[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
CHURCHES VS. CASINOS: THE CONSTITUTION
IS NOT SUSPENDED IN TIMES OF CRISIS
=======================================================================
HEARING
BEFORE THE
SELECT SUBCOMMITTEE ON THE
CORONAVIRUS PANDEMIC
of the
COMMITTEE ON OVERSIGHT AND ACCOUNTABILITY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
JUNE 21, 2023
__________
Serial No. 118-46
__________
Printed for the use of the Committee on Oversight and Accountability
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on: govinfo.gov, oversight.house.gov or docs.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
52-641 PDF WASHINGTON : 2026
=======================================================================
COMMITTEE ON OVERSIGHT AND ACCOUNTABILITY
JAMES COMER, Kentucky, Chairman
Jim Jordan, Ohio Jamie Raskin, Maryland, Ranking
Mike Turner, Ohio Minority Member
Paul Gosar, Arizona Eleanor Holmes Norton, District of
Virginia Foxx, North Carolina Columbia
Glenn Grothman, Wisconsin Stephen F. Lynch, Massachusetts
Gary Palmer, Alabama Gerald E. Connolly, Virginia
Clay Higgins, Louisiana Raja Krishnamoorthi, Illinois
Pete Sessions, Texas Ro Khanna, California
Andy Biggs, Arizona Kweisi Mfume, Maryland
Nancy Mace, South Carolina Alexandria Ocasio-Cortez, New York
Jake LaTurner, Kansas Katie Porter, California
Pat Fallon, Texas Cori Bush, Missouri
Byron Donalds, Florida Jimmy Gomez, California
Kelly Armstrong, North Dakota Shontel Brown, Ohio
Scott Perry, Pennsylvania Melanie Stansbury, New Mexico
William Timmons, South Carolina Robert Garcia, California
Tim Burchett, Tennessee Maxwell Frost, Florida
Marjorie Taylor Greene, Georgia Becca Balint, Vermont
Lisa McClain, Michigan Summer Lee, Pennsylvania
Lauren Boebert, Colorado Greg Casar, Texas
Russell Fry, South Carolina Jasmine Crockett, Texas
Anna Paulina Luna, Florida Dan Goldman, New York
Chuck Edwards, North Carolina Jared Moskowitz, Florida
Nick Langworthy, New York
Eric Burlison, Missouri
------
Mark Marin, Staff Director
Mitchell Benzine, Subcommittee Staff Director
Marie Policastro, Clerk
Contact Number: 202-225-5074
Miles Lichtman, Minority Staff Director
------
Select Subcommittee on the Coronavirus Pandemic
Brad Wenstrup, Ohio, Chairman
Nicole Malliotakis, New York Raul Ruiz, California, Ranking
Mariannette Miller-Meeks, Iowa Minority Member
Debbie Lesko, Arizona Debbie Dingell, Michigan
Michael Cloud, Texas Kweisi Mfume, Maryland
John Joyce, Pennsylvania Deborah Ross, North Carolina
Marjorie Taylor Greene, Georgia Robert Garcia, California
Ronny Jackson, Texas Ami Bera, California
Rich Mccormick, Georgia Jill Tokuda, Hawaii
C O N T E N T S
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OPENING STATEMENTS
Page
Hon. Brad Wenstrup, U.S. Representative, Chairman................ 1
Hon. Raul Ruiz, U.S. Representative, Ranking Member.............. 3
WITNESSES
The Honorable Andrew Bailey, Attorney General, State of Missouri
Oral Statement................................................... 6
The Honorable Elizabeth Murrill, Solicitor General, State of
Louisiana
Oral Statement................................................... 8
Mr. Misha Tseytlin, Partner, Troutman Pepper Hamilton Sanders
LLP, Former Solicitor General, State of Wisconsin
Oral Statement................................................... 9
Mr. Micah Schwartzman (Minority Witness), Hardy Cross Dillard
Professor of Law, Director, Karsh Center for Law and Democracy,
University of Virginia School of Law
Oral Statement................................................... 11
Written opening statements and the written statements of the
witnesses are available on the U.S. House of Representatives
Document Repository at: docs.house.gov.
