The U.S. Chamber of Commerce's Institute for Legal Reform (ILR) pursues a campaign against laws that hold corporations accountable, hammering home familiar buzzwords such as "frivolous lawsuits" and "jackpot justice." It also owns newspapers and an online news service that cover those very issues. Recently that service, Legal Newsline, reported on a Supreme Court case in which the Chamber of Commerce filed a brief without disclosing the site's relationship to the Chamber in the article. This failure to disclose its parent's interest in the matter highlights the ethical issues and potential conflicts arising from an advocacy organization like ILR owning a news organization.
The Legal Newsline article in question dealt with the Supreme Court's recent decision in Christopher v. SmithKline Beecham Corp, another in a series of 5-4 pro-corporate decisions by the Court's Republican-appointed majority. The Chamber of Commerce, as it often does, filed a brief in case, arguing for the position the majority adopted, that pharmaceutical sales representatives are not eligible for overtime pay. The Legal Newsline article recites the facts of the case and summarizes the majority opinion (but not the dissent). The article does not mention that the Chamber of Commerce -- which through the Institute for Legal Reform owns Legal Newsline -- was involved in the litigation and took a position in favor of the employer in the case.
Legal Newsline discloses its ownership by Institute for Legal Reform on its "About Us" page. The disclosure is not, however, obvious to the reader of an article on the site, who would only see it if he or she clicks the "About Us" link and reads to the sixth paragraph of the statement found there. Even this limited disclosure was apparently recently added by the site; a report on ILR issued in October 2011 stated that ILR's ownership of Legal Newsline was not disclosed on the site at all as of October 18, 2011.
Fox News misrepresented a quote by President Obama to accuse him of hypocrisy over an investigation of possible national security leaks.
The Fox & Friends co-hosts claimed that Obama had called for a special counsel to investigate the leak of the identity of covert CIA operative Valerie Plame when he said that "a special counsel will ensure the public's confidence in the investigation and prosecution and help to restore its faith in our government." In fact, the quote came in the context of the Jack Abramoff investigation, and the Bush administration rebuffed calls for a special counsel in that case.
Indeed, Obama was not even a U.S. senator at the time a special counsel was appointed to investigate the Plame leak.
Fox also relied on false comparisons between the Plame case and the current leak investigation to push for a special counsel.
Obama Did Not Call For A Special Counsel To Investigate The Plame Case When He Was A Senator
After Attorney General Eric Holder announced that he was asking two U.S. attorneys to conduct a special investigation into the possibility of leaks of classified information, right-wing media have repeatedly pushed for an investigation by a special counsel who does not report to the Justice Department, pointing to the investigation into the Bush administration's leak of Plame's identity to the media.
Fox & Friends' latest strategy was to falsely claim that Obama, as a senator, had called for a special counsel to investigate the Plame case. In fact, Obama did not call for a special counsel to investigate the Plame leak as a senator. Indeed, Fitzgerald was appointed in December 2003, close to a year before Obama was even elected to the U.S. Senate in November 2004.
During the June 13 broadcast of Cam & Company on NRA News, conservative blogger Ed Morrissey relied onblatant falsehoods to draw a distinction between the failed Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Operation Fast and Furious and its Bush-era analogue, Operation Wide Receiver.
Morrissey claimed that during Wide Receiver ATF "coordinated" with Mexican law enforcement officials and that firearms involved in the operation were "accounted for." In reality, no such coordination occurred and many of firearms involved in Wide Receiver were lost after being allowed to "walk" across the U.S. border with Mexico.
Morrissey's claims came during an exchange with host Cam Edwards where the men mocked Attorney General Eric Holder's June 12 testimony before the Senate Judiciary Committee:
CAM EDWARDS, HOST: And again, you know Ed, what we got was, "I am cooperating, and I'm an awesome attorney general, why my goodness gracious I put a stop to these tactics in Fast and Furious. That's more than any other attorney general has ever done."
