The Wall Street Journal argued in an editorial that the National Labor Relations Board, which is charged with protecting workers' right to organize, has overstepped its authority to do unions' bidding regardless of the law--particularly in its approach to employers' social media policies. A review of the NLRB Office of the General Counsel's memos, however, demonstrates that the WSJ's characterization of the body's policies is without merit.
The January 6 editorial, titled "Another NLRB Power Grab," accused the body of becoming "a wholly-owned subsidiary of Big Labor, rather than a neutral arbiter of fair labor practice." In support of this claim, the WSJ presented blatantly false statements about the NLRB's approach to employers' social media policies:
Also insidious is the NLRB's effort to regulate how companies handle social media. In the Facebook and Twitter age, employers have an obvious interest in rules that prohibit their employees from defaming colleagues, or broadcasting confidential information. The NLRB has nonetheless decided that even reasonable restrictions impinge on concerted activity.
In fact, both the NLRB's Office of the General Counsel (OGC) and the Board itself have explicitly stated that employers may set certain limits on their employees' social media activities as long as they do not prohibit activities protected under the National Labor Relations Act. Three OGC memos provide guidance about what types of employer policies pass muster under the NLRA.
In the most recent memo, dated May 30, 2012, the OGC examined seven cases about employer social media policies and concluded that one of the employer policies was lawful in its entirety, while some provisions of the remaining six policies "are overbroad and thus unlawful under the National Labor Relations Act."
Although the OGC concluded that some aspects of a confidentiality policy were invalid, it also recognized that a policy that "admonishes employees to '[d]evelop a healthy suspicion[,]' cautions against being tricked into disclosing confidential information, and urges employees to '[b]e suspicious if asked to ignore identification procedures' " is lawful.
Nor did the OGC state that all social media posts are "concerted activity" that is protected under the NLRA. In fact, although it concluded that employees' Facebook posts can be protected if they meet the requirements applicable to communications outside of social media, it defined such posts narrowly. In a January 2012 memo, the OGC restated the NLRA requirement that protected activity must be "concerted," meaning that it seeks to involve other employees in a discussion of the terms and conditions and employment, and advised that an employee's online discussion would not be protected just because fellow employees "liked" a post.
Policies that are sufficiently clear and not limited in scope can pass muster in their entirety. The OGC advised that policies "that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful."
In short, the WSJ's characterization of the NLRB's positions on social media bears no resemblance to the guidance it has publicly shared.
The Wall Street Journal endorsed the Republican strategy of using the debt ceiling to extract spending cuts from Democrats, so long as Republicans are prepared to let the United States default on its debt and obligations. Economists have warned that a default would create a new national and global recession and have other catastrophic effects.
The GOP congressional leadership has said that it will demand spending cuts in exchange for raising the debt ceiling -- a measure that allows Congress to pay for past spending, and until recently a measure that was routinely passed by Congress -- even though President Obama has said he will not bargain for a debt ceiling increase. During a May 2012 speech, Republican House Speaker John Boehner pledged to again use the debt ceiling as a method to cut federal spending. In the past month, Boehner's spokespeople have told media outlets that he is still committed to using the debt ceiling as leverage for spending cuts. Republican Senate Minority Leader Mitch McConnell wrote an op-ed on Thursday where he stated that the debt ceiling "is the perfect time" to push for spending cuts.
A Journal editorial advised Speaker Boehner and his fellow Republicans that if they were to again use a vote to raise the borrowing limit of the United States as a way to pass spending cuts, they cannot bluff about the threat of default. The Journal stated:
We'll support efforts to cut spending and reform entitlements, but the political result will be far worse if Republicans start this fight only to cave in the end. You can't take a hostage you aren't prepared to shoot. Do the two GOP leaders have a better strategy today than they did in 2011, and do they have the backbench support to execute it?
