National Review editor Rich Lowry launched a deceptive attack on Hillary Clinton for speaking out against voter ID laws that suppress minority voting by pushing falsehoods on the legislation and ignoring the hundreds of thousands of citizens a new voter ID law in North Carolina will reportedly disenfranchise.
On August 12, the governor of North Carolina signed into law a controversial voting bill that "overhauls the state's election laws" by requiring government-issued photo IDs when voting, reducing the early voting period by one week, and ending same-day registration. A majority of North Carolinians do not support the legislation, which is expected to reduce minority turnout.
In a Politico opinion piece, Lowry criticized comments Clinton made at the American Bar Association in which she noted that the Supreme Court's recent decision to strike down a portion of the Voting Rights Act would lead to disenfranchisement, particularly of minority voters, all in the name of the "phantom epidemic of voter ID fraud." Lowry claimed that Clinton was using the issue to play the "race card" in an attempt to "fire up minority voters by stirring fears of fire hoses and police dogs," and pushed a number of falsehoods related to the new North Carolina legislation to falsely claim it was simply part of "the American mainstream" and "a victimless crime."
Lowry's arguments -- which rely heavily on the discredited research of right-wing voter ID activist Hans von Spakovsky, who has been exposed as resorting to shady tactics like scrubbing his fingerprints off the web and "fudging questions of authorship" in his quest to limit voter participation -- include the claim that North Carolina is simply becoming "one of at least 30 states to adopt a voter ID law" and is therefore "common-sense." In fact, only four states besides North Carolina enforce the "strict photo ID" requirement the state passed, which means a voter cannot cast any ballot without first presenting an ID. In other states, if a voter does not have an ID, they have other options for casting a regular ballot, such as establishing their identity with a paycheck or signature match. The majority of states either have no voter ID law or no photo requirement.
The Brennan Center For Justice noted that strict photo ID laws such as North Carolina's "[offer] no real solution" to the little voter fraud states might experience, such as the two cases of alleged voter impersonation that have been referred by the North Carolina State Board of Elections since 2004:
[A] strict photo ID requirement cannot address problems related to long lines, inaccurate voter registration lists, or voter malfeasance like double voting, felon voting, or vote buying. The only type of voter malfeasance that photo ID can address is voter impersonation. A photo ID requirement is the worst kind of electoral policy solution -- it creates an illusion of security while offering no real solution to any identified problem with election administration, while simultaneously creating real consequences for many legal and qualified voters.
Lowry also pushed the idea that a 2008 Supreme Court decision meant the "constitutionality of voter ID isn't in doubt." But according to the Brennan Center, "it is a mistake to presume that the Supreme Court's 2008 decision in Crawford v. Marion County means that all strict voter ID laws would be constitutional in all circumstances," and North Carolina's law will have to be reviewed to ensure it doesn't overburden voters before its constitutionality can be determined. Justin Levitt, previously of the Brennan Center, also disputed claims similar to Lowry's that voter ID doesn't suppress voters because states with voter ID laws had high turnout in some races by noting the comparison was a "correlation-causation fallacy, and anybody who's had statistics for a week can talk to you about it."
But Lowry's disregard for the facts distracts from the real issue: that these laws disenfranchise American citizens. North Carolina's voter ID legislation alone could disenfranchise hundreds of thousands of registered voters. As The Nation's Ari Berman reported, 316,000 registered voters in North Carolina don't have the required state-issued ID, and over 100,000 of those individuals are African-American. Furthermore, CBS News reported that 70 percent of African-Americans in North Carolina voted early in 2012, which will now be available on 10 days instead of 17 thanks to this new law.
The American Civil Liberties Union and Southern Coalition for Social Justice have filed suit against the North Carolina law, saying that eliminating several early voting days, same-day registration, and "out-of-precinct" voting will "unduly burden the right to vote and discriminate against African-American voters" in violation of the Constitution. The ACLU explained that early voting particularly helps low-income workers who are more likely to have hourly-wage jobs or childcare concerns that limit their ability to get to the polls on Election Day, and because African-Americans experience higher rates of poverty in North Carolina, "a reduction in early voting opportunities will disproportionately impact voters of color."
