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The Single Question That Could Destroy Bobby Jindal’s Political Future

Last Friday, against the vehement and public urging of his own Attorney General and nearly one hundred of the nation’s most respected legal experts, Governor Bobby Jindal signed Senate Bill 469 into law. Quoting his press release (bold mine):

Governor Jindal said, “This bill will help stop frivolous lawsuits and create a more fair and predictable legal environment, and I am proud to sign it into law. It further improves Louisiana’s legal environment by reducing unnecessary claims that burden businesses so that we can bring even more jobs to our state. The bill will also send future recovered dollars from CZMA litigation to coastal projects, allowing us to ensure Louisiana coastal lands are preserved and that our communities are protected.”

If you’re wondering who, exactly, the law benefits, all you need to do is keep reading Jindal’s press release, which contains this amazing confession. Quoting (again, bold and italics mine):

LOGA President Don Briggs said, “The signing of SB 469 is a huge victory for the oil and gas industry as well as the economy for the state of Louisiana. We commend Governor Jindal for his leadership and support of this bill as it made its way through the process….”

As I mentioned in a previous post, SB 469 was, ostensibly, about stopping a controversial, landmark lawsuit filed by the Southeast Louisiana Flood Protection Authority-East (SLFPA-E) against 97 oil and gas companies for their role in illegally damaging and depredating the state’s coastal environment and ecosystem. But as we now know, the law is about much more than merely ending a single lawsuit by a single governmental authority.

SB 469 appears to have been written and deliberately designed by lawyers who represent the oil and gas industry in order to shield, reduce, or eliminate their clients’ exposure to civil damages on a wide range of pending and future claims, including, most notably, BP’s liability for billions of dollars in outstanding claims related to the 2010 Deepwater Horizon catastrophe. Indeed, according to people intimately involved in the legislative process, no one lobbied harder for the passage of SB 469 than those associated with BP.

With the stroke of the pen, Governor Bobby Jindal likely saved the oil and gas industry billions of dollars in damages for which they otherwise would have been legally responsible, damages that are legitimately owed to hundreds, if not thousands, of hardworking families, businesses, and coastal communities who were devastated by and continue to suffer from the lingering effects of the worst environmental disaster in American history. Governor Jindal may claim this was about ending “frivolous lawsuits” and creating a “more fair and predictable legal environment,” but unfortunately for him, the geniuses on his communications team allowed Don Briggs, the President of the Louisiana Oil and Gas Association, to tell it like it is, “a huge victory for the oil and gas industry.” To be sure, that may actually be an understatement.

This wasn’t about ending frivolous lawsuits or better ensuring a fair and predictable legal environment; it was about rigging the law in favor of the biggest, wealthiest, and most powerful industry in Louisiana (and arguably, the world).

*****

 

Thomas Enright, the Governor’s Executive Counsel, argues that claims for damages against BP would not be affected by SB 469, because the federal Oil Pollution Act preempts the new Louisiana state law. Notwithstanding the irony and the hypocrisy of Governor Jindal, seemingly for the very first time in his entire career, invoking and championing the preemption doctrine, Enright may very well be correct in his analysis.

But the simple fact is: BP’s lawyers can and will argue otherwise; it’s an issue of first impression that will ultimately be determined by the courts, not by Jindal’s attorney. SB 469 provides a new and novel line of defense. Indeed, Louisiana’s Attorney General and nearly 100 legal experts from the nation’s top law schools all agree. The oil and gas industry’s lawyers know it’s true, too; after all, by Governor Jindal’s own admission, they helped write the law.

Even if Enright is, in fact, right and even if the courts eventually rule against BP, because these issues will take months, if not years, to fully resolve, Jindal’s decision to sign and enact SB 469 almost certainly reduced substantially the anticipated settlement values for thousands of Louisiana citizens. And that‘s why BP stands to gain billions of dollars. Remember, BP has enormously deep pockets; if they wanted to, they could afford to litigate these claims for the next century without ever affecting or even touching their bottom line. The average citizen, however, cannot afford and would never be inclined to wage a war of attrition against BP about the preemption doctrine as it relates to state law conflicting with the Oil Pollution Act.

Remember too, the longer the legal process, the less those who were affected and damaged by BP’s negligence can expect. In a complex case involving billions of dollars, a broadly and vaguely worded new law can have an enormous economic value.

Make no mistake: Governor Jindal understood this. As reported by Patrick Flanagan of The Independent MonthlyNikesh Jindal, Bobby Jindal’s younger brother, “is an attorney with Gibson Dunn, one of the law firms representing BP against the damage claims… assigned to the division handling BP’s case,” a critical detail and potentially a massive conflict of interest that has never been fully explained or even properly disclosed. If Governor Jindal’s brother Nikesh didn’t explain the stakes to him, Jimmy Faircloth, Jindal’s former executive counsel and longtime confidant, should have. Quoting from The Times-Picayune (bold mine):

Also, the claim that SB 469 got a full public airing isn’t true. The bill was cobbled together late in the session by the governor’s former executive counsel, Jimmy Faircloth, and switched to a different Senate committee hours before a hearing on it. That limited public input. Mr. Verchick pointed out in a response to Mr. Enright Wednesday that the chairman of the House Natural Resources Committee also curtailed debate on the bill.

It’s worth noting that Representative Gordon Dove, the chairman of the House Natural Resources Committee, didn’t just shut off debate on the bill; he also refused to read into the record, as is customary, the names of citizens who showed up to support or oppose the bill. If he had, he would have revealed that ten times as many people, almost all of whom were either coastal activists or environmental professionals with no personal financial interest whatsoever, showed up to oppose the bill than those who showed up to support the bill, almost all of whom were being paid by organizations, agencies, and companies with a direct financial interest. (I am in receipt of this documentation and can send it upon request; I’m not posting it out of an abundance of caution, because it contains the home addresses, phone numbers, and e-mail addresses of private citizens).

*****

If it weren’t already obvious that SB 469 had little to do with ending the SLFPA-E’s lawsuit and almost everything to do with broadly immunizing the oil and gas industry from a wide range of otherwise legitimate claims, Governor Bobby Jindal made it abundantly clear only a few hours after he signed the bill into law. Later on Friday, Jindal announced he was replacing Tim Doody, the Chairman and founding member of the SLFPA-E, with a former oil and gas industry insider who openly admitted his biases and ignorance. Quoting from The Advocate (bold mine):

In a second blow to the flood protection authority Friday, Jindal announced that Tim Doody, a St. Bernard Parish resident who has served on the authority since it was created, will be replaced by Tyrone Ben, a fellow St. Bernard resident who works for the Guidance Center, an outpatient behavioral health and counseling center. Doody is the fourth member of the authority who supported the suit to be replaced since the case was filed.

With Doody’s replacement, only five of the nine members of the board are on record in favor of continuing the suit. Two more members, one who supports the suit and one who opposes it, are expected to be up for renomination later this year.

Ben, who was urged to apply for a seat on the board by former St. Bernard Parish President Craig Taffaro, currently an official in Jindal’s administration, said he did not have a “political agenda” in applying for the seat.

