Conservative media are attacking President Obama for supposedly criticizing scheduled across-the-board cuts, known as the sequester, while not proposing alternatives to avoid them. In reality, Obama has proposed a plan to replace the sequester that includes over $930 billion in spending cuts and $580 billion in new tax revenue.

NYT's David Brooks: "[Obama] Hasn't Actually Come Up With A Proposal To Avert Sequestration, Let Alone One That Is Politically Plausible." In the initial version of his February 21 New York Times column, David Brooks claimed that Obama has not proposed a plan to avoid the sequester and has instead offered the "vague" concept of "tax increases on the rich":

Under the Permanent Campaign Shimmy, the president identifies a problem. Then he declines to come up with a proposal to address the problem. Then he comes up with a vague-but-politically-convenient concept that doesn't address the problem (let's raise taxes on the rich). Then he goes around the country blasting the opposition for not having as politically popular a concept. Then he returns to Washington and congratulates himself for being the only serious and substantive person in town.

Sequestration allows the White House to do this all over again. The president hasn't actually come up with a proposal to avert sequestration, let alone one that is politically plausible.

He does have a vague and politically convenient concept. (Tax increases on the rich!)  [The New York Times, 2/21/13]

Fox's Doocy: "The President Has Zero Plan. The Republicans Have Two." On the February 22 edition of Fox & Friends, during a discussion of the sequester, co-host Steve Doocy claimed, "The president has zero plan. The Republicans have two." [Fox News, Fox & Friends, 2/22/13]

Fox Guest Marc Thiessen: The President Has Not "Proposed Any Alternative Cuts The Way The Republicans Did" To Avoid The Sequester. On Fox's America Live on February 21, frequent Fox guest and former George W. Bush speechwriter Marc Thiessen said:

THIESSEN: Well, if these cuts are so bad, what is the president doing about it? Has he proposed any alternative cuts the way the Republicans did? Has he asked for authority from Congress to reprogram the cuts to make them more targeted? Has he met with John Boehner? No, he's going out and holding campaign events with first responders and talking to local TV anchors who won't ask him tough questions like, 'Well, wasn't this your idea, Mr. President?' So he is campaigning, rather than leading, and he should be governing, not going out there trying to blame Republicans for his own creation.

Thiessen later said the Democrats' solution is "to raise taxes again" and continued: "Look, we just had a $600 billion tax increase with no spending cuts. Now that we have automatic spending cuts, Obama wants to replace them with more tax increases. Where is the balanced approach he talked about?" [Fox News, America Live, 2/21/13] 

White House Spokesperson: Obama Has "Laid Out A Specific Plan" That "Resolves The Sequester." In a February 21 post on the White House blog, White House Director of Communications Jennifer Palmieri wrote that Obama has "already reduced the deficit by over $2.5 trillion" and has "laid out a specific plan to do more." She continued: "His proposal resolves the sequester and reduces our deficit by over $4 trillion dollars in a balanced way- by cutting spending, finding savings in entitlement programs and asking the wealthiest to pay their fair share." The post linked to a plan with specific proposals to cut $930 billion from discretionary and mandatory spending as well as raise $580 billion in revenues:

[The White House Blog, 2/21/13]

White House Senior Adviser: "Here Is The President's Detailed Sequester Plan That [David Brooks] Doesn't Think Exists." On his Atlantic Journal-Constitution blog, reporter Jamie Dupree quoted White House Senior Adviser Dan Pfeiffer confirming that the White House has "a detailed plan" to avoid the sequester. Dupree's report included the plan from the February 21 White House blog post. [Atlantic Journal-Constitution, Jamie Dupree's Washington Insider, 2/22/13]

Obama's Feb. 9 Weekly Address: We Need "Balanced Cuts And [To] Close More Tax Loopholes Until [Congress] Can Find A Way To Replace The Sequester With A Smarter, Longer-Term Solution." Obama's February 9 weekly address focused on "Averting the Sequester and Finding a Balanced Approach to Deficit Reduction." Obama said:

OBAMA: [R]ight now, if Congress doesn't act by March 1, a series of harmful, automatic cuts to job-creating investments and defense spending - also known as the sequester - are scheduled to take effect. And the result could be a huge blow to middle-class families and our economy as a whole.

