Sublime Bloviations: Grading PolitiFact: Michele Bachmann, the Constitution and the census

Where we see yet more evidence of axe-grinding at PolitiFact.

Fact-checking the fact checkers

The issue:

The fact checkers:

Robert Farley: writer, researcher
Bill Adair: editor

Analysis:

PolitiFact entries often push the boundaries of the objective reporting style. Entries on Michele Bachmann typify the excess of that tendency. Note how Robert Farley opens this one:

U.S. Rep. Michele Bachmann, R-Minn., is no stranger to the Truth-O-Meter. So far, her comments have decidedly bent the needle to the left and, on one occasion, set the meter on fire.

President Obama is no stranger to the Truth-O-Meter either, having had far more of his statements evaluated than Bachmann's. But we probably will never see PolitiFact open an evaluation of an Obama statement with "President Obama is no stranger to the Truth-O-Meter." Obviously, the statement is not about how many times Bachmann has had her statements rated. It is simply the set up for the rest of the paragraph. Her comments supposedly have "decidedly" bent the needle to the left.

So how big is the sample used to establish this tendency? The sample has reached five statements as of today, with two freshly added to the previous three.

I'll go out on a limb and surmise that Bachmann has made more than five political statements. And, sure, some percentage of the thousands of statements she has made probably err in some way or other. But it certainly isn't fair to pick and choose a handful and then judge a person according to that skewed sample. Yet PolitiFact does exactly that, which doesn't even address the fact that the past PolitiFact ratings were extremely questionable.

PolitiFact has it out for Bachmann, and they can't even be honest about it:

We swear we're not trying to pick on her, but we just couldn't let this latest one go.

And I could forgive picking out a mere five statements that end up with ratings skewed to the left if the analysis was conducted professionally. Let's just say that Farley is off on the wrong foot when he spends a bit more than the first paragraph attacking Bachmann instead of getting straight to fact checking.

Recently, Bachmann went on record to declare that because of ACORN's involvement in the census and other privacy concerns, she would only tell 2010 census takers how many people are in her household -- and nothing more.
Here's how she explained it in a Washington Times interview (which you can listen to here):

"Now ACORN has been named one of the national partners, which will be a recipient again of federal money," Bachmann said. "And they will be in charge of going door-to-door and collecting data from the American public. This is very concerning because the motherload (sic) of all data information will be from the census. And, of course, we think of the census as just counting how many people live in your home. Unfortunately, the census data has become very intricate, very personal (with) a lot of the questions that are asked.

"And I know for my family the only question that we will be answering is how many people are in our home. We won't be answering any information beyond that, because the Constitution doesn't require any information beyond that."

PolitiFact apparently can't blame "motherload" on Bachmann or the Washington Times. It's "mother lode." But the main issue, at least for PolitiFact, comes in the final paragraph, where Bachmann claims that the Constitution merely requires a counting of the number of people rather than their race, income and other data.

In this item, we'll address Bachmann's claim that she's only constitutionally obligated to provide the number of people in her household.
Here's what the Constitution actually says:

"Representation and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers...the actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct."

So Bachmann pegged it. Or did she? Farley apparently doesn't think so:

So the Constitution itself does not contain any requirement, as Bachmann claims.

If "the actual enumeration shall be made" is not a requirement, then what is it?

Farley tries to explain:

We draw your attention to the last clause, "in such a manner as they shall by law direct." The "they" in that sentence refers to members of Congress. They write laws about the content of the census and require that people answer the questions.

If "the actual enumeration shall be made" shall be made "in such a manner as they shall by law direct" then it isn't a requirement? So the Congress could comply with the Constitution by counting the number of people in the respective states by counting the orange trees in the respective states?

Have we encountered the mother lode of journalistic doubletalk or what?

Farley goes on:

Subsequent Census Acts expanded the number of questions exponentially.

According to Census spokeswoman Stacy Gimbel, these laws came under the authority of the "Necessary and Proper" clause of the Constitution:

"The Congress shall have the power . . . To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof."

A minor point to Farley and Gimbel, here. If the nation has something like the Three-Fifths Compromise, it is necessary and proper to ask whether a person is slave or free in order to fulfil the requirements of the law. One cannot simply use the Elastic Clause to justify any and all questions on the census, however. And since the Three Fifths Compromise is no longer in effect, there is no apparent question beyond "how many people live in your home" that is "necessary and proper" to legal fulfilment of the census.

So, lacking further explanation from Farley, the Constitution apparently includes the requirement that Bachmann supposedly claims it has.

Farley makes no clear attempt to accomplish that explanation, but instead moves on to the generalized government justification for asking plenty of personal questions on Census questionnaires:

Congress' use of the Census to ask questions well beyond just the number of people has been upheld several times by the Supreme Court, Gimbel said, citing several cases.

As previously noted by Gimbel, the justification for the additional questions comes from the Elastic Clause rather than from the census provision in the Constitution. I examined a recent Census case decided in Texas, and in my humble opinion the judge in that case (Melinda Harmon) used dubious reasoning at times*. Nobody, I think, questions the right of the government to collect information to assist in the job of governing. The questions arise because of the threat of penalty for failing to provide that information. Harmon did make use of the straw man objection to the mere collection of the information. The means of collection serve as the context of the complaint.

In all, it is certainly arguable that Judge Harmon showed undue deference to the government's position.

So back to Farley:

What's more, a law passed by Congress requires people to answer "any of the questions on any schedule submitted to him in connection with any census" from the U.S. Census.

Every federal law ever ruled unconstitutional by the Supreme Court was passed by Congress, so it hardly serves as an infallible defense against the charge of illegitimacy. But perhaps Farley is making a different point. Let us continue to follow along:

Bachmann's claims that the Constitution only requires people to say how many people live in their household is "completely baseless," Gimbel said.

I wish we had the entire quotation from Gimbel, because Farley's account makes her claim seem utterly baseless. The Elastic Clause that provides the justification for virtually all of the questions apart from the number of persons living in the home makes no specific requirements of anyone. Thus, with respect to the Census, the only specific Constitutional requirement is to report how many people are there.

Bachmann is still correct.

After a mild digression into past misuses of information collected by Census workers, Farley drops the conclusion:

Bachmann is not only wrong here, she is engaging in fearmongering that encourages people to break the law. And in doing so, she's falsely telling people that the Constitution would support them. In fact, the Washington Times reporter followed her answer by saying, "Well, I'm going to take your hint then and that'll save me some time." And so we feel it's necessary to rate this one Pants on Fire.

1) Farley, journalistic bluster aside, never makes the case that Bachmann is wrong about the Census provision in the Constitution only supporting the collection of generic population numbers.

2) Bachmann is arguably correct that the Constitution would support a person who objects to answering certain of the Census questions. Whether that justification would ultimately work in court is a separate issue, and I doubt that even Farley holds the courts to be infallible authorities.

Bachmann, I might point out, was a lawyer prior to entering politics. She is likely to know the law better than either Farley or Gimbel. And it should go without saying that her statement about the Census, taken charitably, reflects her own legal opinion of the Census rather than her legal opinion about the wisest way to answer the Census.

Again, Bachmann spoke accurately and PolitiFact only produced evidence of its own bias with its attempt at fact-checking.

The grades:

Robert Farley: F
Bill Adair: F

****

Stacy Gimbel

Do we have a match?