A: A widely circulated anti-Census commentary makes several false claims. The law requires truthful answers and states that they will be kept confidential. Courts have upheld its constitutionality.

FULL QUESTION

I have received the following spam e-mail re 2010 Census takers, and it states that they are asking questions regarding one’s feelings about the Fourth Amendment (i.e. search and seizure). A Jerry Day has produced a video on YouTube stating this as fact.

I did a search of Goggle and came up with the 10 questions asked on the 2010 form and replied to my sender! Replied to my sender with a stongly worded "not to believe everything they receive in e-mail."

Below is what was forwarded to me.

At our house, the census takers will get only how many people live here, which is all that is required by law to tell them……………….

Looks like ‘Big Brother’ is getting nosy and personal………

They can only ask how many people live in the house.. nothing else…  look at all the information they are trying to gather.

⬐ Click to expand/collapse the full text ⬏

Please pay attention to the solution suggestions as how to respond and
what to ask the census taker.

Since this is so important I am blind copying a lot of people.

From: Thomas

Here is the detail form that they will be using. As you can see, they are asking questions that violate the 4th Amendment and the Constitution in general. I am attaching the link to the YouTube Video again so that this can be easily passed along.

http://www.youtube.com/watch?v=RsDhkPym01k

FULL ANSWER

With Census questionnaires hitting America’s mailboxes this week, we thought it would be timely to respond to questions that we’ve been getting about claims made in chain e-mails, on anti-government Web sites and particularly in an anti-Census editorial posted on the Internet by a Burbank, Calif.-based TV camera operator and video producer named Jerry Day.

Day’s video had received more than 1.6 million viewings on YouTube.com as of March 18, and it has received considerable attention on conservative and anti-government blogs and Web sites. Day bears an uncanny resemblance to the late Harry Reasoner of ABC News, which may give him an undeserved air of authority in some eyes. In fact, Day’s denunciation of the Census is full of misinformation and false claims.

Day says that the Census Bureau will be asking intrusive, personal questions of all Americans, suggests that these violate the Constitution’s Fourth Amendment protections against unreasonable search, and claims that information given to Census is "presumably" subject to subpoena and could be used in court by prosecutors. He also claims that citizens are not required to cooperate with Census takers. He’s wrong on all counts.

The Questions

Day claims that Census will be "asking you things that you would not tell a stranger."

Day: They will be asking you about your disabilities, how much income you receive, where you get your income from, your housing costs, how many cars you own, how much you pay for insurance, if you receive food stamps, how much you pay for utilities. They’ll be asking you things that you would not tell a stranger.

In fact, the 2010 Census form asks for none of that. It asks only how many people live at the address, whether the home is rented or owned and whether it has a mortgage, and the telephone number of the residence. It asks seven additional questions about each individual at the address, including name, sex, age and date of birth, race and whether the person is of Hispanic origin or not, and whether that person sometimes lives or stays at another address.

Census does ask the sort of questions Day refers to — but only of a relatively few Americans. The American Community Survey sends around a questionnaire with 40 different items, asking such things as whether a person is receiving disability benefits (number 16) and how many vehicles are kept at home for use by persons in the household (number 9). But the ACS questionnaire goes only to about 250,000 addresses each month, according to Census spokeswoman Shelly Lowe. That’s a total of 3 million over the course of the year, while the 2010 Census form goes to all 134 million addresses. So only a little more than 2 percent of all homes will be getting the sort of questions Day complains about.

Answers Required

Day claims that citizens don’t have to answer Census questions: "Unless the Census Bureau can show you their Constitutional authority, you don’t even have to open the door for them." In fact, refusing to answer either the brief 2010 Census form or the longer ACS form is a violation of federal law (Title 13, United States Code, Section 221). Refusing to answer is punishable by a fine of $100, while giving false answers carries a fine of up to $500. (As a practical matter, Census says fines of up to $5,000 can be imposed under Title 18, Section 3571.)

Constitutional Authority

Day claims that the Census is exceeding its Constitutional authority by doing more than merely count noses.

Day: You may know that the Constitution allows the government to count us once every 10 years. For some reason, the Census Bureau has recently started counting us, and collecting information about us, every year, all year around. I’m not sure why, because the Constitution does not authorize them to do that. … They are not authorized to demand our cooperation in the contrived schemes they come up with for information gathering.

The Constitution (in Article 1, Section 2) does more than merely "allow" the government to count the population every 10 years — it requires that an "enumeration" be done "in such manner as they [Congress] shall by law direct." Congress started with a simple count in 1790 — asking only for the numbers of free white males and females, slaves and other persons. But by 1820 it was also asking how many in each household were "engaged in agriculture, commerce, and manufactures." In 1830 it asked how many were deaf, dumb or blind. The questions directed by Congress grew increasingly detailed through the remainder of the 19th century, and in 1902 Congress established the Census Bureau as a permanent agency.

"Recently Started?"

Day is incorrect when he claims that the Census Bureau "recently started" asking questions annually. In fact, the Census Bureau was collecting monthly data on employment as early as 1943, through what is now known as the Current Population Survey. It began an annual housing survey in 1973, which is now conducted every other year. What Day may be complaining about is the survey we mentioned earlier — the American Community Survey — which began in 2005.

The ACS is the reason that the 2010 Census is only using a "short form." Previous decennial censuses used a "long form" to gather the same sort of detailed social and economic information. But the "long form" used to be required of one household in six, while the ACS questionnaire goes to just one in 46 this year.

Privacy

Day is off base again when he says that "presumably Census data may be subpoenaed by law enforcement" and used in court. Quite the contrary, the law says clearly that individual Census reports are "immune from legal process" including subpoenas.

U.S. Code, Title 13, Section 9: Copies of census reports … shall be immune from legal process, and shall not, without the consent of the individual or establishment concerned, be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding.