But economists have warned that not raising the debt ceiling would be catastrophic to the economy. When Republicans threatened in 2011 to not raise the debt ceiling, Moody's analytics chief economist Mark Zandi warned that after the possibly resultant default, "financial markets would unravel and the U.S. and global economy would enter another severe recession." A June 2011 letter to congressional leaders and signed by 235 prominent economists warned:
Failure to increase the debt limit sufficiently to accommodate existing U.S. laws and obligations also could undermine trust in the full faith and credit of the United States government, with potentially grave long-term consequences. This loss of trust could translate into higher interest rates not only for the federal government, but also for U.S. businesses and consumers, causing all to pay higher prices for credit. Economic growth and jobs would suffer as a result.
The Economic Policy Institute warned that even if the federal government could stave off default by prioritizing interest payments, the resultant ceasing of government spending would create "a massive demand shock to the economy" because:
[T]he government would have to immediately cut expenditures by roughly 10 percent of that month's GDP, and more than that as time went on. This means Social Security checks would be cut, doctors would not be reimbursed in full for seeing Medicare and Medicaid patients, and private contractors doing business with the federal government would not be paid.
Following the resolution of the 2011 debt ceiling fight, in which the debt ceiling was ultimately raised before the U.S. defaulted on its debt, the credit rating agency Standard & Poor's downgraded the U.S. credit rating and released a statement citing "political brinksmanship" and the threat of default as "political bargaining chips" among its reasons for the downgrade. The Bipartisan Policy Center estimated that "the ten-year cost to taxpayers caused by the delay in raising the debt limit will amount to $18.9 billion."
An analysis by the Checks & Balances Project finds that 60 major newspapers frequently quote fossil fuel-funded think tanks on energy and environmental issues without disclosing their industry ties. Further research by Media Matters finds that the Wall Street Journal's lack of disclosure has been especially glaring.
The Checks & Balances Project found that between 2007-2011, industry-funded organizations like the Heartland Institute, Competitive Enterprise Institute, and the Heritage Foundation were cited or quoted over 1000 times in 60 publications, often to attack environmental regulations or renewable energy technology. Their ties to fossil fuel interests were disclosed only 6 percent of the time, despite the fact that 17 percent of mentions promoted fossil fuels. The analysis concluded that "a transactional relationship of contributions in exchange for national media traction is playing out" between these groups and their corporate benefactors.
Expanding on these results, Media Matters found that the Wall Street Journal cited, quoted or featured these think tanks on energy issues more than 100 times between 2007-2011 -- more than any of the other other major papers evaluated by Checks & Balances. But the Journal -- which has a history of failing to disclose fossil fuel ties - mentioned the funding sources for these groups just under 4 percent of the time, slightly worse than the average disclosure rate for the other 60 publications.
The Wall Street Journal failed to disclose that a small business owner it quoted to criticize President Obama's proposal to raise marginal tax rates on high-income earners is affiliated with the National Federation of Independent Business -- which is opposed to the tax rate increase.
The Journal faced criticism during the election when it failed on many occasions to disclose the affiliations of political operatives like Karl Rove and the affiliation of many former Romney campaign advisers when they wrote about the presidential and congressional campaigns.
In a Friday article, the Journal suggested that the expiration of the Bush tax cuts for the top 2 percent of income earners would adversely affect small businesses. A Journal report on deficit negotiations stated: "Small businesses are more sensitive to personal tax rates--the rates at which many are taxed, via their owners' personal returns. That helps explain why small business is more closely aligned than big business with the GOP opposition to raising personal tax rates for anyone."
However, experts maintain that only a tiny fraction -- about 3 percent -- of small businesses will be affected by the expiration of tax cuts on income above $250,000. The Center on Budget and Policy Priorities explained that the overly broad definition of small businesses in these tax discussions includes large corporate law practices, accounting firms, and wealthy investors in financial and real-estate partnerships -- not what many people may consider to be small businesses.
The small business owner quoted by the Journal to substantiate this false claim, Albert Marce, and his business, are both members of the National Federation of Independent Business (NFIB) -- but the Journal failed to disclose this. According to the NFIB's website, the Triple Play Café became a member of NFIB in 2009 and its part-owner Macre is "also owner of an NFIB member accounting practice."
