Volokh Conspiracy

New York Times Repeatedly Makes False Claims About Supreme Court and Court Rulings

by Hans Bader on February 14, 2011 · 1 comment

in Labor, Legal, Personal Liberty, Politics as Usual, Zeitgeist

In The Atlantic, former ACLU board member Wendy Kaminer discusses the New York Times’ refusal to correct repeated falsehoods in its editorials about the Supreme Court’s Citizens United decision, and its decision to repeat those false claims even after their falsity was pointed out by attorneys and a constitutional law professor. The Times has repeatedly insinuated that the Supreme Court overturned a 1907 federal law banning corporate contributions to political campaigns when it actually did no such thing.

The Citizens United ruling allowed corporations and unions to pay for their own political ads attacking politicians, but it did not allow them to make campaign donations to congressmen, or strike down the Tillman Act, a 1907 law barring such donations. The Times also falsely implied that the Supreme Court had struck down “disclosure requirements“ for campaign donations.

Earlier, law professors wrote at The Volokh Conspiracy about the New York Times’ refusal to print a letter to the editor pointing out a mistake in a recent Times editorial about federal appeals court rulings dealing with business and arbitration of legal disputes. The law professors also argued that the Times persistently misstated whether it is permissible to detain enemy combatants.

I have previously written about the New York Times’ failure to correct repeated falsehoods it printed in its “news” coverage of the Supreme Court’s 2007 Ledbetter v. Goodyear decision, which you can find at this link. Times reporters such as Linda Greenhouse made it sound like the plaintiff in that case, Lilly Ledbetter, had been arbitrarily prevented by the Supreme Court from suing despite only recently learning of the pay discrimination around the time she retired. Actually, as lawyers have repeatedly pointed out, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. No wonder the Supreme Court’s 2007 ruling in Ledbetter v. Goodyear dismissed her lawsuit as untimely.

As the National Journal’s Stuart Taylor noted, Ledbetter brought her discrimination claim only after the supervisor she accused of discrimination had died, and shortly before she retired, and she knew of the pay disparity she later complained about for at least five years before filing an EEOC complaint. Thus, she was unable to qualify for an extension of the 180-day deadline for suing based on lack of awareness of the pay disparity.

The New York Times editorials repeatedly makes false claims about court rulings to try to depict the Supreme Court as “pro-business.” But it is not in fact pro-business, as I previously explained here.

Indeed, the Supreme Court is more hostile to business than most of the lower federal courts, and is generally hostile to employers in discrimination cases.

Bank of America to Impose Annual Fees on Some Credit Cardholders, Thanks to New Credit Card Law

by Hans Bader on October 20, 2009 · 1 comment

in Bailout Watch, Legal, Politics as Usual, Sanctimony

Bank of America recently announced that it will impose annual fees on some of its cardholders.  This is in response to the CARD Act (Credit Card Accountability Responsibility and Disclosure Act of 2009), which effectively shifts costs to responsible people from irresponsible people, forcing banks to increase charges to responsible credit card holders.

The CARD Act has also wiped out many cash-back and rewards programs and rebates on credit cards, something earlier chronicled here.  Despite that fact, its passage was trumpeted by President Obama and liberal congressional leaders, who are engaging in a form of class warfare against financially responsible people.

Earlier, the government pushed through $250 billion in mortgage bailouts, to bail out even reckless high-income borrowers, and forced financial institutions the government took over in the name of fiscal responsibility, like Freddie Mac, to run up billions in losses bailing out irresponsible borrowers.  It also pushed through $70 billion in auto bailouts to enrich the United Auto Workers union, bailouts that ripped off taxpayers and pension funds and illegally diverted funds from the bank bailout to an auto bailout.  (The bailouts would not even have been necessary if the companies had obtained regulatory relief and greater wage concessions, and may not even succeed, requiring billions more in taxpayer dollars by 2010.)

In today’s Washington Post, Allan Sloan writes about how the government has deliberately ripped off responsible people to bail out irresponsible people over the last year, by spending trillions of dollars to force down interest rates.  That has resulted in extremely low interest rates on savings accounts and bonds, while also, to a lesser extent, reducing interest rates paid by irresponsible borrowers, despite their rising default rates.