ED MORRISSEY: And he tried to say, "Well, I'm sure that the attorney general that you think was more qualified than me, you know, he didn't bother to stop it when it was done under Operation Wide Receiver." But what Eric Holder had to admit the last time he tried to make that statement was that there were some significant differences in Operation Wide Receiver. Which is one, they actually tracked the guns after they were released, and two, that was that Operation Wide Receiver was done in coordination with the Mexican government. There was law enforcement on both sides of the border tracking those guns. They accounted for those guns. And that's the reason why that operation didn't result in two dead American law enforcement officers and hundreds of dead Mexicans. I mean that's, that's I mean, there is a huge gulf between those two things.
Far from being "accounted for," the vast majority of the 450 guns involved in Wide Receiver were never recovered by the United States. This may have been because the ATF agents involved in Wide Receiver did not actually coordinate with the Mexican authorities as Morrissey claimed.
From the June 14 edition of MSNBC's PoliticsNation:
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The Department of Justice has appointed two federal prosecutors to investigate whether classified national security information was leaked to the media and published in a series of recent news reports. As ABC News reported, Attorney General Eric Holder appointed "Ron Machen, the U.S. attorney for the District of Colombia, and Rod Rosenstein to lead the criminal investigations into recent leaks concerning a disrupted bomb plot by al Qaeda in the Arabian Peninsula and a New York Times story about President Obama ordering cyber-attacks against Iran with the Stuxnet computer worm."
Taking a cue from Fox News, which has already declared the Obama administration guilty, Fox Nation is seeking to dismiss the investigation by calling into question Machen's appointment because he has donated some $4,000 to the Obama campaign over the years:
Fox Nation's post continued:
Attorney General Eric Holder has appointed two U.S. attorneys to lead investigations into the possible leaking of state secrets. One of those attorneys, Ronald C. Machen, owes his current job to the fact that Obama appointed him to it. He has also donated $4,350 to Obama's campaigns over the years.
Fox Nation is conveniently ignoring several facts, including that Holder appointed two prosecutors to the case: Machen, who was indeed an Obama appointee, and Rosenstein, who was a Republican nominee.
Machen was unanimously confirmed as U.S. attorney in February 2010. He also served in the Justice Department as an assistant U.S. attorney from 1997 to 2001. Rosenstein was confirmed as U.S. attorney in 2005, after being nominated by former President Bush.
On his radio show, Fox News host Sean Hannity also made much of the donations, saying, "[I]t seems to me the least appropriate person is a donor to the Obama campaign and somebody that is not objective and somebody that has this long history of a relationship with Eric Holder."
The anti-choice group Live Action has released the latest in its series of undercover videos that attempt to create the false impression that Planned Parenthood encourages sex-selective abortion. This video contains clips from two visits to Planned Parenthood clinics in Hawaii by a Live Action activist claiming she wants to have an abortion because the fetus is female. The Planned Parenthood counselors shown in the video do not encourage the activist to receive a sex-selective abortion. Rather, one counselor tells the activist that a woman's reasons for having an abortion are her own, which is in line with Planned Parenthood's stated policy, and the other is not shown discussing the activist's motives.
The video is part of an effort by Live Action and its founder Lila Rose to concoct a problem. Sex-selective abortion does not happen with any regularity in the United States. The fact is that most abortions are performed before the sex of the fetus can be determined. Furthermore, the Guttmacher Institute, a reproductive health research organization, has written that "the U.S. sex ratio at birth in 2005 stood at 105 boys to 100 girls, squarely within biologically normal parameters."
The first encounter in the new video is introduced with the text, "Planned Parenthood provides a sex-selective abortion," but that's not what the video shows. It depicts a counselor in Maui telling the Live Action activist that the only way to be sure of the sex of a fetus is to have an ultrasound. The counselor also tells the activist that "it's really up to the patient whether -- I mean, everybody has their different reasons why they choose to have a termination and, of course, everybody's story matters. And if that's -- you know, if that's what you want to base your decision on, really, you know, it's really up to you."
The counselor goes on to say that while Planned Parenthood performs ultrasounds, it doesn't perform them for the purpose of determining gender and that the activist would have to go elsewhere to do so. The counselor also consoles the activist after she tells a story about a doctor showing disapproval of her reason for wanting an abortion.