Dale Ho, director of the ACLU's Voting Rights Project, noted that when Florida enacted similar laws before the 2012 election, hundreds of thousands of voters were unable to vote due to long lines, burdens which "fell disproportionately on African-American voters." A study by the Orlando Sentinel found that at least 201,000 Floridians were deterred from voting because of hours-long lines at polling stations.
Media reporting on the verdict that George Zimmerman is not guilty in the shooting death of Trayvon Martin suggested a misleading distinction between the defense attorneys' supposed use of "conventional" self-defense principles and Florida's controversial "Stand Your Ground" law (also known as "Shoot First" or "Kill at Will"), ignoring the fact that the sole justifiable homicide law in Florida incorporates "Stand Your Ground."
Unless there is a dramatic change of course, Senator Majority Leader Harry Reid is likely to move forward today with the "nuclear option," changing the rules of the Senate to permit the approval of Executive Branch appointments by a simple majority vote.
After four and a half years of unprecedented obstruction -- encouraged by an incentive structure in which the media has rewarded Republicans for helping to stall the workings of our federal government -- this turn might have been inevitable.
Formally, even Senate Minority Leader Mitch McConnell articulated the principle that these appointments, except in rare circumstances, should be confirmed without delay. The Kentucky Republican has previously said that for "over 200 years," the president's selections were given "up-or-down votes" regardless of "who the president is, no matter who's in control of the Senate," adding, "That's the way we need to operate."
During the presidencies of Harry Truman through George W. Bush, executive appointments faced cloture in the Senate on only 20 occasions. During the Obama administration, the Senate has been forced to take 16 such cloture votes, unduly holding up nominations.
By blocking nominees to run vital federal agencies, Republicans not only disrupt the careers of these public servants, but they interfere with the president's ability to effectively govern. Very often, though, that is their goal. Sen. Lindsey Graham once issued a press release declaring that an "inoperable" National Labor Relations Board "could be considered progress." Indeed, the Republican filibuster of NLRB nominees has meant the lack of a quorum, eliminating the board's ability to enforce labor standards.
Fox News senior judicial analyst Andrew Napolitano summed up this strategy on the July 11 edition of Fox's Special Report, telling host Bret Baier: "From my worldview, it means fewer nominees, fewer laws passed, and that's a good thing."
So far in 2013, the conservative media have cheered on the obstruction, or attempted obstruction, of numerous Obama nominees including Tom Perez at the Department of Labor, Gina McCarthy to head the Environmental Protection Agency, and Chuck Hagel at the Pentagon.
The rewards and punishments for Republican senators are clear: Toe the conservative media's line and gain access to a base willing to provide funding and on the ground support for your campaigns; stray and you just might end up with a primary opponent, dooming your chances at re-election.
Fox News contributor Erick Erickson made this transaction clear, writing on his RedState website to demand that the GOP filibuster Hagel and accusing Republicans John McCain and Lindsay Graham of "going wobbly," asking his readers to "Call your Senator. Tell him or her to join the Republicans in their filibuster of Chuck Hagel."
Fox's Sean Hannity described a first vote that temporarily blocked Hagel's nomination as "the first time a filibuster of a cabinet nominee has been used, and needless to say, this marks a major win for the GOP."
And while a partisan media rewards those disrupting the system with adulation, non-ideological publications do their best to put a pox on both houses in their reporting.
During Hagel's confirmation fight, Politico suggested even bringing the former senator up for a vote "could damage the [Armed Services] committee's longtime bipartisan spirit." Hagel was eventually confirmed with 58 votes.
Others have simply ignored Republican intransigence to blame the president for not magically forcing a change in the opposition party.
The rare exception this brand of reporting include Michael Grunwald at Time magazine, who has extensively reported on GOP attempts to disrupt the Obama administration; Greg Sargent of The Washington Post; and Norman Ornstein of the American Enterprise Institute and Thomas Mann of the Brookings Institution, whose Washington Post op-ed "Let's just say it: The Republicans are the problem" and related book It's Even Worse Than It Looks squarely place the blame where it belongs. But most of the media seemed uninterested in Ornstein and Mann's thesis.
With the conservative media cheerleading for obstruction and the nonpartisan media adamantly refusing to place any accountability on the responsible parties, Republican senators are being rewarded for obstruction and punished for constructive engagement.
This perverse incentive structure leaves Harry Reid no choice other than to try and change the Senate's rules.