The law also forbids the sharing of individual Census reports with any other "department, bureau, agency, officer, or employee of the Government" (including the CIA and FBI) and prohibits release of anything but statistical information that does not identify individuals or businesses. Furthermore, the law makes it a crime punishable by up to five years in prison and a fine of up to $5,000 for any Census official to make unauthorized release of information. (Census says the fine can be up to $250,000 under Title 18.)

Would a Census official violate that strict privacy law? Historians are still debating what happened during World War II, when Census officials gave the military detailed, block-by-block counts of the numbers of Americans of Japanese descent, who were then rounded up and held in internment camps. Such finely detailed geographic statistics weren’t routine in 1941, as they are now. Census officials may even have been willing to release names and addresses. Census Director J.C. Capt is quoted in the record of a 1942 meeting as saying that — if the military wanted names and addresses of Japanese Americans — "I would give them further means of checking individuals." But despite various rumors and claims, there’s no record of that happening. Two university scholars, William Seltzer of Fordham University and Margo Anderson of the University of Wisconsin, Milwaukee, concluded in a research paper released in 2000 that "the archival record does not establish that unauthorized disclosure of microdata [names and addresses] took place."

Fourth Amendment

Day asks rhetorically, “Do current levels of data collection violate the Fourth Amendment?” The answer given by the federal courts is that they do not. The Fourth Amendment prohibits "unreasonable searches" and requires that search warrants be based on probable cause. But as long ago as 1870 the U.S. Supreme Court wrote in passing that the government had unquestioned authority to ask for more than a mere head count.

U.S. Supreme Court, Legal Tender Cases, 79 U.S. 457 (1870): The Constitution orders an enumeration of free persons in the different states every ten years. The direction extends no further Yet Congress has repeatedly directed an enumeration not only of free persons in the States but of free persons in the Territories, and not only an enumertion of persons but the collection of statistics respecting age, sex, and production. Who questions the power to do this?

And as recently as 2000, a federal judge in Houston, Texas, held that Census questions don’t violate the Constitution. U.S. District Judge Melinda Harmon dismissed the complaint of five plaintiffs who claimed that the Census violated their Constitutional rights. Regarding the Fourth Amendment specifically, she noted that the Census questions didn’t involve uninvited entry into anyone’s home, and that the information was being sought for reasonable and legitimate government purposes.

Judge Harmon: it is clear that the degree to which these questions intrude upon an individual’s privacy is limited, given the methods used to collect the census data and the statutory assurance that the answers and attribution to an individual will remain confidential. The degree to which the information is needed for the promotion of legitimate governmental interests has been found to be significant. … The Court finds that there is no basis for holding Census 2000 unconstitutional.

That opinion was later upheld by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans. The judges wrote simply that "we find no error in the district court’s judgment nor in its stated reasons for its judgment." The U.S. Supreme Court declined to hear any further appeal in 2002.

So — like it or not — the law requires truthful answers to the 10 questions on the 2010 Census form (and to the 40 questions on the American Community Survey form, for the 3 million households that receive it). And the courts have consistently upheld the government’s right to require answers to those questions.

–Brooks Jackson

Sources

Day, Jerry. "The Census is Getting Personal." Video posted on YouTube.com. 11 Feb 2010.

Jerry Day Productions, Burbank, CA. "Some highlights from our experience . . . " Web site accessed 18 March 2010.

US Census Bureau. "The Qustions on the Form." Web site accessed 18 March 2010.

US Census Bureau. "American Community Survey." Web site accessed 18 March 2010.

US Census Bureau. "The 2010 American Community Survey Questionnaire." downloaded 18 March 2010.

13 USC Sec. 221. 2009.

US Const. art. 1 sec. 2.

US Census Bureau. "History: Index of Questions; 1790." Web page accessed 18 March 2010.

US Census Bureau. "History: Index of Questions; 1820." Web page accessed 18 March 2010.

US Census Bureau. "History: Index of Questions; 1830." Web page accessed 18 March 2010.

US Census Bureau. "History: Legislation 1902 - 1941." Web page accessed 18 March 2010.

US Census Bureau "History: Developing Sampling Techniques " Web page accessed 18 March 2010.

US Census Bureau. "History: The American Housing Survey. " Web page accessed 18 March 2010.

US Census Bureau. "History: The American Community Survey. " Web page accessed 18 March 2010.

13 USC Sec. 9. 2009.

13 USC Sec. 214. 2009.

Holmes, Steven. "Census blamed in internment of Japanese; Scholars study wartime bureau." New York Times. 17 March 2000.

Seltzer, William and Margo Anderson. "After Pearl Harbor: The Proper Role of Population Data Systems in Time of War." 20 March 2000. Accessed from University of Wisconsin - Milwaukee Web site 18 March 2010.

US Const. amendment IV.

Legal Tender Cases (79 US 457) Supreme Ct. of the US 1830.

Morales v. Daley, 116 F. Supp. 2d 801, 820 S.D. Tex. 2000.

Morales v. Evans unpublished opinion 275 F.3d 45 10 Oct 2001.

US Census Bureau. "Census in the Constitution." Web page accessed 18 March 2010.

(Click the play button below to listen to the podcast. And bear with us, we are working on getting the podcast on iTunes.)

First up is one from Americans for Stable Quality Care, which is an agglomeration of pro-overhaul organizations such as the American Medical Association, the Service Employees International Union and the Pharmaceutical Research Manufacturers Association.

Much of this ad is true. People with preexisting conditions who are now denied coverage would be able to buy insurance, and lifetime caps on coverage would be a thing of the past if the legislation becomes law.

But when viewers hear the narrator refer to "the 30 million Americans who don’t have health care today, but will tomorrow," they could be led astray. All of those currently uninsured Americans won’t get insurance overnight if the bill is signed. In fact, the Congressional Budget Office doesn’t foresee 30 million gaining coverage until 2016. Why not? Because most of the provisions of the bill that have to do with expanding coverage wouldn’t go into effect right away.