NFIB, closely aligned with the Republican Party, has in the past actively opposed both the health care reform law and increases in the minimum wage. NFIB also helped finance a misleading study that claimed that 700,000 jobs would be lost if the marginal tax rate on the wealthiest Americans increased. It is currently lobbying against allowing the expiration of tax cuts for those making over $250,000.
A Wall Street Journal editorial promoted the American Tort Reform Association's release of its 2012/2013 "Judicial Hellholes" report to attack state court systems, specifically California, for so-called "frivolous" lawsuits while failing to note the report's lack of credibility. The report, which annually lists states that have court systems ATRA considers to be the most "unfair and unbalanced" to defendants in the civil justice system, has been previously discredited for having no valid methodology and relying on unverified anecdotes drawn from press accounts.
The Center for Justice & Democracy at New York Law School describes the ATRA's members as being "largely Fortune 500 companies with a direct financial stake in restricting lawsuits." It is unsurprising, therefore, that the "Hellholes" reports regularly feature jurisdictions that corporate defendants feel are not favorable to their interests. In fact, the report describes its methodology as largely based on vaguely described "feedback" from ATRA members. The report uses these member complaints to rank states according to "places where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants." This unscientific method is not, as the WSJ claimed, an explanation of the "costs" of any type of lawsuit, let alone "frivolous" ones.
Rather, the ATRA seems to have compiled its 2012/2013 report by the same method it used to compile its 2007 report, a method it admitted is subjective, and not based on data. As The New York Times reported:
[J]ust because the business lobby has a stake in the civil justice system does not disqualify it from speaking about it. The question is whether the report's arguments make sense, are supported by evidence and are applied evenhandedly. Here the report often falls short.
It is, for starters, a collection of anecdotes based largely on newspaper accounts. It has no apparent methodology.
"We have never claimed to be an empirical study," said Darren McKinney, a spokesman for the association. "It's not a batting average or a slugging percentage. It's no more or less subjective than what appears in The New York Times."
The "Hellholes" report's lack of empiricism and use of distorted statistics, and the WSJ's uncritical recycling of its attacks, is especially obvious with respect to California, which the report lists as this year's top offender. The WSJ cites the report to claim "If Oscars were given for abusive class actions, California would take the prize." The report, in an attempt to give a veneer of statistical validity to its claims of corporations victimized by injured consumers and their lawyers, states that "more than million [sic] lawsuits" will be filed in California this year.
This "million lawsuits" in California claim is based on a gross distortion of the facts. Statistics from the nonpartisan Court Statistics Project show that only 57,833 "tort" suits were filed in California courts in 2010, the most recent year for which data are available. This type of suit, in which victims of wrongdoing seek compensation for their injuries, are the relevant measure for the sort of activity the "Hellholes" report claims to examine. The much larger number of over a million suits appears, based on the Courts Statistics Project's data, to refer to the total number of filings in California courts, including family law (divorces and adoptions), probate (wills), and juvenile cases. It is highly deceptive for the "Hellholes" report to cite this much larger number, mostly consisting of routine cases having nothing to do with "tort reform."
Perhaps the report engages in this deception because the actual data flatly contradict its narrative of an "unfair and unbalanced" California court system. According to the Courts Statistics Project's data, tort filings in California have actually dropped sharply over the past decade, from 75,243 in 2001 to fewer than 58,000 in 2010. This 30 percent decrease in the number of suits the WSJ and the "Hellholes" report claim to be so concerned about came during a period when California's population increased by approximately 10 percent.
Such distortion is reason to wonder whether the "Hellholes" report is any sort of valid examination of state court systems at all, or whether it is best understood as propaganda for a corporate power agenda.
