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.
Wall Street Journal editorial board member Mary Kissel falsely claimed that no American homeowners have been wrongfully foreclosed on since the financial crisis of 2008 and 2009. In fact, federal investigations found more than a million homeowners have faced potentially wrongful foreclosures.
On the October 11 edition of Fox Business' Varney & Co., guest host Charles Payne was joined by Fox contributor Monica Crowley and Kissel to discuss the latest quarterly earnings report from JPMorgan Chase. The firm, which has been beset by legal battles, reported robust profits despite extensive legal expenses in the last fiscal quarter.
The discussion turned to an alleged government "shake down" of the bank and demonization of Wall Street when Kissel interjected that, in fact, the financial industry had done nothing whatsoever to deserve extra scrutiny:
KISSEL: There hasn't been a single homeowner who has been identified who was foreclosed on that shouldn't have been foreclosed on. Somebody who was paying his bills.
In fact, more than a million American homeowners were potentially wrongfully foreclosed on during the housing crisis.
An independent review of foreclosures, conducted by the Federal Reserve and the Office of the Comptroller of the Currency (OCC), found that up to 30 percent of the 3.9 million households foreclosed on by 11 leading financial institutions faced wrongful challenges or should have been subject to certain legal protections. From the Huffington Post:
Close to 1.2 million borrowers, or about 30 percent of the more than 3.9 million households whose properties were foreclosed on by 11 leading financial institutions in 2009 and 2010, had to battle potentially wrongful efforts to seize their homes despite not having defaulted on their loans, being protected under a host of federal laws, or having been in good standing under bank-approved plans to either restructure their mortgages or temporarily delay required payments.
They reveal that nearly 700 borrowers who faced foreclosure proceedings had actually never defaulted on their loans.
The Huffington Post further reported, according to OCC data, that nearly a quarter-million borrowers eventually lost their homes. JPMorgan Chase, the bank being discussed on Varney & Co., has paid out millions of dollars in settlements over wrongful foreclosures, "leading Jamie Dimon, JPMorgan's chief executive, to personally apologize for his bank's errors."
Kissel's argument that banks like JPMorgan Chase did nothing do deserve current legal investigation - and instead praising Dimon for not "blow[ing] up the bank" - denies the reality faced by millions of Americans over the past five years.
Fox News promoted various falsehoods about poverty and anti-poverty programs, erroneously claiming that government programs cannot and have not reduced poverty levels.
On the September 19 edition of Fox News' America Live, guest host Alisyn Camerota hosted a panel discussion over House Republicans' plan to reduce funding for the Supplemental Nutrition Assistance Program (SNAP) -- formerly known as food stamps -- by nearly $40 billion over 10 years.
Camerota introduced the discussion by noting that the Census Bureau recently reported that the national poverty rate in 2012 remained at 15 percent. She then claimed that poverty in America is a problem "that growing government assistance programs cannot fix." Fox Business' anti-food stamp crusader Charles Payne then claimed that poverty rates have remained unchanged since the 1960s, casting doubt over the efficacy of anti-poverty programs. Payne later claimed that people living in poverty have a strong disincentive to work because of government programs.
Virtually every statement made by Camerota, Payne, and subsequently by Wall Street Journal editorial board member Mary Kissel about anti-poverty programs is false.
First, Camerota's claim about government assistance not lifting Americans out of poverty is directly contradicted by the very census report she cites. While it is true that 15 percent of Americans remain in poverty -- unchanged from 2011 -- the fact is that absent government anti-poverty programs, the number of Americans living in poverty would be millions greater. From the annual census report on income, poverty, and health insurance coverage:
- If unemployment insurance benefits were excluded from money income, 1.7 million more people would be counted as in poverty in 2012.
- If SNAP benefits were counted as income, 4 million fewer people would be categorized as in poverty in 2012.
- Taking account of the value of the federal earned income tax credit would reduce the number of children classified as in poverty in 2011 by 3.1 million.
Payne's claim that the rate has remained unchanged since the 1960s despite anti-poverty programs also doesn't stand up to scrutiny. Previewing the release of the annual census report, the Center on Budget and Policy Priorities (CBPP) anticipated such falsehoods, pointing out that they are "simply not valid or accurate." According to CBPP:
Comparing today's official poverty rate with those of the 1960s yields highly distorted results because the official poverty measure captures so little of the poverty relief that today's safety net now provides.
CBPP also included a chart showing just how effective anti-poverty programs have been at reducing poverty, and how rates would be reduced even further if the census accounted for noncash transfers.