There are some measures that would kick in quickly. For instance, a high-risk pool must be set up within 90 days of enactment, under the terms of the bill, to offer insurance to people with preexisting conditions who aren’t covered through their employers; some subsidies would be given to help them afford the policies. Individuals up to age 26 could be claimed as dependents for purposes of getting health insurance within six months of the law being signed, and the same is true of the ban on insurance companies’ imposing a lifetime dollar-value cap on what they’ll pay under someone’s policy.

But the main provisions that would bring people under the insurance umbrella — such as the expansion of Medicaid and the creation of insurance "exchanges" where individuals could shop for coverage — wouldn’t fire up until 2013 or 2014. That’s why CBO doesn’t expect a big drop in the number of uninsured until 2014, when it predicts 17 million of them would gain coverage. In 2015, that number would grow to 24 million, and by 2016 it would hit 30 milion, CBO figures.

Perhaps the narrator of this ad was using "tomorrow" as a rhetorical device, to convey the idea of "some time in the future." We’ll grant that poetic possibility. But political ads are so rarely mistaken for poetry.

United for Jobs

The liberal group Americans United for Change put out a spot at the end of last week, saying that "Congress can make history by voting to make health care a right." But would the bill "help create jobs," as the narrator says?

The bill likely would create jobs, but it would likely lead to job losses as well. We have reported before on this issue, and more than once. Some liberal sources do make the argument that the health care overhaul would create jobs. And the Urban Institute’s Linda Blumberg believes that the increased demand for health care caused by more people with coverage would bring an expansion of jobs in that sector large enough to offset any losses caused by the bill’s employer requirements. On the other side, conservative groups have projected significant job losses.

More neutral sources have predicted that job losses would outweigh gains – but the decrease in jobs would be "small," according to the Congressional Budget Office, which said last summer  in a report to Congress that "[r]equiring employers to offer health insurance—or pay a fee if they do not—is likely to reduce employment." The Senate bill doesn’t have a blanket mandate on employers, but it does require some to offer coverage or pay a $750 fee per full-time employee.

An analysis by the Lewin Group of an early version of the House health care bill showed that as many as 600,000 low-income jobs could evaporate. But the Senate bill has much milder employer penalties and would result in far fewer job losses, says John Sheils, senior vice president at the company.

Update, March 18: Sheils was able to give us figures specific to the Senate bill. He estimates job lossses of between 150,000 and 300,000 under that legislation. However, neither this number nor the one for the House bill factors in any jobs that would likely be added in the health care sector.

Fat Cat Insurers?

Finally, we have this ad from Americans United for Change (again) and the American Federation of State, County and Municipal Employees, a labor union. The ad paints insurance companies as the scoundrels and villains that, well, practically everyone else is also painting them to be. They "deny our claims, drop us when we’re sick," the narrator intones. Um, yes.

But have they been "taking in record profits" as well, as we’re told here? Attentive FactCheck.org fans may recall that we addressed that claim not long ago. According to a report from the liberal Health Care for America Now, the 2009 combined profits for five major health insurance companies totaled $12 billion. But not all of those five had record profits, and even though the combined number may have set a record dollar-wise, an industry-sponsored Web site showed that the five largest companies had an average profit margin for the year of 5.2 percent – less than in 2005, 2006 or 2007.

In the FactCheck Mailbag, we feature some of the e-mail we receive. Readers can send comments to editor@factcheck.org. Letters may be edited for length.

CBO No-Go?

I enjoy your research findings very much, even when they don’t support my negative thoughts about the opposition. However, I think you may rely too much on the [Congressional Budget Office] as impartial without pointing out that their impartiality can be compromised by the limitations imposed on them.

Clifford Weisner
Concord, Calif.

FactCheck.org responds: The chief limitation on CBO is that it is required to base its forecasts of spending and revenues on current law, rather than what it likely to happen. When this skews results, we do try to point that out. But we have not found CBO’s impartiality to be "compromised." On the contrary, it has a well-deserved reputation for being both nonpartisan and highly professional.

Palin’s Puffery

With regards to “Tea Party Fact-Checking” by Viveca Novak and Brooks Jackson [Feb. 8] and their review of Palin and the “millions,” the response comes across speculative rather than fact. [The article questioned Palin's claim that the state spent "millions" dealing with ethics complaints against her. "Her own tally is less than $2 million, and an Anchorage newspaper said most of that was salaries of state workers who would have been paid whether or not Palin was being investigated," Novak and Jackson wrote.]

Agreed that the state will have spent money for wages, but aren’t we splitting hairs? If the employees are working primarily on ethics issues and not on normal responsibilities on behalf of the state, then that should be included in the cost. I would however agree that probably not every single hour of each employee’s day was spent on the ethics issue, but certainly substantially more time was "invested" in the ethics issues, which was part of the intended purpose, than would have been prior to the barrage of albeit untrue complaints. I would also be curious if overtime or compensatory hours were accrued as a result of the uptick of those complaints.

I am also curious as to why oil would not be included in the energy production. You cannot get petroleum fuel without the crude oil. Do refineries also fall off the energy production grid? I guess a clarification of "energy production" is in order. Palin in her book “Going Rogue” clearly seems to in her mind include oil in energy production.

While the observation about Palin’s obvious re-use of old data is accurate, let us assume for a moment that oil is really part of the figures, than the figures you pointed out in your original argument were 2.9, and 14.3 (2007 figures) respectively, than the total would be 17.2, so perhaps she should have said something like, in excess of 15%; but really, rounding to 20 doesn’t seem that far off base.

William Redfield
East Wenatchee, Wash.

FactCheck.org responds: Palin said: "20 percent of the U.S. domestic supply of energy [comes] from our state." The figure is actually less than 2.9 percent. Oil production is a subset of energy production and is included in these figures. But oil is not the only energy source produced in the U.S. Alaska is responsible for a relatively high percentage of the oil produced by the United States (14.3 percent), but a much smaller share of total energy production.

Health Cost Hijinks?

I listened to a recent FactCheck Radio podcast, which stated that the health care plan would save money over a 10-year period. Is this the first 10 years or any 10 years? I believe taxing would start first for about 4 years before any benefits were paid. That means in the first 10 years there would be 10 years of income and only 6 years of service.  I could make a plan like that work!