A Wall Street Journal editorial echoed right-wing talking points to endorse an Ohio bill that would restrict asbestos victims from proving their claims at trial. But the editorial, which claims "rampant fraud" exists in asbestos-related litigation, provides no evidence of systemic abuse, conceals the fact that multiple companies can be legally responsible for asbestos injuries, and fails to disclose that the state legislation is a corporate-funded American Legislative Exchange Council bill pushed by top Republican ALEC officials.
Asbestos kills 10,000 people annually through cancer and catastrophic lung damage. Asbestos is still legal despite the fact that it is the proven cause of an ongoing epidemic, which is why companies that continue to produce or use asbestos may be sued for asbestos-caused disease. A victim can pursue legal relief against a bankrupt asbestos company by filing a claim against its trust. Personal injury law - tort law - generally holds that multiple actors can be legally responsible for the same injury and sued separately.
The WSJ, however, obscured this general tort principle in the editorial and misleadingly accused asbestos victims of "double-dipping" by filing claims against multiple companies who may all have contributed to the harm:
The [tort] reform drive remains alive in the states, including Ohio, which is poised to become the first in the nation to clamp down on the abuse of asbestos bankruptcy trusts.
[T]he trusts have not stemmed the flood of asbestos suits. That's because the plaintiffs' attorneys have taken to "double dipping"--first gaining payouts from multiple bankruptcy trusts, then filing lawsuits against solvent companies that had only a peripheral involvement in the asbestos business.
The reason behind the "flood" of asbestos suits is the heavy use of a product in the 1970s that has a latency period between 20 to 50 years, so many people who were exposed to the product are just now reporting the disease with a mortality peak expected in 2015. The WSJ, however, dismisses the litigation of these victims - projected to be as many as 100,000 in the next decade - as "rampant fraud." But the WSJ's evidence of a widespread "scam" consists of the actions of one lawyer's attempt to cover up an error the sanctioning court itself said was "innocuous" and "an obscure issue in a case fraught with dozens of more compelling issues." Furthermore, the WSJ does not explain why all or what sort of "peripheral" asbestos-caused harm should be insulated from liability, contrary to basic personal injury law.
Instead, the editorial repeats talking points of the U.S. Chamber of Commerce, in support of a bill not only modeled after ALEC legislation, but pushed by a Republican state senator, Bill Seitz, who was also co-chair of ALEC's "Civil Justice Task Force." After the bill passed the Ohio legislature, Lisa A. Rickard, president of the U.S. Chamber's legal arm, stated:
"This bill will go a long way toward eliminating fraud in asbestos litigation, discourage 'double dipping' by plaintiffs' lawyers, and ensure that companies and bankruptcy trusts both pay their fair share of recoveries to claimants. It will also help Ohio manufacturing companies and protect jobs by ensuring that companies are not bankrupted by fraudulent claims."
In the wake of Michigan passing a so-called "right-to-work" law, which significantly weakens the ability of unions to bargain on behalf of workers, right-wing media pushed numerous myths about the anti-union policy.
A Wall Street Journal op-ed by former Reagan and Bush administration lawyers David Rivkin Jr. and Lee Casey launches another in a series of legally suspect attacks on the constitutionality of the Affordable Care Act. But this new challenge to the constitutionality of the individual mandate, based on the Constitution's "Uniformity Clause," is so fanciful that even other conservative media question its validity.
Conceding that their argument has been "rarely considered," Rivkin and Casey nonetheless claim that because Roberts upheld the individual mandate under Congress' power to tax, it is now subject to the "Uniformity Clause," which requires the tax to "be uniform throughout the United States":
[B]y transforming the mandate into a tax to avoid one set of constitutional problems (Congress having exceeded its constitutionally enumerated powers), the court has created another problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution's "Uniformity Clause" (Article I, Section 8, Clause 1) requires the tax to "be uniform throughout the United States."
[Al]though the court has upheld as "uniform" taxes that affect states differently in practice, precedent makes clear that a permissible tax must "operate with the same force and effect in every place where the subject of it is found," as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.
