Congress Shall Make No Law: Protecting the First Amendment from Attack

The Heritage Foundation held an event on today to address the “All-Out Assault on the First Amendment.”  Hosted by Hans von Spakovsky, the panel was comprised of distinguished public policy and research professionals like Christina Hoff Sommers, Resident Scholar, American Enterprise Institute; RNLA Advisory Council Member Robert Alt, President, Buckeye Institute; John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University Fowler School of Law, and Senior Fellow, The Claremont Institute; and RNLA Advisory Council Member Cleta Mitchell, Partner, Foley & Lardner LLP.

The discussion started with a profound statement from Ms. Mitchell, that the 5 most beautiful words in the English language are: “Congress shall make no law… “

Ms. Mitchell further stated that the left is turning that phrase on its head, and the First Amendment is being used to protect the government from the people and not vice versa. This is the exact opposite of the Founders' purpose for including that clause. She uses the composition of the Federal Election Commission to discuss a troubling example. The Commission is supposed to be a bipartisan group of individuals, yet prior to Hans von Spakovsky, Brad Smith, and Don McGahn becoming Commissioners, there regularly was one Republican who seemed to be conservative in name only and continuously voted with the Democrats. This issue compromised the integrity of the Commission. Additionally, she added comments about the recent scandal with the IRS targeting of conservatives, noting Commissioner Koskinen’s long history of solely supporting liberal candidates and the implicit bias that comes along with that support; the John Doe investigation in Wisconsin; and the enforcement of political speech codes in Montana.

Robert Alt spoke from personal experience as his conservative organization was targeted and audited by the IRS. Mr. Alt thinks preventing the attack on the First Amendment can only be done through fighting back against speech suppressive activity. He brought up the examples of the Competitive Enterprise Institute (CEI) receiving a subpoena related to its climate change research and how the state of California was requiring charities to turn over their Schedule B donor disclosures to the state with very little assurance that that information would be kept confidential. CEI fought back in the legal courts and the courts of public opinion against the subpoena that sought information including the donors to the organization. In this instance, free speech won.

The rest of the discussants added commentary on free speech on college campuses and the free exercise of religion and how those are both under attack as well.

All panelists stressed how pivotal this election is and further noted that citizens considering a candidate that supports individuals and policies which strip constitutional rights away, means we all lose in the end.  

NY GOP Calls for Investigation of Pay to Play Violations by AG Schneiderman

New York Republicans are calling for an investigation of Democrat Attorney General Eric Schneiderman after emails were uncovered showing that his campaign to silence critics of the theory of man-made global warming may have been motivated not only by his political animus but also by potential campaign donations for a gubernatorial run:

The New York Post obtained emails showing Schneiderman reaching out to former hedge fund manager Tom Steyer in March — about four months after Schneiderman began investigating ExxonMobil for allegedly misleading investors about the risks of global warming. 

Steyer, a major funder of environmental causes and an Exxon critic, spent more than $73 million in the 2014 election cycle supporting Democratic candidates and opposing Republicans. 

Schneiderman also wanted to talk to Steyer about his ongoing Exxon investigation, which is being pushed by environmentalists who want to see the company punished like the tobacco industry.

State Republican Chairman Edward Cox called for an investigation of Schneiderman for using his office for improper political gain:

Another day, and more evidence Eric Schneiderman is using the Office of the Attorney General for political purposes. Just last week we learned he is allowing his close ally Hillary Clinton to subvert New York charity laws by refusing her to disclose the Foundation's foreign donors, and now we learn he sought to leverage his investigation of ExxonMobil to secure support from billionaire environmental activist Tom Steyer in his potential run for higher office. 

Mr. Schneiderman has established a long and disturbing pattern of abusing the power of his office for political gain. Both of these cases indicate sufficient evidence to warrant an independent investigation by US Attorney Preet Bharara. Mr. Schneiderman must also comply with a subpoena issued by the U.S. House Science Committee requesting information about his ExxonMobil investigations amid allegations that the investigation is politically motivated. To date, he has chosen to defy the subpoena, leaving many troubling questions unanswered. As the highest ranking law enforcement officer in the state, the Attorney General must be above politics and until this matter is investigated by an independent body, there will be an indelible stain on the office.

In addition to the troubling free speech implications of General Schneiderman's investigation of climate change deniers, he may be using government power to advance his political career and court wealthy donors.  "Disturbing" indeed.

AG of Virgin Islands Serves Harassing Subpoena on Non-profit for Climate Change Views

Last week, Attorney General of the Virgin Islands Claude Walker served a subpoena on the Competitive Enterprise Institute ("CEI"), a 501(c)(3) non-profit organization "dedicated to advancing the principles of limited government, free enterprise, and individual liberty."  General Walker is part of "AGs United for Clean Power," a group of seven state attorneys general and former Vice President Al Gore, that threatens companies, scientists, organizations, and others with criminal investigation and prosecution for opposing or questioning the liberal orthodoxy on climate change.  Walker is investigating ExxonMobil under the Virgin Island's version of a RICO statute.

CEI has promised to fight against this threat to its First Amendment rights of speech and association:

“CEI will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association for Attorney General Walker to bring such intimidating demands against a nonprofit group,” said CEI General Counsel Sam Kazman. “If Walker and his allies succeed, the real victims will be all Americans, whose access to affordable energy will be hit by one costly regulation after another, while scientific and policy debates are wiped out one subpoena at a time.” 

The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016. 

The Heritage Foundation's Hans von Spakovsky noted the absurdity of the subpoena and underlying investigation:

There are so many things wrong with this that it is hard to know where to start. . . . And ExxonMobil and CEI are being targeted for having taken what these legal barons consider the wrong side of a scientific theory that is being actively debated and questioned. . . . The root of what is going on here appears to be an effort to intimidate, harass, frighten, and possibly imprison or fine anyone who Walker and his fellow warders think is saying the wrong thing . . . . 

This investigation is intended to silence and chill any opposition. It is disgraceful and contemptible behavior by public officials who are willing to exploit their power to achieve ideological ends. As CEI General Counsel Sam Kazman says, “it is an affront to our First Amendment rights of free speech and association.” 

Given the coalition that has been formed by state attorneys general to conduct a grand inquisition against climate change deniers, this subpoena from the Virgin Islands attorney general is probably just the first assault in their quasi-religious war against unbelievers. Researchers, scientists, think tanks, universities, and anyone else who works or speaks in this area should be aware that they may soon become a target of these malicious investigations.

This is likely the first of many attacks by Democrat attorneys general against scientists and organizations for thought crimes, with no regard for the freedom of speech, liberty of thought, or the vigorous debate of ideas upon which America was founded and persists.