FactCheck.org http://www.factcheck.org A Project of the Annenberg Public Policy Center Tue, 16 Sep 2014 15:57:27 +0000 en-US hourly 1 http://wordpress.org/?v=3.8.1 Colorado’s Contraception Controversy http://www.factcheck.org/2014/09/colorados-contraception-controversy/ Tue, 16 Sep 2014 15:57:27 +0000 http://www.factcheck.org/?p=88368 Both sides in the Colorado Senate race are misleading voters in TV ads on Republican Rep. Cory Gardner’s proposal to allow the sale of birth control pills over-the-counter.

  • Gardner says in a TV ad that he has a plan to sell oral contraceptives, or the pill, over-the-counter without a prescription. But Congress has nothing to do with the process for making drugs available over-the-counter. That’s done by the Food and Drug Administration if petitioned by the drug manufacturer.
  • Gardner’s ad also says his over-the-counter plan would be “cheaper and easier, for you” than Democratic Sen. Mark Udall’s plan. But the Affordable Care Act — which Udall voted for and which Gardner voted to repeal — already requires insurance companies to fully cover birth control costs, including the pill. It’s also unclear whether birth control pills would be cheaper if they were available over-the-counter.
  • A Planned Parenthood Votes ad claims that Gardner wants to “take away” insurance coverage for birth control pills and have “women pay for all of it.” Yes, he supports the repeal of the Affordable Care Act, and, absent any replacement bill, insurers may well revert to covering some – but not necessarily all – of the cost. But Gardner hasn’t called for a ban on insurance coverage of the pill.

Gardner’s Plan

Gardner’s TV ad begins with the candidate saying, “What’s the difference between me and Mark Udall on contraception?” There are differences between the candidates on birth control, but the political claims from both sides leave voters in the position of having to hunt for them.

Mainly, Gardner wants to repeal the Affordable Care Act, and Udall doesn’t. Repealing the law would make a range of birth control more expensive for women with private insurance, but Gardner doesn’t mention that in his ad. Instead, Gardner says in the ad that his plan would make the pill “cheaper and easier, for you.”

The Affordable Care Act requires most private insurance plans to cover the pill, and other methods of female contraception, including sterilization, IUDs, sponges and spermicides, with no cost-sharing. There is an exemption for nonprofit religious employers, and the Supreme Court ruled in late June in the Hobby Lobby case that for-profit, closely-held companies couldn’t be required to pay for contraception coverage because of a federal religious freedom law. Hobby Lobby and another company, Conestoga Wood Specialties, objected to covering IUDs and emergency contraception on religious grounds.

Gardner praised the Hobby Lobby ruling in a statement and called for the FDA to “move quickly to make oral contraceptives available to adults without a prescription.” In July, Udall co-sponsored a Senate bill to prohibit employers from not covering contraception, but the measure failed.

Birth control has emerged as a key issue in the race. Gardner had first proclaimed his support for over-the-counter birth control pills in a June 19 op-ed published in the Denver Post.

It came after Udall had aired numerous ads criticizing Gardner’s past support for state personhood initiatives, which are anti-abortion measures that could lead to some hormonal forms of birth control, including the pill, being outlawed. Gardner withdrew his support for the latest state initiative this year, but still supports a similar federal bill. (See our Aug. 15 article “A Fight Over Birth Control in Colorado” for more on this issue.)

Gardner’s June op-ed called for birth control pills to be sold over-the-counter without a prescription and touted the convenience and potential cost savings of the idea. He wrote: “Since it makes so much sense, you might wonder why this change has not happened yet. It’s because too many people in Washington would rather play politics with contraception instead of actually making life easier for women.”

But an act of Congress couldn’t move the pill to over-the-counter status. In fact, what Gardner — and other Republican Senate candidates, including Thom Tillis in North Carolina and Ed Gillespie in Virginia — is suggesting wouldn’t happen quickly or easily. A drug manufacturer would submit an application to the FDA, and the FDA would then have to review and approve it. “This is a decision-making process that’s driven by the FDA, it’s not driven by Congress,” Sneha Barot, senior public policy associate at the Guttmacher Institute, told us in an interview. “It can be a fairly long and expensive process.”

Plus, if the FDA were to approve one brand of the pill, there are dozens more that would need to go through the same process to make all oral contraceptives over-the-counter. A Senate bill introduced by Republican Sen. Kelly Ayotte in July included a “sense of the Senate,” basically a suggestion, that the FDA “should study whether contraceptives that are available with a prescription … would be safe and effective for adults if available without a prescription.”

Making the pill OTC isn’t a new idea, either. The OCs OTC Working Group — that’s oral contraceptive (OC) and over-the counter (OTC) — was established in 2004 to explore the issue. It’s made up of reproductive health and advocacy groups, researchers and clinicians. The Guttmacher Institute, which researches reproductive health issues, is part of it.

However, let’s set aside the logistics and look at the claims about what would happen if oral contraceptives were available over-the-counter. Gardner says in his TV ad, “I believe the pill ought to be available over the counter, round the clock, without a prescription — cheaper and easier, for you.” His campaign says he also wants to “allow for women to be reimbursed for it through their insurance.”

It’s unclear whether birth control pills would be cheaper if they were available over-the-counter. The available research is mixed, and it’s not specifically about the pill.

A 2012 study funded by the Consumer Healthcare Products Association, a trade group for manufacturers of over-the-counter drugs, said there were savings from having common ailment drugs over-the-counter — including allergy, cough/cold and anti-fungal medications — and that most of the savings came from not needing an office visit to get a prescription. But the study, which looked at drugs that were already available OTC, cautioned that its findings were limited to the medications it analyzed. The OCs OTC Working Group cites two conflicting studies: A 2002 study published in the journal Drug Benefit Trends that found out-of-pocket costs for consumers went up when certain drugs moved from prescription to OTC status, and research from 2005 that found out-of-pocket costs decreased for antihistamines and gastritis medication.

“It’s very unclear what would happen to the price of an oral contraceptive if it went over the counter,” said Barot, who told us the cost of emergency contraception — which is essentially a high dose of the birth control pill — went up a bit when it became available without a prescription.

Barot co-wrote a blog post for the journal Health Affairs on Sept. 10 in support of OTC contraceptives paired with the ACA’s requirement for private insurance to fully cover all methods of birth control for women without cost-sharing. A July 30 opinion piece, written by members of Ibis Reproductive Heath, a research and advocacy group that coordinates the OTC working group, and published in The Hill newspaper also argued that: “For an over-the-counter pill to have the most positive impact on access to contraception, it must be covered by insurance.”

So would the pill be “cheaper” over-the-counter? Not for women with most private insurance coverage, who get full coverage of the pill and also get a fully covered annual “well-woman” office visit during which time they can get a prescription. Both benefits are mandated by the Affordable Care Act. Those without insurance coverage could save money, since they won’t have to go to a doctor for a prescription. And even those with insurance may feel the convenience saves them money in terms of not having to miss work or arrange child care to go to a doctor. “The impact would be different depending on the group of women we’re talking about,” Barot says.

As for getting the pill over-the-counter being “easier,” that, too, depends on the person. Women without insurance wouldn’t have to get a prescription, but if the cost were covered through a reimbursement system, as Gardner proposes, they’d have to spend time taking whatever steps were required to get their money back. Women in rural areas, as Gardner points out in his op-ed, may drive long distances to see a doctor and would likely find an OTC option easier.