INDEX OF DOCUMENTS
Documents entered into the record during this hearing are listed
below.
* Report, NYU, ``False Accusation: The Unfounded Claim That
Social Media Companies Censor Conservatives''; submitted by
Rep. Raskin.
* Statement from Americans United for Separation of Church and
State; submitted by Rep. Ruiz.
* Statement from National Council of Jewish Women; submitted by
Rep. Ruiz.
Documents are available at: docs.house.gov.
CHURCHES VS. CASINOS: THE CONSTITUTION
IS NOT SUSPENDED IN TIMES OF CRISIS
----------
WEDNESDAY, JUNE 21, 2023
House of Representatives
Committee on Oversight and Accountability
Select Subcommittee on the Coronavirus Pandemic
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10:04 a.m., in
room 2154, Rayburn House Office Building, Hon. Brad R. Wenstrup
[Chairman of the Subcommittee] presiding.
Present: Representatives Wenstrup, Malliotakis, Lesko,
Joyce, Greene, McCormick, Comer (ex-officio), Ruiz, Dingell,
Mfume, Ross, Robert Garcia, Bera, Tokuda, and Raskin (ex-
officio).
Also present: Representative Moskowitz.
Dr. Wenstrup. The Select Subcommittee on the Coronavirus
Pandemic will come to order.
I want to welcome everyone today.
Without objection, the Chair may declare a recess at any
time.
I also ask for unanimous consent for Mr. Gosar of Arizona
and Mr. Moskowitz of Florida to participate in this hearing for
the purposes of questions.
OPENING STATEMENT OF CHAIRMAN BRAD WENSTRUP
REPRESENTATIVE FROM OHIO
I now recognize myself for the purpose of making an opening
statement.
Today the Select Subcommittee is holding a hearing to
examine the constitutionality of actions taken by Federal,
state, and local governments and agencies in responding to the
COVID-19 pandemic.
In the earliest stages of the pandemic, people, including
our public health authorities, were scared, understandably.
There simply was no data about the novel virus, and many public
health experts feared the worst.
Accordingly, many countries, including our own, seemingly
began to ``blindly'' issue restrictive mandates. We were told
to shut down society. We were told ``15 days to slow the
spread.'' By late April 2020, 42 states, collectively governing
approximately 316 million people, mandated stay-at-home orders.
These state and local orders effectively mandated social
distancing, restricting communal gatherings of families,
friends, and neighbors. They closed businesses deemed
``nonessential'' from operating. They closed churches,
restricting parishioners and congregants from attending
religious services. And they closed the schools, restricting
the ability for our children to gain an education. They rushed
to impose and enforce seemingly arbitrary and unnecessary
orders.
In Michigan, Governor Whitmer told residents that they
could not travel to their in-state vacation homes and ordered
stores to stop selling ``nonessential'' items, such as seeds,
soils, plants, and other gardening supplies.
In Rhode Island, the Governor ordered mandatory
quarantining for out-of-state New Yorkers. The Governor set up
police checkpoints on I-95 to stop vehicles with New York
license plates and sent the National Guard door to door to
search for fleeing New Yorkers in order to enforce the mandate.
In California, Los Angeles County sheriff's deputies
arrested a man paddleboarding by himself for violating Governor
Newsom's stay-at-home order, an order that included shutting
down all the state's beaches--and an order that Governor Newsom
would violent himself on occasion.
At this time, public health experts did not know if any of
these directives would have any impact whatsoever on slowing
the spread. However, they knew these orders would be
significantly burdensome to the daily lives of all Americans.
They should have known that many of these orders likely
infringed on people's constitutional rights and civil
liberties.
These concerns prompted then Attorney General Barr to warn
that ``the Constitution is not suspended in times of crisis.''
