Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2016

“Dems Assigned Conservative Groups to Attack on Senate Floor”

Are you now, or have you ever been, a supporter of the Hoover Institution, the Mercatus Center, the Heritage Foundation, or the Acton Institute? Lachlan Markay, Free Beacon:

Democratic senators have been assigned conservative nonprofit groups to call out by name on the chamber floor in speeches on Monday and Tuesday criticizing corporations and advocacy groups for opposing Democratic climate policies, internal emails reveal.

…[Rhode Island Sen. Sheldon] Whitehouse and his allies, including Senate Minority Leader Harry Reid (D., Nev.), have crafted a schedule for floor speeches on Monday and Tuesday that assigns each participating Senator at least one group to go after by name.

Most of the groups have already been targeted by state Democratic officials that have undertaken a coordinated legal campaign against oil giant ExxonMobil since last year. Many were named in subpoenas sent to the company by state attorneys general as part of that effort.

The ringmaster, once again, is Sen. Sheldon Whitehouse of Rhode Island — yes, that Sheldon Whitehouse, whose hometown Providence Journal rightly called out his current campaign to sic the law on improper climate opinion as likely to “have a chilling effect on free speech, by intimidating dissenters into silence.” The leader on the House side is Rep. Ted Lieu (D-Calif.), also getting to be a familiar name.

One reason this is more sinister than your ordinary political sideshow: the proposed concurrent resolution urges right-leaning nonprofits “to cooperate with active or future investigations” of purportedly unlawful opinion-slinging. One of the most junior senators, Gary Peters of Michigan, apparently drew the short straw in the heresy posse and was assigned to attack my own Cato Institute (which publishes this site) at 6:30 this evening.

The senators participating in this appalling exercise besides Sens. Whitehouse, Reid, and Peters, all Democrats, are Sens. Ben Cardin of Maryland, Tim Kaine of Virginia, Barbara Boxer of California, Martin Heinrich of New Mexico, Chuck Schumer of New York, Al Franken of Minnesota, Elizabeth Warren of Massachusetts, Dick Durbin of Illinois, Tom Udall of New Mexico, Jeanne Shaheen of New Hampshire, Jack Reed of Rhode Island, Edward Markey of Massachusetts, Brian Schatz of Hawaii, Jeff Merkley of Oregon, Richard Blumenthal of Connecticut, and Chris Coons of Delaware.

Some early reactions: “All that is lacking are their public confessions” — Ronald Bailey at Reason (whose associated Reason Foundation is among the targets). “‘Assigned’ groups to attack? That sounds like middle school mean girl behavior.” [C.B. on Facebook] Peter Roff at U.S. News on how the Senators can’t (yet) make dissent illegal but can make it costly. And a reminder: the “Exxon Knew” crowd knew Whitehouse’s RICO-for-speech theory was wrong because their own allies had told them, but went ahead anyway.

More, Matt Welch at Reason:

…Since the targets of this shaming exercise are not being afforded the courtesy to rebut the charges in the forum at which they are being smeared, consider this a prebuttal…

This coordinated campaign would be an assault on free speech even if it were not drenched in conspiratorial inaccuracy. Democratic lawmakers, attorneys general, and activists are systematically singling out free-market think tanks for potential criminal prosecution and one-sided disclosure requirements based on the content of the think tanks’ research and commentary. They are literally trying to criminalize dissent. If successful, they will establish as “fraud” or “racketeering” any future think-tank work that runs afoul of political orthodoxy. …

Sadly, this heavy-handed act of government intimidation will likely go as unnoticed as Hillary Clinton’s long track record against free speech. Why? Because generally speaking both the mainstream press and the organized left reserve their First Amendment outrage for politicians they disagree with. Their silence is shameful, and deafening.

The senators’ action this week is no hyperbolic one-off: Prosecuting ungood climatology is baked right into the Democratic Party Platform. The two major Democratic nominees for president agree.

[Updated to correct error on Lachlan Markay’s name, sorry]

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Another look at mens rea?

“In a cruel irony, the Obama administration has scuttled one of its own late-term policy priorities — criminal-justice reform — because it opposes affording ordinary people the same defense [FBI director James] Comey invoked for [Hillary] Clinton.” [James Copland and Rafael Mangual, TownHall] “Not every potential federal defendant gets the benefit of such distinctions. Consider the retired racecar driver on a snowmobile outing in Colorado who got lost in a blizzard and unwittingly crossed into a National Forest Wilderness Area, the Native Alaskan trapper who sold 10 sea otters to a buyer he mistakenly believed was also a Native Alaskan, and the 11-year-old Virginia girl who rescued a baby woodpecker from her cat. …All three qualify as federal crimes, even though the perpetrators had no idea they were breaking the law — a kind of injustice that would be addressed by reforms that opponents falsely portray as a special favor to corporate polluters and other felonious fat cats.” [Jacob Sullum, earlier on mens rea] In Ms. Clinton’s case, didn’t she at least have a clear intent to violate FOIA and similar public access laws? [Coyote]

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EEOC roundup

  • “You’ve been warned. National-origin discrimination is a national strategic priority for the EEOC.” [Jon Hyman, earlier]
  • 2015 charge statistics: “The EEOC has now re-calibrated its entire enforcement machinery to churn out quick cost-of-defense settlements.” [Merrily Archer]
  • “Death by HR: EEOC Incompetence and the Coming Idiocracy” [Jeb Kinnison]
  • Liquor-hauling case aside, EEOC accommodation claims on behalf of Muslim complainants closely resemble those for members of other religious groups [Eugene Volokh]
  • “No Evidence That Training Prevents Harassment, Finds EEOC Task Force” [Christina Folz, SHRM]
  • Hospital that requires employees to announce ahead of time if they have religious objections to flu vaccination hit with EEOC charge for not being accommodating enough [EEOC press release]

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Police and community roundup

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“A Century of Surveillance”

Arbitrary and intrusive executive power, with the threat it can pose to individual rights and the rule of law, is not some novel development of the past Presidency or two (or three or four). It goes back to the earliest days of the Republic. “American Big Brother: A Century of Political Surveillance and Repression,” a recent Cato project, ties together episodes from the Palmer Raids through surveillance of pacifists to LBJ’s bugging of opponent Barry Goldwater’s campaign plane to the debates over the USA Patriot Act and the crypto wars. And this tidbit from 1962:

JFK Wiretaps Steel Company Executives

Angered at steel price hikes and suspecting price fixing among steel companies, President Kennedy ordered the wiretapping of several steel company executives, and his brother, Attorney General Robert Kennedy, ordered FBI raids on the homes of the executives and journalists who had covered recent steel company shareholder meetings. While the raids produced an outcry from the business community, covert surveillance did not become public until long after JFK’s death.

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Consent decrees: the cost to kids

13 years after Ross Sandler and David Schoenbrod’s groundbreaking book Democracy by Decree, small groups of litigators, experts, special masters and other insiders continue to run many government agencies under what are known as consent decrees, court-enforced agreements to resolve litigation. Children’s services are particularly affected: “the Illinois child-welfare system is burdened by 10 different consent decrees, including one that has lasted nearly 40 years.” But the decrees often work against the real interests of the intended beneficiaries, argue Maura Corrigan and John Bursch in a paper for the American Enterprise Institute. By design, it is made hard to get out from under a decree, which can leave the small controlling group in control indefinitely: Connecticut’s 25-year-old child-welfare consent decree “contains 22 outcome measures that all must be met and sustained for six months before exit,” which has never happened.

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