Media outlets are pushing the conservative narrative that the Obama administration will "bypass Congress" with a new plan to reduce carbon emissions while ignoring key context: the 2007 Supreme Court decision that explicitly gave the executive branch the power to regulate carbon emissions under the Clean Air Act and the endangerment finding that made the EPA "statutorily obligated" to do so.
President Obama announced the details of his new plan to deal with the challenge of climate change in a June 25 speech at Georgetown University. Details of the White House plan, which will extend regulation on carbon emissions to existing power plants, were released on the morning of June 25.
Advance coverage of Obama's climate speech and plan by Fox News, Politico, The Associated Press, NBC News, and The Hill echoes past criticism from conservative media of Obama's efforts to combat climate change by focusing on the fact that the efforts do not need to be approved by Congress.
On the June 25 edition of Fox & Friends First, business analyst Diane Macedo concluded her report on the climate policies that Obama is likely to announce by noting that "none of these steps require congressional approval," and that Obama is "seek[ing] ways to work around [Congress]."
Politico reported on June 21 that the president was "preparing to bypass Congress on climate change." An NBCNews.com headline described the president's intent to "sidestep Congress with new initiatives to reduce carbon emissions." And The Hill stated that the administration would "curb emissions using executive powers that sidestep Congress" and the plan was "designed to get around Congress."
However, not one of these outlets explained that the Supreme Court has ruled that the federal government already has the authority to regulate carbon emissions under the Clean Air Act. Right-wing media outlets similarly excluded this critical context when they hyperbolically accused the administration of breaking the law by proposing carbon regulations that did not require congressional approval. In June 2012, Fox News contributor Charles Krauthammer said that earlier EPA regulations on carbon emissions were "outright lawlessness." A March Wall Street Journal editorial also claimed that Obama's efforts to regulate carbon make him similar to a dictator.
Mainstream media outlets are blindly repeating the claim by Sen. Kelly Ayotte (R-NH) that she supported expanded background checks by voting for Republican legislation that would actually have weakened the background check system.
On April 17, Ayotte voted against the Manchin-Toomey amendment, a legislative proposal to expand background checks to sales at gun shows and over the Internet, facing political backlash as a result. Ayotte, however, co-sponsored and voted in favor of a replacement bill offered by Sens. Ted Cruz (R-TX) and Chuck Grassley (R-IA) that purported to improve the background check system by increasing the number of mental health records in the National Instant Criminal Background Check System (NICS).
In fact, the Grassley-Cruz proposal would weaken the gun background check system by changing the way mental health records are reported, potentially invalidating mental health records that are currently in the system. Specifically, Section 103 would change current law by only creating a disqualifying background check record if an individual is designated as dangerously mentally ill by a court or other adjudicative body. Under present law, adjudications by all lawful authorities create a record that prohibits an individual from buying a firearm.
To the contrary, Manchin-Toomey would have increased the number of mental health records in NICS by offering states financial incentives and disincentives to include missing records in the system, in addition to expanding background checks
Media outlets are reporting that a new immigration report from the conservative Heritage Foundation found that passing the proposed Senate comprehensive immigration bill will cost $6.3 trillion. In fact, the Heritage report is not an analysis of the entire Senate's "Border Security, Economic Opportunity, and Immigration Modernization Act," and does not take into account costs or savings of the proposal's broader reforms.
As the Senate's bipartisan "Gang of Eight" moves closer to releasing an immigration reform bill, Dan Stein, president of the anti-immigrant hate group Federation for American Immigration Reform, lays out in an op-ed for Politico the "five compelling reasons why Republicans should walk away" from the legislation. Each one of Stein's "compelling reasons" is wildly misleading, unsubstantiated, or flat-out wrong.
Let's run them down, one by one.
"Senate Judiciary Committee Chairman Patrick Leahy will not even allow hearings on a bill."
This is completely false:
Senate Judiciary Committee Chairman Patrick Leahy has formally announced an April 17 hearing on comprehensive immigration reform legislation.
Department of Homeland Security Secretary Janet Napolitano will testify.
The hearing is in part the result of talks with the bipartisan Gang of Eight working on the soon-to-be unveiled legislation -- including Marco Rubio, who pushed for a slower committee process.
"Democrats will not agree to border security and other enforcement requirements as a prerequisite to amnesty."