Payne's statement about government assistance discouraging people from working is also dubious, given that he ostensibly cited the findings of a misleading report from the Cato institute that has been thoroughly debunked by economists as overstating benefits from welfare programs.
Fox has ramped up its misleading coverage of anti-poverty programs in recent weeks, going so far as to distribute its incredibly inaccurate special report on SNAP to members of Congress to assist efforts to reduce funding for the program.
As House Republicans try to slash funding for research and development of new energy technologies, conservative figures who once proclaimed their support for such initiatives have been curiously silent.
Buoyed by Republican lawmakers, the House recently passed a spending bill that cuts funding for Advanced Research Projects Agency-Energy (ARPA-E), the key federal program that invests in research and development of new energy technologies, by 81 percent. ARPA-E is a bipartisan Bush-era creation modeled on the Defense Advanced Research Projects Agency (DARPA), which spurred breakthroughs like the internet and stealth fighter. Now, even a midpoint reconciliation with the more generous Senate spending bill could leave funding for the program in tatters.
These cuts are an extreme departure from the rare interparty comity that has typically surrounded research and development for alternative energy. Indeed, conservative media figures have frequently embraced such efforts -- as opposed to programs that award loans to address the so-called "valley of death" between development and commercialization -- echoing the pro-ARPA-E views of free-market groups and some Republican leaders. Among the latter was former presidential nominee Mitt Romney, who supported increasing funding. But with ARPA-E now in trouble, these figures appear tongue-tied.
A member of The Wall Street Journal editorial board attacked decades-old employment discrimination precedent under Title VII by incorrectly describing the law and selectively quoting a letter written by nine Republican attorneys general to support her faulty argument.
WSJ editorial board member Mary Kissel has a history of smearing civil rights precedent that holds racial discrimination is illegal if it has an unjustified disproportionate effect on historically protected groups. Kissel has written editorials that falsely pretend this current body of law is improper and any government official that utilizes or seeks to defend the doctrine is "shady."
As the enforcement of civil rights law - including disparate impact law - is the job of the Department of Justice, Kissel's editorials have nicely dovetailed with the WSJ's constant support of GOP obstructionism and its attacks on the Voting Rights Act, former Civil Rights Division head Thomas Perez, Attorney General Eric Holder, and seemingly anyone else who worked at the Department of Justice.
In her most recent editorial criticizing new civil rights guidance from the Equal Employment Opportunity Commission (EEOC), Kissel fails to mention that the policy she is attacking is once again a disparate impact one, well-established in Title VII employment discrimination law. From the WSJ:
The Equal Employment Opportunity Commission has run amok under chairwoman Jacqueline Berrien's guidance, particularly in its extralegal push to expand civil-rights protections for the likes of murderers and rapists. So it's welcome news to see state attorneys general shedding some light on the situation.
Nine Republican AGs, from states stretching from Montana to South Carolina, penned a letter to Ms. Berrien and the commission last week complaining about the "substantive position" the agency has taken against retailer Dollar General and a U.S. subsidiary of car maker BMW. The EEOC contends the companies broke federal law by using criminal background checks in employment decisions.
The AGs rip apart that legal theory, noting that Title VII of the 1964 Civil Rights Act prohibits discrimination "on the basis of race, color, religion, sex, or national origin," not criminality, and that "neither lawsuit alleges overt racial discrimination or discriminatory intent." The EEOC's guidance issued in April last year, presumably to give a legal veneer to the subsequently filed lawsuits, "incorrectly applies the law" too.
[R]egulators are supposed to enforce the law, not write it. The AGs want the EEOC to rescind its criminal background check guidance and dismiss the Dollar General and BMW lawsuits, which is unlikely so long as Ms. Berrien is around. But at the very least, the letter should embarrass an agency that deserves serious congressional scrutiny.
The Wall Street Journal demonstrated why a Senate rule change that prevents filibusters against executive and judicial nominations may be overdue when it baselessly opposed yet another of President Obama's picks.
Continuing its seemingly knee-jerk resistance to any and all of the president's nominations, the WSJ recently pushed the GOP to oppose making Tony West's job of acting associate attorney general permanent without a legitimate reason for obstruction. Rather, the WSJ floated the idea that West should be opposed because he worked at the same address as Labor Secretary nominee Thomas Perez and was consulted on a civil rights case that the WSJ has scandal-mongered. From WSJ editorial board member Mary Kissel's column:
[S]enators shouldn't miss the chance to explore Mr. West's acquiescence in the legal quid pro engineered between late 2011 and early 2012 by his colleague, Justice civil-rights chief, Thomas Perez.