Jim Bilger
Arlington, Texas

FactCheck.org responds: The CBO’s estimate is for 2010-2019. The small business tax credit would begin immediately, and fees on certain manufacturers and insurers would start bringing in revenues in 2010. The Senate bill’s excise tax on high-premium plans would start bringing in money in 2013, according to the CBO. The mandate for coverage would not begin until 2014, so tax penalty payments would not come in until that year.

Keep Your Shirt On

Why are you so slow to update the page?

Richard Aleksy
Chicago, Ill.

FactCheck.org responds: We recommend that readers who need a regular fix subscribe to our RSS feed or our mailing list, or follow us on Facebook or Twitter. If you’re just refreshing the homepage, you may be overlooking Ask FactChecks or posts from the FactCheck Wire, which are quicker to move off the front page.

We’ll start with the health care claim. Rove, a former top adviser to President George W. Bush, said:

Rove, March 14: If you step back for a minute, it’s a pretty remarkable year that we’ve had, the, the concept of health care reform had a 2-to-1 advantage when the process begin a year ago. Today, if you ask over the last couple of weeks these questions and polls about do you approve of the bill President Obama and the Democrats are pushing, it is 60 percent disapprove, 38 percent approve. If you average all those poll questions again, that’s a pretty remarkable decline in support …

Rove is wrong about the average of recent polling. According to Pollster.com’s weighted average of recent polls, 48.8 percent oppose the Democrats’ health care plan and 44 percent favor it. Rove is correct in saying that health care "had a 2-to-1 advantage" last year, though many of those surveyed were also undecided. (A Harris online poll in January 2009 found 50 percent of respondents favored health care overhaul, 20 percent opposed it, and 29 percent were undecided.) Pollster.com’s graph shows that opposition grew over the past year but has dipped down in recent weeks.

Later in the interview, Rove took exception to Brokaw saying that the Bush administration had planned on using a share of oil revenues from Iraq to "help offset the cost of the war." The two argued back-and-forth over who was right:

Brokaw: Now, Mr. Rove, there was also sharp criticism, and justified from a lot of quarters, of the management of the war once you did go to war. The insurgency was more swiftly activated on the part of those Islamics who wanted to fight back. We were not greeted as liberators beyond the first couple of days. We didn’t have enough troops to provide internal security. The cost of the war skyrocketed almost from the beginning. There was not a sharing of the oil revenues that a lot of people had promised, including the, the vice president.
Rove: I–let me correct you. There–you put down a lot of things here. I’ll be happy to deal with them serially or together whichever you like. But, for example, on that one, the administration emphatically said that this was not about oil. And we thought right from the beginning…
Brokaw: No, no, no, not about oil, but it was about…
Rove: Let me finish.
Brokaw: …how it would–we would share oil revenue, and it would help offset the cost of the war.
Rove: No. No, no. Tom, with all due respect, that was not the policy of our government that we were going to go into Iraq and take their resource in order to, to, to pay for the costs of the war.
Brokaw: But it would be part of the consequence of getting the country stabilized.
Rove: No. Well, part of the consequence would be that, that Saddam Hussein, who used the oil market to manipulate prices and deny supplies to the West, would no longer be in a position to do that. But the suggestion that somehow or another the administration had as its policy, "We’re going to go into Iraq and take their resource and pay for the war" is not reality.
Brokaw: I, I didn’t say that. What I said was that there would be an oil-sharing and the revenue from that would help offset the cost of the war. And I didn’t say it was a principal factor, but it was part of the larger scheme.
Rove: No. With all due respect, we’re simply going to disagree on this.

So what did Bush administration officials say about Iraq’s oil money in 2003? Paul D. Wolfowitz, deputy secretary of defense at the time, said this to Congress that March (the full quote is only available via Nexis):

Wolfowitz, March 2003: [T]he oil revenues of that country [Iraq] could bring between 50 and 100 billion dollars over the course of the next two or three years. Now, there are a lot of claims on that money, but that’s — we’re not dealing with Afghanistan that’s a permanent ward of the international community. We are dealing with a country that can really finance its own reconstruction and relatively soon.

And then-Defense Secretary Donald H. Rumsfeld told reporters:

Rumsfeld, October 2003: The bulk of the funds for Iraq’s reconstruction will come from Iraqis — from oil revenues, recovered assets, international trade, direct foreign investment, as well as some contributions we’ve already received and hope to receive from the international community.

We can’t give a straight Rove-or-Brokaw ruling on this one. Rumsfeld, Wolfowitz and other officials with the Bush administration said that Iraq’s oil revenues could be used for that country’s reconstruction. Some viewers may not consider reconstruction to be part of the United States’ war costs. Others may see paying for the clean-up as part of the cost of doing battle. We’ll leave it to our readers to decide.

More Sunday Spin

On ABC’s "This Week," Republican Sen. Lindsey Graham of South Carolina said it was "complete spin" to claim that the Democrats’ health care plan was similar to Massachusetts’ health care overhaul.

Graham, March 14: Are you trying to tell me and the American people that Scott Brown got elected campaigning against a Washington bill that really is just like the Massachusetts bill?

The American people are getting tired of this crap. No way in the world is what they did in Massachusetts like what we’re about to do in Washington. We didn’t cut Medicare — they didn’t cut Medicare when they passed the bill in Massachusetts. They didn’t raise $500 billion on the American people when they passed the bill in Massachusetts.

To suggest that Scott Brown is basically campaigning against the bill in Washington that is like the one in Massachusetts is complete spin.

Certainly, in terms of scope and the amount of money needed, the state bill isn’t "just like" a piece of federal legislation. But both Democrats and Republicans have been drawing similarities between Massachusetts’ health care overhaul and the main elements of the Democrats’ federal bills. Both the state and federal legislation include an individual mandate requiring people to have insurance or pay a penalty; both have employer requirements (the House bill’s employer rules being stronger than the Senate’s); both provide subsidies to lower-income individuals; both set up an exchange or exchanges through which individuals can purchase insurance on their own; both say that a minimum level of benefits must be offered by plans sold through the exchange; both expand Medicaid.