Gardner further claims in his ad that Udall “wants to keep government bureaucrats between you and your health care plan.” It’s true that the ACA places new requirements on insurance companies — such as covering contraception without cost-sharing. But if Gardner’s plan occurred in conjunction with the ACA, that would still be the case. In fact, in his op-ed, he proposed changing the ACA to allow insurers to cover OTC drugs obtained without a prescription.

And some federal regulation might have to be enacted for Medicaid. The OCs OTC Working Group says it’s “unclear” how Medicaid recipients would be affected, since federal Medicaid funds can’t pay for over-the-counter drugs obtained without a prescription, though some states do cover OTC emergency contraception.

There are missing details to Gardner’s proposal, which, as we mentioned, would have to start with drug manufacturers and the FDA, not Congress. With or without the ACA, he’s still advocating insurance coverage of OTC oral contraceptives, which would presumably require some government regulation. We asked his campaign whether he would require insurers to fully cover birth control pills purchased over-the-counter if the ACA were repealed, or would he allow insurers to make decisions about the level of coverage, as they did before the health care law was passed. We did not receive a response to that question.

 Would Gardner ‘Take Away’ Insurance Coverage?

Planned Parenthood Votes jumped into the debate with an ad launched Sept. 12 that says on screen, “Gardner’s over-the-counter proposal would TAKE AWAY insurance coverage for birth control,” with a drawing of a pack of birth control pills. Another on-screen graphic reads, “Gardner’s plan: Women pay for all of it.”

Similarly, the Udall campaign has criticized Gardner’s OTC proposal by saying on its website that he had a “radical position on ending insurance coverage for the pill.” Another posting on the campaign website says Gardner “has said that we should remove insurance from the process of purchasing birth control altogether.”

As we’ve said, Gardner’s campaign says he wants to allow women to be reimbursed for OTC oral contraceptives. His campaign spokesman Alex Siciliano told us that Gardner’s plan is different from many other over-the-counter proposals in this regard. “Cory understands the problem associated with potential out-of-pocket cost increases if insurance coverage is lost,” he wrote in an email. “That’s why Cory has called for a change to Obamacare that will permit the coverage of OTC medication like oral contraceptives without a prescription.”

Gardner’s original June op-ed on the idea didn’t fully explain the insurance-reimbursement proposal, but did allude to insurance coverage for OTC oral contraceptives. He wrote in that piece: “Since January 2011, an obscure provision of Obamacare has blocked insurers from covering OTC medicine without a prescription. If Democrats are serious about making oral contraception affordable and accessible, we can reverse that technical provision.”

The provision bars reimbursement from a Flexible Spending Arrangement or Health Savings Account for over-the-counter medications obtained without a prescription (excluding insulin and medical devices). The ACA does require private insurance plans to cover over-the-counter contraceptives including sponges and spermicides, but only with a doctor’s prescription.

Gardner’s camp hasn’t provided more specific details on how his plan would work in terms of insurance reimbursement. But that’s still no reason for Udall and Planned Parenthood Votes to misrepresent his over-the-counter proposal.

When we asked Planned Parenthood Votes about its ad, a spokeswoman told us that Gardner’s plan was to repeal the ACA and its full coverage of a range of birth control methods, plus a “vague” over-the-counter proposal for the pill. And since it would take years before any brand of birth control pill was available over-the-counter, women would go back to paying out-of-pocket for contraception in the absence of the ACA, she said.

Fair enough — but that’s not what the ad says. Instead, it says Gardner wants to “take away” insurance coverage and have “women pay for all of it,” and it specifically references the pill. Gardner hasn’t called for any kind of ban on insurance coverage of the pill, or birth control in general. If the ACA were repealed, insurers may well revert to life before the health care law, when many private plans covered some of the cost of prescription contraceptives, according to a 2002 Guttmacher Institute survey of insurers’ on employment-based plans. (In fact, more than half of the states, including Colorado, require insurance plans that include prescription drug coverage to cover contraception. Colorado passed its contraception law in 2010. Gardner voted against it.)

The Udall camp points to a brief interview Gardner gave to Fox News in July, when he said “let’s take out the insurance” in regards to his OTC plan. The full quote: “I support a birth control policy that will allow us to have common forms of oral contraception available over-the-counter without a prescription. Let’s take out Obamacare. Let’s take out the insurance.”

We’re not sure what Gardner meant by that, but it contradicts what his campaign has said since then.

Planned Parenthood Votes and the Udall campaign would be correct to say that Gardner wants to repeal the ACA, and with it the law’s requirement of full private insurance coverage of women’s contraception. But both twist Gardner’s position into something more extreme. Gardner, meanwhile, tries to sell voters on a plan he himself — or Congress — can’t implement. And he glosses over his support for repealing the ACA, a move that, absent additional health care legislation, would increase the cost of a range of birth control methods for many women with private insurance plans.

– Lori Robertson

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Perdue Distorts Nunn Campaign Memo http://www.factcheck.org/2014/09/perdue-distorts-nunn-campaign-memo/ Fri, 12 Sep 2014 23:04:00 +0000 http://www.factcheck.org/?p=88355 Republican David Perdue says in a TV ad that Michelle Nunn, his opponent in the Georgia Senate race, “admits she’s too liberal” and that “her foundation gave money to organizations linked to terrorists.” Not exactly.

The ad cites the source as “her campaign plan,” but that particular memo — one of several included in a 144-page Nunn campaign document — talked about devising a strategy to push back against “potential Republican attacks” on Nunn. The likely attacks included that “Nunn is too liberal” and that a nonprofit organization that she headed, the Points of Light foundation, gave “grants to problematic entities.” Actually, the grants refer to $13,500 that eBay sellers — not the foundation — donated to the U.S. affiliate of the international charity Islamic Relief Worldwide.

Also, there is no evidence Islamic Relief USA, a federally approved charity, has ties to the U.S.-designated terrorist group Hamas.

Perdue and Nunn are competing for the U.S. Senate seat of retiring Republican Saxby Chambliss. The ad, called “Bringing Common Sense to Washington,” began airing on Sept. 9. It’s Perdue’s first ad of the general election.

On July 28, the National Review ran a story about a leaked Nunn campaign document that had been briefly published online, in draft form, months earlier. The document, covering all phases of Nunn’s Senate campaign, is a compilation of memos from Democratic strategists to Nunn and her senior advisers.

“From all appearances, the document was intended to remain confidential. It outlines the challenges inherent in getting Nunn, who grew up mostly in Bethesda, Md., elected to the Senate in a state with a large rural population,” the National Review article said.

The “Research Plan” portion of the document included an assignment for the Nunn campaign’s research team to “produce a ‘pushback’ document for each identified vulnerability in Michelle’s record, as well as common attacks frequently leveled against Democratic Senate candidates.” The vulnerabilities were identified by the research firm NewPartners, which performed a review of Nunn’s record for the campaign and “pointed out several areas of potential concern in her record,” according to the document.

According to the ad’s narrator, “In her campaign plan, Michelle Nunn admits she’s too liberal and her foundation gave money to organizations linked to terrorists.” But the document doesn’t “admit” to that. The “pushback research” was meant to prepare “responses to potential Republican attacks.” It didn’t say those attacks would be accurate.

“Nunn is too liberal” and “Nunn is not a ‘real’ Georgian” were listed in the campaign document as potential attacks on her biography. And “grants to problematic entities” was listed as a potential attack on her work for Points of Light, the volunteer group founded by former President George H.W. Bush and for which she has served as chief executive officer and president since 2007. (Nunn is currently on a leave of absence to run for the U.S. Senate.)

After the National Review published its story, Nunn campaign manager Jeff DiSantis released a statement saying, “This was a draft of a document that was written eight months ago. Like all good plans, they change. But what hasn’t changed and is all the more clear today is that Michelle’s opponents are going to mischaracterize her work and her positions, and part of what we’ve always done is to prepare for the false things that are going to be said.”

