From the January 29 hearing of the Senate Judiciary Committee:
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From the January 28 edition of MSNBC's The Rachel Maddow Show:
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The Washington Post blog The Fix is claiming that an upcoming Supreme Court decision that could eliminate health care subsidies for millions of Americans under the Affordable Care Act (ACA) "might not matter" because Republicans might restore the subsidies, a proposition that seems not to consider the fact that the GOP has long ignored these tax credits' popularity in their quest to bring the law down, subsidies and all.
In March, the Supreme Court will hear arguments in King v. Burwell, a right-wing challenge to the ACA. The challengers argue that, based on their strained reading of the subsidies provision of the law, which was designed to make health insurance affordable, the IRS does not have the authority to provide tax credits to Americans who purchased their insurance through the federal health care exchange website. Instead, they argue, only consumers who bought insurance through state-based exchanges are eligible for the subsidies -- a problem since Republican-controlled states refused to set up their own sites.
In a January 28 post, The Fix argued that it "might not matter" if the Supreme Court strikes down the subsidies, because a new poll from the Kaiser Family Foundation suggests that the majority of Americans would want the Republican-controlled Congress to restore the subsidies.
But it actually matters a lot -- leading Republicans have repeatedly and publicly sided with the right-wing challengers of the subsidies as a way to bring down the ACA. In September, a group of congressional Republicans filed a brief with the Supreme Court asking the justices to hear the case and to rule that the IRS doesn't have the authority to provide subsidies to Americans who bought insurance through the federal exchange. Republican members of Congress know full well that if they are successful, the ACA will collapse -- that's their self-admitted goal.
Earlier this month, Sen. John Cornyn (R-TX), who was one of legislators who filed the brief, told Roll Call that he expected the court to "render a body blow to Obamacare from which I don't think it will ever recover." In December, Sen. John Barrasso (R-WY) similarly argued that blocking the subsidies was "enough to bring down the health care law. ... We're going to continue to try one, repeal; two, strip out the worst parts of the law; and three, look to the courts." Senate Majority Leader Mitch McConnell similarly made it clear that Republicans are not interested in restoring anything about the ACA if the court "take[s] it down," but rather are looking for a "mulligan here, a major do-over of the whole thing." Even The Fix's post acknowledged that "just because restoring subsidies might be popular doesn't mean congressional Republicans would do it. The GOP base would certainly cry foul if they moved to do so."
Breitbart.com is incorrectly claiming that Loretta Lynch "undercut the legal argument" supporting President Obama's executive action on immigration, when in reality she did no such thing.
On January 28, Lynch appeared before the Senate Judiciary Committee for her confirmation hearing to become the next attorney general of the United States. Lynch is widely considered by people on both sides of the aisle to be a well-qualified pick for the post, but she still faced tough questions from Senate Republicans who, as The New York Times put it, wanted "assurances she would break from some of the practices" of current Attorney General Eric Holder.
One line of questioning in particular centered around Lynch's thoughts on the legality of Obama's recent executive action on immigration that will defer deportation proceedings for some undocumented immigrants. Legal experts agree that the president's action, which will provide temporary administrative relief for certain undocumented parents of U.S. citizens or lawful permanent residents who pass a background check, is "clearly within his discretionary power." Immigrants whose deportations are deferred under this form of prosecutorial discretion are then eligible to apply for work authorization permits and driver's licenses (depending on the state) -- a benefit that was not introduced by Obama, but rather is permitted under the Immigration Reform and Control Act of 1986 and the Real ID Act of 2005, respectively.
Breitbart.com, a site that once spectacularly confused nominee Lynch with a completely different Loretta Lynch in its rush to smear her qualifications, made yet another error in reporting on the confirmation hearing. A January 28 post on Breitbart claimed that Lynch "[p]erhaps by accident" had "undercut the legal justification the president has given for his executive amnesty for millions of illegal aliens during her confirmation hearing." Aside from incorrectly defining the president's immigration actions as "amnesty" -- a mistake that other conservative media figures like Fox News' Megyn Kelly have avoided -- Breitbart homed in on an exchange between Lynch and Sen. Mike Lee (R-UT), who asked about limitations on using prosecutorial discretion to prioritize deportations. Breitbart quoted Lynch's response:
I think that if a prosecutor were to come to the view that they had to prioritize one crime over another, you would always still want to retain the ability -- even if it was an area that was not an immediate priority -- if for example it became one. Because if a particular neighborhood was being victimized, or again to use your issue of speeding, there were deaths resulting from that. You would want to have the ability to, if you could, take resources and focus on that issue. It might not be the first priority but you would want to have the ability to go back and deal with that issue.