Many of the details differ, and the financing measures aren’t the same. Graham mentioned savings from Medicare in Congress’ bills and said "they didn’t cut Medicare when they passed the bill in Massachusetts." Of course, Medicare is a federal program, not one the state could cut. The Senate bill proposes a tax on high-cost health plans, and the House bill calls for a surcharge on income of the wealthy. Those financing measures are not in Massachusetts’ legislation, either.

House Minority Leader John Boehner of Ohio also talked health care on CNN’s "State of the Union." Boehner told host Candy Crowley that the health care bill included "$500 billion worth of Medicare cuts." We’ve dealt with that claim before, most recently in advance of the health care summit.

The truth is that those "cuts" are really reductions in the growth of future spending, not changes to current benefits. The proposal is to reduce waste in Medicare in order to bring costs down, not to reduce benefits — though Medicare Advantage members, about 22 percent of the Medicare population, could see fewer additional benefits as the bill reduces discrepancies between Medicare Advantage payments and regular Medicare payments. Boehner may not believe that it’s possible to reduce Medicare costs by $500 billion without cutting benefits, though he did not answer directly when Crowley asked him: "You don’t think there’s enough waste, fraud, and abuse in Medicare to pay for that?" Boehner’s response: "If there’s money to be saved in Medicare, and I believe there is, it ought to be returned to the Medicare program to extend the life of the program."

Boehner was right, though, when he questioned the Democrats’ refrain "if you like your insurance, you can keep your insurance." We’ve written about this before, too.

Crowley: I want to point out that the Democrats clearly have argued and will argue that it’s not a government run program. That if you like your insurance, you can keep your insurance.

Boehner: Well, that’s not true, though. …

Boehner: It’s one of those things that keeps being said, but it’s not true, and here’s why. First, if — with the employer mandate, some employer is going to look at this, at the penalty and say, you know I spent a lot more than that providing health care to my employees. And so I’m going to drop it. Forcing — force — (crosstalk)

Crowley: But they’ll have a menu of choices to pick out.

Boehner: Forcing you then to go to the health exchange.

Crowley: Sure.

Boehner: And — and so, you can’t keep it.

CBO estimates that between 8 million and 9 million people who would previously have gotten insurance through their employers wouldn’t be given that option after the Senate bill took effect. An additional 1 million to 2 million would opt to get coverage through the health insurance exchanges, even though their employers continued to offer coverage. About 6 million would gain employer-sponsored insurance who wouldn’t have had it before. So not everyone would have control over whether they could keep their current insurance.

Finally, David Axelrod, senior adviser to President Obama, made his own claim about public support for health care legislation on "This Week."

Axelrod, March 14: The polls are split, Jake. I mean, one of the interesting things that has happened in the last four or five weeks is that if you look at — if you average together the public polls, what you find is that the American people are split on the top line, do you support the plan? But again, when you go underneath, they support the elements of the plan. When you ask them, does the health care system need reform, three quarters of them say yes. When you ask them, do you want Congress to move forward and deal with this issue, three quarters of them say yes. So we’re not going to walk away from this issue.

It’s true that a number of polls show that most Americans support changing the nation’s health care system to some degree. But do three-quarters say they "want Congress to move forward and deal with the issue"? That depends on what it means to "move forward." For some, it means to scrap the current legislation and begin from scratch, an idea that’s highly unpopular in the White House.

A CNN poll from Feb. 12-15 found that 73 percent of people said Congress should either "pass a similar health care bill" or "start over." However, 48 percent favored telling Congress to "start over."

Another February poll, from the Pew Research Center for The People & The Press, found that 61 percent "either favors the current health care bills or would prefer that Congress keep working" on health care. But 26 percent preferred "Congress pass nothing and leave the current system as it is."

And a recent Associated Press/GfK Custom Research poll from March 3-8, 2010, found that while 43 percent wanted Congress to "keep working to pass a health care plan by the end of the year," 41 percent wanted Congress to "scrap the current negotiations and start over from scratch," and 15 percent wanted to "leave the health care system as it is now."

In the ad, breast cancer survivor Tracy Walsh denounces new government guidelines on mammograms, which she says "[save] money, but could cost your life." She claims the "guidelines" say that "women shouldn’t receive mammograms until age 50." According to Walsh’s script, the guidelines were devised by a "government panel that didn’t include cancer experts," and if health care legislation is passed, such guidelines "could become the law for all kinds of diseases."

For starters, while the media tended to call the U.S. Preventive Services Task Force’s updated recommendations for cancer screening "guidelines," the word implies a degree of prescriptiveness that’s not really accurate. The task force issued recommendations, not rules, and they have been plenty controversial. In 2002, the group recommended mammograms every one to two years for women between ages 40 and 70. Last year, the panel said mammograms for women under age 50 should be an individual choice, and it recommended mammograms every two years for women over age 50.

The National Cancer Institute has announced intentions to evaluate the recommendations and possibly incorporate them into its own suggestions for cancer prevention, but the American Cancer Society has rejected the recommendations and so has the Susan G. Komen Foundation. Even the government, in the person of Health and Human Services Secretary Kathleen Sebelius, distanced itself from the recommendations and advised women to stay the course.

Sebelius: The [USPSTF] is an outside independent panel of doctors and scientists who make recommendations. They do not set federal policy and they don’t determine what services are covered by the federal government. … Mammograms have always been an important life-saving tool in the fight against breast cancer and they still are today.

Whether the task force is a "government panel" that does not include "cancer experts" is something of a matter of definition. It’s true that USPSTF is sponsored by the Agency for Healthcare Research and Quality, part of the Department of Health and Human Services, but its members are doctors and professors from the private sector. And it’s true that the panel is largely made up of primary care physicians, some of whom have a particular focus in preventive medicine, rather than oncologists. All members have either M.D.s or Ph.D.s in medicine; one has both. There’s one public health expert and two epidemiologists (doctors who study the spread of disease, including cancer). And the previous recommendations came from the same "government panel that didn’t include cancer experts."