[...]

The good news is, there's another option. Two months ago, we faced a similar deadline, and instead of making deep, indiscriminate cuts that would have cost us jobs and slowed down our recovery, Democrats and Republicans came together and made responsible cuts and manageable changes to our tax code that will bring down our deficit. This time, Congress should pass a similar set of balanced cuts and close more tax loopholes until they can find a way to replace the sequester with a smarter, longer-term solution. [WhiteHouse.gov, 2/9/13]

State Of The Union Address: "A Balanced Approach To Deficit Reduction, With Spending Cuts And Revenue" Is Needed Instead Of Sequester Cuts. In his State of the Union address to Congress on February 12, Obama stressed that a "balanced approach to deficit reduction, with spending cuts and revenue" is needed instead of the sequester cuts:

OBAMA: These sudden, harsh, arbitrary cuts would jeopardize our military readiness.  They'd devastate priorities like education, and energy, and medical research.  They would certainly slow our recovery, and cost us hundreds of thousands of jobs.  That's why Democrats, Republicans, business leaders, and economists have already said that these cuts, known here in Washington as the sequester, are a really bad idea. 

[...]

But we can't ask senior citizens and working families to shoulder the entire burden of deficit reduction while asking nothing more from the wealthiest and the most powerful.  (Applause.)  We won't grow the middle class simply by shifting the cost of health care or college onto families that are already struggling, or by forcing communities to lay off more teachers and more cops and more firefighters.  Most Americans -- Democrats, Republicans, and independents -- understand that we can't just cut our way to prosperity.  They know that broad-based economic growth requires a balanced approach to deficit reduction, with spending cuts and revenue, and with everybody doing their fair share.  And that's the approach I offer tonight.  [WhiteHouse.gov, 2/12/13]

Obama's Feb. 19 Remarks On The Sequester: "For Two Years, I've Offered A Balanced Approach To Deficit Reduction That Would Prevent These Harmful Cuts." On February 19, Obama gave a speech on the sequester in which he highlighted his plan for "a balanced approach to deficit reduction that would prevent these harmful cuts":

OBAMA: Democrats, Republicans, business leaders, and economists, they've already said that these cuts, known here in Washington as sequestration, are a bad idea.  They're not good for our economy.  They're not how we should run our government.

And here's the thing:  They don't have to happen.  There is a smarter way to do this -- to reduce our deficits without harming our economy.  But Congress has to act in order for that to happen.

Now, for two years, I've offered a balanced approach to deficit reduction that would prevent these harmful cuts.  I outlined it again last week at the State of the Union.  I am willing to cut more spending that we don't need, get rid of programs that aren't working.  I've laid out specific reforms to our entitlement programs that can achieve the same amount of health care savings by the beginning of the next decade as the reforms that were proposed by the bipartisan Simpson-Bowles commission.  I'm willing to save hundreds of billions of dollars by enacting comprehensive tax reform that gets rid of tax loopholes and deductions for the well off and well connected, without raising tax rates.

I believe such a balanced approach that combines tax reform with some additional spending reforms, done in a smart, thoughtful way is the best way to finish the job of deficit reduction and avoid these cuts once and for all that could hurt our economy, slow our recovery, put people out of work.  And most Americans agree with me. [WhiteHouse.gov, 2/19/13]

Brooks: "It Is Not Fair To Suggest, As I Did, That Tax Hikes For The Rich Is The Sole Content Of The President's Approach." In a Feb. 22 postscript to his column, Brooks acknowledged that the White House has proposed changes "to spending levels and entitlement programs," writing:

The above column was written in a mood of justified frustration over the fiscal idiocy that is about to envelop the nation. But in at least one respect I let my frustration get the better of me. It is true, as the director of the Congressional Budget Office has testified, that the administration has not proposed a specific anti-sequester proposal that can be scored or passed into law. It is not fair to suggest, as I did, that tax hikes for the rich is the sole content of the president's approach. The White House has proposed various constructive changes to spending levels and entitlement programs. These changes are not nearly adequate in my view, but they do exist, and I should have acknowledged the balanced and tough-minded elements in the president's approach. [The New York Times, 2/21/13]

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Blog 7 hours and 23 minutes ago Video February 23, 2013 3:58 PM EST Video February 23, 2013 11:37 AM EST Video February 22, 2013 11:48 PM EST Blog February 22, 2013 3:48 PM EST

Conservative media are attacking President Obama for supposedly criticizing scheduled across-the-board cuts, known as the sequester, while not proposing alternatives to avoid them. In reality, Obama has proposed a plan to replace the sequester that includes over $930 billion in spending cuts and $580 billion in new tax revenue.