Breitbart went on to argue that, in her response, "Lynch effectively admits that what Obama has done with executive amnesty -- providing legal documentation and work permits for millions of illegal aliens, thereby legalizing their status in the United States -- far exceeds any reasonable definition of prosecutorial discretion. She also said that prosecutors should keep the door open to prosecuting an illegal action that isn't currently a priority if it becomes one eventually. So even if illegal immigration isn't a priority right now for whatever reason, prosecutors need to be able to go after that crime later. "
What she said does not "undercut" the policy at all. By definition, the executive actions (which are reversible themselves) that grant temporary administrative relief by deferred action "keep the door open" and allow law enforcement "to go after that crime later," as Lynch stated. The hint is in the name of the actions, which Breitbart did not cite: the "case-by-case" Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) programs.
Given the fact that it would be impossible for law enforcement to deport every person currently living in the United States without the appropriate documentation, it is essential to prioritize some removals over others. Lynch's comments do not undermine the administration's position, which she said was "reasonable" -- they simply explain how prosecutorial discretion, such as DAPA and DACA, works in practice.
UPDATE: Daily Caller editor-in-chief Tucker Carlson expanded on Nugent's role during a January 28 appearance on WMAL's Mornings on the Mall. Carlson said Nugent will likely write a weekly column, adding: "I think he'll participate a lot. I really -- I like him. I mean, he's, you know, he's like a rock star with political views. So, you know, he doesn't hold back. And he says intemperate, sometimes borderline, demented things, but I think he's interesting, and I think he's a good guy, and I think he has actually some really informed, interesting opinions on the 2nd Amendment, and hunting, so I love the fact that he's working for us."
National Rifle Association board member Ted Nugent says he has joined the opinion page of conservative website The Daily Caller. Nugent wrote in a January 27 Facebook post, "Proud to join Tucker Carlson & his DAILY CALLER team of truth, logic, commonsense, reality writers at this fine website," and linked to a column he wrote for that website that responded to recent criticism of the NRA.
It is unclear whether Nugent's piece was a one-time column or whether, as his Facebook comment suggests, he is now a paid regular contributor or staff columnist. Asked to clarify Nugent's role, Daily Caller executive editor Vince Coglianese responded sarcastically to Media Matters reporter Joe Strupp, saying only: "It was a common sense decision for us. We've long been associated with the political right, and we felt it was time to broaden our appeal with the sensible middle. We're paying him in venison." He did not respond to follow-up questions. A Daily Caller spokesperson did not respond to a request for comment.
Daily Caller senior contributor Matt K. Lewis previously warned conservatives from associating with Nugent and other inflammatory conservative figures after Nugent was widely criticized for calling President Obama a "subhuman mongrel."
In a February 21, 2014, column -- headlined "The enemy of my enemy is my friend: Why conservatives are always defending the indefensible" -- Lewis wrote, "Like the girl who always falls for the guy who's bad for her, conservatives keep trusting the wrong people and making the same mistakes" before naming Nugent as an example.
The witness list for the Senate Judiciary Committee's hearing on Loretta Lynch, the highly regarded nominee for attorney general, indicates the process will be a forum for right-wing media favorites and myths but will have little to do with her qualifications.
Lynch, the U.S. attorney for the Eastern District of New York, has long been praised across the political spectrum as a model federal prosecutor. Lynch has been confirmed twice as a U.S. attorney -- including by some of the same Republican senators now in control of the Judiciary Committee -- and news of her nomination in November brought a new round of support, including from conservative law enforcement sources.
Current New York Police Department Commissioner William Bratton called Lynch "a remarkable prosecutor with a clear sense of justice without fear or favor." Former FBI director Louis Freeh wrote in a letter to Judiciary Committee leadership that he couldn't think of "a more qualified nominee" and was "happy to give Ms. Lynch my highest personal and professional recommendation." Freeh also wrote that he had spoken with "several of my former judicial colleagues who echo this support, and note that Ms. Lynch has gained a terrific reputation for effectively, fairly and independently enforcing the law." Former New York City Mayor Rudy Giuliani, who worked with Lynch on an infamous police brutality case, has said "if I were in the Senate, I would confirm her."
Fringe right-wing media outlets and figures initially ignored this broad support and attacked Lynch anyway. The effort was spectacularly unsuccessful, as they mixed up the nominee with an entirely different Loretta Lynch and then claimed that her membership in Delta Sigma Theta, one of the country's leading African-American sororities, was "controversial."