The ad makes the new suggestions sound like a dramatic shift in direction, from recommending yearly mammograms to demanding no mammograms at all. That’s not the case. Even in its 2002 recommendations, USPSTF said that "the balance of benefits and potential harms of mammography improves with increasing age for women between the ages of 40 and 70," that "available trials also have not reported a clear advantage of annual mammography over biennial mammography" for women between ages 40 and 50, and that for women over 50 there’s still "little evidence" that it’s better to get a mammogram every year than every two years. A family history or other risk factors, the panel said, should strengthen the recommendation of routine mammography.

The 2009 recommendations, based on a review of existing cancer research, state that "[t]he decision to start regular, biennial screening mammography before the age of 50 years should be an individual one and take patient context into account, including the patient’s values regarding specific benefits and harms." That’s a C recommendation, meaning that "there is at least moderate certainty that the net benefit is small" and that the USPSTF suggests offering the service only if other factors support it. And it’s a far cry from saying that "women shouldn’t receive mammograms until age 50," as the ad claims.

Walsh says that "if I had followed the new government guidelines on mammograms, my cancer would have spread undetected." That’s not only misleading (the USPSTF recommendations aren’t "new government guidelines"), it’s flat-out false. As Walsh says in the ad, her mother died of breast cancer. In her case, even a doctor who was stringently following the USPSTF recommendations would have suggested mammograms at an earlier age. Walsh goes on to continue to imply that if the government had its way, women wouldn’t get treatment for breast cancer. That’s absurd. “If you find a lump, you could wait months for treatment and life-saving drugs can be restricted,” she says. Nowhere did the task force guidelines say that women who find lumps should be denied access to mammograms – on the contrary, it said that the decision to get mammography “should be an individual one and take patient context into account.”

As for breast cancer survival rates, early screening certainly improves those. What’s less clear is whether screening actually improves survival, versus improving the statistics we use to measure it. We’ve written about this a few times before — including in our analysis of a previous misleading ad featuring Walsh.

Walsh’s claim that survival rates for breast cancer are notably higher in the U.S. than in the E.U. is backed up by a study published in the medical journal Lancet, which showed five-year relative survival rates of 83.9 percent in the U.S. and 73.1 percent for the European average. Five-year relative survival rates show the number of cancer patients who are still alive five years after diagnosis, compared with how many people would be expected to be alive in a healthy population. That means that early detection will always improve the five-year relative survival rate — more patients will be alive five years after diagnosis if their cancer is caught early in its course, regardless of whether they ultimately die from the disease. Breast cancer mortality rates — the number of people who died from breast cancer within a given period — are remarkably similar in the U.S. and the U.K., which recommends mammograms every three years starting at age 50.

We talked to a number of experts for our previous article who said that mortality rates were a more accurate statistic for comparing disease outcomes of different countries. The USPSTF’s conclusion is that the improvement in breast cancer outcomes from yearly mammograms starting at age 40 doesn’t outweigh the potential harm associated with the test, mostly harm from potential false positives. Mortality rate comparisons back up that assessment, and survival rate comparisons don’t necessarily challenge it.

At any rate, the comparison with European health care is beside the point. Congress is not considering "government-run health care" or passing a bill in which "the government takes over your health care," as the ad puts it. As we’ve noted so many times recently, the legislation pending in Congress builds on our current system of private insurance. Most people would continue to get insurance through their employers, the way they do now, and others who buy individual private coverage would be able to do so through a new system that is likely to offer them more choices than they currently have.

The ad, pointedly called "Pelosi’s Failure," begins with a clip of Rep. Nancy Pelosi of California promising "the most open and most ethical Congress in history." Pelosi said that on the Tuesday night in November 2006 when Democrats gained control of the House and she was poised to become speaker.

Pelosi, Nov. 7, 2006: The American people voted to restore integrity and honesty in Washington, D.C., and the Democrats intend to lead the most honest, most open and most ethical Congress in history.

The ad then cuts to the former chairman of the House Ways and Means Committee, longtime New York lawmaker Charlie Rangel, who is assailed for "breaking ethics rules" and "failing to pay taxes." Pelosi, the narrator says, "defended him for nearly two years."

The ad is right on these points. Rangel was admonished by the House Committee on Standards of Official Conduct (more widely known as the ethics committee) for accepting corporate-sponsored trips to the Caribbean; the panel said his staff knew of the corporate underwriting, which violates House gift rules, and that he "was responsible for the knowledge and actions of his staff." In addition, Rangel has admitted to failing to declare as income for tax purposes $75,000 in rental payments on a villa he owns in the Dominican Republic.

Rangel has been a political ally of Pelosi, and she has supported Rangel and his chairmanship as the investigations, which began in 2008, have continued, even in the face of reported White House unhappiness that Rangel had stayed at his post too long. She even stuck up for him after the ethics panel admonished him, at least at first. The committee "said he did not knowingly violate the rules," Pelosi said to reporters. "I think it’s quite a statement to hold members accountable for what their staff knew."

But Rangel finally relinquished his gavel March 3, facing an increasing volume of calls to do so even from members of his own party, and having had a meeting with Pelosi the night before. Unnamed sources said that Pelosi told Rangel he had to step down, according to newspaper reports. In a statement announcing his decision, he said he was doing so "in order to avoid my colleagues having to defend me during their elections." The ethics panel is still investigating three other matters involving Rangel.

Should Rangel have stepped down sooner? That’s a subjective question, but for a little context, we asked Melanie Sloan, who runs Citizens for Responsibility and Ethics in Washington, a nonprofit watchdog group, whether committee chairmen or chairwomen normally give up those posts when they are under investigation. "Not usually," Sloan said. For example, a Justice Department investigation of Rep. Alan Mollohan, a West Virginia Democrat, was ongoing when the Dems took over the House in January 2007 and he became chairman of an appropriations subcommittee. He recused himself from votes on matters having to do with the FBI or the attorney general’s office, but maintained his chairmanship. The Justice Department ended its probe earlier this year without filing charges. Democrat Maxine Waters chairs a panel of the Financial Services Committee, a position she hasn’t left despite an ethics committee investigation into her interactions with the Treasury Department over a bank in which her husband was a significant stockholder.