Based on his experience working for oil and gas companies, Ben said, he is inclined to believe that because energy companies needed to receive permits for their work, they were already being regulated and the lawsuit was not necessary. However, he said he was willing to listen to those who disagree.

“I don’t know anything on the other side of the argument,” Ben said. “I would be open-minded. I would be willing to listen. Evidently they had something that compelled them to file it in the first place.”

Jindal officials have said opposition to the suit would be a “litmus test” for all new appointees to the authority, and Ben said he was asked about the case by Jindal administration officials prior to his appointment.

“I said if my selection was predicated on that, I might not be the best person for the job,” he said.

Because he was appointed after the session ended, Ben will not have to face Senate confirmation until next year’s session. Jindal’s other three appointees were all confirmed by the Senate this year.

Despite Mr. Ben’s equivocations, he was, very obviously, selected to oppose the authority’s lawsuit, and because Mr. Jindal has the opportunity to replace two more members within the year, including one who supports the lawsuit, the Governor will almost certainly have the five votes he needs for the SLFPA-E to withdraw the case within the year. In other words, SB 469 was not necessary at all for Mr. Jindal to ensure that the SLFPA-E’s lawsuit was dropped. That may have been how the legislation was sold to the public, but again, that’s not what the law actually does. Indeed, several legal experts argue that SB 469, due to its purposely sloppy and overly broad statutory language, won’t affect the SLFPA-E’s lawsuit at all.

*****

Before I ask what I believe to be the single question that could destroy Bobby Jindal’s political future, I think it’s important to focus first on what may be the most astonishing accomplishment of his career. To be sure, the accomplishment doesn’t actually belong, exclusively, to him; it also belongs to his wife Supriya.

Only a few short months after he was elected to his first term, Bobby Jindal’s wife Supriya established The Supriya Jindal Foundation, a tax-exempt and tax-deductive charity that provides schools with high-tech whiteboards, a worthy pet cause that immediately was embraced by some of Louisiana’s most powerful companies. In almost no time at all, the Supriya Jindal Foundation went from an up-start that existed only on paper to a full-fledged organization with millions of dollars in the bank. Its astronomical success at immediately cultivating major donors and raising vast sums of money had never been done before in Louisiana, and it provided the new First Lady of Louisiana with the platform and the resources necessary to embark on annual statewide goodwill tours, doling out hundreds of thousands of dollars worth of much-needed technology to teachers and schools.

Unfortunately for Bobby and Supriya Jindal, eventually, people began asking questions about where all of that money actually came from, and once they started asking questions, it didn’t take long to figure out that the Supriya Jindal Foundation was funded, almost exclusively and entirely, by companies seeking special incentives and preferred treatment from the State of Louisiana. Quoting from a 2011 report in The New York Times (bold mine):

AT&T, which needed Mr. Jindal, a Republican, to sign off on legislation allowing the company to sell cable television services without having to negotiate with individual parishes, has pledged at least $250,000 to the Supriya Jindal Foundation for Louisiana’s Children.

Marathon Oil, which last year won approval from the Jindal administration to increase the amount of oil it can refine at its Louisiana plant, also committed to a $250,000 donation. And the military contractor Northrop Grumman, which got state officials to help set up an airplane maintenance facility at a former Air Force base, promised $10,000 to the charity.

The foundation has collected nearly $1 million in previously unreported pledges from major oil companies, insurers and other corporations in Louisiana with high-stakes regulatory issues, according to a review by The New York Times.

….

Dow Chemical, which has pledged $100,000 to the foundation, is the largest petrochemical company in Louisiana and has had numerous interactions with state officials during the Jindal administration, including an investigation into a July 2009 spill at its St. Charles Parish plant that forced the evacuation of area homes. The state in December 2009 proposed fining the company and its Union Carbide subsidiary for allowing the release of a toxic pollutant and failing to quickly notify state authorities of the leak, but so far no fine has been assessed.

….

Alon USA, an Israeli oil company that has pledged $250,000 to the Jindal Foundation, last year sought permit changes that would allow it to discharge more pollutants at its Krotz Springs refinery. In 2009, state environmental officials also eased requirements for the company to check for spills of oil, ammonia or other contaminants in waterways to twice a month, instead of twice a week, records show.

Several of the charity’s major donors are large state contractors, like Acadian Ambulance, or D&J Construction, which alone has received $67.6 million in contracts since 2009, mostly for highways, said a separate report on the foundation being issued this week by Citizens for Responsibility and Ethics in Washington. Both companies have pledged at least $10,000 to the foundation.

Since The New York Times report, the Supriya Jindal Foundation appears to have dramatically scaled back its activities. Aside from a few minor edits, its website hasn’t changed in years. According to its most recently available 990 report, the organization has no employees and only three officers, all unpaid: Supriya Jindal, Jeff Anger, a former lobbyist who runs a political action committee, and Lynn Moore, the wife of Jeff Moore, a member of the LSU Board of Supervisors and a hotelier who inherited his fortune from his family’s oil and gas company.

Perhaps not surprisingly, at the time of The New York Times report, Governor Jindal’s press secretary Kyle Plotkin (who was recently promoted to Chief of Staff) was not too thrilled. Quoting (bold mine):

“It is a completely nonpolitical, nonpartisan organization created by the first lady, who as an engineer and the mother of three children, has a passion for helping our young people learn science and math,” said Kyle Plotkin, the press secretary. “Anything other than this reality has plainly been dreamed up by partisan hacks living in a fantasy land.”

The inability of Governor Jindal and his staff to recognize the enormous concerns raised by the size, the timing, and the source of corporate donations to his wife’s foundation and the arrogant, bombastic dismissiveness with which they treated those concerns were and continue to be troubling.

But if you care about the corrosive influence of money in our political process, the potentiality of a government defined by closed door quid pro quo agreements between elected leaders and their corporate benefactors, then you should be even more alarmed by the newest Jindal non-profit.

*****

Three months after the SLFPA-E filed its landmark lawsuit against 97 oil and gas companies, Bobby Jindal launched America Next, a 501(c)(4) social welfare organization that many immediately perceived to be a launching pad for a 2016 Jindal Presidential campaign.

If, in fact, America Next is nothing more than about promoting Jindal’s candidacy, through the ruse of promoting his “ideas,” (and all indications, thus far, are that it is), then it, undoubtedly, violates federal tax laws regulating and defining 501(c)(4) social welfare organizations. Donations to Jindal’s new organization aren’t tax-deductible, but the organization is still tax-exempt. And perhaps most importantly, as a 501(c)(4), America Next isn’t required to disclose any of its donors to the public.

When Jindal was first elected Governor of Louisiana in 2007, he promised a new era of transparency in government. He campaigned on implementing the “gold standard” of ethics reform. He lambasted the cronyism and corruption that had defined state politics for decades, depicting his opponents as clowns who were willing to do anything for a bribe.