The second video is introduced with the claim that "Planned Parenthood provides multiple sex-selective abortions." In fact, it shows a counselor telling the activist that it's "not healthy" to have abortions too frequently. The activist asks if it would be OK to have another abortion after a year, and the counselor tells her it would.
The next clip is labeled, "Planned Parenthood uses state funds to cover a sex-selective abortion." In reality, the activist is shown saying that she is disappointed the military will not pay for an abortion. After confirming that the military won't pay for abortions, the Planned Parenthood counselor points out that the woman can pay for an abortion out of her own pocket or through the state's Medicaid program, which would mean meeting several eligibility requirements.
National Rifle Association CEO Wayne LaPierre appeared on Fox News' America Live yesterday to comment on the controversial "Kill At Will" law that has been connected to the shooting death of 17-year-old Trayvon Martin. LaPierre's appearance came the day after The Wall Street Journal reported on a new study that linked the NRA-backed "Kill At Will" laws to higher homicide rates, though America Live host Shannon Bream failed to raise the results of the study with LaPierre.
Starting with Florida in 2005, at least 25 states have enacted some form of "Kill At Will." The study, conducted by Texas A&M University economics professor Mark Hoekstra, reached the damning conclusion that the expansion of such self-defense laws since 2005 led to an increase in the incidence of homicides:
[W]e find the laws increase murder and manslaughter by a statistically significant 7 to 9 percent, which translates into an additional 500 to 700 homicides per year nationally across the states that adopted castle doctrine [Hoekstra's term for laws passed since 2005 that expand the right to self-defense]. Thus, by lowering the expected costs associated with using lethal force, castle doctrine laws induce more of it. This increase in homicides could be due either to the increased use of lethal force in self-defense situations, or to the escalation of violence in otherwise non-lethal conflicts. We suspect that self-defense situations are unlikely to explain all of the increase, as we also find that murder alone is increased by a statistically significant 6 to 11 percent. This is important because murder excludes non-negligent manslaughter classifications that one might think are used more frequently in self-defense cases. But regardless of how one interprets increases from various classifications, it is clear that the primary effect of strengthening self-defense law is to increase homicide. [emphasis added]
Hoekstra also found no link between the enactment of "Kill At Will" laws and a decrease in other types of crime:
Results indicate that the prospect of facing additional self-defense does not deter crime. Specifically, we find no evidence of deterrence effects on burglary, robbery, or aggravated assault. Moreover, our estimates are sufficiently precise as to rule out meaningful deterrence effects.
The study undermines LaPierre's organization's defense of "Kill At Will" laws, which were enacted across the nation after dogged lobbying efforts by the NRA and the American Legislative Exchange Council. LaPierre wasn't asked about the study during his Fox appearance, but was instead given free rein to make a number of misleading claims about the nature of "Kill At Will" laws.
LaPierre described Florida's "Kill At Will" law, and similar laws nationwide that remove the duty to retreat before employing deadly force outside of the home while often adding the presumption that the use of deadly force was lawful, as "completely unremarkable." Contrary to LaPierre's characterization, increased scrutiny of "Kill At Will" laws has uncovered numerous instances in which the laws have been tied to seemingly avoidable killings.
WTVT ("Fox 13"), the Fox-owned affiliate in Tampa, has weighed in on Florida Republican Gov. Rick Scott's controversial decision to ask state police to investigate three state supreme court justices appointed by a Democratic predecessor. The station's report hypes the governor's side of the controversy as a major political problem for the justices by asking two unidentified people if they would support judicial candidates who are under investigation and reporting their negative responses.
Florida voters will decide in November whether to retain Justices Fred Lewis, Barbara Pariente and Peggy Quince for an additional six year term each. Critics of the justices, both Tea Party-backed local groups and national right-wing organizations such as the American Justice Partnership, have begun to call attention to the retention election. If the justices are defeated, Scott would appoint their successors.