[West has] promised to "work to ensure that legitimate whistleblowers are taken seriously and treated fairly and lawfully."
Did Mr. West change his mind about that statement, or did he let Mr. Perez make decisions about an important case--one that could have netted taxpayers some $200 million--on his behalf? Either way, the episode raises questions about his legal judgment. That may not be enough to stall his confirmation, but Mr. West certainly deserves scrutiny for this sorry episode.
Kissel has a record of identically using this smear against anyone "involved in 'communications'" with Perez on this matter. Such targets include the president's most recent nomination to the U.S. Court of Appeals for the D.C. Circuit, the bipartisan-supported Principal Deputy Solicitor General Srikanth Srinivasan. Senate Majority Leader Harry Reid (D-NV) recently indicated that he has reached his breaking point with the parallel GOP obstructionism to the president's nominations, fueled by right-wing media such as the WSJ.
In the continuing campaign against effective civil rights law, right-wing media have recently stepped up their attacks against a federal statute that prohibits acts that have a discriminatory effect on housing patterns. Contrary to this misinformation campaign, "disparate impact" analysis (as this technique is known) is not unconstitutional under the Fair Housing Act of 1968, and conservatives' rejection of this analysis abandons its bipartisan origins.
Disparate impact is the legal term for antidiscrimination law that prohibits actions that have a disproportionate effect on vulnerable groups. Despite its effectiveness - most recently, blocking discriminatory mortgage policies and voter suppression that targeted communities of color - conservative media have attacked disparate impact's legitimacy and dismissed it as a partisan technique only progressives support.
The National Review Online is a frequent critic, calling civil rights litigation based on disparate impact "not grounded...in sound constitutional theory" and part of a "partisan policy agenda." The Wall Street Journal has echoed claims about this "dubious legal theory," joining NRO in criticizing a recent withdrawal of a disparate impact Supreme Court case under the Fair Housing Act, Magner v. Gallagher. This week, WSJ columnist Mary Kissel recycled her conspiracy theory that the Obama administration's participation in convincing the parties to withdraw the case was "shady" because the administration "didn't want the High Court to rule on the legal theory[.]"
But these right-wing critics ignore that disparate impact has been legally accepted under numerous civil rights laws for decades, and in the housing context was part of a bipartisan effort to aggressively prevent the segregation of American society. They also ignore basic Supreme Court litigation strategy.
The constitutionality of disparate impact under the Fair Housing Act has never been addressed by the Supreme Court. There has been no need to take up the issue, as all 11 Circuit Courts have recognized it as a legal method of fair housing enforcement. As explained in a recent ProPublica report, this unanimity is expected given that aggressive government attempts to reverse discriminatory effects in housing patterns were originally considered a core function of the bipartisan Fair Housing Act:
The plan, [Republican Secretary of Housing and Urban Development] George Romney wrote in a confidential memo to aides, was to use his power as secretary of Housing and Urban Development to remake America's housing patterns, which he described as a "high-income white noose" around the black inner city.
The 1968 Fair Housing Act, passed months earlier in the tumultuous aftermath of the Rev. Martin Luther King Jr.'s assassination, directed the government to "affirmatively further" fair housing. Romney believed those words gave him the authority to pressure predominantly white communities to build more affordable housing and end discriminatory zoning practices.
Furthermore, with regards to the Obama administration's alleged influence in the Magner dismissal, there is nothing unusual about Supreme Court litigators considering the Court's ideological composition in deciding whether to pursue a legal theory that breaks on ideological lines. The ability to calculate a majority is basic Supreme Court litigation strategy. Indeed, it would be surprising if the Department of Justice did not calculate the odds regarding how justices are likely to rule in its cases. This is especially true of civil rights cases, in which conservative and progressive justices have sharply diverging views on the law. As Reuters recently reported, this is why DOJ's opponents are currently rushing to the Court in their attempts to overturn decades of civil rights law:
[I]n recent years liberals have sought to avoid going to the Supreme Court in cases ranging from affirmative action to voting rights. Advocates for liberal concerns such as abortion rights and gay marriage have also kept a wary eye on the justices while devising strategy in lower courts. Some abortion-rights advocates, for example, have so far declined to challenge state restrictions on abortion based on the notion that a fetus can feel pain, even though they believe the restrictions unconstitutional.
Those on the other side have taken the opposite tack. Conservatives who have labored to get their cases to the court include Edward Blum, director of the Project on Fair Representation, founded in 2005 to challenge race-based policies in education and voting. He recently helped lawyers bring an appeal by a white student who said she was denied admission to the University of Texas because of a policy favoring minorities.