And Republicans haven’t shown any greater willingness to hand off their gavels, Sloan noted. GOP Rep. Jerry Lewis didn’t relinquish his chairmanship of the powerful House Appropriations Committee in 2006, when he became the subject of a federal probe into his dealings with a lobbying firm that had hired some of his staff members.

And surely the most striking recent incident of a lawmaker holding on to a powerful post despite myriad ethics inquiries was that of former House Majority Leader Tom DeLay. In September and October 2004, DeLay was admonished by the House ethics committee on three separate matters. He was also under investigation at the time by a Texas grand jury. But he didn’t resign his leadership post until the next year, when he was indicted in connection with allegations that he helped fund a Texas GOP redistricting effort by laundering prohibited donations through another entity. The appetite for losing DeLay was so low that the previous year, as the investigation was ongoing, the House Republican Conference tried to protect him by ditching its rule that required leaders to step down from their posts when indicted on any charge with a sentence of at least two years. The rule change lasted less than two months; mounting public criticism led DeLay himself to ask that it be restored. Finally, in April 2006, DeLay said he wouldn’t seek reelection.

Lawmakers naturally cling to power. We’ll leave it to the reader to decide whether Rangel should have been allowed to do so for so long.

The Massa Matter

The ad follows the Rangel segment with a reference to another Democratic congressman, freshman Rep. Eric Massa of New York, who announced on March 5 that he would resign “after allegations of sexual harassment surfaced,” just as the ad says. "Pelosi? Called it rumor," it continues.

Pelosi did say this after the news broke:

Pelosi, March 4, 2010: There had been a rumor, but just that. … A one-, two-, three-person rumor that had been reported to Mr. Hoyer’s office and reported to my staff, which they did not report to me because you know what? This is rumor city. There are rumors.

Media reports said Massa’s chief of staff met with staff from the office of House Majority Leader Steny Hoyer on Feb. 8, telling them that Massa had groped young male aides and otherwise acted inappropriately with them. Hoyer’s staff told the congressman of the allegations the next day, and one day after that, Hoyer’s staff told Massa’s deputy chief of staff to report the matter to the House ethics committee within two days, or Hoyer himself would do so. Hoyer’s staff also notified Pelosi’s staff about the situation.

According to the Washington Post, Massa’s chief of staff had met with a Pelosi aide in October to say that Massa "was living in a townhouse with a group of young, male staffers, that he routinely used foul language in the office and that he had recently asked a young male aide" in Democratic Rep. Barney Frank’s office to dinner. Pelosi’s spokesman told the Post that the Pelosi aide "believed the chief of staff was going to ask Representative Massa to move out of the house." The Pelosi aide thought that was the right thing to do. "There’s nothing in the conversation that rose to the level of an allegation that he thought he had to act on," the spokesman said.

On MSNBC on March 11, Pelosi conveyed the same sense that the information given to her office in October "didn’t come close to an allegation."

But the same day, the House voted 402-1 to refer to the ethics panel a Republican-backed resolution calling for the panel to resume its investigation of Massa’s activities, which it had closed after Massa resigned. The GOP has urged the panel to examine what Democratic leaders knew and how they handled it.

Who knew what and when was also a concern in the tawdry saga of Republican Rep. Mark Foley, who resigned in 2006 after ABC News did a story on sexually suggestive e-mails that Foley had been sending to underage boys serving as House pages. Charges that Speaker of the House Dennis Hastert, also a Republican, and others in the party knew for some time that Foley was a problem but hadn’t acted to oust him were amplified by Democrats.

The Foley incident and other Republican scandals, such as those involving lawmakers’ dealings with now-imprisoned lobbyist Jack Abramoff, were the impetus behind Pelosi’s pledge that the Democrats would run "the most ethical Congress in history." Exit polls showed that the issue had resonated with voters, to the benefit of Democrats.

And Democrats defend their record on ethics. They point to new, tighter gift rules put in place under Pelosi’s leadership. And in 2008, she wore down opposition to creating a new Office of Congressional Ethics, a panel of non-lawmakers that investigates allegations and sends recommendations on to the Committee on Standards. Just this week, Democrats announced that earmarks for for-profit companies would be banned going forward.

So, is the House under Nancy Pelosi the "most ethical" in history? Lawmakers have human foibles, and it’s impossible to keep all of them from getting into trouble. In that sense, ethics has little to do with party labels, and Pelosi promised something she couldn’t control. But watchdog groups do give Pelosi and the Democrats credit for putting mechanisms in place that could hold House members more accountable. "The existence of OCE [Office of Congressional Ethics] in and of itself, and the way it has performed, makes the case that the Democrats have made a difference," Meredith McGehee, policy director of the Campaign Legal Center and a longtime observer of political misbehavior, told us.

Left Unsaid

The most starkly misleading point in the RNC ad is a fleeting one: A newspaper headline flashes on screen, reading "House Ethics Panel Investingating [sic] Rep. Stark." That would be Pete Stark, a longtime Democratic lawmaker from California.

What the ad fails to show is any comparable headline saying that the panel unanimously voted to clear Stark. On Jan. 28, it issued a statement and report saying that Stark:

Committee on Standards, Jan. 28: …did not violate any provision of the code of Official Conduct or any law, rule, regulation or other standard of conduct applicable to his conduct in the performance of his duties or the discharge of his responsibilities relating to a state law requirement that all Maryland homeowners submit a one-time application to verify eligibility for a property tax credit called the Homestead Tax Credit.