Unfortunately, Federal, state, and local governments and
agencies continued to enact restrictive policies that arguably
ignored constitutionally granted individual rights and
liberties.
When little information was known about the virus at the
beginning, it was hard to determine what was ``reasonable'' or
``necessary'' in responding to this unprecedented novel virus.
But, as data changes, so must our decision making.
This, however, was rarely the case during the pandemic.
Time and time again, in the face of new evidence questioning
the usefulness of specific COVID-19 measures, including
lockdowns, social distancing, school closures, and masking
requirements, governments refused to adapt or provide an
explanation as to why their directives were necessary.
Instead, the temporary ``15 days to flatten the curve'' too
easily became ``1,151 days to infringe on individual
liberties''--or so perceived by many, many Americans.
The 15 days to slow the spread was meant to provide
hospitals and communities a one-shot opportunity to prepare for
a never seen before influx that could cause them to be
overwhelmed. Instead, it turned into a seemingly endless cycle
of government overreach.
Associate Justice of the Supreme Court Neil Gorsuch
identified this problem early on in the pandemic. To Justice
Gorsuch, ``Government actors have been moving the goalpost on
pandemic-related sacrifices for months, adopting new benchmarks
that always seem to put restoration of liberty just around the
corner.''
The rights guaranteed to every American under the
Constitution should never be put on hold. Patrick Henry, a
Founding Father, once said that, ``The Constitution is not an
instrument for the government to restrain the people, it is an
instrument for the people to restrain the government--lest it
come to dominate our lives and our interests.''
Nonetheless, the government pushed the Constitution to its
limits. These actions, to Justice Gorsuch, represented ``the
greatest intrusions on civil liberties in the peacetime history
of this country.''
These intrusions were not limited to the actions of state
and local governments. In spring 2020, the Federal Government
restricted international travel and later issued an eviction
moratorium--the latter which was ultimately held
unconstitutional by the Court.
Most notably, President Biden announced an executive order
to mandate vaccination for Medicare and Medicaid providers,
Federal contractors, employers with a hundred or more
employees, and Federal employees, among others.
These mandates were unscientific, did not consider previous
infection, and were, most of all, unconstitutional. The
President never had the authority to issue such a directive.
Finally, the Biden Administration strong-armed big tech
companies to shut down healthy debate in the name of
``science.''
We are holding this hearing today to look back, to help
prepare for a future pandemic, determine what went wrong, and
to recommend how to do it better, to make sure that individual
civil liberties are protected even during times of crisis.
It is clear that our response to the pandemic failed to
protect individual liberties time and time again.
Benjamin Franklin stated, ``Those who would give up
essential liberty, to purchase a little temporary safety,
deserve neither liberty nor safety.''
I would like to ask for unanimous consent to add Justice
Gorsuch's opinion in Arizona v. Mayorkas to the record.
Thank you.
I look forward to a strong, on-topic discussion today.
And I would now like to recognize Ranking Member Ruiz for
the purpose of making an opening statement.
OPENING STATEMENT OF RANKING MEMBER RAUL RUIZ
REPRESENTATIVE FROM CALIFORNIA
Dr. Ruiz. Thank you, Mr. Chairman.
And thank you to our witnesses for being here today.
Three years ago, the world was rocked by a deadly novel
airborne virus that has claimed the lives of 1.1 million of our
fellow Americans, sent hundreds of thousands to the hospital,
and touched every aspect of American life.
As we battled this lethal threat, healthcare workers,
public health experts, local officials, and faith leaders
worked together to protect the health and safety of their
communities.
And because our knowledge of the virus was extremely
limited in the early days of the pandemic, we had to act
quickly and rely on the public health practices that we knew
would help prevent transmissions--that public health officials
knew would help--practices like social distancing and masking.
So, in a moment of crisis, state and local officials across
the country enacted these policies with the sole focus on
saving lives and reducing harm.