In fact, the Perdue ad’s claim that Nunn’s “foundation gave money to organizations linked to terrorists” is largely false.

The National Review reported that “[a]ccording to the IRS Form 990s that Points of Light filed between 2006 and 2011, the organization gave a grant of over $13,500 to Islamic Relief USA, a charity that says it strives to alleviate ‘hunger, illiteracy, and diseases worldwide.’ ” Islamic Relief USA falls under the umbrella of Islamic Relief Worldwide, which the National Review article said has ties to the terrorist organization Hamas.

But there are two issues with what the National Review reported.

First, the money that Islamic Relief USA received did not come directly from Points of Light funds. The organization, through its former MissionFish business unit, allowed individuals selling items on eBay to choose whether to donate proceeds from their sales to any of over 20,000 charities, including Islamic Relief USA. So, it was eBay sellers who gave $13,500 to Islamic Relief USA. Points of Light, by way of MissionFish, simply processed the donations.

In fact, Islamic Relief USA is also listed in the Office of Personnel Management’s Combined Federal Campaign catalog as an approved charity to which federal employees can donate through automatic payroll deductions.

Second, it is not clear whether Islamic Relief Worldwide has ties to Hamas. In a statement, the charity denied claims from Israel’s Minister of Defense that it had links to the terrorist group. In June, Israel banned Islamic Relief Worldwide from operating in Israel.

Islamic Relief Worldwide, June 19: On 19 June 2014 the Israeli Defence Minister declared Islamic Relief Worldwide an “unauthorised association” and added it to a list of organisations on the Ministry of Defence website, preventing us from operating in Israel and the West Bank and citing links with Hamas. Islamic Relief Worldwide is extremely surprised and concerned by this, and categorically denies any links with Hamas.

Even so, the donations were for the U.S.-based charity, not the worldwide organization based in the United Kingdom.

Islamic Relief USA, a 501 (c)(3) tax exempt charity founded in California in 1993, says that it “is an independent affiliate of Islamic Relief Worldwide and the Islamic Relief family of charities. We are completely separate legal entities that work together under the Islamic Relief Worldwide umbrella to provide aid.”

The charity also has longstanding ties to U.S. corporations and the U.S. government. Its corporate supporters include the JP Morgan Chase Foundation, the GE Foundation, the Cisco Foundation, HP (Hewlett Packard) and Microsoft. And, on its website, Islamic Relief USA notes that it has “an excellent working relationship with the federal government,” including a partnership with the Department of Agriculture on a summer food service program that provides meals to needy children. Plus, Anwar Khan, Islamic Relief USA’s chief executive officer, served on the 2013 USAID Advisory Committee On Voluntary Foreign Aid.

Also, MissionFish, now known as the PayPal Giving Fund, says it “screens all nonprofits to make sure they are not involved in the promotion of terrorism, hate, racial intolerance, or illegal activities,” according to eBay.

– D’Angelo Gore

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NEA Advocacy Fund http://www.factcheck.org/2014/09/nea-advocacy-fund/ Fri, 12 Sep 2014 22:29:46 +0000 http://www.factcheck.org/?p=88425 playersguide2014_135pxPolitical leanings: Liberal

Spending target: Unknown

The NEA Advocacy Fund is the super PAC of the National Education Association, the “nation’s largest professional employee organization.” The NEA describes itself as an “advocate for education professionals.”

The NEA created its super PAC in late 2010, and it has been active ever since in congressional and gubernatorial races. From the beginning, the NEA Advocacy Fund spent its money exclusively against Republican candidates and in support of Democrats.

The NEA Advocacy Fund spent $4.2 million in the 2010 election cycle in independent expenditures. All of it to defeat Republican Senate candidates. The super PAC focused on the Colorado and Washington races, spending nearly $1.9 million against Ken Buck in Colorado and $1.4 million against Dino Rossi in Washington. Both lost. The super PAC spent the $900,000 in losing causes against Pat Toomey and Rand Paul, both of whom won their races.

In the 2012 cycle, NEA Advocacy Fund nearly doubled its spending to $9.1 million, but only $1 million in independent expenditures. Half of that money was spent against a Republican House candidate, Richard Tisei of Massachusetts, who narrowly lost to Democratic Rep. John Tierney.

Gearing up for the 2014 election cycle, the NEA parent organization gave its super PAC $5.3 million in a few installments last year. As of mid-September, the Advocacy Fund had spent $3 million of that, all against Republicans in senatorial races, currently making it the ninth highest-spending super PAC in the cycle. Most of this money has been spent on the North Carolina, Arkansas, and Alaska Senate races — all considered “toss-ups” by RealClearPolitics. Of these races, the super PAC focused most of its attention (to the tune of $1.7 million) in North Carolina in the hope of preventing Republican Thom Tillis from taking Sen. Kay Hagan’s seat.

Fact-checking NEA Advocacy Fund

Tillis: An Education Budget Backer or Hacker?” Sept. 11, 2014

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Tillis: An Education Budget Backer or Hacker? http://www.factcheck.org/2014/09/tillis-an-education-budget-backer-or-hacker/ Thu, 11 Sep 2014 22:01:15 +0000 http://www.factcheck.org/?p=88298 A North Carolina public school teacher says in a TV ad that she tells her students to “start with facts,” but she begins attacking Republican Senate candidate Thom Tillis with an exaggerated claim about Tillis’ education “cuts.”

In the NEA Advocacy Fund ad, the teacher says Tillis, while state House speaker, “cut $500 million from our budget.” That’s not true. We found total state education spending increased by more than $700 million from the 2012-13 school year to the 2014-15 school year, but it hasn’t kept pace with enrollment. If one factors in enrollment, education funding is $368 million less than what a state funding formula says it should be — but not $500 million.

The ad also leaves the false impression that the $500 million “cut” came from the K-12 public school budget. The actual $368 million funding gap is in the total education budget — including community colleges and universities. The two-year gap for K-12 schools is $121 million — not $500 million.

The Democratic Senatorial Campaign Committee is running a similar ad at the same time that features a mom with kids in grade school talking about the impact of the same cuts.

Voters in North Carolina are being bombarded with confusing and contradictory claims about Tillis’ record on education funding.

According to the NEA Advocacy Fund ad — and numerous attacks from inside and outside Democratic Sen. Kay Hagan’s campaign — Tillis cut $500 million from North Carolina’s education budget.

Tillis, meanwhile, claims on his website that education funding is up $660 million since he was elected House speaker in 2011.

So is Tillis an education budget backer or hacker? Seems like a pretty straightforward question, right? Not necessarily. For starters, it depends on how one defines “education” — just K-12 public school funding, or also community college and university dollars — and how one defines “cuts.”

Let’s start with the version in the NEA Advocacy Fund ad featuring Vivian Connell, who teaches English as a Second Language at Chapel Hill High School. The National Education Association Advocacy Fund is a super PAC funded by the NEA, the nation’s largest teachers’ union.

“I always want my students to start with facts and the fact is, Thom Tillis is terrible for education in North Carolina,” Connell says. “He cut $500 million from our budget. His cuts go so deep, there are no longer enough textbooks to go around. Tillis even voted to increase class sizes — so kids don’t get the attention they need. The fact is: Thom Tillis hurts North Carolina students.”

Did Tillis “cut $500 million” from the education budget? As we often ask here at FactCheck.org: Compared with what?

Total education funding has gone up every year under Tillis’ House leadership in the state House of Representatives. But critics say it hasn’t kept pace with student enrollment growth.