Seven years later, approaching lame duck status, Bobby Jindal is preparing his exit from the Governor’s Mansion by establishing a tax-exempt organization intended to promote his candidacy for national office, and when asked if he intended to reveal the donors to his new organization, Jindal not only refused, he acted as if disclosure of his donors – the very definition of transparency- was nothing more than a trap set by his political opponents. Quoting from The Times-Picayune (bold mine):

During a breakfast meeting with political reporters Wednesday, in which he unveiled a market-alternative alternative to the Affordable Care Act prepared by America Next, Jindal was asked whether he would reveal the group’s financing. He referred the question to the group’s executive director, Jill Neunaber, a former aide to the 2012 Mitt Romney for President organization.

It didn’t take long for Neunaber to respond to an email question:

“America Next is a 501(c)(4) that will make all disclosures as required by law,” she said in an email. “Beyond that we do not see any reason to give the Obama Administration opportunity to unjustly target conservative donors.”

The glaring truth is: America Next isn’t a social welfare organization, and it shouldn’t be tax-exempt under Section 501(c)(4). It’s an organization of political consultants, led by a woman who most recently worked for Mitt Romney’s campaign, in order to support Jindal’s candidacy, and they’re all hoping that everyone else is too dumb, too lazy, or too scared to call them out for openly breaking the law. If Bobby Jindal wants to build an infrastructure for a 2016 campaign, he should have formed a Political Action Committee; that would have also provided him with certain tax exemptions. But there’s one major difference: Unlike a PAC, 501(c)(4)s aren’t required to disclose their donors.

So, for the next year or two, Jindal hopes we all ignore his blatant disregard of laws that are designed to ensure transparency and the public’s right to know who is paying their elected officials on the side, how much they’re paying, and when those payments are made. Jindal hopes we’ll consider America Next to be his quaint little think tank, and he’s banking on the belief that Louisiana citizens won’t group the donations to his new non-profit with his actions as Governor. But as his wife’s foundation proves, it would be foolish not to look into who is bankrolling his organization.

That’s the single question that could destroy Bobby Jindal’s political future: Who? 

 

 

If You Care About Louisiana, This Should Make You Livid

“A lot of people mentioned to me how omnipresent BP lobbyists were, more than the other major oil companies were (though all of them showed plenty of interest), so much more that it got a lot of people wondering, `What’s in the bill for them?’ It certainly got us wondering.” – John Barry, June 5, 2014

“As our analysis shows, SB 469 fails to protect the local governments whose concerns your letter concedes are at issue and puts at risk billions of dollars of local government claims against BP. And, here, it should be noted that BP heavily lobbied for the passage of SB 469 – a fact strongly suggesting that the now known consequences of SB 469 were not unintended at all.” – Robert Verchick, June 4, 2014

“They (BP) didn’t lobby me, because they knew my position. But they lobbied several of my colleagues.” – State Representative John Bel Edwards, June 5, 2014

*****

In the late evening of April 20, 2010, Ryan Chaisson, Wes Bourg, Dustin King, and Albert Andry- a group of friends who called themselves the Knight Ryderz- were out fishing in the Gulf of Mexico. They steered their boat ten miles south of the Pass-a-Loutre Wildlife Management Area, fifty miles off the Louisiana coast, alongside the leg of a massive offshore oil rig. There, under a waxing crescent moon, a canopy of stars, and the blinking lights of nearby rigs, the four men witnessed an explosion that would set into motion the worst environmental disaster in American history and the largest oil spill in the history of the world. Shortly after the explosion, they moved to a safe distance and recorded this video.

Eleven people died that night, and for the next 87 days, more than five million barrels of oil gushed into the Gulf of Mexico, ravaging the already fragile coastal ecosystem, poisoning and killing marine life, and nearly crippling Louisiana’s seafood industry.

Four years later, BP still hasn’t paid billions in damages owed to families, businesses, and communities devastated by their negligence. Four years later, oil continues to wash ashore, and four years later, there are reports that suggest people are still getting severely sick due to their exposure to the dispersant BP used to “clean up” the oil. Today, literally today, federal investigators finally released a report on the cause of the spill- the failure of the blowout preventer, a critical piece of safety equipment.

*****

Foster Campbell, a former State Senator who is currently serving on the Public Service Commission, once famously quipped, “The flag of Texaco flies over the Louisiana State Capitol.” Texaco has since merged with Chevron, but as this year’s legislative session proves, Campbell’s joke still works. All you need to do is replace Texaco with BP.

For nearly a century, Louisiana has been involved in a torrid, abusive, and complicated love affair with the oil and gas industry. The industry generates an enormous amount of wealth, provides tens of thousands of good-paying jobs, and represents the state’s single-largest economic engine. But it’s also at least partially, if not principally, legally responsible for the destruction and degradation of the state’s coast- the marshland and barrier islands that serve as the first and most critical line of defense against hurricanes.

For far too many in Louisiana, the environment is a mushy, amorphous, liberal issue. Even when scientists explain the issue in colloquial terms most people should understand (i.e. “Louisiana is losing a football field of land every hour”), it’s difficult to conceptualize. After all, you can’t sit outside and watch as an entire football field is, literally, swallowed back into the ocean in only an hour. But even if you could, that may still not be sufficient enough to convince the current regime of science deniers occupying the Governor’s Mansion and the tables at the Baton Rouge Ruth’s Chris Steakhouse.

Money, on the other hand, is immediately tangible. It talks, and it walks. Money buys access, influence, and power, and much like the rest of the country, in Louisiana, it also buys politicians.

*****

Last July, the Southeast Louisiana Flood Protection Authority- East (SLFPA-E) filed a landmark lawsuit against 97 different oil and gas companies “alleging that the conduct of those companies in their operations in a ‘buffer zone’ of marshes and wetlands between SLFPA-E’s levee system and the Gulf of Mexico has caused that wetland system to degrade and disappear, making SLFPA-E’s mandated role of storm surge protection a more difficult and expensive task.” Put more simply, the SLFPA-E sued these companies for destroying the environment.

The SLFPA-E had a few important things going for them: The law, the history, and the science. Environmentalists and legal scholars praised the authority’s bold decision to finally hold these companies accountable for the billions of dollars in damages they illegally and negligently inflicted.

But the oil and gas industry had an ace up its sleeve: Louisiana’s politicians were already on their payroll. The Texaco corporate logo may have changed, but the flag of Big Oil still soars high above the House That Huey Built.

Almost immediately, Governor Bobby Jindal, the recipient of more than $1 million in campaign contributions from the oil and gas industry, announced his vehement opposition to the SLFPA-E’s lawsuit, arguing, among other things, that it was an illegal usurpation of his authority (not true), that it was merely an attempt by greedy trial lawyers to earn massive amounts of money from these companies (not true, but even if it were, Jindal unwittingly acknowledged that the oil and gas companies were culpable and likely to lose), that these lawyers entered into an illegal agreement with the authority (not true, as the courts subsequently made very clear), and that it undermined the state’s long-term coastal restoration plan (once again, not true; if anything, it bolstered the plan).

Although it was established as an apolitical authority of coastal restoration experts and professionals, through a referendum supported by nearly 80% of Louisiana voters, Governor Jindal made it abundantly clear: From here on out, if you wanted to serve on the SLFPA-E, your political loyalty to him (and by extension, to the oil and gas companies that finance his campaigns) was more important than anything else on your resume.