"The timing is fortuitous," said Blum, who for two decades has worked with lawyers to challenge racial policies in education and voting districts. Citing the makeup of the Supreme Court, he said: "It's well-known that there are three members of a conservative bloc who have already expressed opinions on this and it's likely that the two new members of the conservative bloc will fall into that camp as well."
If the right-wing media do not like disparate impact theory because the modern conservative movement has abandoned it, or because the theory rejects the dissenting "colorblind" perspective on modern equal protection law, it should say so and leave it at that. By instead falsely asserting disparate impact laws are illegitimate and thereby calling for the reversal of decades of precedent - and bipartisan legislation - the right-wing media not only misinform their audience, they also disregard the words of Justice Antonin Scalia in one of the Court's most recent Civil Rights Act cases: "If [disparate impact litigation] was unintended, it is a problem for Congress, not one that federal courts can fix."
Fox News has repeatedly promoted GOP-led efforts to implement voter ID laws, but yet another conservative media figure acknowledged on Fox's own airwaves that there is no widespread voter fraud problem in the country.
Voter ID laws have long been a priority for right-wing media outlets even though experts say that such laws burden the voting rights of millions of Americans, particularly minorities, the poor, and the elderly.
In the last two days, Fox has picked up the torch for voter ID laws again, pointing to a story of a dog in Virginia who apparently received a voter registration card by mail. The group that sent the card said that the registration card went astray because of an error that occurred with the mailing list they received from a vendor and that it is unlikely to be a widespread problem because of the steps the group takes to ensure their lists' integrity.
Furthermore, no new voter ID laws are necessary to deal with this case. No vote can be cast in the dog's name because the Help America Vote Act already requires voters who register by mail to show identification such as a driver's license, a utility bill or the like, in order to vote.
But while pushing voter ID laws, one conservative media source went off-message yesterday. When Democratic strategist Christopher Hahn noted on Fox Business' Lou Dobbs Tonight that there is no evidence of "broad-based voter fraud," Wall Street Journal editorial board member Mary Kissel agreed, saying that "nobody's alleging" that broad-based voter fraud exists.
Following North Korea's failed launch of a long-range missile, conservative media attacked the Obama administration over a deal between the United States and North Korea on nuclear testing, arguing that it was a mistake. But experts have rejected that criticism, saying that the administration's pursuit of the deal was "the smart thing to do" and that not taking "this initiative would have missed an opportunity" to test the intentions of North Korea's new leader, Kim Jong-un.
Last Thursday, North Korea launched a long-range missile, defying international pressure and violating a deal with the United States in which North Korea had agreed to suspend uranium enrichment, nuclear tests, and long-range missile tests in exchange for food aid. The rocket ultimately failed, disintegrating shortly after the launch, but conservatives seized on it to attack the Obama administration for pursuing a deal with North Korea.
Conservative Washington Post blogger Jennifer Rubin wrote:
Once again, engagement with despots and diffidence in the face of provocation have emboldened a brutal dictatorship and lessened U.S. credibility. Watching all of this unfold, no doubt, are the mullahs. The North Korean example is instructive to them, especially given that Obama's approach so closely mirrors his stance toward them: Try fruitless negotiations; defer to international bodies; finger wag and condemn (but not too vigorously); remain relatively mute on human rights; downplay any military option; and have no plan "B" when sanctions fail. Come to think of it, this is also his approach to China, Russia and the other tyrannies on the planet. That's Obama for you: Speak softly and carry a very tiny stick.
On Fox Broadcasting Co.'s Fox News Sunday, Fox News host Mike Huckabee said that "the only thing that fizzled worse than the missiles of North Korea the other day was probably the Obama policy." He continued:
HUCKABEE: Charles Pritchard, who has advised both the Bush administration and the Clinton administration, admitted that Barack Obama's policies toward North Korea have been a miserable failure. Because if you say you're going to hold food, you better do it. Then you look horrible to withhold food from people who are over there eating grass, and even the cows are eating better than the people in North Korea. It's a horrible situation, and it's not going to be made worse, and the U.S. will get the blame, and they're going to keep looking for ways to build those missiles anyway.
Wall Street Journal editorial board member Mary Kissel blasted the administration for having a "schizophrenic foreign policy," and wrote: "The only prudent policy is for the White House to junk its speak softly, carry a little stick approach, but don't count on that happening in an election year."
However, national security experts have rejected that criticism.