ObamaCare provides that low-income taxpayers, who are nevertheless above the federal poverty line, can discharge their mandate-tax obligation by enrolling in the new, expanded Medicaid program, which serves as the functional equivalent of a tax credit. But that program will not now exist in every state because, as a matter of federal law, states can opt out. The actual tax burden will not be geographically uniform as the court's precedents require.
But Rivkin and Casey neglect to mention that their argument has in fact been considered and rejected more than once since 1884. The Congressional Research Service concluded the argument presented "no constitutional issue" because the individual mandate would "satisfy the requirement of uniformity...on its face," pursuant to the more recent case of United States v. Ptasynski. That 1983 Supreme Court decision held that "it was settled fairly early that the [Uniformity] Clause does not require Congress to devise a tax that falls equally or proportionately on each State." Quoting from yet another Supreme Court opinion, Ptasynski further observed that "[t]he uniformity provision does not deny Congress the power to take into account differences that exist between different parts of the country, and to fashion legislation to resolve geographically isolated problems." As such:
Where Congress defines the subject of a tax in nongeographic terms, the Uniformity Clause is satisfied. See Knowlton v. Moore, 178 U.S. at 178 U. S. 106. We cannot say that, when Congress uses geographic terms to identify the same subject, the classification is invalidated. The Uniformity Clause gives Congress wide latitude in deciding what to tax and does not prohibit it from considering geographically isolated problems.
The National Review Online's Matthew Franck also found Rivkin and Casey's arguments unconvincing, noting that they did not consider (or quote) the rest of the 1884 Supreme Court case they cited:
But it's not at all clear that the choice of a state to opt out of a program that would make the alternative to paying the tax cheaper, or relieve affected persons of the taxpaying obligation altogether, renders the federal tax geographically non-uniform for constitutional purposes. All persons similarly situated-unable or unwilling to purchase health insurance, while obligated either to do so or to pay a tax-will be subject to the tax. The reasons for their being subject to the tax may be partly in the power of the state governments where they live-and the authority of states to make a choice that costs them something may itself be authorized by federal law-but that does not necessarily mean that the federal government has used its taxing power in a non-uniform manner. In the Head Money ruling itself, the Court held that the tax in question (if it really was a tax, and not an exercise of the commerce power-oh, how the world turns), a 50-cent charge on foreign passengers entering the country at American seaports, was not invalid by virtue of its not applying to foreigners entering the country over land by rail. "[T]he law applies to all ports alike," the Court observed, and added: "Perfect uniformity and perfect equality of taxation, in all the aspects in which the human mind can view it, is a baseless dream, as this court has said more than once."
Despite the apparent holes in Rivkin and Casey's arguments, supporters of the Affordable Care Act should not ignore them. Rivkin has a notable track record in moving off-the-wall legal arguments into the political mainstream, as he was among the first to suggest - similarly without any support in existing law -- that the individual mandate might be unconstitutional under the Commerce Clause.
From the December 3 edition of MSNBC's PoliticsNation:
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In noting President Obama's opposition to a Republican-promoted House bill allowing more skilled workers into the U.S., Wall Street Journal columnist Gordon Crovitz failed to mention the reason for Obama's opposition: The House bill eliminates a visa program for immigrants from countries with low rates of immigration to the U.S., and is too "narrowly tailored" to achieve Obama's goal of comprehensive immigration reform.
In a recent column, Wall Street Journal editorial board member James Taranto seized on a tribute to lifelong civil rights activist Lawrence Guyot written by the progressive Constitutional Accountability Center as an opportunity to attack the Voting Rights Act of 1965. But Taranto's criticism of the most effective anti-discrimination law in history ignores ample relevant history and case law.
Guyot passed away on November 22 at the age of 73. As a civil rights worker in the 1960s, he was beaten, jailed, and tortured for the voting rights and anti-segregation advocacy he undertook on behalf of African-Americans in Mississippi. In their tribute to Guyot, CAC noted that while current voter suppression is nowhere as violent as the tactics Guyot suffered, if unchecked by the Voting Rights Act, their effects still present discriminatory voting obstacles.
