no less than News Corp Chairman Rupert Murdoch and Senator Lindsey Graham (R-SC), Senator Ted Cruz (R-TX) has nevertheless said he will block her nomination unless she rejects President Obama's executive order on immigration as "unconstitutional amnesty." Cruz has also gone further and said he and other Republican senators will obstruct a vote on all of Obama's nominees in 2015 -- both for the judiciary and the executive branch -- because of his belief that the president's action on immigration is unlawful.
This is bad news not only for the Department of Justice at a time when voting rights, criminal justice reform, and immigration enforcement are top national priorities, but also for the federal court system at large, which still suffers from a number of emergencies because judicial vacancies have gone unfilled for months. Now that Senate Republicans are in the majority, the blockage will only get worse.
Supreme Court May Continue To Weaken Affirmative Action
In April, the conservative majority of the Supreme Court ruled in Schuette v. BAMN, upholding a voter-approved ban on affirmative action in Michigan. The ban led to a significant decrease in enrollment among black students at the University of Michigan, and made it more difficult for students of color to petition state universities to improve diversity on campus in the future. In her dissent, Justice Sonia Sotomayor said that the conservative justices' "refusal to accept the stark reality that race matters is regrettable," and argued that "race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here.'"
Yet right-wing media called the ruling "a resounding win for the good guys," and referred to affirmative action as "a form of racial discrimination." The editors at National Review Online also cheered the decision, and called Sotomayor's dissent "legally illiterate and logically indefensible," and accused her of "elevating ethnic-identity politics over the law."
Affirmative action will likely make its way to the Supreme Court in 2015, and right-wing media are hoping that this time, the justices reverse decades of precedent and declare it unconstitutional. The Project on Fair Representation, an organization that recruits plaintiffs to challenge supposed "discrimination" in admissions at top universities, has spent the last year filing lawsuits on behalf of students who believe they were unfairly denied admission based on their race. Project on Fair Representation's last challenge to affirmative action -- Fisher v. University of Texas -- was remanded for further review by the Fifth Circuit Court of Appeals, but will likely be reconsidered by the Supreme Court as early as next year.
"Tort Reform" Will Reappear in 2015, Assault On Access To Justice Will Continue
Outlets like The Wall Street Journal and Forbes were particularly vocal this year -- as they always are -- in their opposition to class action lawsuits, legal challenges that can provide meaningful relief for consumers who have been harmed by corporate malfeasance. Right-wing media often channeled talking points from the U.S. Chamber of Commerce, a lobbying group that has been at the forefront of the anti-class action movement -- and whose pro-business message has found a sympathetic ear in Chief Justice John Roberts and the other conservatives on the Supreme Court.
With Republicans in control of Congress, there may be renewed interest in "tort reform" -- efforts to curb so-called "frivolous lawsuits" that actually have the effect of keeping legitimate plaintiffs out of court. Many reform proposals include limits on monetary damages that are supposed to disincentivize fraudulent claims, but actually financially benefit insurance companies and shift the cost of caring for injured parties away from corporate wrongdoers to the general public.
As they did this year with a conservative attack on investor class actions, the Roberts Court -- Corporate America's best friend -- will continue to keep looking for ways to cut back on collective legal action, much to right-wing media's delight.