Look, I am a Christian, a father, a husband, and a
physician. I understood and felt the pain that many across our
country did when they had to stay home from church, when they
could not take their children to school, and when they watched
the caseload, hospitalization rate, and death toll tick up and
up every single day.
And so now that we are on the other side of this pandemic,
thanks to President Biden's leadership in getting the country
back on track, I am focused on making sure we will not have to
go through what we did last time around when, not if, another
pandemic arises.
So I want to make sure our churches, mosques, and
synagogues can remain safe for in-person worship. I want to
make sure our kids can go to school and stay in school. I want
to make sure our economy remains afloat, that we save lives,
and prevent future harms.
So how do we go about this work? I can tell you, it is not
by relitigating the past, trying to rewrite history, or by
undermining trust in essential public health tools, like
vaccines, or by making conspiratorial accusations without
evidence for the purposes of political gain.
No, it is by having an honest conversation here today about
what really happened. It is by providing the full context of
how public health guidelines were developed utilizing risk-
based assessments that looked at where and how people gather to
ensure social distancing and masking measures were implemented
neutrally.
It is by learning from the Trump Administration's mistakes
in failing to secure Personal Protective Equipment (PPE), scale
up testing, taking this pandemic seriously, with urgency, and
implement contact tracing that led to the pause of in-person
worship, the disruption of in-person learning, and the loss of
so many American lives.
And it is by taking the politics out of public health that
allowed Trump White House officials to meddle in public health
guidance, drive a wedge between peoples of different faiths,
and pressure state officials to prematurely resume in-person
worship.
Rather, to do right by every American, religious or not,
Republican, Democrat, or Independent, we must focus on
developing forward-looking policy solutions that will help save
lives in a future pandemic and prevent the societal upheaval we
all experienced in its early days.
Now is the time to rebuild our public health
infrastructure, not knock it down. So rather than undercutting
the lifesaving measures that have put us on the right track,
like Democrats' American Rescue Plan, the Biden
Administration's vaccine rollout, and the Centers for Disease
Control and Prevention (CDC)'s enhanced emergency response, we
should build on policies to better protect the American
people's health. We should invest in our public health
infrastructure and revitalize our workforce so that our
hospitals and healthcare systems are better equipped to respond
in the future.
There is much work to be done, and I hope that today's
discussion focuses on these objectives.
I yield back.
Dr. Wenstrup. Our witnesses today are Attorney General
Andrew Bailey.
Andrew Bailey is the attorney general for the State of
Missouri. Andrew's a combat veteran, having served as an
armored calvary officer in Iraq.
Thank you.
Following his service, Andrew obtained his JD from the
University of Missouri and became a prosecutor. He served as an
assistant attorney general in the Missouri Attorney General's
Office and later as an assistant prosecuting attorney for the
Warren County Prosecuting Attorney's Office, and as general
counsel for the Missouri Department of Corrections. He also
served as a deputy counsel and general counsel for the Missouri
Governor's Office.
Solicitor General Elizabeth Murrill.
Elizabeth Murrill is the solicitor general for the
Louisiana Department of Justice. She has more than 30 years of
experience working in state and Federal Government. She
obtained her JD from LSU in 1991. She has argued five cases
before the U.S. Supreme Court and has been the lead counsel in
hundreds more Federal and state cases.
Misha Tseytlin.
Misha Tseytlin is a partner and head of the appellate and
supreme court practice as the national law firm of Troutman
Pepper Hamilton Sanders LLP. Misha is the leading appellate
attorney with an accomplished track record before the U.S.
Supreme Court, Federal courts of appeal, and state courts. He
is a nationally recognized authority on administrative law and
political law issues.
Micah Schwartzman.
Micah Schwartzman is the Hardy Cross Dillard professor of
law, the Roy L. and Rosamond Woodruff Morgan professor of law,
and the director of the Karsh Center for Law and Democracy at
the University of Virginia School of Law, a scholar who focuses
on law and religion, jurisprudence, political philosophy, and
constitutional law. Mr. Schwartzman joined the UVA Law faculty
in 2007.
