PolitiFact spins Obama's Supreme Court falsehood

President Obama's astonishing statement to the effect that the Supreme Court doesn't strike down congressional legislation that passed with a strong majority has drawn a good bit of attention.  Over at associated blog PolitiFact Bias the statement was marked early as a good candidate for a fact check.  The Wall Street Journal obliged promptly via editorial.  PolitiFact weighed in yesterday with a "False" rating on its patented and silly "Truth-O-Meter."

So it's all good, right?

Not quite.

The "False" rating was a fairly easy call, and I hesitate to criticize the rating owing to my stance that PolitiFact's definitions make its "Pants on Fire" rating inherently unfair.  Such ratings are subjective.

With the rating off-limits for criticism, the reporting remains fair game.

Pondering ponderous majorities

First, PolitiFact's tale of the passage of the PPACA has a substantial hole in it.  Look for it:

In the case of the health care bill, the House and Senate had each passed different versions in 2009. It was expected the two bills would be integrated in conference committee, then voted on again. But before that could happen, the Democrats lost their 60-seat, filibuster-proof majority in the Senate. (Republican Scott Brown in January 2010 won the seat formerly held by the late Sen. Edward Kennedy, D-Mass.) Anything that came out of conference committee at that point could have been held up in the Senate, blocked by 40 Republican senators.

Democrats decided to get around this by having the House simply accept the Senate’s version of the bill. Then Democrats in the House and Senate used a different measure -- a reconciliation bill, which requires only a simple majority -- to modify the law they had just passed.

The vote to pass the Senate version of the bill had been 60-39.

The bill passed the House 219-212 on March 21,2010.

Congressional Democrats used a bit of gamesmanship to push the bill through to the presidents desk.

Without reconciliation the bill does not pass.  Therefore, the votes on the reconciliation bills constitute a critical bit of context:

In a fitting finale to the yearlong health care saga, the budget reconciliation measure that included the final changes was approved first by the Senate and then by the House on a tumultuous day at the Capitol, as lawmakers raced to complete their work ahead of a two-week recess.

The final House vote was 220 to 207, and the Senate vote was 56 to 43, with the Republicans unanimously opposed in both chambers.

PolitiFact and The New York Times both omit the fact that the votes opposed exceed the number of Republicans.  The vote wasn't even along strict party lines.  A small number of Democrats crossed over in both houses of Congress to oppose the reconciliation bill.

In the House the main bill passed with a 50.8 percent majority.  The reconciliation measure passed with a 51.5 percent majority, an improvement of almost one percentage point but still a slim majority.

In the Senate the main bill passed with a 60.6 percent majority while the reconciliation bill passed with a 55.6 percent majority--a decline of five percentage points and also a slim majority.

PolitiFact's version of events inflates congressional support slightly.  The Democratic Party's strategy was necessary in particular because support for the bill in both houses of Congress was right around the threshold needed for passage.

PolitiFact's summary of the section repeats both minor points of spin:

Numerically speaking, neither vote reflects a very large margin of victory. In the Senate, 60 votes was actually the exact minimum needed to prevent a filibuster -- not a vote more. And in both chambers, not a single Republican voted for for the bill.

Charitable interpretation to the nth

In addition to spinning the vote totals, PolitiFact bends over backward to give Obama's post-gaffe explanation the benefit of the doubt:

This one, we’ll acknowledge, puzzled us.

The Supreme Court routinely reviews laws passed by Congress and either upholds or overturns them. For Obama to suggest that such an action would be unique in American history is something of a head-scratcher.

It's probably a puzzling head-scratcher because of its ridiculousness (read:  "Pants on Fire") if PolitiFact was not aware that Obama is the smartest person to live in the White House since Hillary Clinton. Since Obama is so smart, there must be a logical explanation.

After reviewing the historical evidence against Obama's literal statement, PolitiFact looked for a logical explanation.

I'll emphasize yet again that I favor charitable interpretation for all.  Charitable interpretations need to be reasonable, however.

PolitiFact:

Obama’s response: "We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care ... at least since Lochner. Right? So we’re going back to the ’30s, pre-New Deal."

He further explained that, because the court has extraordinary power as the final say on laws, it "has traditionally exercised significant restraint and deference to our duly elected Legislature, our Congress. And so the burden is on those who would overturn a law like this."

Mr. Obama's explanation does not address what he actually said, though it's at least plausible on its face as a version of what Obama meant to say.

Does it pass muster with PolitiFact?

PolitiFact:

So, when given the chance to explain, Obama wasn’t saying it would be unprecedented simply for the Supreme Court to overturn a federal law.

So he wasn't saying what he said?  Did Obama misspeak, then?  And forget to inform his press secretary?

Carney defended that take at a White House press briefing on Wednesday, when asked if the president regretted his initial remarks.

“Not at all,” Carney said. “As I’ve said a number of times now, the president was making the unremarkable observation about 80 years of Supreme Court history.”
When asked if that meant the president was now clarifying his remarks, Carney shot back, “Only because a handful of people didn’t understand what he was referring to.”

No, it seems that the White House insists that Obama spoke quite clearly, or at least clearly enough so that a mere "handful of people" (dolts?) failed to understand what he meant.  Though legal scholar Laurence Tribe might object:

Constitutional law scholar Laurence Tribe, a Harvard Law School professor and former mentor to President Barack Obama, said the president “obviously misspoke” earlier this week when he made comments about the Supreme Court possibly overturning the health-care law.

PolitiFact ignores the dissonance between the original statement and the subsequent explanation.  PolitiFact compounds the problem by accepting the explanation at face value.

Obama’s elaboration a day later at least gives us more to think about. He argued that invalidation of the health care law would represent a court action unseen since the Great Depression on an issue that affects every American. [Norman] Ornstein echoed that interpretation, saying that a ruling by the court which overturns a major social policy and challenges prior court rulings would be unprecedented.

Wait a minute.  Did Obama argue that it would be unprecedented for the Court to undo a law "on an issue that affects every American"?

He did not.  The creative paraphrase is apparently PolitiFact's invention on behalf of Mr. Obama.  The paraphrase enables the writer to tie Obama's after-the-fact justification/rationalization to the remarks of an expert liberally quoted in the story, one Norman Ornstein of the conservative American Enterprise Institute.  The construction of the section featuring Ornstein leads me to suspect that PolitiFact takes Ornstein partially or wholly out of context, manipulating his words to agree with PolitiFact's mutation of Obama's explanation.

Add to this scathing criticisms of Obama's citation of Lochner v. New York by James Taranto and Eugene Volokh.

Conclusions:
PolitiFact:

But we’re taking Obama literally, and that historical perspective was not reflected in his original statement, which is what we're ruling on. He simply said the law passed with a strong majority and overturning it would be unprecedented. Wrong and wrong. We rate the statement False.

Let's give PolitiFact partial credit for "taking Obama literally."  The problem with PolitiFact taking Obama literally, however, is that Obama's statement leaves no discernible room for any interpretation but the literal.  The most charitable interpretation credits Obama with misstating what he meant to say.  Yet the White House rejects that position.

While I think that all "Pants on Fire" ratings are fundamentally unfair because PolitiFact has established no objective means of justifying the rating compared to a rating of "False," it seems highly likely this statement coming from Sarah Palin or a host of other Republicans would receive a "Pants on Fire" rating.  The fact that the statement came from a person lauded for teaching constitutional law makes it worse, not better.


Update 4/13/2012:
Eliminated a redundant use of "majority" in the sentence dealing with votes on the ACA reconciliation bill.