Critics of the justices have seized on their use of court employees to notarize filing documents for the election. A state law prohibits candidates from using government staff for campaign work. Critics and supporters of the justices disagree as to whether the justices may have violated the law, and Scott has asked the Florida Department of Law Enforcement (FDLE) to decide whether an investigation is warranted. But the uncertainty regarding what that determination will be did not stop Fox 13's ham-fisted hyping of the controversy in a negative light for the justices.
Sean Hannity dishonestly compared recent calls to investigate possible national security leaks to the Bush administration's proven efforts to leak the identity of covert CIA operative Valerie Plame. In doing so, Hannity fabricated the record to downplay the Plame leak while jumping to conclusions to declare President Obama guilty before an investigation has taken place.
Hannity's false analogy comes as Congress and the Justice Department investigate the possibility that classified national security information has been leaked to the media. Fox News figures have rushed to judgment in order to scandalize Obama's foreign policy achievements by recklessly and baseless accusing the White House of politically motivated leaks.
On Monday, Hannity pivoted the Fox campaign to the Plame matter, falsely claiming that Plame "wasn't even a covert operative." He then added: "[L]ook at the special prosecutor, look at Scooter Libby. This is infinitely worse. This was super-secret."
On his radio show, Hannity also claimed that Plame "wasn't a covert operative," adding that from day one, the prosecutor in the Plame case, Patrick Fitzgerald "knew who the leaker was. ... The person that leaked the information was Richard Armitage, and so there was no reason to continue that investigation."
But the actual facts of the Plame scandal put to rest Hannity's scandal mongering.
On his radio show last Friday, Rush Limbaugh once again promoted the baseless conspiracy theory that the failed Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Operation Fast and Furious was conceived as an elaborate plot to destroy the Second Amendment.
After playing clips from last week's annual House Judiciary Committee Department of Justice Oversight hearing, Limbaugh unleashed a tirade where he purported to explain "what's going on here." According to Limbaugh,"one of the purposes" of Fast and Furious was to point to crimes committed by Mexican drug cartels "then say 'we gotta do something about the Second Amendment'":
RUSH LIMBAUGH: Now let me tell you what's going on here. You know the purpose of Fast and Furious, one of the purposes was, to get those guns across the border in the hands of Mexican drug cartels, have crimes committed, and then say we gotta do something about the Second Amendment. How do American guns get to Mexico? Well we got them there because we gave them. That was never supposed to be discovered. Now the Second Amendment argument or rationale here goes to the motive for doing what Holder and the [Department of Justice] did. They wanted controversy around guns, they wanted American guns in Mexico. But the problem, they engaged in reckless tactics. And the pretext for allowing the guns to walk across the border was to be able later to trace them to crime scenes and then build a case against the Mexican drug cartels. And all experienced agents who looked at this thought that it was insane, because, a) there wouldn't be crime scenes unless we walked the guns across the border, and used in crimes, so we created the crimes by making the guns available, therefore were contributing to violent criminality. And even if you traced the guns to the crime scenes that you create you wouldn't cinch the case against these particular cartels because you wouldn't know for sure enough information to nail them. This was a disaster. And now that people are trying to get to the bottom of it, a stonewall is taking place. And this is just part of it that you heard sound bites from yesterday between Holder and Chaffetz and Darrell Issa.
Though Limbaugh used the congressional hearing as a jumping off point for his conspiracy theory, neither Issa nor Chaffetz actually alleged a conspiracy against the Second Amendment during the hearing. Despite a complete lack of evidence, the idea that Fast and Furious was a plot to undermine the Second Amendment has been promoted frequently by conservative conspiracy theorists like Limbaugh, the NRA, and Fox News.
The theory has been debunked by the ongoing Republican-led House Oversight Committee investigation into the botched ATF operation. According to a May 3 memorandum released by House Oversight Chair Issa, the purpose of Fast and Furious was to take down "cartel operatives including possible high-level financiers, suppliers, and possibly even king-pins." In a June 2011 joint staff report, Issa and Sen. Chuck Grassley (R-IA) wrote, "The purpose [of Fast and Furious] was to wait and watch, in the hope that law enforcement could identify other members of a trafficking network and build a large, complex conspiracy case."