I want to thank you all for being here today.
Pursuant to Committee on Oversight and Accountability Rule
9(g), the witnesses will please stand and raise their right
hands.
Do you solemnly swear or affirm that the testimony that you
are about to give is the truth, the whole truth, and nothing
but the truth, so help you God?
Thank you.
Let the record show that the witnesses answered in the
affirmative.
The Select Subcommittee certainly appreciates you being
here today, and we look forward to your testimoneys.
Let me remind the witnesses that we have read your written
statements, and they will appear in full in the hearing record.
Please limit your oral statement to 5 minutes.
As a reminder, please press the button on the microphone in
front of you so that it is on and the Members can hear you when
it is your turn to speak.
And when you begin to speak, the light in front of you will
turn green. After 4 minutes, the light will turn yellow. When
the red light comes on, your 5 minutes has expired, and we
would ask that you please wrap up.
I now recognize Attorney General Bailey to give an opening
statement.
STATEMENT OF ANDREW BAILEY
ATTORNEY GENERAL, STATE OF MISSOURI
Mr. Bailey. Chairman Wenstrup, Ranking Member Ruiz, and
distinguished Members of the Subcommittee, thank you for the
opportunity to appear before you here this morning.
In May of last year, Missouri partnered with the State of
Louisiana and private plaintiffs to file a landmark lawsuit
against dozens of officials in the Federal Government to stop
the biggest violation of the First Amendment in this Nation's
history.
My office obtained more than 20,000 pages of evidence
detailing extraordinary censorship efforts by a variety of
officials within the Federal Government.
My office also deposed key witnesses, including Dr. Anthony
Fauci and officials from the FBI, State Department, Department
of Homeland Security, Office of the Surgeon General, and the
CDC.
The evidence that we have uncovered only begins to scratch
the surface of these First Amendment violations. Ultimately,
the lawsuit is about obtaining truth and accountability.
Last month, a Federal judge heard oral argument on a motion
for preliminary injunction filed by plaintiffs in this case.
The judge expressed skepticism over many of the Federal
Government's responses to queries posed by the court, even
likening the situation to George Orwell's novel ``1984.''
Concerns have been noted by the U.S. Supreme Court. Justice
Gorsuch recently opined that ``Federal officials may have
pressured social media companies to suppress information about
pandemic policies with which they disagreed.'' The 20,000-plus
pages of documents my office has uncovered revealed that
Justice Gorsuch's suspicions are in fact a sobering reality.
The government's strategy to suppress speech in violation
of the First Amendment is threefold.
First, officials attempt to harm big tech companies by
threatening to remove their legal protections or by issuing
statements deeply harmful to the company's public image.
Second, backed by previous threats, officials communicate
behind doors with tech, flagging specific speech that officials
dislike and badgering the companies to suppress that speech.
Third, once officials have threatened tech companies and
flagged specific content, the implicit promise arrives. If tech
companies censor when asked, the government will back down from
their public statements to harm the companies. As former White
House Press Secretary Jen Psaki has boasted from the White
House podium, ``They certainly understand what our asks are.''
And the censorship activities have grown so widespread that
the Department of Homeland Security last year worked to create
a Disinformation Governance Board to coordinate efforts to
censor between government agencies.
Following these efforts, the Court has characterized
Department of Homeland Security (DHS) as the nerve center of a
federally directed censorship enterprise, as we saw in
coordination between officials at DHS and the FBI in their
attempt to silence the Hunter Biden laptop story in the weeks
leading up to the 2020 election.
Big tech companies have shown themselves eager to censor in
recent years. It is also clear from the evidence that much of
the speech affected would not have been removed but for the
government's express involvement.
The judicially misconstrued section 230 of the
Communications Decency Act has made it much easier for the
government to create its vast censorship network by granting
certain companies far more protection than Congress ever
contemplated.