According to Stein, Gang of Eight member Sen. Chuck Schumer (D-NY) "demands that legalization take place before border security or other enforcement provisions are in place." Not true! According to the Associated Press, the Gang of Eight arrived at a compromise wherein immigrants "living here illegally could begin to get green cards in 10 years but only if a new southern border security plan is in place, employers have adopted mandatory electronic verification of their workers' legal status and a new electronic exit system is operating at airports and seaports." Schumer is reportedly working on convincing House Democrats to support the compromise, arguing that it is "not an impediment to citizenship but rather works alongside citizenship."
"Woodward at war," was the headline Politico's Mike Allen and Jim VandeHei attached to their February 27 article playing up Washington Post reporter Bob Woodward's claim that a senior White House official had threatened him over email regarding Woodward's reporting on the origins of the budget sequestration. The Politico report on Woodward's "major-league brushback" caught fire in the press and prompted allegations of White House intimidation. However, the email chain -- which Politico published the following morning -- shows that the claims of threats and intimidation by the White House are, at best, wildly overblown, and that Politico helped hype a bogus allegation by Woodward absent the full context.
The original February 27 Politico piece featured a short clip of Allen and VandeHei's "hourlong interview" with Woodward "around the Georgetown dining room table where so many generations of Washington's powerful have spilled their secrets." In that clip, Woodward reads from an email he received from a top White House official, later revealed to be economic advisor Gene Sperling. As Woodward puts it, Sperling did "something that I think it is important for people to understand. He says, you know, 'I think you will regret staking out that claim,'" referring to Woodward's assertion that the president was "moving the goal posts" in negotiations to avert sequestration.
Allen and VandeHei wrote:
Woodward repeated the last sentence, making clear he saw it as a veiled threat. " 'You'll regret.' Come on," he said. "I think if Obama himself saw the way they're dealing with some of this, he would say, 'Whoa, we don't tell any reporter 'you're going to regret challenging us.'"
"They have to be willing to live in the world where they're challenged," Woodward continued in his calm, instantly recognizable voice. "I've tangled with lots of these people. But suppose there's a young reporter who's only had a couple of years -- or 10 years' -- experience and the White House is sending him an email saying, 'You're going to regret this.' You know, tremble, tremble. I don't think it's the way to operate."
It's not clear whether Allen or VandeHei had access to Woodward's full email exchange with Woodward -- as they put it, Woodward "[dug] into one of his famous folders" to read the offending excerpts to them, meaning that at the very least they had the opportunity to demand to see more from that exchange before publishing Woodward's claims. From all appearances, though, Allen and VandeHei's initial reporting on the email exchange was based solely on what Woodward told them about it. Their "exclusive" follow-up article on the email exchange indicates as much: "POLITICO's 'Behind the Curtain' column last night quoted Bob Woodward as saying that a senior White House official has told him in an email he would 'regret' questioning White House statements on the origins of sequestration."
Click over to Politico and you'll find an opinion piece by Mike McCurry, chair of the tech advocacy group Arts+Labs, championing a laissez-faire approach to regulation of the broadband and wireless markets, and highlighting the "investing, innovating, and competing" we're seeing from big telecom players like AT&T, Verizon, Comcast, and T-Mobile. There are a couple of key facts missing from McCurry's piece. First, Arts+Labs is partners with AT&T, Verizon, and Comcast-owned NBC Universal, which should have been disclosed given McCurry's advocacy on their behalf. Second, any discussion of the current spike in wireless investment has to acknowledge that government intervention -- killing the AT&T/T-Mobile merger -- made it possible.
Over the past five years, the nation's leading network providers have collectively invested over $100 billion in faster and better services on their on-ramps to the Internet. In 2011 alone, U.S. investment in wired and wireless network infrastructure rose 24 percent. These investments are being made because companies in the broadband industry -- both wired and wireless providers -- are competing like mad for customers.
Look at what four of the largest competitors are doing. AT&T announced that it will invest $14 billion in both its wired and wireless networks on top of its planned investment for a total of $22 billion a year for the next three years. Verizon is spending billions to keep up with relentless demand for wireless broadband services, seen most recently in its purchase of an additional $3.9 billion of wireless spectrum. Last fall, Time Warner upgraded the speed of its standard broadband Internet tier by 50 percent in many of its service areas. Comcast, which already widely offers speeds of up to 105 mbps and is rolling out 305 mbps speeds, has also focused on the populations least likely to sign up for broadband, offering discounted Internet service packages that start at around $10 per month for low-income families. Scores of other companies, from Sprint to CenturyLink to T-Mobile to Frontier, are also investing, innovating and competing.