Leading Fox News figures were better informed about the New York nominee, most notably News Corp. chairman Rupert Murdoch, who immediately noted Lynch had a "reputation for fairness and strict legality." In an O'Reilly Factor segment with Megyn Kelly on November 10, Bill O'Reilly said he was "heartened" she would be the new attorney general. In response, Kelly praised Lynch:
KELLY: I have to say that I think this is the person who should be the most acceptable to the right wing or the Republicans in this country of anybody who President Obama was considering. She is a straight shooter. First of all, she would be the first black female attorney general, right? I mean, that in and of itself is a pretty amazing accomplishment. Went to Harvard undergrad, went to Harvard Law School. She has no close ties to the White House. She is not some firm ideologue or partisan. She has prosecuted Democrats and Republicans. She's been a hero on gang crime, on terrorism.
Republican senators have been similarly honest about Lynch's record, admitting that she "seems to be a solid choice" and will instead use her hearing as a forum for grievances they have with the administration and outgoing Attorney General Eric Holder. The new chairman of the committee, Sen. Chuck Grassley (R-IA), told Politico: "All I can tell you is that immigration is going to be a big part of it. ... Not because of her views on immigration, but of the president's action on immigration and the extent of what she feels he's acted in a legal way."
Unfortunately, a review of the newly released witness list reveals that the Republican choices for this "proxy war of sorts" rely heavily on right-wing media favorites who frequently spread debunked smears and myths:
From the January 27 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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A year after calling President Obama a "subhuman mongrel" at the gun industry's trade show, National Rifle Association board member Ted Nugent revisited the comment, claiming it was "probably much too delicate" before describing his rationale for using the term in an interview with Guns.com.
Nugent faced widespread criticism in 2014 after telling Guns.com at the 2014 Shooting, Hunting and Outdoor Trade (SHOT) Show, "I have obviously failed to galvanize and prod, if not shame enough Americans to be ever vigilant not to let a Chicago communist raised communist educated communist nurtured subhuman mongrel like the ACORN community organizer gangster Barack Hussein Obama to weasel his way into the top office of authority in the United States of America."
Fallout from the "subhuman mongrel" comment proved damaging for the high-profile member of NRA leadership. In February 2014, Nugent's mere appearance at a campaign event with then Republican gubernatorial candidate Greg Abbott caused a national media controversy. His appearance drew condemnation even from top Republicans. The following summer, several of Nugent's concerts were canceled by organizers who cited past comments made by Nugent. Music industry experts have suggested that Nugent's inflammatory rhetoric may hurt his ability to book concerts.
Nugent returned to the SHOT show this year, once again appearing as a representative of Outdoor Channel, where he is a spokesman and host. Outdoor Channel is one of the top sponsors of SHOT Show, which is hosted annually by the National Shooting Sports Foundation.
Speaking to Guns.com, Nugent described his "subhuman mongrel" comment as "precious" and "probably much too delicate." In remarks that echoed the NRA's anti-federal law enforcement commentary of the 1990s, Nugent also said his "subhuman mongrel" phrase was inspired by "jackbooted thuggery" committed by "out of control government agents."
From the January 22 edition of Fox News' The Kelly File:
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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.
PBS' Frontline is responding to criticism of its recent documentary about the National Rifle Association by misrepresenting the arguments made by progressives in order to dismiss them.
On January 6, Frontline aired Gunned Down: The Power Of The NRA, a documentary that covered the history of the NRA from when the group began to become politicized in the 1960s through legislative efforts in 2013 following the mass shooting at Sandy Hook Elementary School.
In a January 8 blog post, Media Matters leveled several critiques against the documentary, namely that it overstated the ability of the NRA to influence election outcomes, that it credited the NRA with Al Gore's defeat in the 2000 presidential elections, and that it created the perception of NRA invincibility by only including recent NRA victories, but not defeats.
In its response, Frontline wrote, "As for the assertion by Media Matters writer Timothy Johnson that the film overstated the influence of the NRA, we stand by our reporting." According to the documentary's producers, "The many interviews we conducted support the notion that since 1999 Washington has failed to enact tougher national gun legislation and the NRA has been the key reason why."
This is a straw man argument. Media Matters never argued that Frontline had overstated the influence of the NRA on federal legislation since 1999. That the NRA is a powerful lobbying force on Capitol Hill is obvious and has been discussed by Media Matters previously.
Instead, Media Matters criticized Frontline -- as it has criticized quite a few media outlets -- for overstating the ability of the NRA to determine the outcomes of elections. In part, politicians' misguided fears about the NRA punishing them on Election Day plays into the NRA's ability to effectively lobby.