The powerful Louisiana Oil and Gas Association (LOGA) launched a full-scale astroturf campaign opposing the lawsuit, complete with phony websites and stacked town hall meetings. LOGA’s campaign was informed, almost entirely, by a thoroughly debunked study about legacy lawsuits (which, notably, have nothing to do, substantively, with the SLFPA-E’s suit) written by LSU Professor David Dismukes.

Clancy DuBos of The Gambit reports, “LOGA took it a step further and filed a lawsuit challenging the legality of SLFPA-E’s contract with its legal counsel. The contract includes a handsome contingency fee. LOGA’s lawsuit specifically claims the SLFPA-E suit would cause ‘irreparable injury’ to LOGA members and have a ‘chilling
 effect on the exploration, production, development and transportation’ of oil and gas in Louisiana.” LOGA ultimately lost its lawsuit; there was nothing illegal or improper about the ways in which the SLFPA-E hired its legal counsel. But because of the case, thankfully, we now have the transcript of LOGA President Don Briggs’ deposition. Quoting again from The Gambit:

For example, Briggs was asked in a Feb. 20 deposition if he had “any facts or information” to back up his opinion that oil and gas exploration did not contribute to coastal land loss. He answered, “No. … Nothing.”

That was just the start. Consider the following exchanges in Briggs’ deposition:

Question:·Is it your opinion that oil and gas companies are leaving Louisiana because of the threat of lawsuits?

Briggs: Yes.

Question: Which oil companies have left Louisiana because of lawsuits?

Briggs: I don’t know.

Question: Do you have any facts or data to support your opinion?

Briggs: No.

Question: Is it your belief that oil and gas companies are not coming to Louisiana because of the threat of lawsuits?

Briggs: Yes.

Question: Which oil companies have decided not to drill in Louisiana because of the threat of lawsuits?

Briggs: I don’t know.

Question: Do you have any facts or data to support your opinion?

Briggs: No.

Briggs’ deposition contains many more admissions, including one that he hadn’t even read the SLFPA-E lawsuit.

*****

Because Bobby Jindal couldn’t stop the lawsuit through an executive order and because Don Briggs and the insiders he represents couldn’t convince the courts to agree with anything he argued, they turned to their trusted friends in the Louisiana legislature.

Not surprisingly, despite a few false starts and failed attempts, the legislature eventually passed SB 469, a bill that was originally written and sponsored by State Senator Robert Adley, an oilman himself who has received nearly $600,000 in campaign contributions from the oil and gas industry. After Adley’s bill failed, in a move that would seem sneaky and skilled if it hadn’t been so sloppy and blatant, it was subsequently taken up by State Senator Bret Allain, whose torturous misunderstanding of the law is actually less offensive than the fact that he sued (and settled with) an oil and gas company for the very thing his bill now seeks to prohibit.

On May 31st, Loyola Law Professor Robert Verchick sent Governor Bobby Jindal a detailed legal memorandum, urging him to veto SB 469. But, as Verchick made clear, his concerns had nothing to do with the merits or the politics of SLFPA-E’s lawsuit. Instead, Verchick called attention to the ways in which the bill’s vague, ambiguous, and overly broad language could jeopardize and potentially invalidate an enormous range of otherwise legitimate pending and future claims for damages against oil and gas companies. Most importantly, Verchick notes that SB 469, if signed into law, would likely be used by BP to reduce their financial and legal exposure to damages resulting from the 2010 Deepwater Horizon disaster.

As of this writing, 79 legal scholars from all over the country have signed onto Professor Verchick’s memorandum.

Quoting from an earlier report by Mike Hasten of Gannett (bold mine):

A Loyola law school professor and several professors from other law schools issued a statement that the bill could jeopardize claims of parishes and individuals seeking compensation for damages from the massive BP oil spill in the Gulf of Mexico.

Jindal said he agreed to delay signing because “we’re certainly not going to do anything to impede our people’s ability to file claims in regard to the explosion.”

However, the governor said he does not believe the bill would affect those lawsuits because they are filed in federal court, and the bill deals with state laws.

Jindal acknowledged that oil industry attorneys were involved in drafting the bill.

The fox, in other words, is guarding the hen house. Oil and gas industry attorneys weren’t merely “involved;” they wrote the bill. According to those who were there, lobbyists and lawyers for BP seemed to play an outsized role.

Earlier tonight, John Barry, the former chairman of the SLFPA-E and the internationally acclaimed author of Rising Tide: The Great Mississippi Flood of 1927 and How It Changed America, told me, “A lot of people mentioned to me how omnipresent BP lobbyists were, more than the other major oil companies were (though all of them showed plenty of interest), so much more that it got a lot of people wondering, ‘What’s in the bill for them?’ It certainly got us wondering.”

I also spoke with State Representative John Bel Edwards, who echoed Mr. Barry’s concerns. Oil and gas lobbyists already knew Representative Edwards was opposed to the legislation, he said. They didn’t even waste their time trying to convince him otherwise. But lobbyists, particularly lobbyists associated with BP, spent a lot of time with some of his colleagues.

Despite the fact that 79 leading legal scholars from all over the country and Louisiana’s own Attorney General are publicly urging the Governor to veto the bill, Jindal’s executive counsel, Thomas Enright, suggested on Wednesday that the bill would be signed into law. Quoting again from Mike Hasten of Gannett (bold mine):

Thomas Enright, Jindal’s executive counsel, dismissed (Attorney General) Caldwell’s recommendation in a Wednesday afternoon letter that says the Legislature fully debated the bill, and that local governments had the opportunity to amend it if they were concerned about its impact on their ability to sue.

….

Enright maintains in his letter, “Simply put, this piece of legislation was fully debated, was the subject of intense media coverage throughout the session and now represents the Louisiana Legislature’s intent to make absolutely clear that irresponsible lawsuits, such as the one filed by SLFPA-E, are unwelcome in this state.

Even if one agrees that SLFPA-E’s lawsuit was irresponsible, that hardly justifies enacting an even more irresponsible law.

Professor Verchick responded to Enright’s letter and skillfully and methodically dismantled his argument. Quoting in full (bold mine):

Dear Mr. Enright:

I have obtained a copy of your letter of June 4, 2014, addressed to Attorney General James D. Caldwell, which you furnished to the media. While I understand your position, I find your reasoning unpersuasive and, in some cases, based on inaccurate facts.

First, you write that the reasons set forth by the Attorney General for vetoing SB469 lack “specificity” as to the bill’s “unintended consequences.” To that end, I direct your attention to the legal analysis provided by my colleagues and me and encourage you to review our memorandum. That document—seven pages long and signed by more than 20 legal professors and scholars (now 78) from the most prestigious law schools across the country, including our very own Loyola, Tulane and LSU law schools—reports in stark and detailed language the many ways that SB469 threatens billions of dollars worth of claims related to the BP oil spill. I’m frankly baffled at how such consequences could go ignored in the Governor’s rush to sign this bill into law. For that reason, I include a copy of our full analysis for you to review.

