A Project of The Annenberg Public Policy Center

Sunday Replay


The Sunday talk shows contained ample misinformation this week. Supreme Court nominee Elena Kagan was the subject of bogus claims coming from two lawmakers, and a Democratic candidate for Senate fudged the facts about his military record. Also, a Republican former House speaker played loose with the facts, while accusing the president and his party of "anti-religious bias."

Kagan: No Lawbreaker

On ABC’s "This Week," Republican Sen. Jeff Sessions falsely accused Supreme Court nominee Kagan of "violating the law." He claimed that she did this by barring the military from using Harvard Law School’s Office of Career Services for recruitment when she was dean of the school. But the fact is she did nothing criminal or illegal as Sessions would have us believe:

Sessions: She disallowed them from the normal recruitment process on campus. She went out of her way to do so. She was a national leader in that, and she violated the law of the United States at various points in the process.

What Sessions is referring to is the 1996 Solomon Amendment. That law did not make it criminal to bar military recruiting. Rather, it cut off federal funds for colleges and universities that refused to permit military recruiters access to students "that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer."

Harvard Law School, since 1979, had a policy of requiring employers recruiting at the school to sign statements saying they didn’t discriminate on the basis of race, gender or sexual orientation. Military officials couldn’t sign that statement because the 1993 "Don’t Ask, Don’t Tell" policy precluded openly gay people from serving. Therefore, the armed services were barred from using the Office of Career Services at the Law School to recruit. They could still recruit, but they had to do it through a student organization.

In 2002, the military threatened to crack down and pull the school’s federal funding for not providing equal access. Because of a post-9/11 expansion of the law, all of Harvard University was threatened with a loss of funding, not just the law school, where the ban was in place. The law school opened up its facilities to military recruiters.

Kagan became dean the next year, and continued to give military recruiters equal access, though she wrote an open e-mail condemning the military’s discrimination against openly gay members. In 2004, she and other Harvard Law professors filed an amicus brief in the 3rd Circuit U.S. Court of Appeals in a challenge brought by a group of law schools to the Solomon Amendment on First Amendment grounds; they sought an injunction to prevent the law from being enforced while their case wound its way through the courts.

The 3rd Circuit agreed to the injunction, saying that the Solomon Amendment was probably unconstitutional: "[W]e hold that [the group of law schools] has demonstrated a likelihood of success on the merits of its First Amendment claims and that it is entitled to preliminary injunctive relief." It also said that "[t]he Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives" without a compelling governmental interest.

Kagan immediately resurrected the pre-2002 policy of barring the military from the Office of Career Services, though she continued to let it recruit via the student organization. That was late 2004. But then, as the 3rd Circuit case was pending in the Supreme Court, the Pentagon again threatened to cut off federal funds to Harvard. Kagan folded, allowing the services to return to full access status once again. Her ban had lasted only a semester.

Kagan signed an amicus brief to the Supreme Court, but it did little good. The justices voted 8-0 to uphold the Solomon Amendment. The opinion was issued in 2006. So it is fair to say that Kagan disputed the constitutionality of the law, and that her position eventually was overruled decisively by the Supreme Court. But to claim that she "violated the law" is not accurate. The law gives colleges and universities a choice between allowing military recruiters the same access to students that other potential employers have, or seeing government grants and funds cut off — more like a requirement to eat one’s lima beans before getting dessert than a law against, say, embezzlement, that carries a prison sentence.

OK to Ban Books and Pamphlets?

On NBC’s "Meet the Press," Senate Minority Leader Mitch McConnell misleadingly claimed that Kagan and her subordinates had argued in favor of banning books and pamphlets:

McConnell: Solicitor Kagan’s office in the initial hearing argued that it’d be OK to ban books. And then when there was a rehearing Solicitor Kagan herself, in her first Supreme Court argument, suggested that it might be OK to ban pamphlets.

But, in fact, what Kagan and lawyers working for her said was that corporations should not be allowed to finance printed materials that advocated the election or defeat of a candidate for federal office. They did argue that the government could ban publication of such material if paid for with corporate funds. Though in the rehearing, Kagan said that the government had never applied the statute being discussed to a book, and it wouldn’t do so.

McConnell was referring to the case of Citizens United v. Federal Election Commission, in which the Supreme Court ruled earlier this year that corporations and labor unions could spend freely from their general treasury funds in federal elections. Kagan, as U.S. solicitor general, argued for upholding the law that the court eventually struck down.

In an initial hearing before the court, Deputy Solicitor General Malcolm L. Stewart argued that in instances where a book advocated for the election of a particular candidate and was paid for by corporate or union general treasury funds, the government could prohibit the publication of the book, or require the use of political action committee funds:

Chief Justice John Roberts: It’s a 500-page book, and at the end it says, and so vote for X, the government could ban that? . . . Stewart: Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds. Roberts: And if they didn’t, you could ban it? Stewart: If they didn’t, we could prohibit the publication of the book using the corporate treasury funds.

At a later hearing in the case, however, Kagan said that the solicitor general’s office had reconsidered its previous view and found that any attempt to apply the corporate spending ban to a book would be subject to a "quite good as-applied" legal challenge, and that the government had never attempted to apply it to books. But Kagan said that pamphlets were different:

Chief Justice John Roberts: [I]f you say that you are not going to apply it to a book, what about a pamphlet? Kagan: I think a — a pamphlet would be different. A pamphlet is pretty classic electioneering …

Kagan went on to say:

Kagan: [W]hat we’re saying is that there has never been an enforcement action for books. Nobody has ever suggested — nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem.