In his November 29 column, Taranto used CAC's Guyot obituary to attack Section 5 of the VRA, which Congress and federal courts have consistently reauthorized and utilized as essential for protecting the voting rights of millions of citizens who aren't white. Taranto also criticized the absence of extensive legal analysis in the obituary, complaining that it instead had "adjectives and adverbs," and more than one use of the word "iconic."
For a pair who work for something called the Constitutional Accountability Center, [Doug] Kendall and [Emily] Phelps don't have a lot to say about the constitution. Their defense of Section 5 is purely sentimental, with lots of intensifying adjectives and adverbs. Shelby County v. Holder, they exclaim, is "a monumentally important challenge to a key part of the Voting Rights Act, the iconic law for which for which [sic] Mr. Guyot shed blood."
Taranto, who cites a map and the Supreme Court brief for the Alabama county challenging the constitutionality of the VRA, focuses solely on the obituary to accuse CAC of not discussing the Constitution more in their tribute to Guyot. Yet Taranto fails to mention the extensive legal analyses and legal briefs CAC has written on the constitutionality of the VRA, all easily accessible on their website, as well as in other news outlets.
It is true that that CAC used the word "iconic" four times. It is also true that Taranto managed to write an entire column on the inappropriateness of Section 5 of the Voting Rights Act without once using the words Jim Crow, and only referencing voter suppression in quotes. Discussion of these topics is crucial to any analysis of the VRA.
Throughout his column, Taranto questions why only certain areas must get approval for changes to their election practices under the VRA. The answer is simple: even with the passage of the Fourteenth and Fifteenth Amendments to the Constitution following the Civil War, states of the Old Confederacy in the South refused to recognize equal protection and voting rights for African-Americans, through Reconstruction to the late Jim Crow era. From the U.S. Commission on Civil Rights' 1971 introduction to the 1970 VRA amendments:
Despite these constitutional protections [of the Reconstruction amendments], blacks in the South were virtually disenfranchised from the end of the Reconstruction Period until 1965, and members of other minority groups have also frequently been denied the right to vote.
It was not until the passage of the Voting Rights Act of 1965, however, that this right was extended to black people in the South in a meaningful way.
As Congress discovered more evidence of discrimination against racial, ethnic, and national origin minorities, more geographic areas were added to the scope of the VRA's anti-discrimination protections. Evidence of this discrimination can be shown by disproportionate effects or basic logic, which is why one appellate court recently found evidence of the former in South Carolina, and another appellate court utilized the latter to explain that if the predominant number of "young,...elderly and poor voters" affected by voter suppression in Texas are racial minorities, the VRA applies.
The reason that non-Southern areas remain uncovered by Section 5 of the VRA despite recent evidence of similar voter suppression is also unexplained in Taranto's column. States uncovered by the VRA do indeed engage in the same discriminatory tactics that have been overwhelmingly rejected in the courts. The answer to this omission is not complicated: it was difficult enough to pass the 2006 reauthorization of the Voting Rights Act during a Republican presidency, and as evidenced by current Republican obstruction, updating the VRA to cover additional areas has become increasingly unlikely.
Taranto was correct that CAC's obituary of Guyot did not go into a detailed legal analysis of whether the reauthorization of the VRA in 2006 was appropriate. If he wants to see their legal analyses, however, he can read the briefs they have filed in the case or he could read any of the many blogs and articles they have written on the issue. From the CAC's Text & History:
To anyone who takes the Constitution's text seriously, there are glaring holes in the conservative constitutional attack on the Voting Rights Act. Shelby County's primary argument is that the Act's preclearance requirement is outdated and unnecessary, given changes in Alabama (where Shelby County is located) and elsewhere, but the Constitution, in fact, assigns to Congress the job of deciding how to enforce the Constitution's ban on racial discrimination in voting.