In addition to the reasons outlined in that document, we are now also concerned, as you no doubt know, that NOAA has expressed serious questions about SB469, which could result in the loss of federal funding to protect our coast. Federal approval of the bill was never obtained as is required by federal law or even sought as of yesterday, June 3, 2014. In addition, the weakening of parish authority to protect their coastlines could lead NOAA to rescind the state’s coastal management program, depriving the state of needed federal revenue.

Second, you say, “this piece of legislation was fully debated, was the subject of intense media coverage throughout the session and now represents the Louisiana Legislature’s intent.” But SB469 was not fully debated. As you know, in the legislative process, discussion by the public can only take place in committee hearings. The bill was first assigned to Senate Committee Judiciary A, where it was clear the bill would have failed. When the author of the bill learned of its obvious fate, the bill was hastily moved, rewritten, and then heard in Senate Natural Resources Committee less than 18 hours later. There was next to no public notice, and debate on the bill was thus cut short. Furthermore, when the bill moved to the House of Representatives, it was assigned to the House Natural Resources Committee, instead of the Civil Law Committee where legislators skilled and experienced in the issues presented by SB469 could have addressed same. Worse, Representative Gordon Dove, Chair of the House Natural Resources Committee cut off debate.

Regardless, and contrary to the suggestion, neither legislative debate – nor media coverage – can substitute for thorough legal analysis by experts in the field. SB469 has been subject to just such an analysis, and under that analysis SB469 fails. As our analysis shows, SB469 fails to protect the local governments whose concerns your letter concedes are at issue and puts at risk billions of dollars of local government claims against BP. And, here, it should be noted that BP heavily lobbied for the passage of SB469 – a fact strongly suggesting that the now known consequences of SB469 were not unintended at all.

The bill may even fail to achieve its original goal— termination of the SLFPAE’s lawsuit. The bill says it applies only to “local government entities,” a term with a specific legal meaning that does not include regional flood protection authorities or the levee districts that make up SLFPAE. And, in the one place SB469 does mention regional flood protection authorities, the bill fails to include levee districts. The SLFPAE lawsuit is filed on behalf of the East Jefferson Levee District, the Orleans Levee District, and the Lake Borgne Basin Levee District as entities distinct from SLFPAE itself. So those levee districts’ claims in the SLFPAE lawsuit could well remain untouched. In sum, SB469 fails in every regard.

So far, Jindal’s allies have struggled to come up with a convincing response. Quoting again from Mike Hasten (bold mine):

Don Briggs, president of the Louisiana Oil and Gas Association, objected before The Daily Advertiser’s editorial board Wednesday to complaints that the legislation, if signed into law, would complicate or hinder claims against BP for the 2010 oil spill.

“Twenty three lawyers, judges and professors from California to Florida were somehow able to come together on a seven-page dissertation on what SB 469 does in less than 24 hours after it passed,” Briggs said. “Has anyone seen 23 lawyers agree on anything? Much less in 24 hours over email? If it doesn’t smell fishy to you, it certainly should.”

Again, notably, Professor Verchick’s memorandum now has the endorsement of nearly eighty “lawyers, judges and professors from California to Florida.” Maybe it is surprising to people like Mr. Briggs, a man who has repeatedly and, at times, hilariously demonstrated his ignorance of the law, that legal experts can agree on an issue in less than 24 hours. To me, if anything, it’s not evidence of some nefarious conspiracy; it’s just proof that the bill is clearly flawed. Unless Mr. Briggs can produce documentation of a secret, national network of law professors and judges who have a financial interest in defeating SB 469, I think it’s safe to say the only thing that smells “fishy” here is the outsized role he and his fellow industry lobbyists (that is, the people who actually do have a financial interest) played in crafting legislation that could potentially keep oil and gas companies off the hook for billions in damages. Continuing (bold mine):

Stephen Waguespack, president of the Louisiana Association of Business and Industry, said he considers the effort to get to Jindal to veto the bill is the SLFPA-E attorneys “doing everything they can to save the contract. The opponents did not raise a lot of issues in the session. It’s amazing how well thought out it is 48 hours after the session.

Prior to becoming the President of LABI, Stephen Waguespack was Bobby Jindal’s Chief of Staff. If Mr. Waguespack were serious about his new job, he would have done his homework. On April 8th, the attorneys representing the SLFPA-E sent out a press release captioned:

Attorneys Representing  Southeast Louisiana Flood Protection Authority – East Put The Ball in Oil and Gas Companies’ Court – Offer To Tear Up Contract

Under New Terms, Public Would Not Pay a Penny for Lawyers’ Fees

Suffice it to say, the attorneys’ offer went nowhere, and Governor Jindal, Mr. Briggs, and Mr. Waguespack, along with a handful of conservative commentators, continue to mislead the public, relying on lazy and hackneyed cliches about the evils of trial lawyers in order to score cheap political points. It’s not folksy; it’s dishonest and hypocritical. That said, Governor Jindal is imminently qualified on the subject of bad lawyers; since he was elected, he’s hired and enriched more bad lawyers than anyone else in the State of Louisiana.

But if you care about Louisiana, that’s not what should make you livid. You should be livid about the ways in which BP, a company responsible for the largest environmental disaster in American history, bought off an incompetent legislature and an absentee Governor and somehow managed to help write and pass a bill that, ostensibly, was about killing one lawsuit but, effectively, is about much, much more. Quoting from Professor Verchick’s memorandum (bold and underline mine):

As stated above, these open questions present a significant litigation risk to the governmental entities’ BP claims, as well as for claims from future spill events. While it is not a given that this risk will ultimately result in a dismissal of the state and parish claims against BP under OPA, we believe that the risk creates an uncertainty and an almost-sure delay in resolution of the BP litigation that is unacceptable. A court could plausibly interpret SB 469 to dismiss or limit damage claims, now before the court, that the state and its subdivisions have brought against BP. Regardless of how the court ultimately rules, the very existence of these eventualities will devalue the plaintiffs’ settlement posture and perhaps lengthen the time those governmental entities will go without recompense for these categories of economic loss.

Should BP raise defenses based on SB 469 and succeed even partially, the results would needlessly and disastrously deprive Louisiana and its communities of precious revenue and cause considerable embarrassment for state leaders. The legal issues we raise here are real and unnecessary to take on. It would be foolish to bet tens of billions of dollars on their outcome.

*****

Former Louisiana Governor Edwin Edwards spent eight years in federal prison for accepting payments, totaling a few hundred thousand dollars, from would-be casino operators who sought his mostly unsuccessful “help,” after he had returned to his law practice, in receiving licenses from a state board comprised largely of people he had previously appointed. Former New Orleans Mayor Ray Nagin was convicted of using his position to steer business to a struggling granite and stone company he owned with his sons and taking bribes, in the form of paid vacations, meals, and cell phones, from people seeking contracts or incentives from the city.

For many, these crimes are unforgivable, a complete and total dereliction of duty, a breach of trust, and for many, these two men, along with former Congressman William Jefferson, will forever be remembered as criminals.