So Kagan’s subordinate, in arguing the fine points of how the ban on corporate campaign funding should be applied, did argue that a hypothetical, corporate-funded book could be banned. Kagan later reversed that position, saying that the law would apply to corporate-funded political pamphlets but not books. But both those statements are a long way from saying "it’s OK" to ban either books or pamphlets in general.

Sestak’s Matter of Record

On CNN’s "State of the Union," Rep. Joe Sestak’s statement that his military "record is public" is false. Sestak, who is running against incumbent Sen. Arlen Specter in the Pennsylvania Democratic primary, was asked about how he has handled questions regarding his Navy record. "Why wouldn’t you put your military record out there," host Candy Crowley asked, "because doesn’t it look like you’re hiding something?"

Sestak: As a 30-year veteran, I don’t owe Arlen Specter anything. My record is public. I joined in the Vietnam era and I retired in Afghanistan. And my chief of naval operations, the head admiral, went on the record to say, Joe Sestak, he was courageous in changing the Navy. He challenged people in the Rumsfeld administration who didn’t want to be challenged. Look I retired because I asked to put in my papers. My daughter had a brain tumor. And I needed three years to retire as a three-star admiral. I only had one in. I did what any father would do, I addressed the issue. And for Arlen Specter to say anything else is absolutely false.

Sestak is being less than forthcoming here. The issue has to do with Sestak’s departure from the Navy in 2005. The Navy Times reported in July of that year that Sestak, an admiral and the deputy chief of naval operations at the time, was being reassigned by incoming Chief of Naval Operations (and now Chairman of the Joint Chiefs of Staff) Admiral Mike Mullen. The article quotes a source saying that the change was being made because of "poor command climate" under Sestak.

Sestak retired in 2006, shortly after his reassignment. He ran for the House and defeated incumbent GOP Rep. Curt Weldon. According to retired Adm. Vern Clark, who was Mullen’s predecessor as chief of naval operations, Sestak also angered top military officials because he recommended cutting back the Navy’s fleet. It’s also true that Sestak’s daughter had a brain tumor. But in the military’s up-or-out chain of command, Sestak had nowhere to go but down, and his career had hit a dead end.

Sestak is misstating the facts about his record. It’s true that the broad outlines of Sestak’s career are public. But the full record is not. He hasn’t released the relevant documents, despite calls to do so from the Philadelphia Inquirer and others.

"Relentless Anti-Religious Bias"

Former House Speaker Newt Gingrich played loose with the facts on "Fox News Sunday." The Republican falsely attributed a recent court decision against the National Day of Prayer to the Obama administration, which actually defended the law sanctioning the event and is currently appealing the ruling. He also overstated public support for repeal of the new health care overhaul. Gingrich mentioned the court ruling on prayer in a litany of examples to support his opinion that Obama and the Democrats are trying to impose a "secular socialist machine" on the United States.

Gingrich: I mean, there’s a continuous, relentless anti-religious bias. The recent judge’s decision that a day of prayer is unconstitutional — which if it weren’t so serious it would be laughable.

Gingrich was referring to an April 15 ruling by U.S. District Court Judge Barbara B. Crabb, who held that the 1983 law establishing a "national day of prayer" (36 U.S.C. § 119) violates the First Amendment to the U.S. Constitution.

But as we reported April 29, that court ruling is not Obama’s doing. Quite the opposite. In fact, the lawsuit was brought by a group of atheists and "free thinkers" against the president, who is the lead defendant named in the case (actually the case was filed against the Bush administration, but Obama became the lead defendant when he took office). Furthermore, Obama filed a notice of appeal on April 22.

It’s true that Judge Crabb was nominated by a Democrat, President Jimmy Carter, in 1979. But it may be worth noting that Carter, far from showing "anti-religious bias," taught Sunday School regularly while he was president, and still does. As recently as March of this year the ex-president’s Sunday School classes at Maranatha Baptist Church in Plains, Ga., were still packing them in.

"The Entire Country Rejecting Health Care"

Gingrich also strained the facts when he claimed that "you have the entire country rejecting health care" and that a large majority favors repeal of the new law:

Gingrich: [T]oday for the first time, I think, in my lifetime you have a bill which passed which 58 percent of the country wants to repeal.

That 58 percent figure is no longer accurate, even measured by the Rasmussen Reports poll to which Gingrich was referring. As of May 11, the figure was 56 percent, and it remained at that level in a new poll released the day after Gingrich spoke. In nine weeks of polling, Rasmussen found support for repeal hit 58 percent twice, in polls conducted April 10-11 and April 24-25. But according to Rasmussen, it was not at that level when Gingrich claimed it was "today," and at other times it has been as low as 54 percent.

Furthermore, other polls produce a different picture. A poll conducted May 6-10 for NBC News and the Wall Street Journal found that only 44 percent said they thought the health care law was a "bad idea," while 32 percent said they considered it a "good idea." Eighteen percent were unsure or had no opinion. The same poll found only 42 percent said they would be more likely to vote for a candidate for Congress "who says we should repeal the new health care law entirely and then start over," while 55 percent said they would favor a candidate "who says we should give the new health care law a chance to work and then make changes to it as needed." That doesn’t square with Gingrich’s claim that "the entire country [is] rejecting health care."