Research February 22, 2013 3:37 PM EST Blog February 22, 2013 2:54 PM EST Video February 22, 2013 2:20 PM EST Blog February 22, 2013 2:16 PM EST Video February 22, 2013 1:56 PM EST Blog February 22, 2013 11:36 AM EST Blog February 22, 2013 10:48 AM EST Blog February 22, 2013 10:20 AM EST Video February 21, 2013 10:17 PM EST Video February 21, 2013 9:49 PM EST

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News outlets have largely ignored the legal barriers that the Supreme Court has erected in between injured consumers and access to compensation - including a current case that could give big business the power to place themselves beyond the reach of federal laws by preventing consumers and small businesses from bringing class action lawsuits.

That's surprising, considering the extensive media coverage of the story of 3,000 passengers on Carnival Cruise Line's Triumph who spent five days floating in the Gulf of Mexico with no power or plumbing, and finally disembarked in Mobile, Alabama.  On February 20, attorneys for the passengers filed a class-action lawsuit against Carnival, claiming that the cruise line acted negligently by sending the Triumph to sea when they knew the ship had mechanical problems.   It was the second major crisis on a Carnival ship in a year. 

Thanks to a series of Supreme Court cases limiting class actions and upholding arbitration agreements, those passengers are facing an uphill climb with their lawsuit.  Carnival's ticket contract itself contains an arbitration clause requiring customers to waive their right to bring claims against Carnival in court.  It also includes a "class-action waiver" that states: 

This contract provides for the exclusive resolution of disputes through individual legal action on guest's own behalf instead of through any class action."

If enforced, a class-action waiver creates a David and Goliath dynamic.  As legal expert Dahlia Lithwick has explained, class actions often level the playing field between individual claimants and big defendants such as employers.  The Supreme Court has made it increasingly difficult to pursue class actions.  For example in Wal-Mart v. Dukes, the Court rejected a class-action suit brought by female Wal-Mart employees who claimed they were subjected to discrimination in pay and promotions.  The practical result:  Wal-Mart employees would have to jump over significant hurdles to pursue class action; otherwise, they are forced to go it alone against the number two corporation in the Fortune 500.  Lead plaintiff Betty Dukes explained that the Court took "an opportunity to give corporate America a huge advantage over everyday American citizens." 

These decisions, which leave plaintiffs to go it alone against corporations and waive their day in court based on agreements they didn't have an opportunity to negotiate, set the stage for an upcoming Supreme Court case that could shift the balance even further in favor of big business, allowing them to use these form agreements as an end run around federal law. 

On February 27, the Court will hear oral arguments in American Express Co v. Italian Colors Restaurant, in which it will weigh whether class-action waiver provisions in an arbitration clause are enforceable even when refusing to allow the class action to go forward would make it functionally impossible to vindicate federal statutory rights at all.   

Businesses that accept American Express charge cards must agree to a class-action waiver and waive any other means of sharing the cost of legal proceedings against the company.  American Express insists that businesses accept their unpopular credit cards if they want to accept the popular ones, which the businesses claim is a "tying arrangement"   that violates the antitrust laws.  Because pursuing antitrust claims is expensive, the cost of arbitrating an individual case would dwarf any possible recovery--meaning that if the plaintiffs cannot proceed as a class or share expenses, the antitrust claim is dead in the water.

The US Court of Appeals for the Second Circuit held that Am Ex's arbitration agreement, which includes a class-action waiver, was unenforceable because it would prevent the merchants from effectively vindicating their federal statutory rights.   Importantly, the court noted that enforcing the waiver would prevent an antitrust claim from being litigated at all:

Amex has brought no serious challenge to the plaintiffs' demonstration that their claims cannot reasonably be pursued as individual actions, whether in federal court or in arbitration, we find ourselves in agreement with the plaintiffs' contention that enforcement of the class action waiver in the Card Acceptance Agreement "flatly ensures that no small merchant may challenge American Express's tying arrangements under the federal antitrust laws."