Head to the Arts+Labs homepage and you'll see a list of their partners -- "entertainment companies, software providers, telecommunications providers, artists and creators." Featured quite prominently on that list are NBC Universal, AT&T, and Verizon. The bio appended to the Politico piece identifies McCurry as Arts+Labs' chair, but doesn't note these telecom companies' involvement with the group.
President Obama is busily nominating replacements for the various Cabinet officers and Cabinet-level officials who aren't sticking around for his second term. The emerging consensus in the media is that in doing so, the president is "picking fights" with the Senate GOP minority that will have to vote for or against the nominees. Former Republican senator Chuck Hagel's nomination for Defense Secretary has been cast as an especially provocative move by the White House. It's a curious way to frame the story -- if indeed Obama can be said to be "picking fights" with Cabinet nominees, that's only because Senate Republicans have made clear they'll fight anyone Obama picks. And casting Obama as the disruptive force masks the Republican obstructionism underlying the confirmation fights.
Here's The Hill from January 7:
Obama nominates Hagel for Pentagon, picking fight with Senate Republicans
President Obama on Monday nominated former Sen. Chuck Hagel (R-Neb.) to be the nation's next Defense secretary despite warnings of a tough confirmation fight from some Senate Republicans.
Here's the Washington Post, also from January 7:
President Obama picks a confirmation fight. Can he win it?
When President Obama formally nominates Chuck Hagel to be the next Secretary of Defense later today, he can be certain of one thing: The former Nebraska Republican Senator will face a major fight to win confirmation.
And here's Politico from this morning:
Why President Obama is picking fights with Congress
Barack Obama is looking for a few good fights.
Obama, the same president who campaigned twice on breaking the cycle of conflict in Washington, sees the utility -- even the necessity -- of rattling Republican cages as he plunges into a succession of upcoming battles over the nomination of Chuck Hagel as secretary of defense, the debt ceiling, $1 trillion in automatic budget cuts, immigration reform and gun control.
Members of the media have been quick to push the myth that the National Rifle Association can remove politicians from office who support new gun violence prevention measures in the wake of the mass shooting in Newtown, Connecticut. The influence wielded by the NRA has been overblown by the media for years, a fact further evidenced by the organization's poor showing during the 2012 elections.
Politico executive editor Jim VandeHei misrepresented a poll to claim that progressive Democrats are out of step with most people who voted for President Obama over how to deal with Social Security and Medicare.
VandeHei stated on the November 20 edition of MSNBC's Morning Joe that Obama voters are "at odds with the liberal base" of the Democratic Party on Social Security and Medicare:
VANDEHEI: [T]here's a lot of divisions inside the Democratic Party over what to do on entitlement reform. You're not going to get any Republican votes for an increase in taxes unless you have some changes to Medicare and to Social Security. And inside the Democratic Party, there's a big divide. Third Way, which is a group that represents centrists Democrats, they're out with a poll of Obama supporters this morning that show the vast majority of Obama supporters actually support changes to Medicare and Social Security, which puts them at odds with the liberal base of the party in the House and in the Senate."
VandeHei was echoing a Politico article that stated "a Third Way poll of 800 Obama voters set for release Tuesday found that efforts to fix Medicare and Social Security enjoy broader support than liberals suggest."
The Third Way poll asked Obama voters to rate on a scale of 1-10 (10 being the highest) how important it was for the president to take action that "fixes Social Security and Medicare" during his second term. Eighty-five percent responded with at least a six and 48% responded with a nine or 10 rating.
But the poll does not show a split between Obama voters and progressive Democrats as VandeHei claimed because progressives do not oppose proposals to strengthen Social Security and Medicare. House Minority Leader Nancy Pelosi said she is open to reforms that "strengthen Social Security" and Medicare as long as they don't include benefit cuts, and as long as the reforms are not used as part of a deal to subsidize tax cuts for the wealthiest Americans. Similarly, the Congressional Progressive Caucus has said that "decisions to change Medicare, Medicaid and Social Security 'must be based on what is best for their beneficiaries' " provided there are no cuts to Medicare and Social Security benefits.