In a Wall Street Journal op-ed, the Cato Institute's Ilya Shapiro uses three recent unanimous Supreme Court decisions to attack the Obama Administration for "increasingly extreme claims on behalf of unlimited federal power." There's just one problem with this analysis: in each case, the Obama administration was defending government actions that took place during the Bush administration. The Solicitor General, who is the government's top lawyer, has, in almost all cases, an obligation to defend government actions and federal laws, including those actions undertaken by previous administrations. That is what the Obama administration was doing in the three cases Shapiro highlights. But if Shapiro noted that fact, it would undermine his narrative about the administration's supposed "constitutional vision."
In the op-ed Shapiro highlights three cases. Hosanna-Tabor Church v. Equal Employment Opportunity Commission involved an employment discrimination lawsuit filed by the EEOC during the Bush administration. Sackett v. Environmental Protection Agency concerned when landowners have the right to challenge EPA actions in court. The action the Sacketts complained of was an order by the Bush Administration's EPA to stop building a house in violation of the Clean Water Act. The third case, United States v. Jones, involved a challenge to the use of a GPS tracking device to establish the movements of a criminal suspect. The Bush administration's Department of Justice launched the prosecution of Jones.
This week, National Rifle Association president David Keene will moderate a "conservative conversation" at the Chicago Conservative Political Action Conference with NRA board member Maria Heil, Illinois State Rifle Association executive director Richard Pearson, and Wisconsin Tea Party figure Kimberly Jo Simac. Keene and the panelists all have a history of extreme and conspiratorial rhetoric.
Conservative media outlets are credulously reporting House Oversight Committee Chairman Darrell Issa's claim that wiretap applications signed by senior Justice Department officials "prove" they "approved" of dangerous gunwalking tactics in the ATF's failed Operation Fast and Furious, contradicting prior DOJ statements. In doing so, they ignore that the DOJ has repeatedly stated that senior officials do not necessarily review wiretap applications themselves, but rather largely rely on summaries of those applications produced by line attorneys.
"Documents prove senior Justice officials approved Fast and Furious, Issa says," reads the headline of Daily Caller reporter Matthew Boyle's latest foray into reporting on the ATF's fatally flawed gunwalking operation.
Leaning heavily on Issa's just-released letter to Attorney General Eric Holder, Boyle reports that Issa has obtained wiretap applications for that operation that were signed by senior DOJ officials. Boyle notes that Issa claims those documents "show that immense details about questionable investigative tactics were available" to those officials via those applications, supposedly disproving numerous DOJ statements that senior officials there were not privy to the details of gunwalking.
But there's one question that this sort of credulous recitation of Issa's claims does not address: Did those officials actually review the wiretap applications that Issa says contained that information? According to prior DOJ statements dating back to at least last year, the answer is no.
This is not the first time Issa has claimed that wiretap applications supposedly proved knowledge of gunwalking techniques on the part of senior DOJ officials. In February, his committee made similar allegations, claiming in a staff report that "Congressional investigators have learned about the information contained in one Wiretap Authorization and Wiretap Affidavit from Fast and Furious that Jason Weinstein signed. The Wiretap Affidavit presented Weinstein with the details of at least two instances in which ATF agents had witnessed illegal straw purchasing and the subsequent transfer of the purchased weapons to other individuals."
But Politico reported at the time that "Weinstein told investigators that it was his 'general practice' not to read the underlying affidavits in such cases but to rely on a so-called cover memo prepared by another Justice Department office." This was consistent with Politico's report last November in response to similar claims that the wiretap applications could have bearing on what senior DOJ officials knew of Fast and Furious:
The Justice official, who spoke on condition of anonymity, said wiretap applications are reviewed by another DOJ office which writes a detailed cover memo that is usually the focus of review by Breuer's staff.
"What gets pulled out for their review is therough the lens of those two questions: necessity and probably cause," the official said.