The bottom line is this:  if the Supreme Court reverses the Second Circuit's decision, small businesses and consumers could be forced to waive--through form contracts--longstanding statutory rights in order to do businesses with large corporations.  This gives corporations significant power to evade federal law.  As the Supreme Court explained in Reiter v. Sonotone (1979), even though the Department of Justice may also enforce antitrust laws, private litigation is important because

These private suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations. Indeed, nearly 20 times as many private antitrust actions are currently pending in the federal courts as actions filed by the Department of Justice. 

When the Court strikes down or blunts the power of duly-enacted legislation, legal commentators - conservative and progressive alike-- often invoke the term "judicial activism," charging that the Court overstepped its bounds.  But in AmEx, the Court will consider whether corporations can wield that power.  While big business and consumer groups recognize what's at stake -the U.S. Chamber of Commerce and Public Citizen both filed amicus briefs- the media apparently does not.    Even The Wall Street Journal's Law Blog's post on the Carnival Triumph debacle, while accurately noting that the cruise industry has adopted mandatory arbitration clauses, didn't note that the scope of these clauses is currently before the Court.

There are exceptions, such as conservative attorney Theodore H. Frank, whose organization, which is funded by the right-wing Donors Trust, is dedicated to limiting access to class actions. In an Investor's Business Daily op-ed, Frank attempts to turn attention away from the problem of illegal tying arrangements, pointing out that the real problem is class actions themselves.  He writes "[i]n reality, consumers would be better off if they had the right to promise that they would avoid bringing the class action in the first place."   According to Frank, lawyers who pursue class actions are interested because these cases are lucrative for them.

Former Solicitor General Paul Clement, who is representing the merchants in AmEx, doesn't see it that way.  His firm often represents big corporate clients like Exxon Mobil.  Clement, whose strong oral argument performance attacking the Affordable Care Act was the talk of the last Court term, and who is in the headlines again for defending the Defense of Marriage Act before the Court this term, is not a class-action attorney. He has made clear that the case is not about attacking arbitration provisions, but preserving the merchants' statutory rights:  "This is thus truly a case in which the alternative to litigation is not arbitration, but nothing."

Frank also claims that those who are concerned about the dangers of reversing the Second Circuit's decision are "Chicken Littles," and recasts the AmEx case as a struggle to preserve arbitration itself.  That would probably come as a surprise to the group of professional arbitrators, mediators, and arbitration professors who filed an amicus brief in support of the merchants.  They state that

[American Express's] argument that the [Federal Arbitration Act] requires enforcement of an arbitration clause even where it is undisputed that the consequence is that the resolution of the underlying claims in arbitration is impossible, if adopted, will reduce public confidence in the arbitration system and leave it a more weakened institution.

With less than a week left until oral argument, AmEx is something of a sleeper case.  But that has everything to do with inadequate media coverage and nothing to do with how much is at stake.

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Conservative media's Charlotte Allen recently wrote an extensive cover piece for The Weekly Standard that relies on discredited right-wing activists Hans von Spakovsky and J. Christian Adams to attack the Department of Justice's renewed focus on properly enforcing the Voting Rights Act. But while conservative media typically advances these sources and their debunked myths, it is disturbing that mainstream coverage of the Supreme Court case of Shelby County v. Holder is relying on von Spakovsky and not disclosing his highly unreliable background.

Allen, responsible for a piece dubbed "The Stupidest Thing Anyone Has Written About Sandy Hook" by lamenting in National Review Online that no men or "huskier 12-year-old boys" were available to protect the "feminized" victims of the Newtown massacre, takes on the "politiciz[ed]" DOJ under President Obama in her story for the The Weekly Standard. In the article, Allen manages to repeat most of von Spakovsky's and Adams' stale misinformation of years past, ranging from the non-scandalous New Black Panther fiasco and non-existent Fast and Furious conspiracy, to DOJ's "belligerent stances" on enforcement of the Voting Rights Act. Allen also successfully writes over 6,500 words on the alleged "politicizing" of DOJ without divulging von Spakovsky and Adams were poster children for such conduct when they worked for the DOJ under George W. Bush, disparages U.S. Attorney General Eric Holder because his "people" are not black enough to claim civil rights history, and finally undermines her main thesis by admitting that - under any presidency - DOJ follows the policy preferences of the White House.