Every year, the state puts out what it calls a ”continuation budget” — a budget prepared by the state’s Department of Public Instruction that projects the expense of keeping programs and salaries at current levels. The continuation budget accounts for such factors as student enrollment — including 10,000 new students this year — rising average teacher salaries and the changing cost of gasoline for buses.

In 2013, the continuation budget called for $23.6 billion in total education spending over two years (including K-12 public schools, community college and higher education). The Republican-controlled state Legislature passed a budget that included $23.1 billion. In other words, the enacted budget fell nearly $482 million short of the two-year continuation budget — even as the state spending for education increased.

The state education budget grew in raw dollars — from $11 billion in 2012-2013 to nearly $11.8 billion in 2014-2015 — but just not as fast as deemed necessary to maintain the current level of service. Tillis voted for the 2013 biennial budget, which passed the House 65-53, and defended it on the floor. The budget also passed the Senate and was signed by Republican Gov. Pat McCrory.

So the NEA ad hinges on whether one considers the difference between those budgets as underfunding or cuts.

But even if one considers the difference between the continuation budget and the enacted budget to be a “cut” — even though in raw dollars the budget grew — the $500 million figure used in the ad is outdated and exaggerated. That’s because in 2014, Tillis supported a budget adjustment that added in more education funding in the second year. So the gap between the two-year continuation budget and the actual funding ended up being $368 million.

The ad also leaves the false impression that the $500 million cut is from the K-12 public education budget.

The ad shows Connell in what is clearly a grade-school classroom and mentions the effect of budget cuts on K-12 public school education, such as cuts to textbook funding and larger classroom sizes. But the $500 billion figure used in the ad includes funding for community colleges and universities.

The two-year combined difference between the continuation budget and the actual budgets enacted under Tillis was $121 million for K-12. That’s far less than the $500 million cited in the ad and by the Hagan campaign.

Another ad currently on the North Carolina airwaves, from the Democratic Senatorial Campaign Committee, makes an even more explicit attempt to link the $500 million figure to K-12 public education. It features a young mother talking about her two children — a son in kindergarten and a daughter in fourth grade — and displays text on the screen that says, “Cut Nearly $500 Million from Public Schools,” while showing a photo of a grade-school classroom. The DSCC is spending $9.1 million on ads attacking Tillis’ legislative record, including on education.

Tillis’ claim on his website about increasing education spending focuses solely on state funding for public schools (K-12). The state’s contribution rose from $7.15 billion in 2010-2011 to $7.81 billion for 2013-2014. That’s how the Tillis campaign backs up the claim that education funding is up by $660 million since he was elected House speaker. That’s an increase in spending, but it doesn’t mean schools haven’t felt the effects of slow growth.

Enacted budget increases haven’t kept pace with a rising student population, said Eric Moore, a fiscal analyst in North Carolina’s Department of Public Instruction. In addition, he said, increased spending on benefits has cut into classroom spending.

Those are all concerns worthy of political debate, but as Connell says in the NEA ad, it’s best to “start with facts.” And in this case, the facts are being twisted. The NEA says it’s spending “north of seven-figures” to air the ad across 95 percent of the state, ending Sept. 12.

– Robert Farley

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Spinning Wisconsin Voters http://www.factcheck.org/2014/09/spinning-wisconsin-voters/ Wed, 10 Sep 2014 20:38:48 +0000 http://www.factcheck.org/?p=88288 In Wisconsin’s race for governor, both sides are playing “spin the voter” with Republican incumbent Scott Walker’s record on jobs.

  • Democratic challenger Mary Burke and her allies have hammered Walker with ads stating that “Wisconsin’s job growth is dead last in the Midwest.” Not so. His job gains are well below the national average and just half of what he promised when elected, but not as bad as Democratic ads make out.
  • Walker is countering with an ad saying, “We’ve come from losing over 133,000 jobs, to gaining over 100,000 jobs.” That’s not quite accurate either. The state had been regaining jobs for more than a year at the time he took office, and the pace of gains didn’t improve.

‘Dead Last’?

Walker said when inaugurated on Jan. 3, 2011: “My top three priorities are jobs, jobs and jobs. … We have an ambitious goal: 250,000 new jobs by 2015. I know we can do it.” He hasn’t delivered.

Midwestern Job GainsAs of July, the most recent month for which the Bureau of Labor Statistics has released state-by-state figures for seasonally adjusted total nonfarm employment, Wisconsin had gained just over 112,000 jobs since Walker took office. So with only five months to go before the end of his first term, Walker wasn’t even halfway to his goal.

But that said, Walker’s record isn’t as terrible as Democrats make out. An ad from the Burke campaign that ran last month and a very similar ad from the liberal, pro-Democratic Greater Wisconsin PAC both claimed that the state is “dead last” in job growth among Midwestern states. That’s not so when measured by the most timely, and commonly accepted, official statistics.

It’s correct that by one statistical measure Wisconsin did rank last in percentage gains in jobs among the 10 states that rapidly scroll by on screen. But that’s misleading.

Missing States and Stale Statistics

For one thing, the U.S. Census lists 12 states — not 10 — as being part of the officially defined “Midwest.” The list used in the Democratic ads omits Missouri and Kansas. More important, the statistical measure cited in the ad is several months out of date, and is not the metric commonly used by economists and reporters when reporting on employment trends.

The commonly accepted figures are current as of July, making them far more timely than the figures cited in the ad, which are current only through the end of last year. And since December, Wisconsin has had a greater percentage increase in jobs than five other Midwestern states: Ohio, Kansas, Minnesota, Nebraska and Illinois.

The ad cites the BLS Quarterly Census of Employment & Wages, which is a tally of all workers covered by unemployment insurance, making up about 97 percent of all workers. The QCEW is an excellent tool for some purposes, and in fact is used as a check on the accuracy of the BLS’ more timely surveys. But the comprehensive, quarterly figures take many months to gather. The next release (covering January, February and March of this year) won’t be out until Sept. 18.

That’s why the preferred figures for measuring employment come from the series called Current Employment Statistics, which is based on the payroll records from 144,000 private and government employers, a massive sample that covers over half a million workplaces. When using the most up-to-date figures on employment from the CES, Wisconsin actually ranks ninth among the 12 Midwest states. That’s not great, but it’s not “dead last,” either.

Walker’s Misleading Defense

The Democratic exaggerations may be having the desired effect; recent polling is showing a very tight race. The Huffington Post’s composite average of recent polling results puts Walker only a fraction of a percentage point ahead of Burke, while the Real Clear Politics composite shows Burke with a lead of 1.7 percentage points.

That may explain Walker’s most recent ad, which hit the air Sept. 4. In it, Walker says straight to the camera, “We promised Wisconsin we’d work to create more jobs,” and that’s followed by a series of upbeat TV news snippets reporting some specific job gains. Walker continues: “We’ve come from losing over 133,000 jobs, to gaining over 100,000 jobs.”

As we’ve noted, the actual job gain was 112,100 as of July, so that much of Walker’s ad is accurate. Of course, Walker doesn’t mention how far short that falls of his promised 250,000 jobs. His statement about “losing over 133,000 jobs” refers to what happened during the last term of his predecessor, Jim Doyle. The actual loss was 125,600, as measured by BLS’ most recently revised figures. But reality isn’t quite so black and white as Walker’s comparison suggests.

For one thing, by the time Walker took office Wisconsin had already turned the corner on the job losses that began in mid-2007, the result of a national financial crisis that was the worst since the Great Depression. In January 2011, the month Walker was sworn in, the state had already regained nearly 35,000 of the jobs it had lost.