If Bobby Jindal signs SB 469 into law and if BP does what nearly eighty of the country’s most preeminent legal scholars anticipate they will do- with a law that BP’s own lobbyists likely helped to write, Governor Jindal would have betrayed the people of Louisiana far more than Edwin Edwards or Ray Nagin or William Jefferson ever did. Edwin’s deals, C. Ray’s vacations, and Dollar Bill’s $90,000 in the freezer would all pale in comparison to the $1 million that oil and gas companies have already deposited in Jindal’s campaign bank account, the $600,000 they’ve given, so far, to State Senator Robert Adley, and the millions more they’ve contributed to their other friends in the legislature.

Update: Bobby Jindal signed SB 469 into law.

Jindal Confuses Religious Liberty With State-Sanctioned Bigotry

Yesterday, shortly after receiving an honorary degree in front of a packed crowd at Jerry Falwell’s Liberty University, Louisiana Governor Bobby Jindal delivered the commencement’s keynote address. Jindal had already previewed the speech to the media. It would be an elaboration of a speech on religious liberty that he gave in February at the Ronald Reagan Presidential Library, and clearly, he was hoping that people would pay attention. To some, it was notable that Jindal debuted his newly adopted thesis on religious liberty at a library honoring a President who, rather famously, never went to church. President Reagan may have courted the religious right and helped provide the so-called “Moral Majority” with political legitimacy, but Jindal’s attempt to present Reagan as a leader who shared his religious beliefs was ham-handed at best. Liberty University was a much more obvious venue. Jerry Falwell, after all, was once the country’s most well-known Christian evangelical activist. He spent his entire life straddling between politics and his particular brand of Christianity, and in the process, he made a tax-exempt fortune.

Perhaps believing that he was addressing a friendly audience, Bobby Jindal delivered the most bizarre and sanctimonious speech of his entire career, proving, definitively, that he does not and has never understood the concept of religious liberty.

Skip to 2 hours and 5 minutes:

To Jindal, “religious liberty” actually has nothing to do with religion or liberty; it’s catch-all code language used to provide cover for conservatives who believe in state-sanctioned bigotry and discrimination. As LSU Professor Bob Mann recently stated (bold mine):

You see, when Bobby Jindal talks about religious freedom, what he really means is the right of people to discriminate against gays and lesbians under the guise of religion.

Jindal says liberals disdain free speech by people of faith. As a person of faith, I have no problem with other people of faith expressing their views on what they believe the Bible says about homosexuality or other private behavior. What many people of faith and others find abhorrent and un-American self-righteous politician-preachers, like Jindal, who want to write their narrow religious beliefs about private behavior into law.

For Jindal to suggest that objecting to writing his interpretation of the Bible onto the nation’s law books is a violation of religious liberty suggests that he is either a very ignorant man or a very cynical one.

Jindal believes that American liberals are engaged in an all-out assault on good, wholesome Christian values, and as he explained in his speech, there’s no one more good and wholesome than a Christian reality television star who espouses virulently homophobic and stupid, bigoted beliefs. He reminded the audience at Liberty that he stood up for Phil Robertson of the show “Duck Dynasty,” not because he is the Governor of Louisiana, he said, but because he’s a champion of religious freedom. It was nonsense. Robertson didn’t need Jindal to defend him for comparing homosexuality to bestiality. This wasn’t an issue of “religious liberty;” it was about Jindal aligning himself with the most popular reality television show in the country. Later in his speech, Jindal referenced another reality television family, two brothers who happened to be in the audience. HGTV recently decided not to pick up their show on home renovations after reports surfaced that both of them were virulent homophobes. Jindal asked them to stand up and be recognized for their “courage.”

Think about that for a second. According to Governor Jindal, the victims of America’s war on “religious liberty” are reality television stars. It’s absurd.

Meanwhile, in Bobby Jindal’s Louisiana, legislators recently refused to strike down the state’s unconstitutional anti-sodomy law, ensuring that homosexuality remains, at least technically, illegal. Meanwhile, Louisiana continues to discriminate against gay and lesbian couples who want to exercise their fundamental right to marriage. Its laws promote discrimination against gay and lesbian Americans in workforce and housing opportunities. Louisiana refuses to protect school children against bullying on the basis of sexual orientation or disability. It denies the children of gay and lesbian couples the dignity of having their parents legally recognized as “parents.”

And Governor Bobby Jindal wants us to stand up and applaud two homophobic, wanna reality television stars for their “courage.” That, to him, is what religious liberty is all about.

But religious liberty should not be confused with state-sanctioned bigotry. In America, liberty does not mean Christians or Muslims or Buddhists or atheists have the right to pass and enforce laws that infringe on anyone else’s fundamental freedoms. Governor Jindal doesn’t seem to understand this very simple fact: No one really cares if he’s a homophobe or if he believes his religion justifies his opposition to homosexuality; this is about the law. It’s not about him. He and the Robertson family and the HGTV brothers aren’t the victims here. Christianity in America is not “under attack.” Bobby Jindal is free to practice his religion, but he’s not free to impose his religious beliefs on the rest of us through the force of law. That is the true definition of an assault on religious liberty.

If he won’t listen to me, then maybe he’ll listen to Jerry Falwell*. Quoting (bold mine):

Falwell told MSNBC’s Tucker Carlson that if he were a lawyer, he too would argue for civil rights for LGBT people. “I may not agree with the lifestyle, but that has nothing to do with the civil rights of that part of our constituency,” Falwell said. When Carlson countered that conservatives “are always arguing against ‘special rights’ for gays,” Falwell said that equal access to housing, civil marriage, and employment are basic rights, not special rights. “Civil rights for all Americans, black, white, red, yellow, the rich, poor, young, old, gay, straight, et cetera, is not a liberal or conservative value. It’s an American value that I would think that we pretty much all agree on.”

* I’m not trying to gloss over Falwell’s record. He had his fair share of ridiculously paranoiac, homophobic comments. Anyone remember his campaign against the purple Teletubby? I still do. But when Falwell is more progressive and realistic than Jindal on gay rights, it’s worth mentioning.

And maybe this is even more of a longshot, but here’s what Teddy Kennedy said when he addressed Liberty (h/t Bob Mann):

A CALL FOR TOLERANCE IN RELIGIOUS AND POLITICAL BELIEFS

I have come here to discuss my beliefs about faith and country, tolerance and truth in America. I know we begin with certain disagreements; I strongly suspect that at the end of the evening some of our disagreements will remain. But I also hope that tonight and in the months and years ahead, we will always respect the right of others to differ, that we will never lose sight of our own fallibility, that we will view ourselves with a sense of perspective and a sense of humor. After all, in the New Testament, even the Disciples had to be taught to look first to the beam in their own eyes, and only then to the mote in their neighbor’s eyes.

I am mindful of that counsel. I am an American and a Catholic; I love my country and treasure my faith. But I do not assume that my conception of patriotism or policy is invariably correct, or that my convictions about religion should command any greater respect than any other faith in this pluralistic society. I believe there surely is such a thing as truth, but who among us can claim a monopoly on it?