Ultimately, however, that Allen uses the collected works of von Spakovsky and Adams is unsurprising. What is troublesome is that mainstream outlets are also publishing the opinions of von Spakovsky and Adams as the "conservative" perspectives on Shelby without disclosing their extremist background.

For example, in the past three months, mainstream outlets such as USA Today (and other Gannett publications), National Public Radio, and the increasingly popular legal website SCOTUSblog, have quoted or given space to von Spakovsky as the conservative voice on the challenge to the constitutionality of the Voting Rights Act. None of these outlets have mentioned the extensive reporting revealing von Spakovsky's right-wing activism for photo Voter IDs, which is a redundant and unnecessary form of voter suppression trumpeted as a "solution" to virtually non-existent in-person voter impersonation.

But it is precisely this type of documented racial discrimination that the Voting Rights Act provision under review in Shelby - Section 5 - effectively curbs. More significantly, as has been pointed out repeatedly, von Spakovsky's career at the Bush II DOJ was most remarkable for his well-known hostility to civil rights precedent. Before the most recent exposé of his unreliable past by Jane Mayer in The New Yorker, legal expert Dahlia Lithwick thoroughly covered his biases against anti-discrimination law, and pointed to numerous reports on his controversial background, in Slate:

[Von Spakovsky] was one of the generals in a years-long campaign to use what we now know to be bogus claims of runaway "vote fraud" in America to suppress minority votes. Von Spakovsky was one of the people who helped melt down and then reshape the Justice Department into an instrument aimed at diminishing voter participation for partisan ends.

I won't belabor these claims here, as few of them are even disputed. Von Spakovsky's preferred method of defending himself--his recent forgetfulness notwithstanding--appears to involve scrubbing his fingerprints off the Web, fudging questions of authorship on an article that indicates his biases. But even a brief poke at his résumé shows a man who has dedicated his professional career to a single objective: turning a partisan myth about voters who cast multiple ballots under fake names (always for Democrats!) into a national snipe hunt for vote fraud.

Richard Hasen has sketched the outlines of the vote-fraud crusaders efforts here for Slate. Adam Lambert has done yeoman's work reporting on von Spakovsky here. The curious among you can check out this 2004 article by Jeffrey Toobin that highlighted a change of direction in DoJ's Voting Section and flagged von Spakovsky's early involvement with the Voting Integrity Project, where, among other things, he spoke out in defense of an effort to keep the Green Party off the Georgia ballot in 2000.

Among his numerous accomplishments at the Voting Section at DoJ, von Spakovsky can take credit for approving the Tom DeLay-sponsored midcensus redistricting in Texas--part of which was later deemed by the Supreme Court to have violated the Voting Rights Act. (To do so, von Spakovsky overrode a 73-page memo written by seven voting-rights experts finding that the DeLay scheme violated the Voting Rights Act by reducing minority voting strength in Texas.) Von Spakovsky similarly pushed for approval of Georgia's restrictive voter-ID law, again over the four-to-one objection of staff lawyers who (in a 51-page memo this time) felt the new law would disenfranchise black voters. State and federal courts later found that statute unconstitutional.

[...]

More than almost anyone else--perhaps even including Alberto Gonzales--Hans von Spakovsky represents a Justice Department turned on its head for partisan purposes. 

At the very least, all media should disclose von Spakovsky's obvious and long-standing bias and dishonesty on the very topic he is asked to weigh in on, particularly if outlets beyond the right-wing rely on his opinions. Yet the question remains why this extreme ideologue is approached by media at all if more reputable opponents of the Voting Rights Act are available. And if von Spakovsky is an example of the type of conservative willing to argue publicly for gutting a seminal law designed to protect the right to vote from racial discrimination, maybe reporters should disclose that too.

By including the discredited von Spakovsky and Adams in the dialogue - without disclosing their well-documented pasts as dubious evaluators of long-standing bipartisan civil rights law - shifts media coverage of Shelby to the far right and is not balanced reporting. What's good enough for Charlotte Allen shouldn't be good enough for USA Today and SCOTUSblog.

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