In fact, the average monthly gain in the 13 months before Walker took office – 2,700 jobs a month – is the same average monthly gain that has occurred since.

Furthermore, Wisconsin has lagged far behind the national average in the pace of job growth during Walker’s tenure. Wisconsin’s job total has gone up 4.1 percent under Walker, but the national gain has been 6.2 percent during the same period.

And unlike the nation as a whole, Wisconsin has yet to regain all the jobs it lost during and after the Great Recession of 2007-2009. Wisconsin’s July total was still more than 29,000 (about 1 percent) shy of the state’s peak employment, reached in June 2007. But also as of July, the U.S. had regained all the jobs lost plus 611,000 more, a gain of about 0.5 percent.

Ordinarily, we would remind our readers that governors have only limited influence over jobs and the economy in their states. In this case, Walker made the state’s employment record a legitimate target by emphatically promising to deliver a quarter-million jobs, and failing to do so. But that doesn’t give Democrats a right to claim that his record is worse than it really is, any more than Walker has a right to claim credit for a dramatic turnaround that was under way well before he took office, and which hasn’t gained any momentum since then.

– Brooks Jackson

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Obama Fumbles ‘JV Team’ Question http://www.factcheck.org/2014/09/obama-fumbles-jv-team-question/ Mon, 08 Sep 2014 19:17:48 +0000 http://www.factcheck.org/?p=88266 President Obama enjoys his sports analogies, so let’s just say that he fumbled when he was asked whether he made a “misjudgment” eight months ago in dismissing the Islamic State in Iraq and Syria as the equivalent of “a jayvee team.”

Obama said he “wasn’t specifically referring” to ISIS when he made the junior varsity reference during an interview with The New Yorker in January. But the magazine article and a transcript of the interview — which Washington Post Fact Checker Glenn Kessler obtained and wrote about earlier this month — shows that Obama was referring to ISIS when he said “if a jayvee team puts on Lakers uniforms that doesn’t make them Kobe Bryant.”

The subject of the Islamic State in Iraq and Syria (ISIS) — or the Islamic State in Iraq and the Levant (ISIL), as the president refers to it — came up during a Sept. 7 interview on Chuck Todd’s debut as host of NBC’s “Meet the Press.”

Todd, Sept. 7: Long way, long way from when you described them as a JV team.

Obama: Well, I –

Todd: Was that bad intelligence or your misjudgment?

Obama: Keep — keep — keep in mind I wasn’t specifically referring to ISIL. I’ve said that, regionally, there were a whole series of organizations that were focused primarily locally. Weren’t focused on homeland, because I think a lot of us, when we think about terrorism, the model is Osama bin Laden and 9/11. And the point that I was –

Todd: You don’t believe these people –

Obama: Not yet. But they — they can evolve. And I was very specific at that time. What I said was, not every regional terrorist organization is automatically a threat to us that would call for a major offensive. Our goal should not be to think that we can occupy every country where there’s a terrorist organization.

It is true that Obama was talking about “a whole series of organizations” when he made his junior varsity reference. But ISIS was specifically referenced by the writer and Obama in that January interview as one of those organizations.

Let’s go back to what Obama said during his interview with David Remnick of The New Yorker.

The article appeared in the Jan. 27 issue of The New Yorker. The interview took place after ISIS captured Fallujah in early January. Remnick writes that he asked the president about what appeared to be a resurgence of al Qaeda-affiliated groups.

The New Yorker, Jan. 27: In the 2012 campaign, Obama spoke not only of killing Osama bin Laden; he also said that Al Qaeda had been “decimated.” I pointed out that the flag of Al Qaeda is now flying in Falluja, in Iraq, and among various rebel factions in Syria; Al Qaeda has asserted a presence in parts of Africa, too.

“The analogy we use around here sometimes, and I think is accurate, is if a jayvee team puts on Lakers uniforms that doesn’t make them Kobe Bryant,” Obama said, resorting to an uncharacteristically flip analogy. “I think there is a distinction between the capacity and reach of a bin Laden and a network that is actively planning major terrorist plots against the homeland versus jihadists who are engaged in various local power struggles and disputes, often sectarian.

“Let’s just keep in mind, Falluja is a profoundly conservative Sunni city in a country that, independent of anything we do, is deeply divided along sectarian lines. And how we think about terrorism has to be defined and specific enough that it doesn’t lead us to think that any horrible actions that take place around the world that are motivated in part by an extremist Islamic ideology are a direct threat to us or something that we have to wade into.”

The context of the article and the reference to the al Qaeda flag “now flying in Falluja” make it clear that ISIS was among the groups that Remnick asked about and was one of the groups that Obama dismissed as “a jayvee team.” In fact, Obama himself makes an indirect reference to ISIS when he talks about Fallujah.

On Aug. 25, White House spokesman Josh Earnest was asked about the “jayvee team” remark in a press conference, and Earnest responded by saying “the president was not singling out ISIL” when he made that remark. The Washington Post Fact Checker, however, obtained a transcript of The New Yorker interview, and Kessler declared Earnest’s statement “fairly misleading” and gave it four Pinocchios — the equivalent of a “whopper.”

Here is the relevant portion of the interview transcript, as published by the Post.

Q: You know where this is going, though. Even in the period that you’ve been on vacation in the last couple of weeks, in Iraq, in Syria, of course, in Africa, al-Qaeda is resurgent.

THE PRESIDENT: Yes, but, David, I think the analogy we use around here sometimes, and I think is accurate, is if a JV team puts on Lakers uniforms, that doesn’t make them Kobe Bryant. I think there is a distinction between the capacity and reach of a bin Laden and a network that is actively planning major terrorist plots against the homeland versus jihadists who are engaged in various local power struggles and disputes, often sectarian.

Q: But that JV team jus[t] took over Fallujah.

THE PRESIDENT: I understand. But when you say took over Fallujah –

Q: And I don’t know for how long.

THE PRESIDENT: But let’s just keep in mind, Fallujah is a profoundly conservative Sunni city in a country that, independent of anything we do, is deeply divided along sectarian lines. And how we think about terrorism has to be defined and specific enough that it doesn’t lead us to think that any horrible actions that take place around the world that are motivated in part by an extremist Islamic ideology is a direct threat to us or something that we have to wade into.

The transcript shows that the president was asked about al Qaeda-affiliated groups in Iraq, Syria and Africa, which would include ISIS, when the president made his remark about the “JV team.” That was Earnest’s point when he said the president “was not singling out” ISIS. But, as the transcript shows, Remnick followed up his initial question with a direct question about the “JV team” that “just took over Fallujah,” a reference to ISIS. On Jan. 3, the New York Times reported that “Sunni militants of Al Qaeda … members of the Islamic State of Iraq and Syria, or ISIS” had planted their flag over Fallujah.

The president can make the case that he wasn’t referring only to ISIS when he made his remark about a junior varsity team. But he cannot say that he “wasn’t specifically referring to ISIL,” because The New Yorker article and the transcript of the interview make it clear that the context of the president’s remark included ISIS.

– Eugene Kiely

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A Game of Telephone in Colorado http://www.factcheck.org/2014/09/a-game-of-telephone-in-colorado/ Fri, 05 Sep 2014 22:38:46 +0000 http://www.factcheck.org/?p=88097 A Crossroads GPS ad exaggerates a few personal anecdotes to claim that “many Coloradans pay roughly 100 percent more for health insurance since Obamacare.”

The ad, attacking Democratic Sen. Mark Udall, also tries to pin a shortage of doctors in rural areas on the health care law. But there’s no evidence the law caused a change in the ratio of residents to primary care physicians.