The incorrectly interpreted section 230 has enabled social
media companies to consolidate control into the hands of a few
enormously powerful actors.
This consolidation reduces the pressure not to censor that
would otherwise exist in a competitive market while also making
it much easier for Federal officials to exercise pressure over
the social media field.
The Federal Government itself recognizes the legal problems
with its actions. In an attempt to make it harder to detect
their blatant legal violations, officials have begun
outsourcing their censorship activities to pseudo-private
organizations.
Emails obtained reveal that officials believe this
structure will help them evade liability under the First
Amendment.
But any Federal attempt to censor speech is still
unconstitutional. The government cannot do by indirect means
what it would be prohibited from doing directly.
The evidence also shows that the Federal censorship
enterprise targets conservative voices. Last month, Biden's
lawyers conceded in open court nearly all content suppressed by
the Federal Government is conservative. This is not about
truth. It is always been about power.
Perhaps most troubling, Biden lawyers recently shared with
a judge that they have no plans to discontinue their censorship
network. That admission makes this case one of the most
important First Amendment cases in our Nation's history.
The freedom of speech enshrined in the First Amendment is
the bedrock of this great Nation. It is one of the fundamental
rights guaranteed to all Americans.
With this lawsuit, we are fighting to protect our liberties
from all government interference. No government official has
the right to tell us what to think, what to say, or what to
hear.
That is why this case is so important. The question of our
time is whether Americans will enjoy the legacy of free speech
handed down to us by the Founding generation or whether
government will control what we say, what we hear, and how we
debate the veracity of claims and arguments.
We are locked in a pitched battle for the very character of
our Nation. If we do not prevail over the government officials
who seek to control speech, millions of Americans will be left
with what Justice Gorsuch has described as ``a shell of a
democracy with civil liberties just as hollow.''
Thank you.
Dr. Wenstrup. Thank you.
I now recognize Solicitor General Murrill to give an
opening statement.
STATEMENT OF ELIZABETH MURRILL
SOLICITOR GENERAL, STATE OF LOUISIANA
Ms. Murrill. Good morning. Thank you, Mr. Chairman and
Members of the Committee, for inviting me to speak with you
today.
As the solicitor general for the State of Louisiana, I am
grateful for the opportunity to discuss the constitutional
issues that were involved with the government's response to
COVID-19, especially regarding the policies that were invasive,
arbitrary, and exceeded the government's constitutional
authority.
Looking back, it is very clear that the people responsible
for upholding and enforcing the Constitution utterly failed.
The role of each of the three branches of government at the
state and Federal levels was distorted and the Constitution was
set aside without any meaningful resistance from Congress, from
state legislatures, or the judiciary.
That is why our constitutional structure, which is supposed
to prevent any person or branch of government from exercising
autocratic power, was repeatedly violated.
This caused massive damage to our people, especially
children; our economy, especially small businesses; and the
very foundations of our government structure.
These failures carried an enormous cost. Let us go through
a few of them, many of which--most of which--we challenged or
we participated in challenging.
Governors suspended laws without any legislative approval
over and over again, made completely irrational decisions, and
claimed autocratic power to justify bad decisions. So did the
President.
Police officers enforced crimes that were made up through
executive orders never created by the legislatures or Congress.
The President issued invasive, unprecedented vaccine
mandates that impacted nearly 100 million people, and billions
of dollars in contracts, to try and force people to make a
decision that was inherently theirs, based on very, very new
emerging science and research that was actually, now we know,
to be inhibited by the government in terms of allowing full
debate of that science.
In one case that still shocks the conscience, a pastor in
Louisiana was subjected to criminal prosecution for two years
for the purported crime of violating the Governor's executive
order, even though our laws limit in black and white the power
of the Governor to create new criminal laws.
Reverend Tony Spell was extremely vocal in his opposition
to the Governor's orders, which limited the number of people
who could gather for worship, but not to go to Lowe's or to the
food court at the mall.