Obama administration promotes junky, risky mortgages at taxpayer expense, ignoring history’s lessons

by Hans Bader on October 16, 2009 · 5 comments

in Bailout Watch, Legal, Politics as Usual, Precaution & Risk, Sanctimony

George Mason University Professor Ilya Somin explains how the Obama administration is expanding the awful policies that caused the mortgage crisis, like having taxpayers effectively underwrite risky-mortgage loans by bailing out GSEs at a cost of hundreds of billions of dollars.  Now, the administration is stepping up Federal Housing Administration subsidies for risky, junky mortgage loans that are likely to default in large numbers.

(The Obama administration doesn’t seem to have learned history’s lessons overseas, either.  White House Communications Director Anita Dunn cites as her favorite political philosopher the Chinese communist tyrant Mao Zedong. That may explain why it has sometimes pursued left-wing policies overseas.)

President Obama is also pushing for financial regulations that reinforce the worst features of the status quo.  They would increase pressure on lenders to make the risky, low-income loans that helped spawn the financial crisis.  At the same time, they would worsen the credit crunch by shutting down banking operations known as “industrial loan corporations,” that are convenient for consumers.  Earlier, Obama backed a new law that is wiping out many credit-card rewards programs and rebates, and leading to the return of annual fees on some credit cards.

Even though Obama’s proposals would lead to even more junky loans in the future, both he and Senate banking chairman Chris Dodd (D-CT) claim that his proposals would fight the “status quo.”  But they are part of the status quo.  Dodd is famously corrupt, having received sweetheart loans from the reckless, bankrupt subprime lender Countrywide, and having received a massive gift from a crook, Edward Downe, in the form of a luxurious “cottage” in Ireland he received in a “cut rate real estate deal” for hundreds of thousands of dollars less than fair market value.  Obama was the third biggest recipient in Congress of campaign contributions from the government-sponsored mortgage giants Fannie Mae and Freddie Mac, which went broke, costing taxpayers perhaps $200 billion.  (Fannie Mae was a corrupt bully that engaged in massive accounting fraud and used intimidation to fight reform.)

Banks will now be pressured to make even more risky, low-income loans. Obama has sent to Congress his proposal to create a politically-correct entity called the Consumer Financial Protection Agency. “The agency would be in charge of enforcing the Community Reinvestment Act, a law that prods banks to make loans in low-income communities.”

Government pressure on banks to make low-income loans was a key reason for the mortgage meltdown and the financial crisis. Yet Obama’s disturbing proposal would empower the new agency to enforce the Community Reinvestment Act without regard for banks’ financial safety and soundness.  The Community Reinvestment Act was a key contributor to the financial crisis.

The mortgage crisis was also caused by the reckless government-sponsored mortgage giants (“GSEs”) Fannie Mae and Freddie Mac, and by federal affordable-housing mandates.

But Obama’s proposed financial rules overhaul does absolutely nothing about Fannie Mae and Freddie Mac, admits Obama’s Treasury secretary, tax cheat Timothy Geithner, even though he admits that “Fannie and Freddie were a core part of what went wrong in our system.”

Worse, Obama’s plan is “largely the product of extensive conversations” with two lawmakers responsible for the corrupt status quo, Chris Dodd and Barney Frank, and it expands the reach of regulations that have been used by left-wing groups to extort pay-offs from banks.

Obama Slaps Unconstitutional Gag Order on Critic of His Health Care Plan

by Hans Bader on September 25, 2009

in Bailout Watch, Healthcare, International, Labor, Legal, Nanny State, Odds & Ends, Personal Liberty, Politics as Usual, Regulation, Sanctimony

While Obama ally ACORN attempts to gag whistleblowers who exposed its role in a recent scandal, the Obama administration is trying to gag critics of its health-care plan, which the Congressional Budget Office says could wipe out many Medicare Advantage programs relied on by the elderly.  (“The Obama Administration wants to seriously curtail or end Medicare Advantage.”)