The ad, titled “Yes,” began airing on Aug. 19 and was still airing in the Denver market on Sept. 2, according to Kantar Media’s Campaign Media Analysis Group. The ad focuses on rural and resort area residents’ premiums and access to doctors, and criticizes Udall for supporting the Affordable Care Act.

The ad doesn’t say this, but its claims on premiums are about the individual market, where 7 percent of Coloradans get their insurance. It also doesn’t say that Coloradans living in rural and ski resort areas faced higher health costs before the Affordable Care Act, as the news articles cited in the ad make clear.

When a Few Anecdotes Become ‘Many’

Crossroads engages in an old game of telephone — in which a story gets exaggerated each time it’s told — when it claims that “many Coloradans” were paying roughly double for their insurance because of the health care law. While an announcer says that, an on-screen graphic reads, “resort area residents paying roughly 100 percent more for health insurance.” That’s a truncated quote that leaves off the word “some” — not “many” — from the Aspen Daily News, which said that “some resort area residents” were paying that much more and gave two personal anecdotes: a couple who say they are paying about double since the ACA launched and a woman who says her premiums have gone up 66 percent.

So the graphic is deceptively edited, and the voice-over leaves the false impression that the increase in premiums pertains to many of the state’s residents. In fact, the four resort counties — Pitkin (where Aspen is located), Garfield, Eagle (Vail) and Summit — have a total population of nearly 154,000, or 3 percent of the state’s 5 million residents, according to the 2010 Census.

The author of the May 10, 2014, Aspen Daily News article, Nelson Harvey, told us the sentence about “some resort area residents paying roughly 100 percent more” was based on a few select examples as well as what public officials had said they had heard from residents. Nelson, a freelance journalist, said that he had “no way to quantify” how many were paying 100 percent more and that he had never used the word “many.”

Resort area residents have been upset about their individual-market insurance rates — which the Kaiser Family Foundation determined were the highest in the nation on the ACA-created exchanges, based on the lowest-cost “silver” plan. The resort counties made up one of the state’s geographic rating areas, which insurers could use to price plans on the individual market and exchange. Garfield County officials even threatened to sue the state for including it as part of the four-county resort area, and the Colorado Division of Insurance ultimately proposed new geographic rating areas to distribute costs across broader regions. Rates for 2015, which will be based on the new areas, haven’t yet been released by the Division of Insurance but are expected later this month, a DOI spokesman told us.

Still, the rates won’t say much, if anything, about how premiums changed overall from before the ACA to now. As we’ve explained before, the law changed the way insurers can price plans on the individual market, which was historically volatile to begin with, with policyholders switching plans or exiting the market after short periods of time, reports in the journal Health Affairs have shown. Before the law, insurers could price plans based on health status or decline coverage due to medical conditions. The ACA required insurance companies to accept any applicant — regardless of preexisting conditions — and premiums can now only vary based on family size, geography and, to a limited extent, age and tobacco use. Prices can’t vary based on someone’s health.

On top of that major change in the way the market prices plans, individual (and small-group) plans also have to include certain essential benefits, including maternity coverage, prescription drug coverage and preventive care benefits. That means whether someone’s premiums on this market have gone up or down depend on individual circumstances. Those with health conditions were likely to see a drop in premiums; healthy folks with bare-bones plans were likely to see increases. And they may or may not have welcomed the more robust coverage in benefits.

The overhaul of this market made it difficult — if not impossible — to provide apples-to-apples comparisons of how premiums have changed. We contacted the Colorado Health Institute, a nonprofit, nonpartisan research and analysis organization, to ask whether rural or resort area residents had seen increases overall in premiums due to the Affordable Care Act. Amy Downs, senior director of policy and analysis, told us via email that “it’s hard to compare plan premiums before and after the Affordable Care Act was implemented. The whole playing field changed. Plan design requirements, provider networks, how premiums can be set by insurers all changed. People who could never purchase health insurance due to pre-existing conditions are now in the market.”

Said Downs: “To do a before and after comparison would be difficult because we wouldn’t have anything similar to compare.”

The nonpartisan Kaiser Family Foundation, normally the primary source for just such a comparison, also said it simply couldn’t be done, explaining in a September 2013 report that the new benefit requirements and ban on pricing by health status “make direct comparisons of exchange premiums and existing individual market premiums complicated, and doing so would require speculative assumptions and data that are not publicly available.”

High Costs for Rural and Resort Residents Pre-ACA

Coloradans living in ski resort areas or sparsely populated rural areas faced higher health costs before the health care law, and it’s unclear if the law caused an overall increase in premiums. The Colorado Division of Insurance says the new exchanges made the price variation across the state more transparent, so residents in high-cost areas could see how much more they were paying compared with other Coloradans for the first time. That information, in fact, shows the lowest-cost bronze plan on the exchange in 2014 for a 40-year-old in Denver and Boulder was $186.20, but in the resort area, it was $349.31.

It’s clear, however, from local news reports that there was outrage after the exchanges or marketplaces launched last fall. The Crossroads ad begins with text that reads, “rural residents confront higher health care costs,” citing a March 30 Associated Press story. That article said: “Health care has always been more expensive in far-flung communities, where actuarial insurance data show fewer doctors, specialists and hospitals, as well as older residents in need of more health care services. But the rural-urban cost divide has been exacerbated by the Affordable Care Act.” The AP noted that geography was one of the few factors insurers could use to vary rates.

The AP story quoted the spokesman for the America’s Health Insurance Plans, a trade group, as saying the prices reflected the higher medical costs in sparsely populated areas, and that wasn’t new. “Health insurance premiums track the underlying cost of medical care. This was true before the ACA, and it’s true now,” spokesman Robert Zirkelbach was quoted as saying. “Hopefully, the exchanges will shine a spotlight on the variances that exist in the cost of medical care.”

Another story cited by Crossroads, from the April 16 Colorado Independent said: “There have always been fewer – and, therefore, often more expensive — insurance options in the state’s rural and mountain areas.” The story said that rates in resort communities “have skyrocketed” but also noted that it wasn’t clear whether the ACA has caused in increase in rural areas. “Lawmakers are working to find out if the ACA has prompted hikes in rural health care costs or simply brought higher rates into clearer view as more rural Coloradans look for coverage, which long has been more expensive than in urban communities,” the story said.

We spoke with Vincent Plymell, communications manager for the Colorado Division of Insurance, who also said that health care, as well as other costs, have long been higher in mountain areas of the state. “The recent challenge had to do more with transparency,” he said. “People in the mountain areas could now more easily see and compare what people in Denver, Colorado Springs or Fort Collins were paying for their health insurance.”

An actuarial study commissioned by the Division of Insurance this year determined that health costs (including major medical and pharmacy costs) in the resort areas were 37 percent higher than the state average in 2012. (See Exhibit 5.) The figures were adjusted for age and gender.

Plymell said the geographic rating areas insurers had to use for 2014 rates on the individual market “didn’t cause any increase.” The essential benefit requirements under the ACA did cause an increase in some cases, he said, depending on what type of plan an individual had before. “That was true all over the state,” Plymell said.

All we can say with certainty is that some residents of resort and rural areas were upset with their individual market premiums — whether that was because the rates increased under the ACA or because those residents could see they were paying a lot more than people in other parts of Colorado.

ACA Causes Lack of Doctors?

The Crossroads ad also implies that the Affordable Care Act has affected the ratio of patients to doctors when it says, “On the eastern plains, patients now outnumber doctors five thousand to one.” That figure comes from a study released in February by the Colorado Health Institute. But there’s no indication in the study that the ACA has caused a change in the scarcity of primary care doctors in rural areas of the state.