He invited people to church for worship, and for that he
was placed under surveillance and then arrested. He was issued
six criminal misdemeanor citations, which would have subjected
him, consecutively, to six months in prison for each violation,
potentially, plus fines.
He was right. These orders could never be criminally
enforced under Louisiana law, and they prohibited the Governor
from creating new crimes by executive order even in a disaster.
But somehow all of government failed him, and he had to defend
himself against a criminal prosecution by the government for
two years.
The Louisiana attorney general early in the pandemic
advised police departments to exercise extreme caution when
enforcing these orders because they could be subjected to
violating people's constitutional rights and sued.
Pastor Spell was ultimately vindicated by the Louisiana
Supreme Court, which agreed that his constitutional rights to
freely exercise his religion and freedom of speech had been
violated.
What was shocking was that a prosecutor admitted that Spell
was targeted for the sin of being unrepentant about criticizing
the government. That continues to shock me today.
Other notable examples were Governor Kathy Hochul, who told
people that God wanted them to be vaccinated and that ``there
are people out there who are not listening to God and what God
wants and you know who they are''
Governor Beshear in Kentucky joined a Louisville mayor who
banned drive-in church services and encouraged people to snitch
on each other who had participated. The Sixth Circuit did issue
an injunction in that case.
Small businesses were shut down, and the government still
has significant protection from the damage that it wrought
through these unconstitutional actions.
We fought these mandates. We would continue to fight these
mandates. We will continue to fight for the rule of law and for
the meaningful enforcement of our constitutional protections.
But we are happy to be here today to urge this body to take
meaningful action to prevent this from ever happening again.
Dr. Wenstrup. Thank you.
I now recognize Mr. Tseytlin to give an opening statement.
STATEMENT OF MISHA TSEYTLIN
PARTNER, TROUTMAN PEPPER HAMILTON SANDERS LLP
FORMER SOLICITOR GENERAL, STATE OF WISCONSIN
Mr. Tseytlin. Chairman Wenstrup, Ranking Member Ruiz, and
Members of the Subcommittee, I am grateful for the opportunity
to testify today.
Over a two year period, I had the honor of representing
brave ordinary citizens against the unprecedented assault on
our civil rights that began in spring 2020.
I would like to begin today by briefly telling you some of
my clients' stories, and then end with some thoughts on what
reforms Congress could consider to address some of the problems
I saw when doing some of this work.
Christopher McDonald is a severely disabled individual who
had been packaging parts at a facility in Illinois under a
state program for the disabled. When COVID-19 hit, Governor
Pritzker's underlings shut down this program so now able-bodied
citizens began doing the work that Chris had been doing for 20
years.
When I learned about Chris' plight through a friend, I
reached out to several disability rights organizations,
thinking, naively as it turned out, that protecting against
this kind of discrimination is what these organizations are
there for. But they did not want to fight a powerful Governor
in a climate of fear.
So we brought a lawsuit under the Americans with
Disabilities Act. Faced with having to defend against a Federal
lawsuit, state officials, who had repeatedly denied Chris'
requests to return to his job, including incessantly telling
him that they just could not trust disabled people to keep
their masks on, gave in and allowed him to return to work
within nine days of us bringing our lawsuit. And they, in fact,
reopened the program a month early because of the lawsuit.
St. Ambrose is a small Catholic secondary school in
Wisconsin which spent tens of thousands of dollars to comply
with Dane County's school reopening plan throughout the summer
of 2020. Yet, as the school year approached, the county became
worried that parents of public school kids were choosing in-
person private schooling, costing the county per-pupil matching
state funding.
So Dane County abruptly ordered all of these private
schools closed for third grade and older just three days before
the first day of class. We brought suit and won, allowing these
kids to have a full year of in-person instruction when so many
kids missed out on that opportunity.
I also represented religious minorities targeted by COVID-
19 restrictions. In a series of incendiary press conferences,
Governor Cuomo singled out the Orthodox Jewish community as
being at fault for the spread of COVID in Brooklyn.