In a letter that the committee's ranking member, Rep. Elijah Cummings (D-MD), released in response to Issa's letter today, he reiterated these points in even greater detail.
In Salon, Andrew Koppelman sets out the process by which the constitutional challenge to the Affordable Care Act's individual mandate made its way - via think tank issue briefs, op-eds, and blog posts - from being a completely off-the-wall notion to a nearly universal article of constitutional faith among conservative activists. This look back is even more important as a means of anticipating how the Right is likely to launch future attacks against Social Security, Medicare, and any number of health, safety and consumer protections. The assault on health care reform shows that the right's combination of established infrastructure, an activist and ideological segment of the judiciary, and partisan media is a powerful one. Progressives should remember how aggressively and effectively the right was able to deploy its view of the Constitution as a weapon, and meet future attempts to do so head on.
Koppelman's research shows that within a few months in mid-2009 the constitutional argument against health care reform went from nonexistent to a subject of mainstream discussion. Koppelman was unable to find any published claim that the individual mandate would be unconstitutional prior to a July 2009 Federalist Society issue brief written by two former Bush administration officials. In August 2009, conservative lawyers David Rivkin and Lee Casey, who regularly write on issues the right-wing legal infrastructure wishes to move into the mainstream, published a Washington Post op-ed attacking the mandate on constitutional grounds. On September 18, law professor Randy Barnett, who would play a leading role in the subsequent litigation against the act, first weighed in on the issue with a post on Politico. Koppelman notes that days later CBS News reported that "[i]n the last few days, a new argument has emerged in the debate over Democratic healthcare proposals," and that CBS mentioned that the constitutionality issue had emerged on The O'Reilly Factor and Fox News.
It is noteworthy that Fox News was out in front, driving the constitutional attack on the health care law into mainstream debate. Bill O'Reilly raised the constitutional issue on his show on September 9, over a week before Barnett, soon to become the public face of the cause, made his first public pronouncement. That night, in the "Talking Points Memo" portion of his show, O'Reilly said:
And finally it may be unconstitutional to force Americans to buy health care insurance, although Mr. Obama wants that and compares it to mandatory auto insurance. With auto insurance you have a machine that can do damage.
Could be unconstitutional to force you to buy this stuff. But if Obamacare passes, you will be on somebody's policy. That is certain. That's the memo. [Fox News, The O'Reilly Factor, 9/9/09, via Nexis]
For the past few months, just as many states across the country are passing voter ID laws, the Wall Street Journal has steadily denied that these laws disproportionally affect minority, as well as elderly, voters. Never mind that according to New York University's Brennan Center for Justice, upwards of 5 million voters -- mainly racial minorities, students, and seniors -- would be impacted by these laws.
But the Journal, along with other conservative media, continue to champion them. In articles and editorials, the Journal has made a habit of attacking Attorney General Eric Holder and his Justice Department for blocking these laws from being implemented in several states, claiming that Holder is "scaremongering" and playing "identity politics." In yet another editorial, the Journal wrote of Holder: "It would take a distinctive kind of naivete to believe there is no voter fraud in America." It also accused DOJ's civil rights division of "massag[ing] the data" so "it can charge bias" in blocking Texas' voter ID law.
Today, the conservative paper continued the trend, alleging that Holder and President Obama are using their "political power" to scare African-American voters. According to the Journal, Holder and Obama's voting rights concerns are nothing more than "racial incitement" and part of a "strategy" to re-elect Obama, adding: "And liberals think Donald Trump's birther fantasies are offensive?" The editorial continued:
For all of Mr. Obama's attempts to portray Mitt Romney as out of touch, no one has suffered more in the Obama economy than minorities.
Which explains Mr. Holder's racial incitement strategy. If Mr. Obama is going to win those swing states again, he needs another burst of minority turnout. If hope won't get them to vote for Mr. Obama again, then how about fear?
The editorial went on to assert that a speech to black leaders at a summit of the Congressional Black Caucus and the Conference of National Black Churches about the importance of voting and the significance of new voter ID laws was Holder "using his considerable power to inflame racial antagonism":