Mighty Morphin’ Presidents

In Sunday’s New York Times, the American Civil Liberties Union took out a full page ad urging President Obama to try Sept. 11 defendants in criminal court, as opposed to military tribunals. The ad even included a stark graphic morphing Obama’s face with former President Bush’s:

But the ad cites a questionable statistic. It says that "our criminal justice system has successfully handled over 300 terrorism cases compared to only 3 in the military commissions." There have only been three cases tried in front of military commissions, but the civilian criminal justice system is another matter.

The ACLU told us that it took the 300 figure from Attorney General Eric Holder, who cited it during congressional testimony in 2009. As we pointed out a few weeks ago, that number can be traced back to a Bush era Department of Justice budget request that said department work had "resulted in the securing of 319 convictions or guilty pleas in terrorism or terrorism-related cases arising from investigations conducted primarily after September 11, 2001." But as we noted then, a media relations officer could not verify those numbers.

Rather, the most thorough source of terrorism case statistics we’ve been able to find is the New York University Center on Law and Security. The center recently released a Terrorism Report Card that identifies 174 individuals who were "convicted of terrorism or national security violations" by civilian courts. But, as Karen Greenberg, the NYU center’s director, told us: "You can come up with any number by putting whatever you’d like to in a category and that’s not particularly helpful." Greenberg’s center tallied 523 convictions on "terrorism-related" charges, which include lesser offenses than terrorism per se.

A Small Slice of the Pie?

The insurance companies’ lobbying group, America’s Health Insurance Plans, has been fighting a bad reputation for the industry during the debate over health care legislation. The Obama administration, as well as liberal groups, has blamed the insurance companies for overcharging and mistreating consumers, and the Democrats’ legislation aims to regulate the industry. AHIP’s latest counter message is an ad that says insurance costs are a mighty small part of the health care spending pie. The statistics, though, could use some explanation.

The ad says that “health insurance companies’ costs are only 4 percent of all health care spending.” Some viewers might think the ad is referring to health care premiums. That’s not the case. The line refers to the net cost of private health insurance, which is the difference between premiums the companies took in as revenue and the benefits they paid out, as well as administrative costs, marketing, commissions and profits. Total national health care spending for 2009 was projected to be $2.47 trillion, and the companies’ net costs were projected to be $92 billion, according to the Centers for Medicare and Medicaid Services, which compiles these figures.

As for premiums, consumers are expected to pay $808.7 billion in private health insurance premiums in 2009, which is 33 percent of national health care spending. Plus, out-of-pocket payments for consumers would total $284 billion, which is 11 percent of national spending (see table 4).

Doing Our Work for Us

Finally, here’s a candidate for the easiest bit of fact-checking we will ever have to do: The American Future Fund is airing an ad that makes a claim about Democrats that just as well could be made about Republicans.

AFF says Democrats have engaged in "hypocrisy" by proposing to use reconciliation to pass a health care bill, even though Senate Majority Leader Harry Reid and others opposed reconciliation when Democrats were in the minority and Republicans wanted to use it. That’s a fair point, but the same hypocrisy charge can (and has) been made against Republicans, such as Senate Minority Leader Mitch McConnell, who favored reconciliation when Republicans were in charge but now has the opposite view of this congressional procedure.

The ad also says:

AFF ad: Now Reid and Obama plan to dodge Senate rules. They’re resorting to a legislative trick called the Nuclear Option because they don’t have the votes.

The "Nuclear Option" is a reference to reconciliation. But it’s not a "dodge" of Senate rules because it is part of the Senate’s rules. It was created as part of the 1974 Congressional Budget and Impoundment Control Act.

The ad, which portrays workers and businesses going through difficult times, says that "health care costs will go even higher" and that this will "[make] a tough economy even worse." These claims need context.

The ad doesn’t specify which "health care costs" will increase. If that means premiums, it’s right — but only for some people. For those who get health care through their employer (and that’s most of the insured), the average premium wouldn’t change significantly, according to the Congressional Budget Office. Those employed by large firms would either see no change in the average premium cost or a decrease of up to 3 percent. But the average premium for those who purchase their insurance privately will go up 10 percent to 13 percent, according to CBO. The benefits for people in this market would also improve, and more than half of those buying their own insurance would receive subsidies, which would lower their costs substantially. The CBO estimated that about 14 million Americans would buy their own policies without the help of subsidies.

If Employers for a Healthy Economy means overall federal spending for health care, it’s also right — for a while. CBO says that the "federal budgetary commitment to health care" would increase from 2010 through 2019 under this bill, to the tune of about $200 billion. But the provisions of the bill that decrease that commitment will grow faster than the provisions that increase it, meaning that after those 10 years, the CBO expects federal spending for health care to go down. It cautions, though, that there’s a lot of uncertainty here.

As for hurting a "tough" economy, the CBO does estimate that the bill’s proposed insurance expansions will cost $614 billion over 10 years, with a net deficit reduction of $132 billion. But many of the expensive provisions won’t take effect until 2014. Although economic recovery is slow going, the next four years are expected to be years of incremental improvement. CBO projects that unemployment will have returned to a sustainable level of 5 percent by 2014, that the deficit will have dropped to 3 percent of GDP (versus 9 percent this year), and that GDP will have increased enough to close the gap between actual and potential output. By the time the bill’s major provisions come into play, the economy is likely to be far less tough.

The ad also says that Congress plans to use "special rules" to "ram through" the health care bill. In our article about the health care summit, we wrote that this "special rule," known as reconciliation, has been used 22 times since 1980. Reconciliation would allow the bill to pass by a simple majority without the risk of filibuster. We’ll leave it to readers whether 22 uses in 30 years makes reconciliation "special," commonplace or something in between. But the Brookings Institution’s Thomas Mann, the author of a report on the use of reconciliation, told us that using reconciliation to pass a bill that had already passed both houses would be "very modest and unquestionably legitimate." 

Incidentally, this group backed by the U.S. Chamber of Commerce ran a very similar ad in November about a different version of the bill, the one passed by the House. We said then that independent experts believed job losses caused by the overhaul would be minimal, percentage-wise. And John Sheils of the Lewin Group has said that even fewer jobs would evaporate under the Senate’s version of the bill, which is the one currently under consideration.