Well, after all of the warnings of CNN's general awfulness I have offered, who was tuned into the most trusted name in holograms at the moment the Supreme Court dropped its decision on the Affordable Care Act? Me. Like a moron. And today was the day that CNN decided to etch its name in the annals of news fails, reporting inaccurately that the individual mandate had been struck down by the Supreme Court.
It hadn't. In fact, by the grace of the court's majority, the individual mandate lives and breathes. CNN's reporting begat a flurry of reaction on Twitter, in which HuffPost and other news organizations took part, and probably a moment of heartbreak for fans of the Affordable Care Act. After a pause, however, it became clear that that the mandate, and the law, had survived. It was a ruling that few predicted, and which required a modicum of patience to understand. CNN was the least patient in a world of Court-watchers all chomping at the bit, and so, they take the hit. But when you step back and think about the way this story built up over the past few months, it was probably inevitable that someone would get it wrong.
Today's woes began when Kate Bolduan, CNN's congressional correspondent, reported the news on the air. She got tripped up in the language over the Commerce Clause, which the court found to be insufficient backing for the individual mandate. What Bolduan missed was the latter part of the opinion, which found that the mandate could be upheld as a tax.
The horse fled the barn almost immediately. CNN plastered the screen with a chyron indicating that the mandate had been struck down, and John King began analyzing the matter as if it were a done deal: "The Justices have just gutted the centerpiece provision of the health care law." CNN sent out a breaking news alert via email. Mere seconds later, Fox News reported the same thing, and with that, the news was everywhere.
At this point, perhaps the most significant thing being reported on the matter was from Amy Howe at SCOTUSBlog, who at 10:08 wrote into the site's live blog: "Parsing it ASAP."
Now, let's defend CNN a little bit here. Coming into today, everyone in the news business was primed to expect this ruling to go against the White House. And as the law has faced various legal challenges on its way to the Supreme Court, there has been a distinct tendency on the media's part to make a bigger deal of the rulings that have gone against the Affordable Care Act, while downplaying those occasions where judges have upheld the law. We're all pretty definitively oriented in the direction of accounting for big changes to the status quo. We're less inclined to see the law succeeding, more or less as it was intended, as a big deal.
It's also a fairly nifty bit of legal decision-making that very few people predicted. One who did was Talking Points Memo's Brian Beutler, who back in March perceived that Chief Justice John Roberts had "tipped his hand" on how he was going to rule on the matter:
In an exchange with a plaintiffs attorney, Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.
“The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,” Roberts said, over strong objections from attorney Gregory Katsas. “It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. … Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.”
Very few people joined Beutler in his making this prediction. One who did was Jonathan Cohn of the New Republic, who, in a conversation with The Huffington Post's Sam Stein this past weekend, predicted the mandate would be preserved as a tax.
Part of the reason that very few people saw this coming is because all the attention focused on Justice Anthony Kennedy as the Court's key swing vote on the matter. I doubt you'd find many people who would have predicted before today that Roberts would join with the liberal wing of the court and Kennedy would rule in the opposite direction. (Fox News personalities are having a particularly hard time concealing their disappointment with Roberts this morning.)
And President Barack Obama himself very explicitly stated that he did not consider the individual mandate to be a tax, in an appearance in 2009 on "This Week With George Stephanopoulos." The Wall Street Journal chronicles their exchange in full, but here's the essential part:
Mr. Stephanopoulos: I wanted to check for myself. But your critics say it is a tax increase.
Mr. Obama: My critics say everything is a tax increase. My critics say that I'm taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but ...
Mr. Stephanopoulos: But you reject that it's a tax increase?
Mr. Obama: I absolutely reject that notion.
Media organizations, of course, operate under their own individual mandate, most importantly the need for speed -- getting it fastest and getting it first. When you add that factor to the rest of the tidal forces directing coverage this morning, it's disappointing that CNN got this wrong, but it's not surprising. As they say, "There but for the grace of God go I," and over at the Associated Press, that is the dictum they seem to be following in response to CNN's mistake. Earlier this morning, the AP's Central U.S. region editor David Scott fired off a stern email to his staff: "Please, immediately, stop taunting on social networks about CNN and others’ SCOTUS ruling mistake and the AP getting it right."
"In his opinion, Justice Roberts initially said that the individual mandate was not a valid exercise of Congressional power under the Commerce Clause," a CNN spokesperson said in a statement. "CNN reported that fact, but then wrongly reported that therefore the court struck down the mandate as unconstitutional. However, that was not the whole of the Court’s ruling. CNN regrets that it didn't wait to report out the full and complete opinion regarding the mandate. We made a correction within a few minutes and apologize for the error."
Nevertheless, sometime around eleven o'clock tonight, Jon Stewart will probably come on teevee and commence to chopping off CNN's head. I, who tweeted their breaking news like a parakeet, volunteer to lay my own head on the guillotine alongside them.
UPDATE: Michael Hastings at Buzzfeed has spoken to several CNN staffers, and there is a substantial amount of in-house criticism being passed around:
And a half dozen top on-air reporters and producers within the esteemed news organization told BuzzFeed they are furious at what they see as yet another embarrassment to a network stuck in third place in the cable news race, and torn between an identity as the leader in hard news and the success of their opinionated, personality-driven rivals, Fox News and MSNBC.
“Fucking humiliating,” said one CNN veteran. “We had a chance to cover it right. And some people in here don’t get what a big deal getting it wrong is. Morons.”
“Shameful,” another long-time correspondent told BuzzFeed.
But Hastings reports that CNN's legal correspondent Jeffrey Toobin is trying to keep a grip on things: "“It looked to all the world like the chief justice was going to strike down the law." He's right. Go read Hastings' whole piece for more.
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