There are those who do, and their own words testify to their intolerance. For example, because the Moral Majority has worked with members of different denominations, one fundamentalist group has denounced Dr. Falwell for hastening the ecumenical church and for “yoking together with Roman Catholics, Mormons, and others.” I am relieved that Dr. Falwell does not regard that as a sin, and on this issue, he himself has become the target of narrow prejudice. When people agree on public policy, they ought to be able to work together, even while they worship in diverse ways. For truly we are all yoked together as Americans, and the yoke is the happy one of individual freedom and mutual respect.

But in saying that, we cannot and should not turn aside from a deeper and more pressing question — which is whether and how religion should influence government. A generation ago, a presidential candidate had to prove his independence of undue religious influence in public life, and he had to do so partly at the insistence of evangelical Protestants. John Kennedy said at that time: “I believe in an America where there is no religious bloc voting of any kind.” Only twenty years later, another candidate was appealing to a[n] evangelical meeting as a religious bloc. Ronald Reagan said to 15 thousand evangelicals at the Roundtable in Dallas: ” I know that you can’t endorse me. I want you to know I endorse you and what you are doing.”

To many Americans, that pledge was a sign and a symbol of a dangerous breakdown in the separation of church and state. Yet this principle, as vital as it is, is not a simplistic and rigid command. Separation of church and state cannot mean an absolute separation between moral principles and political power. The challenge today is to recall the origin of the principle, to define its purpose, and refine its application to the politics of the present.

The founders of our nation had long and bitter experience with the state, as both the agent and the adversary of particular religious views. In colonial Maryland, Catholics paid a double land tax, and in Pennsylvania they had to list their names on a public roll — an ominous precursor of the first Nazi laws against the Jews. And Jews in turn faced discrimination in all of the thirteen original Colonies. Massachusetts exiled Roger Williams and his congregation for contending that civil government had no right to enforce the Ten Commandments. Virginia harassed Baptist teachers, and also established a religious test for public service, writing into the law that no “popish followers” could hold any office.

But during the Revolution, Catholics, Jews, and Non-Conformists all rallied to the cause and fought valiantly for the American commonwealth — for John Winthrop’s “city upon a hill.” Afterwards, when the Constitution was ratified and then amended, the framers gave freedom for all religion, and from any established religion, the very first place in the Bill of Rights.

Indeed the framers themselves professed very different faiths: Washington was an Episcopalian, Jefferson a deist, and Adams a Calvinist. And although he had earlier opposed toleration, John Adams later contributed to the building of Catholic churches, and so did George Washington. Thomas Jefferson said his proudest achievement was not the presidency, or the writing the Declaration of Independence, but drafting the Virginia Statute of Religious Freedom. He stated the vision of the first Americans and the First Amendment very clearly: “The God who gave us life gave us liberty at the same time.”

The separation of church and state can sometimes be frustrating for women and men of religious faith. They may be tempted to misuse government in order to impose a value which they cannot persuade others to accept. But once we succumb to that temptation, we step onto a slippery slope where everyone’s freedom is at risk. Those who favor censorship should recall that one of the first books ever burned was the first English translation of the Bible. As President Eisenhower warned in 1953, “Don’t join the book burners…the right to say ideas, the right to record them, and the right to have them accessible to others is unquestioned — or this isn’t America.” And if that right is denied, at some future day the torch can be turned against any other book or any other belief. Let us never forget: Today’s Moral Majority could become tomorrow’s persecuted minority.

The danger is as great now as when the founders of the nation first saw it. In 1789, their fear was of factional strife among dozens of denominations. Today there are hundreds — and perhaps even thousands of faiths — and millions of Americans who are outside any fold. Pluralism obviously does not and cannot mean that all of them are right; but it does mean that there are areas where government cannot and should not decide what it is wrong to believe, to think, to read, and to do. As Professor Larry Tribe, one of the nation’s leading constitutional scholars has written, “Law in a non-theocratic state cannot measure religious truth, nor can the state impose it.”

The real transgression occurs when religion wants government to tell citizens how to live uniquely personal parts of their lives. The failure of Prohibition proves the futility of such an attempt when a majority or even a substantial minority happens to disagree. Some questions may be inherently individual ones, or people may be sharply divided about whether they are. In such cases, like Prohibition and abortion, the proper role of religion is to appeal to the conscience of the individual, not the coercive power of the state.

But there are other questions which are inherently public in nature, which we must decide together as a nation, and where religion and religious values can and should speak to our common conscience. The issue of nuclear war is a compelling example. It is a moral issue; it will be decided by government, not by each individual; and to give any effect to the moral values of their creed, people of faith must speak directly about public policy. The Catholic bishops and the Reverend Billy Graham have every right to stand for the nuclear freeze, and Dr. Falwell has every right to stand against it.

There must be standards for the exercise of such leadership, so that the obligations of belief will not be debased into an opportunity for mere political advantage. But to take a stand at all when a question is both properly public and truly moral is to stand in a long and honored tradition. Many of the great evangelists of the 1800s were in the forefront of the abolitionist movement. In our own time, the Reverend William Sloane Coffin challenged the morality of the war in Vietnam. Pope John XXIII renewed the Gospel’s call to social justice. And Dr. Martin Luther King, Jr. who was the greatest prophet of this century, awakened our nation and its conscience to the evil of racial segregation.

Their words have blessed our world. And who now wishes they had been silent? Who would bid Pope John Paul [II] to quiet his voice against the oppression in Eastern Europe, the violence in Central America, or the crying needs of the landless, the hungry, and those who are tortured in so many of the dark political prisons of our time?

President Kennedy, who said that “no religious body should seek to impose its will,” also urged religious leaders to state their views and give their commitment when the public debate involved ethical issues. In drawing the line between imposed will and essential witness, we keep church and state separate, and at the same time we recognize that the City of God should speak to the civic duties of men and women.

There are four tests which draw that line and define the difference.

First, we must respect the integrity of religion itself.

People of conscience should be careful how they deal in the word of their Lord. In our own history, religion has been falsely invoked to sanction prejudice — even slavery — to condemn labor unions and public spending for the poor. I believe that the prophecy, “The poor you have always with you” is an indictment, not a commandment. And I respectfully suggest that God has taken no position on the Department of Education — and that a balanced budget constitutional amendment is a matter of economic analysis, and not heavenly appeals.

Religious values cannot be excluded from every public issue; but not every public issue involves religious values. And how ironic it is when those very values are denied in the name of religion. For example, we are sometimes told that it is wrong to feed the hungry, but that mission is an explicit mandate given to us in the 25th chapter of Matthew.

Second, we must respect the independent judgments of conscience.

Those who proclaim moral and religious values can offer counsel, but they should not casually treat a position on a public issue as a test of fealty to faith. Just as I disagree with the Catholic bishops on tuition tax credits — which I oppose — so other Catholics can and do disagree with the hierarchy, on the basis of honest conviction, on the question of the nuclear freeze.

