U.S. Senate Democrats are endangering constitutionally protected freedoms of speech and assembly in their attempts to coerce the John Locke Foundation and other free-market organizations to comply with climate change investigations, while threatening them with charges under statutes reserved for criminal racketeering, two constitutional experts say.
“All they’re doing is doing what blowhards do, which is bloviate. Every one of those guys, if that’s what they’re pursuing, is simply demonstrating their ignorance of the United States Constitution,” said Raleigh media attorney Mark Prak, who often is involved in First Amendment cases.
He believes it is an assault on the freedom of assembly rights of JLF and the other 47 organizations targeted in a two-day series of speeches on the Senate floor by 19 Democrats seeking a concurrent resolution condemning the groups, and setting up the possibility of an investigation under the Racketeer Influenced and Corrupt Organizations Act.
Sen. Sheldon Whitehouse, D-R.I., has been pushing the government for RICO charges, and was the chief antagonist of JLF and the Carolina Journal during Senate floor remarks Monday and Tuesday, naming them repeatedly as part of a “Web of Denial” about purported dangers of climate change.
Senate Minority Leader Harry Reid, D-Nev., also took to the Senate floor, alleging “Dozens of shadowy organizations are waging a campaign to mislead the public, and undermine American leadership on climate change, the Paris climate agreement, and clean energy initiatives across the country.”
“Those groups have a [right to] freedom of association under the First Amendment that makes it none of his business,” Prak said of Whitehouse’s crusade.
“He’ll simply have to make his climate change arguments in the field of scientific public opinion, and do battle in that forum, Prak said. “He’s not going to be able to beat up on people who write checks or happen to believe in the principles of the John Locke Foundation.”
Democrats are seeking to show ExxonMobil, billionaire businessmen philanthropists Charles and David Koch, and other fossil fuel interests are coordinating a campaign with think tanks, researchers, and other organizations to cast doubt about the climate change threat. The senators have been attempting to intimidate the groups into turning over massive reams of documentation about donors, grants, memberships, and activities.
“For them to think they have the right to acquire that sort of information is simply ignorant,” Prak said. “There’s plenty of bloviating politicians in this world on both sides of the aisle, and these guys are a great example of that species on the left wing of the political continuum.”
Prak said the Democrats’ abusive action is akin to the 1958 case NAACP v. Alabama in which the state government sought to intimidate and prevent the civil rights organization from operating in Alabama. The Supreme Court ruled the state was not entitled to the NAACP’s membership list because the organization’s constitutional freedom of assembly rights trumped the state’s interest.
The Democratic senators, who are coordinating their anti-fossil-fuel efforts with environmental advocacy and renewable energy organizations, are repeating Alabama’s losing strategy, Prak said. “This ought to be easy enough for them to understand, but obviously their logic and reason has been overcome by emotion,” Prak said.
The Democrats’ action hasn’t reached the level of prior restraint — government censorship — yet, Prak said, although Whitehouse emphatically has urged media outlets not to publish op-eds by climate “skeptics.”
“They’re trying to bully people who don’t believe in climate change into believing it because they say so, which is pretty much contrary to the scientific method,” Prak said. “Those who use the scientific method pretty much understand that final conclusions are rare, and it’s frequently true that politicians will overstate facts in their rhetoric. That truth is demonstrated every day.”
Campbell University constitutional law professor Greg Wallace also sees First Amendment threats in how Senate Democrats conducted this matter.
“When the Democrats, and these Democrat attorneys general begin threatening companies, and nonprofit organizations, and scientists for simply speaking out on what is a political issue, and for funding scientific research, I think the First Amendment is implicated here,” Wallace said. “I think this kind of activity can have a chilling effect” on free speech.
Wallace believes the climate change is as much a political movement as it is a scientific matter.
“If you don’t think science has been influenced by the politics, you haven’t been paying attention,” he said.
“If they’re going after companies for misleading the public on what is at its core a political issue, then maybe they should look to clean up their own houses first,” Wallace said of the politicians pushing that effort. “There’s plenty on their own plates there for them to be occupied with.”
Democrats can’t use government power “to threaten people because they don’t agree with your political message,” he said, but is concerned that strategy is becoming all too common in a number of arenas.
“Liberals, if they cannot get their way, they’re going to resort to some sort of coercion and intimidation,” Wallace said. “You see this happening on college campuses all the time where speech is being suppressed right and left to advance some left wing political agenda. It’s all about the ends justifying the means.”