It has issued a gag order to Humana, a health insurer that provides Medicare Advantage services, ordering it not to tell customers about how Obamacare could reduce the availability of such services.  The gag order clearly violates the First Amendment, according to law professor Eugene Volokh, the author of a leading treatise on First Amendment law, and a former law clerk to Supreme Court Justice Sandra Day O’Connor.  The gag order has also been criticized by the Wall Street Journal, the San Francisco Examiner, and Senate Minority Leader Mitch McConnell, yet the administration obstinately insists on enforcing it.

The Supreme Court has said the First Amendment protects the free speech rights of businesses like Humana even when they are government contractors, in cases like Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996).

Liberal Obama supporters hypocritically claim Humana should shut up because it’s receiving federal funds (an argument they would never make regarding artists funded by the National Endowment for the Arts), and because its claims are supposedly false (never mind that its truthful claims are echoed by the non-partisan Congressional Budget Office, which is headed by Democrat Douglas Elmendorf).

But as Professor Volokh and the Washington Supreme Court have recently noted, “false statements of fact about the government are generally protected” by the First Amendment.

Humana’s statements are predictions about the future, and thus by definition not provably false.   Moreover, they are chillingly accurate predictions, which is why Obama ally Senator Max Baucus (D-Mont.), who is drafting Obama’s health-care plan, asked Obama to ban them:

“On Tuesday, the Congressional Budget Office director told Mr. Baucus’s committee that its plan to cut $123 billion from Medicare Advantage—the program that gives almost one-fourth of seniors private health-insurance options—will result in lower benefits and some 2.7 million people losing this coverage. Imagine that. Last week Mr. Baucus ordered Medicare regulators to investigate and likely punish Humana Inc. for trying to educate enrollees in its Advantage plans about precisely this fact.”

The fact that Humana is a government contractor doesn’t make this censorship any more acceptable, since the government simply has no business policing criticism of itself as “false”:  federal courts have ruled that even false speech by government contractors and employees on matters of public concern can be protected, as cases like Johnson v. Multnomah County, 48 F.3d 420 (9th Cir. 1995) show.

Nor is there any evidence that Humana is using federal money to disseminate its message.  And any subsidies Humana might be receiving would not justify the Obama administration’s blatant viewpoint discrimination against it, since Obama allies that receive lots of federal subsidies are being allowed to trumpet their support for Obamacare freely.  Under the Supreme Court’s ruling in Rosenberger v. Rector of the University of Virginia, viewpoint discrimination is a forbidden, “egregious” form of discrimination even when the government is subsidizing a speaker; here, the federal government is plainly engaging in viewpoint discrimination, since it is letting AARP make blatantly false claims in favor of Obamacare that contradict CBO finds and basic budget math, while blocking Humana from criticizing Obamacare based on reasonable arguments echoed by the Congressional Budget Office).

The Obama administration’s position contradicts the position of the Clinton administration, which admitted that Medicare contractors have free speech rights.  (But then, Obama is well to the left of Bill Clinton and past presidents).

Obama’s health care plan would raise taxes, break promises, harm people with insurance, explode the budget deficit, destroy many inexpensive health-care plans, and take away important freedoms.

Obama earlier showed contempt for the Constitution and the rule of law by radically expanding Bush’s  auto bailout, violating federal bankruptcy laws and the TARP statute in the process.  (The Obama administration ripped off taxpayers and retirees in the General Motors and Chrysler bailouts, in order to enrich the left-wing United Auto Workers union, in unnecessary bailouts that have cost at least $70 billion, drawing criticism even from the liberal Washington Post. Many commentators argued that the auto bailouts were illegal, such as the Heritage Foundation and Clinton administration Labor Secretary Robert Reich.)

He also demanded that a small country in Latin America (Honduras) violate its constitution by allowing the return to power of its left-wing ex-president and would-be dictator, imposing travel sanctions on its ordinary citizens as punishment for a ruling by its supreme court refusing to reinstate the ex-president, who was removed for violating his country’s constitution.  (The ex-president, Mel Zelaya, is a paranoid, erratic bully who claims he is being subjected to “mind-altering radiation and poison gas” and targeted by “Israeli mercenaries.”)