Progressive economist and Nobel Prize winner Paul Krugman has also embraced reforms to Medicare that do not involve benefit cuts. He also pointed out that Social Security is not a long-term drag on the nation's finances and therefore does not need major reform.
After inquiries from Media Matters, Politico has updated an op-ed on energy policy authored by former Rep. Bart Stupak (D-MI) to acknowledge his role at a law firm that represents energy companies that would benefit from the policies he supported in the piece.
In his November 4 op-ed, Stupak argued that as part of a "grand bargain," congressional proposals "must include significant segments in regard to energy consumption and our environmental footprint," including an increased focus on "clean coal," natural gas, and renewable energy sources.
Politico originally identified Stupak as only "a Democrat from Michigan" who "served in Congress on the House Energy and Commerce Committee." But Stupak is currently a partner at Venable LLP, where he represents clients in the energy industry. Venable's energy practice includes clients in the "clean coal," natural gas, and renewables sectors.
Asked for comment on why Stupak's conflict of interest had not been disclosed, Politico managing editor Bill Nichols responded, "It's a totally fair point; we should have disclosed that to readers and we'll update the piece to do that and acknowledge the error." Nichols also said Politico plans to run a correction in Monday's print edition.
Stupak's original description from Politico has since been replaced with the following text: "CORRECTION: An earlier version of this opinion piece failed to note that Bart Stupak is employed by a law firm that does work in the energy sector."
It's obviously too early to know for certain, but on the final day of the 2012 presidential campaign there seems to be a general consensus forming that President Obama is well-positioned to beat Mitt Romney at the polls tomorrow. And in the face of that prospect, some in the media are already beginning to challenge the legitimacy of Obama's reelection.
On November 4, Politico published an article enumerating the "lessons learned" from the 2012 campaign. Among them was the surprising assertion that the coalition Obama put together to win reelection -- "Hispanics, African-Americans, single women and highly educated urban whites" -- is insufficient to provide the incumbent the political capital he might otherwise enjoy were he to have the support of independents and white voters. "A broad mandate this is not," declared authors Jim VandeHei and Mike Allen.
Politico didn't explain why broad mandates rest on the shoulders of whites and independents, simply asserting instead that Obama, should he win, will win in a way that lacks legitimacy. Part of their analysis, however, rested on the myth that the United States is "a center-right country," which certainly helps to explain why they'd view an electoral coalition that excludes the center-right's top constituency -- white men -- as a political nonstarter.
While Politico went the route of demography, conservative pundits are instead opting for catastrophe. Specifically, the devastation wrought by Hurricane Sandy, suggesting that Romney was poised to run away with the election until Sandy halted his "momentum" and gave Obama a boost in public opinion going into the campaign's final week.
Nate Silver has a computer model. Each day he plugs the data from the various national and swing state polls into that model, numbers are crunched, simulations are run, and he posts the results on his New York Times blog indicating who is more likely to win the presidential election: Barack Obama or Mitt Romney. (As of this posting, Silver's analysis has Obama winning in 74.6 percent of scenarios.) And for this, Silver is coming under attack from pundits who insist that their gut feeling tells them the race is a true toss-up.
"Anybody that thinks that this race is anything but a tossup right now is such an ideologue, they should be kept away from typewriters, computers, laptops and microphones for the next 10 days, because they're jokes," complained Joe Scarborough on the October 29 Morning Joe.
Complaints like Scarborough's are helped along by publications that have an interest in maintaining the view of a race that is essentially a flip of the coin, and in preserving the importance of their own roles as gatekeepers with access to critical insider information. Politico's Dylan Byers cited Scarborough's criticism along with that of New York Times columnist David Brooks in positing that Silver may be a "one-term celebrity."
"If you tell me you think you can quantify an event that is about to happen that you don't expect, like the 47 percent comment or a debate performance, I think you think you are a wizard. That's not possible," Times columnist David Brooks, a moderate conservative, said on PBS earlier this month. "The pollsters tell us what's happening now. When they start projecting, they're getting into silly land."
It makes sense that pundits like Scarborough and Brooks would have it out for a numbers guy like Silver. Their oeuvre is the intangible. They analyze based on gut feelings and nonspecifics. Their great trick is to transform the utterly unquantifiable into something approaching concrete certainty.