It is certainly true that the coverage formula relies on decades-old data that has less relevance today. But, as the D.C. Circuit concluded, the formula was always less important than the jurisdictions it covered. Going all the way back to 1965, "Congress identified the jurisdictions it sought to cover - those for which it had 'evidence of actual voting discrimination' - and then worked backward, reverse-engineering a formula to cover those jurisdictions." And, as the record described by Judge Bates and Judge Tatel in Shelby County shows, these jurisdictions continue to be the worst offenders, consistently refusing to live up to the Constitution's promise of a multi-racial democracy.
Major papers, including The New York Times, The Washington Post, and The Wall Street Journal, are hiding compromises in a White House proposal on federal spending and budgets, claiming that the proposal was "loaded with Democratic priorities" and lacking in cuts. In fact the White House plan made many compromises, such as $400 billion in savings to entitlement programs that many progressives have opposed.
Reports by major media outlets, including The Wall Street Journal, The Washington Post, the Los Angeles Times, and CNN, are giving credence to Republicans' baseless attacks on Ambassador Susan Rice over statements she made in September appearances on Sunday morning political shows regarding an attack on U.S. facilities in Benghazi, Libya. In fact, Rice's remarks were based on the intelligence available at the time, and commentators from across the political spectrum agree that the attacks on Rice are inaccurate and driven by partisanship.
A Wall Street Journal editorial hid the relative health of Social Security, in order to argue that immediate cuts to the program should be part of any deficit reduction deal. In fact, economists say that Social Security is not a major driver of deficits. Unfortunately, mainstream media have not reported this fact, which has given the Journal cover to push for Social Security cuts.
Nobel Prize winning economist Paul Krugman has pointed out: "While the United States does have a long-run budget problem, Social Security is not a major factor in that problem." Social Security does face a shortfall between the revenue the program receives and the estimated benefits it will pay out beginning in 2034. But Center for Budget and Policy Priorities economist Kathy Ruffing has also noted that, far from being in crisis, Social Security's shortfall over the next 75 years would be almost completely restored by letting the Bush tax cuts expire for the wealthiest Americans.
Furthermore, the Congressional Budget Office has said that Social Security spending, which amounted to 4.69 percent of Gross Domestic Product, will rise only to 6.63 percent of GDP by 2086 if the program pays out full benefits. These facts have led economist Dean Baker to conclude that with regards to Social Security that "there is no plausible story in which our children or grandchildren will have to worry that there won't be anything there for them."
Nevertheless, the Wall Street Journal editorial board demanded that Democrats make immediate cuts to Social Security as the price for any deficit deal that raises federal revenues:
President Obama's re-election means that taxes for upper-income earners are going up one way or another. The Bush rates expire on December 31 unless Mr. Obama signs an extension, and he shows no inclination to do so except for anyone earning less than $250,000 a year ($200,000 if you're single). The question is how Republicans should handle this reality while staying true to their principles and doing the least harm to the economy.
Speaker John Boehner deserves some leeway to try to mitigate the damage by negotiating a larger tax reform.
All the more so if Mr. Boehner can also get Mr. Obama to agree to significant spending and entitlement reform. This means more than the usual suspects of cuts to doctors and hospitals and means-testing benefits for the affluent.
It means reforms -- dotted-line commitments, not promises -- that immediately reduce Medicare and Social Security liabilities, that terminate some discretionary programs, and that rein in such scandals as runaway Social Security disability payments.
Unfortunately, the Journal is not the only media outlet hiding the relative health of the Social Security program.
A November 25 Washington Post article on progressive resistance to conservative demands for Social Security cuts falsely claimed that Social Security's costs are "skyrocketing" and "fast-growing." In addition, a New York Times article reported that Republicans were pushing for Social Security cuts to restrain the deficit while the White House said the program "is not currently a driver of the deficit," but made no attempt to ascertain whether Republicans or the White House were correct.
And the Post and Times misleading reporting on Social Security provided the Journal cover to push for major cuts to the program.