Thus, the controversy about the Moral Majority arises not only from its views, but from its name — which, in the minds of many, seems to imply that only one set of public policies is moral and only one majority can possibly be right. Similarly, people are and should be perplexed when the religious lobbying group Christian Voice publishes a morality index of congressional voting records, which judges the morality of senators by their attitude toward Zimbabwe and Taiwan.

Let me offer another illustration. Dr. Falwell has written — and I quote: “To stand against Israel is to stand against God.” Now there is no one in the Senate who has stood more firmly for Israel than I have. Yet, I do not doubt the faith of those on the other side. Their error is not one of religion, but of policy. And I hope to be able to persuade them that they are wrong in terms of both America’s interest and the justice of Israel’s cause.

Respect for conscience is most in jeopardy, and the harmony of our diverse society is most at risk, when we re-establish, directly or indirectly, a religious test for public office. That relic of the colonial era, which is specifically prohibited in the Constitution, has reappeared in recent years. After the last election, the Reverend James Robison warned President Reagan no to surround himself, as president before him had, “with the counsel of the ungodly.” I utterly reject any such standard for any position anywhere in public service. Two centuries ago, the victims were Catholics and Jews. In the 1980s the victims could be atheists; in some other day or decade, they could be the members of the Thomas Road Baptist Church. Indeed, in 1976 I regarded it as unworthy and un-American when some people said or hinted that Jimmy Carter should not be president because he was a born again Christian. We must never judge the fitness of individuals to govern on the bas[is] of where they worship, whether they follow Christ or Moses, whether they are called “born again” or “ungodly.” Where it is right to apply moral values to public life, let all of us avoid the temptation to be self-righteous and absolutely certain of ourselves. And if that temptation ever comes, let us recall Winston Churchill’s humbling description of an intolerant and inflexible colleague: “There but for the grace of God goes God.”

Third, in applying religious values, we must respect the integrity of public debate.

In that debate, faith is no substitute for facts. Critics may oppose the nuclear freeze for what they regard as moral reasons. They have every right to argue that any negotiation with the Soviets is wrong, or that any accommodation with them sanctions their crimes, or that no agreement can be good enough and therefore all agreements only increase the chance of war. I do not believe that, but it surely does not violate the standard of fair public debate to say it. What does violate that standard, what the opponents of the nuclear freeze have no right to do, is to assume that they are infallible, and so any argument against the freeze will do, whether it is false or true.

The nuclear freeze proposal is not unilateral, but bilateral — with equal restraints on the United States and the Soviet Union. The nuclear freeze does not require that we trust the Russians, but demands full and effective verification. The nuclear freeze does not concede a Soviet lead in nuclear weapons, but recognizes that human beings in each great power already have in their fallible hands the overwhelming capacity to remake into a pile of radioactive rubble the earth which God has made.

There is no morality in the mushroom cloud. The black rain of nuclear ashes will fall alike on the just and the unjust. And then it will be too late to wish that we had done the real work of this atomic age — which is to seek a world that is neither red nor dead.

I am perfectly prepared to debate the nuclear freeze on policy grounds, or moral ones. But we should not be forced to discuss phantom issues or false charges. They only deflect us form the urgent task of deciding how best to prevent a planet divided from becoming a planet destroyed.

And it does not advance the debate to contend that the arms race is more divine punishment than human problem, or that in any event, the final days are near. As Pope John said two decades ago, at the opening of the Second Vatican Council: “We must beware of those who burn with zeal, but are not endowed with much sense… we must disagree with the prophets of doom, who are always forecasting disasters, as though the end of the earth was at hand.” The message which echoes across the years is very clear: The earth is still here; and if we wish to keep it, a prophecy of doom is no alternative to a policy of arms control.

Fourth, and finally, we must respect the motives of those who exercise their right to disagree.

We sorely test our ability to live together if we readily question each other’s integrity. It may be harder to restrain our feelings when moral principles are at stake, for they go to the deepest wellsprings of our being. But the more our feelings diverge, the more deeply felt they are, the greater is our obligation to grant the sincerity and essential decency of our fellow citizens on the other side.

Those who favor E.R.A [Equal Rights Amendment] are not “antifamily” or “blasphemers.” And their purpose is not “an attack on the Bible.” Rather, we believe this is the best way to fix in our national firmament the ideal that not only all men, but all people are created equal. Indeed, my mother, who strongly favors E.R.A., would be surprised to hear that she is anti-family. For my part, I think of the amendment’s opponents as wrong on the issue, but not as lacking in moral character.

I could multiply the instances of name-calling, sometimes on both sides. Dr. Falwell is not a “warmonger.” And “liberal clergymen” are not, as the Moral Majority suggested in a recent letter, equivalent to “Soviet sympathizers.” The critics of official prayer in public schools are not “Pharisees”; many of them are both civil libertarians and believers, who think that families should pray more at home with their children, and attend church and synagogue more faithfully. And people are not sexist because they stand against abortion, and they are not murderers because they believe in free choice. Nor does it help anyone’s cause to shout such epithets, or to try and shout a speaker down — which is what happened last April when Dr. Falwell was hissed and heckled at Harvard. So I am doubly grateful for your courtesy here this evening. That was not Harvard’s finest hour, but I am happy to say that the loudest applause from the Harvard audience came in defense of Dr. Falwell’s right to speak.

In short, I hope for an America where neither “fundamentalist” nor “humanist” will be a dirty word, but a fair description of the different ways in which people of goodwill look at life and into their own souls.

I hope for an America where no president, no public official, no individual will ever be deemed a greater or lesser American because of religious doubt — or religious belief.

I hope for an America where the power of faith will always burn brightly, but where no modern Inquisition of any kind will ever light the fires of fear, coercion, or angry division.

I hope for an America where we can all contend freely and vigorously, but where we will treasure and guard those standards of civility which alone make this nation safe for both democracy and diversity.

Twenty years ago this fall, in New York City, President Kennedy met for the last time with a Protestant assembly. The atmosphere had been transformed since his earlier address during the 1960 campaign to the Houston Ministerial Association. He had spoken there to allay suspicions about his Catholicism, and to answer those who claimed that on the day of his baptism, he was somehow disqualified from becoming President. His speech in Houston and then his election drove that prejudice from the center of our national life. Now, three years later, in November of 1963, he was appearing before the Protestant Council of New York City to reaffirm what he regarded as some fundamental truths. On that occasion, John Kennedy said: “The family of man is not limited to a single race or religion, to a single city, or country…the family of man is nearly 3 billion strong. Most of its members are not white and most of them are not Christian.” And as President Kennedy reflected on that reality, he restated an ideal for which he had lived his life — that “the members of this family should be at peace with one another.”

That ideal shines across all the generations of our history and all the ages of our faith, carrying with it the most ancient dream. For as the Apostle Paul wrote long ago in Romans: “If it be possible, as much as it lieth in you, live peaceable with all men.”

I believe it is possible; the choice lies within us; as fellow citizens, let us live peaceable with each other; as fellow human beings, let us strive to live peaceably with men and women everywhere. Let that be our purpose and our prayer, yours and mine — for ourselves, for our country, and for all the world.

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