Frontline's response doesn't take into account the distinction between the ability to influence election results and the ability to influence legislation. In addition to crediting the NRA with Gore's defeat in the 2000, Gunned Down credulously promoted the NRA's supposed electoral prowess by quoting a former NRA spokesperson saying, "You are a politician, you want to get elected, you want votes, NRA has votes" while offering no countervailing perspective.
Although that type of conjecture is often pushed by the NRA and its allies, a regression analysis of actual House and Senate races that involved NRA spending and endorsements has disproven the notion that the NRA is effective in determining the outcomes of elections.
Despite dedicating numerous segments to comments made by MIT economist Jonathan Gruber about tax credits established under the Affordable Care Act (ACA) that appear to support a right-wing challenge to their legality, Fox News' programming on weeknights has ignored remarks made by Gov. Scott Walker (R-WI) that undermine the legal theory behind this upcoming Supreme Court case.
In March, the Supreme Court will hear oral arguments in King v. Burwell, the radical attempt to dismantle the ACA based on an extremely literal reading of the law. The challengers in King, and several other identical lawsuits, argue that the IRS is prohibited from providing essential subsidies to insurance consumers who live in states that refused to set up their own health care exchange websites, because the law says that subsidies are unavailable for those who purchased insurance through the default federal exchange. If this interpretation is correct, millions of Americans will be unable to afford their insurance premiums -- a result that seems at odds with a bill with the word "affordable" in its title.
Nevertheless, the legal arguments in King have been hyped regularly by Fox News and right-wing media, especially after a video of Gruber came to light in which he seemed to agree with the King challengers that subsidies were not available to consumers in states who used the federal exchange. According to a search of the Nexis database, Fox News' weeknight programming since November 1 has frequently mentioned Gruber in connection to the King case, airing 25 segments that mentioned Gruber's comments in conjunction with the ACA lawsuit. Many of those segments featured a Fox host, contributor, or guest suggesting that Gruber's remarks were so significant that they would influence the outcome in King. Most notably, host Bill O'Reilly repeatedly claimed that the justices would be swayed by Gruber, stating on his November 18 show, "Believe me, the Supreme Court is taking notes."
Meanwhile, those same shows have ignored a pair of videos that show Walker apparently undermining the legal theory behind King.
From the January 21 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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Emily Miller, the chief investigative reporter for Washington, D.C.'s Fox affiliate WTTG, told the crowd at a January 19 gun rights rally in Richmond, Virginia that the District "is not part of America" and told gun advocates in attendance that she is part of "this fight that we're all in."
Miller was one of several speakers at a rally organized by the Virginia Citizens Defense League (VCDL), an extremist gun rights organization. VCDL participates in an annual Lobby Day event held each year at the Virginia State Capitol on Martin Luther King, Jr. Day. Many of VCDL's supporters attend the event with openly carried handguns and assault weapons, which is legal in Virginia. Advocates for gun safety also hold a separate rally each year.
While flanked by a man armed with an AR-15 style assault weapon and an openly carried handgun, Miller told the crowd, "It's great to be in Virginia, which is part of America where you recognize the Second Amendment. I came from D.C. this morning, which is not part of America, because they don't recognize the Second Amendment."
This January marks the fifth anniversary of Citizens United v. FEC, the 2010 Supreme Court case that expanded the idea of "corporate personhood" by ruling that the First Amendment protects a corporation's right to make unlimited expenditures in support of political candidates as a form of speech. Network news coverage of its legal impact, however, has largely ignored how the Supreme Court continues to aggressively expand the decision.
This expansion of corporate rights has wide-ranging consequences, even outside of the context of campaign finance deregulation. The court's decision in Burwell v. Hobby Lobby, for example, seemed to embrace the idea that corporations are capable of morally objecting to contraception coverage, co-opting yet another constitutional right -- that of religion -- that had previously been reserved for people, not businesses.
In terms of election law, the conservative justices further dismantled campaign finance restrictions in 2014's McCutcheon v. FEC, which struck down aggregate campaign donation limits and allowed wealthy donors to contribute money to a virtually unlimited number of candidates and political parties. The court will hear yet another campaign finance case on January 20 called Williams-Yulee v. the Florida Bar, which could strike down a Florida rule that prohibits judicial candidates from directly soliciting money from donors -- a rule that was put in place in response to a serious corruption scandal that resulted in the resignations of four Florida Supreme Court justices.
Yet despite the cascade of decisions from conservative justices intent on dismantling campaign finance regulations and rewriting corporate rights -- and the majority of Americans who support a constitutional amendment that would overturn Citizens United -- the media have largely underreported this story.
Here are four graphics that illustrate this failure.