As Chief Justice John Roberts receives end-of-year accolades for not striking down health care reform, The Wall Street Journal is mocking this "strange new respect" on its editorial page. But the WSJ's criticism is a thin veil for its clear preference that Roberts return to his conservative ideology, while failing to acknowledge Roberts' record as a clear conservative on issues like corporate power and civil rights.
The WSJ has already called Roberts' refusal to join his conservative colleagues on the Court and declare the Affordable Care Act unconstitutional "misbegotten." It is no surprise that a November 20 WSJ editorial treated with disdain the praise for Roberts's late switch, mocking his place on Atlantic Monthly's list of "Brave Thinkers" and being named one of Esquire's "Americans of the Year" along with actress Lena Dunham. From the editorial:
Chief Justice Roberts shares the Esquire honor with Lena Dunham, the star of an Obama campaign ad and the creator and star of the HBO series about 20-something sexual angst called "Girls."
She and the Chief Justice also make the Atlantic Monthly's list of "Brave Thinkers" of 2012, by which they mean thinkers who agree with the Atlantic's liberal editors. Ms. Dunham is praised for taking "the soft glow off the 'chick flick,'" for instance when her character acts "like an underage street hooker to turn her boyfriend on," while the Chief Justice gets credit for "maintaining the Court's legitimacy" with a ruling "both brave and shrewd." President Obama probably has Time's "Person of the Year" nailed down, but expect the Chief to finish a close second.
Such is the strange new respect a conservative receives for sustaining liberal priorities. Our own view is less effusive, and to expiate his ObamaCare legal sins, a fair punishment would be that he hire Ms. Dunham as a clerk.
Yet Roberts' conservative bona fides are well established, which makes the editorial seem like an exercise in "ref-working," essentially haranguing the Chief Justice to ensure future conservative behavior. In Roberts' case, this would not be a stretch. On issues of corporate power, the Roberts Court is unprecedented in its well-reported conservatism and has given the WSJ much to celebrate.
Similarly, Roberts' record on civil rights is sufficiently right-wing. With cases addressing affirmative action, voting rights, and marriage equality in the pipeline, the current docket gives him ample opportunity to return to the conservative fold. Excepting same-sex marriage (which has yet to be accepted for review), Roberts' positions on the other two issues - presented in Fisher v. University of Texas and Shelby County v. Holder - clearly parallel those of the WSJ.
The WSJ has characterized precedent affirming the constitutionality of race-conscious admissions policies in school desegregation efforts a "large legal mistake," and has called enforcement of the Voting Rights Act the "grossest kind of racial politics." The editorial board appears to have an ally in Roberts, who has already recorded his opposition to both affirmative action and the Voting Rights Act as Chief Justice. As Supreme Court expert Joan Biskupic has reported:
[T]he kinds of social policy issues that play to Roberts' true conservatism, such as affirmative action and other race-based remedies are on the agenda for the term that starts in October.
From his early days in the Reagan administration, Roberts has sought to roll back the government's use of racial remedies.[As Chief Justice, in] a 2006 case involving the drawing of "majority minority" voting districts to enhance the political power of blacks and Latinos, Roberts referred to "this sordid business (of) divvying us up by race." The following year, in a case involving school integration plans, he wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
On marriage equality, Roberts' position is more unpredictable, as he "has not yet voted in a major gay rights case." The WSJ, on the other hand, has already preemptively declared as "activist" any Court decision finding unequal restrictions on same-sex marriage unconstitutional. But both liberal and conservative reporting has questioned whether Roberts would join the WSJ's aversion to a constitutional right to marriage for all, irrespective of sexual orientation. Perhaps this is where the WSJ's pressure is most directed, out of fear that Roberts does not want to be on the wrong side of history.
Ultimately, regardless of the reasons behind the WSJ's attempt to embarrass the Chief Justice of the Supreme Court, it might consider the reflections of conservative federal Judge Richard Posner on the "serious mistake" of right-wing media attacks against Roberts. From an interview with NPR:
"Because if you put [yourself] in his position ... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, 'What am I doing with this crowd of lunatics?' Right? Maybe you have to re-examine your position."