The data is from 2013, and it’s the first time the study was conducted. The ad says this is “now” the case, as if there’s been a change, but we don’t know what the situation was in the past. The Health Institute’s Downs confirmed that the study wasn’t blaming the ACA for the problem. “Because the analysis was conducted prior to the launch of the major insurance reforms in the ACA, we don’t attribute the Affordable Care Act as a reason why there are few primary care physicians on the eastern plains,” she said in an email to FactCheck.org.

The institute found that statewide, Colorado had a “pretty good ratio” of residents to full-time equivalent primary care physicians from a “big-picture perspective,” it said. But there were large discrepancies between certain areas of the state.

Colorado Health Institute report, February 2014: When you look closer, though, our study shows that while many areas have enough primary care physicians to care for the population, a number of others – primarily rural and underserved urban areas – likely do not have enough. …

Denver County has 1,348 residents for each full-time practicing primary care physician. Less than an hour’s drive to the east, in a rural region consisting of Cheyenne, Elbert, Kit Carson and Lincoln counties, there are 5,636 residents for each full-time primary care physician – or more than four times as many.

The study found that the state “appears to have a suitable number of practicing primary care physicians” overall, but certain regions did not. In the rural counties listed above, it suggested a tripling of the current number of full-time equivalent primary care doctors.

The ACA didn’t cause the problem — after all, this is a ratio of the population to doctors, not how many patients each doctor has. And there isn’t any past data with which to compare the study. The study gives several reasons for a challenging situation — fewer physicians choosing to be primary care physicians, an aging population that needs more care, and doctors who are also aging and retiring.

The Colorado Independent article cited in the ad noted that this ratio of doctors to residents was one of the reasons, among a “complex constellation of factors,” for higher health costs in rural areas. Without much competition, providers had little incentive to charge lower prices.

– Lori Robertson

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The Rest of Alaska’s Crime Story http://www.factcheck.org/2014/09/the-rest-of-alaskas-crime-story/ Fri, 05 Sep 2014 22:29:07 +0000 http://www.factcheck.org/?p=88214 A controversial TV ad from Sen. Mark Begich accuses his opponent, former Alaska Attorney General Dan Sullivan, of letting “a lot of sex offenders get off with light sentences” — specifically one ex-con who prosecutors say killed an elderly couple and raped their infant granddaughter in 2013. The ad, though, doesn’t tell the full story.

The “light” sentence was not by choice, but because the Alaska Public Safety Information Network (APSIN) provided prosecutors with an incomplete criminal history of the accused murderer, Jerry Andrew Active, when he was charged in an earlier assault in 2009. Active was sentenced to four years in the 2009 case for the attempted sexual abuse of a minor in the second degree, because the APSIN database did not include a 2007 felony conviction. If it had, Active would have been subject to a sentence of eight to 15 years, rather than two to 12 years, and presumably he would have been given a longer prison term.

Three state departments share the blame for the “light” sentence: the Department of Law, the Department of Corrections and the Department of Public Safety.

As attorney general, Sullivan was in charge of the Department of Law, which prosecuted the 2009 case against Active and reached a plea agreement with him that resulted in a four-year prison term. There is at least one other way to access criminal background information besides APSIN, and an argument could be made that Sullivan’s office did not do its due diligence.

Still, Sullivan had no responsibility for the incomplete database maintained by APSIN, which is an agency within the Department of Public Safety and the primary source used by the state for criminal background checks. And Sullivan did not have responsibility for the probation officer at the Department of Corrections who wrote a confidential pre-sentencing report that apparently failed to include Active’s complete criminal history.

The ad ignores the reason for the “light” sentence or other parties responsible for the sentencing snafu. It also implies that Sullivan was personally responsible for Active’s sentence, but there is no evidence that he had any direct involvement in the case.

The ‘Crime Scene’

The Begich campaign began airing the TV ad, titled “Crime Scene,” the Friday before Labor Day. By Sept. 2, the campaign had pulled the ad after the victims’ family expressed concern that the ad would interfere with Active’s trial, according to a letter that the family’s attorney sent to the Begich campaign and that was obtained by The Daily Caller.

The Sullivan campaign condemned the ad and accused Begich of “lying.”

The ad features retired Sgt. Bob Glen, a 20-year veteran of the Anchorage Police Department, who tells viewers that he wants to “show you a crime scene,” and then he jumps into his car and drives to 415 N. Bragaw Street, Anchorage, Alaska. That’s the location of a grisly attack on an elderly couple and their 2-year-old granddaughter on May 25, 2013.

Retired police officer: I want to show you a crime scene. I was on the Anchorage police force for 20 years. I don’t know how long Dan Sullivan lived in Alaska, but I do know what he did as attorney general. He let a lot of sex offenders get off with light sentences. One of them got out of prison and is now charged with breaking into that apartment building, murdering a senior couple and sexually assaulting their 2-year-old granddaughter. Dan Sullivan should NOT be a U.S. senator.

It’s Glen’s opinion that Sullivan “let a lot of sex offenders get off with light sentences.” The Alaska Democratic Party provided us with a list of cases that it believes proves the point, but that amounts to anecdotal evidence. Others we spoke to in Alaska don’t share that opinion.

“It is not my experience that the District Attorney’s Office ‘lets a lot of sex offenders get off with light sentences,’ ” said Wally Tetlow, a former president of the Alaska Association of Criminal Defense Lawyers. “That has never been my experience.”

So, we will set that aside and instead focus on whether one of those sex offenders got off lightly — the focus of the ad.

The facts about the attack as presented in the ad are accurate. Jerry Andrew Active is not mentioned by name, but the address provided on the screen is the site of a crime he now stands accused of committing.

On June 3, 2013, Active was indicted for the murders of Touch Chea, 73, and his wife, Sorn Sreap, 71, and multiple sexual assaults of the 2-year-old granddaughter whom they were babysitting. The Alaska Dispatch News reported that Active “had been released from the Anchorage Correctional Complex about 12 hours before allegedly committing the grisly murders and assaults.” The paper said three Democratic lawmakers called for an investigation into “whether he should have served a longer sentence for an earlier assault.”

The Alaska Dispatch News was referring to the sentence Active received in 2010 when Sullivan was the attorney general. An investigation was launched, and state Attorney General Michael Geraghty announced on June 6, 2013, that Active should have received a longer sentence in 2010. He said the plea agreement “may have been incorrect and not consistent with the law.”

Here’s what happened, according to the attorney general’s report: Active was arrested on Jan. 29, 2009, on charges of “burglary in the first degree, sexual assault in the second degree, sexual abuse of a minor in the second degree, and assault in the fourth degree. The district attorney’s office added counts of attempted sexual abuse of a minor and criminal trespass.” The sexual assault involved an 11-year-old girl. On Jan. 30, 2009, the state ran a criminal background check using APSIN, but as Geraghty explained: “This report failed to include Mr. Active’s prior felony conviction from the 2007 offense.”

The 2007 felony conviction was for furnishing alcohol to a minor.

Attorney general’s press release, June 6, 2013: As a result of Mr. Active’s felony conviction in the 2007 case, and his conviction for attempted sexual abuse of a minor in the 2009 case, he was subject to a presumptive sentencing term of eight to fifteen years. The Department of Law, the Department of Corrections and the sentencing judge failed to identify Mr. Active’s prior felony conviction for purposes of calculating the applicable presumptive sentencing term, and believed that Mr. Active was subject to a presumptive sentence of two to twelve years for what was believed to be his first felony conviction for attempted sexual abuse of a minor.

Who’s to Blame?

Sullivan was not appointed attorney general until June 2009, so the Sullivan campaign says the fact that the faulty criminal background check was done about five months before Sullivan took office absolves him of any wrongdoing. That is a matter of dispute — even among Alaska’s criminal defense lawyers.

Sullivan was the attorney general when the plea agreement was reached in March 2010. His office had the opportunity to review Active’s criminal history before it negotiated a plea agreement.

“In my expert opinion, a DA that relies solely on APSIN without checking CourtView is not exercising due diligence,” Tetlow, the former president of the state defense lawyers association, told us.

CourtView is a state court database that provides summary information on cases dating to 1990. We found the criminal history of Jerry Andrew Active with just a few key strokes.

Steven Wells, who also is a past president of the Alaska criminal lawyers association, agreed — to a point. “It is incumbent on the AG’s office to run a background check, but they aren’t the only ones to do so. The probation officer will write a report called a pre-sentence report (PSR),” Wells told us in an email.

A pre-sentencing report was done in this case, and it was presented to the court on July 9, 2010, according to the attorney general’s review of the Active case. That report is confidential, so we don’t know what it says. However, the attorney general’s report listed the Department of Corrections — which includes the Division of Probation and Parole — as among those responsible for failing to “identify Mr. Active’s prior felony conviction for purposes of calculating the applicable presumptive sentencing term.”

Wells, however, doesn’t blame Sullivan or the probation officer. “I believe that Sullivan is being unfairly blamed, but not because the mistake occurred prior to his taking office. Instead, the problem is in APSIN,” Wells said.

APSIN’s failure to include the 2007 felony conviction in its database was particularly troublesome because, as the attorney general’s office said in its June 2013 press release, “[t]he state primarily relies upon the Alaska Public Safety Information Network (APSIN) to determine the prior criminal history of defendants.”

The Begich campaign placed the blame squarely on Sullivan, but in doing so it distorted the facts.

The Begich campaign issued a timeline of events that falsely states in March 2010 “Dan Sullivan enters into an improper plea agreement with Jerry Active.” As proof, the campaign provided a screen grab of the plea agreement showing Sullivan’s name. “Dan Sullivan’s name appears on a plea agreement with Jerry Active,” the campaign timeline says. But the plea agreement was signed by Assistant District Attorney Gustaf Olson, not Sullivan. That information was not part of the timeline.

The Begich campaign provided no evidence that Sullivan had any involvement in Active’s 2010 plea agreement — despite the implication that he did both in the ad and in the campaign’s timeline.

The Alaska Democratic Party makes a separate point that Geraghty in 2013 changed the plea bargain process to prevent prosecutors from negotiating plea agreements with defendants for sexual crimes and violent felonies. That, it says, is evidence that the plea bargain process was broken under Sullivan.

Attorney General Michael Geraghty, Department of Law 2013 Annual Report: I instituted a change in the plea negotiation process to restore sentencing where it belongs, with judges. While our Criminal Division will continue to arrive at appropriate plea dispositions based on the law and the facts, we will no longer agree to sentences with the defendant for sexual crimes and violent felonies. Instead, our prosecutors will argue for the stiffest sentence supported by the law and the facts, and allow the court to impose what it believes to be an appropriate sentence. I took this step because it is critical for the public to have confidence in the criminal justice system and it is judges, not prosecutors, who should be determining the appropriate sentence in those serious cases that affect our communities.

That’s not evidence, however, that Sullivan “let a lot of sex offenders get off with light sentences.” And whether the new process has or will result in longer sentences is not known.

It’s possible the change may result in shorter sentences. For example, the Alaska Democratic Party sent us a link to a March 1, 2012, news article in which state Supreme Court Chief Justice Walter “Bud” Carpeneti urged state legislators to change the sentencing guidelines to give judges more power to set sentences rather than approve plea agreements. But, contrary to the Democratic Party’s point, Carpeneti argued for the change as a way to reduce prison sentences.

“Too many of Alaska’s young men, particularly our young men of color, are spending their early adulthoods in our prison system,” Carpeneti told lawmakers.

In the end, we find that the Begich ad is misleading because it doesn’t tell the full story of Active’s “light” sentence; it ignores the responsibility that other state agencies had in this tragic case; and it leaves the false impression that Sullivan was personally involved in the plea agreement.

– Eugene Kiely

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Sept. 5: Presidential Support, Ethics, Crime http://www.factcheck.org/2014/09/sept-5-presidential-support-ethics-crime/ Fri, 05 Sep 2014 17:41:57 +0000 http://www.factcheck.org/?p=88409
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NRCC, Again, Cherry-picks Data http://www.factcheck.org/2014/09/nrcc-again-cherry-picks-data/ Thu, 04 Sep 2014 21:29:32 +0000 http://www.factcheck.org/?p=88099 The National Republican Congressional Committee once again uses selective evidence to attack a congressman for supporting President Obama. This time, the target is Democratic Rep. Nick Rahall of West Virginia.

Joe McCormick, a coal miner from Seth, West Virginia, says in an NRCC TV ad: “Anyone, including Nick Rahall, who supports Barack Obama, is not a friend of coal.” That’s followed up later with a graphic saying that Rahall “voted with Obama 94% of the time.” But as we found last month, when the NRCC attacked Georgia Rep. John Barrow, the group is cherry-picking data to support its case.

It’s true that Rahall voted with Obama that often in 2009, as the ad notes, according to a Congressional Quarterly analysis of votes. But Rahall has won two elections since then and his support for Obama has dropped each year. He sided with the president on just 58 percent of votes in 2013. Rahall doesn’t always side with the Obama administration on coal-related issues, either, as the ad suggests.

The 60-second ad, called “Rahall’s Record,” is the first from the NRCC in the race for West Virginia’s 3rd Congressional District between Rahall and Republican Evan Jenkins. It began airing in the Bluefield-Beckley and Charleston-Huntington TV markets on Sept. 2.

In the ad, McCormick says, “When Nick Rahall votes with Barack Obama, that tells me that Nick Rahall don’t really care about Southern West Virginia. He don’t care about us coal miners.” He says that as a graphic appears on screen, saying Rahall “voted with Obama 94% of the time.”

Yes, Rahall voted with Obama that often in 2009, according to CQ’s study of congressional votes where Obama took a clear position. But ad watchers should know that Rahall has voted less often with the president every year since. Rahall’s support of Obama’s position dropped to 88 percent in 2010, 65 percent in 2011, 64 percent in 2012 and 58 percent in 2013, when he ranked 11th among House Democrats who opposed Obama most often.

And Obama can’t always depend on Rahall’s vote on energy policies affecting the coal industry, as the NRCC ad would have viewers believe.

The ad also uses the headline of a May 11 op-ed in the Charleston Gazette that says, “W.Va. should be wary of EPA’s push to regulate.” In fact, Rahall has expressed his wariness of a proposal by Obama and the EPA to cut carbon emissions from existing coal plants 30 percent below 2005 levels by 2030.

After the EPA announced its plan, Rahall vowed to introduce a bill to stop it. And on June 9, he and Republican West Virginia Rep. David McKinley introduced H.R. 4813, The Protection and Accountability Regulatory Act. A press release said the bill “would terminate the new rule for existing power plants, along with the proposed rule for future power plants. In addition, to prevent some sleight of hand maneuver by the EPA, the bill will aim to block the issuance of similar rules for at least the next 5 years without Congressional approval.”

At the end of the ad, McCormick says, “I’d say that a vote for Nick Rahall is a vote for Obama.” That’s clearly not always the case in general, or even just on votes on coal-related issues.

– D’Angelo Gore

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