While the Governor's bullying conduct is now well known, at
the time he was wildly popular and many were too scared to
fight him. We sued on behalf of Orthodox Jewish synagogues and
won at the U.S. Supreme Court.
Finally, the Mix Up is a small restaurant in Amery,
Wisconsin, serving delicious roasted chicken. When Governor
Evers attempted to impose additional crushing capacity limits
on Wisconsin's small businesses, which would have put the Mix
Up out of business, the Mix Up joined a lawsuit filed by the
powerful Tavern League of Wisconsin.
But under pressure of Governor Evers, the Tavern League
declined to pursue its case beyond the trial court, despite my
pleading with them. The Mix Up's owners bravely told us they
wanted to keep fighting, and they won at the Wisconsin Supreme
Court and got relief that benefited all the Tavern League's
members.
While I was proud to represent successfully all of these
clients and more, the sad truth is my clients are the
exception, not the rule. Many tens of millions of Americans
lost the small businesses that were their life's work, could
not worship in person for months, and had their kids' education
stolen from them, and so much else.
This happened in part because many of the ordinary folks
lacked legal assistance to fight back in a climate of
widespread fear.
To avoid this from reoccurring again, I propose two areas
of potential reform that Congress can consider.
First, attorney's fees, which is another way of saying when
the state violates your constitutional rights, the state should
have to pay, not the ordinary citizen.
While I am grateful that my firm stood behind me in
bringing these cases, including several of them pro bono, most
other big firms, as well as powerful organizations that should
have brought that Americans with Disabilities Act (ADA) lawsuit
on behalf of Chris, or well-funded groups like the Tavern
League, refused to stand firm against the broadest attack
against civil liberties in our lifetime.
During my efforts to encourage other attorneys to take on
these types of cases, I came to believe that incentives are
needed to permit individual lawyers, who are not subject to the
pressures of big firms and do not have the big firm money
behind them, to bring these lawsuits and so that the government
would have to pay, not the ordinary citizen.
While section 1988 provides for attorney's fees for
prevailing parties in actions brought against the state and
local officials for the violations of some Federal rights, it
is, unfortunately, inadequate.
For example, a party is not prevailing if the state simply
changes its practices when faced with a lawsuit, including
after preliminary proceedings in the case make it clear that
the state is going to lose, and attorney's fees are simply not
available in far too many cases where the illegal actions are
taken by Federal officials, such as in the case of the
contractor vaccine mandate, which is another case I litigated
successfully and I am happy to talk about with you this
morning.
Dr. Wenstrup. Thank you.
I now recognize Mr. Schwartzman to give an opening
statement.
STATEMENT OF MICAH SCHWARTZMAN (MINORITY WITNESS)
HARDY CROSS DILLARD PROFESSOR OF LAW
DIRECTOR, KARSH CENTER FOR LAW AND DEMOCRACY
UNIVERSITY OF VIRGINIA SCHOOL OF LAW
Mr. Schwartzman. Chairman Wenstrup, Ranking Member Ruiz,
and distinguished Members of the Subcommittee, thank you for
inviting me to appear before you to testify about religious
freedom during the COVID-19 pandemic.
My name is Micah Schwartzman. I am a law professor at the
University of Virginia School of Law for the past 15 years. I
have taught courses and written extensively about
constitutional law and the First Amendment.
Although I am here today as a legal expert on matters of
religious freedom, I also want to say a few words about my
religious background.
I come from a rabbinic family. My grandfather, Sylvan
Schwartzman, was a rabbi who taught Jewish education at the
Hebrew Union College, a seminary in Cincinnati, Ohio. My
father, Rabbi Joel Schwartzman, was a military chaplain who
served for more than 20 years in the United States Air Force,
retiring as a full colonel. My sister, Ilana, is a rabbi who
leads a congregation in northern New Jersey.
And for my part, I am currently the president of the board
of my synagogue, Congregation Beth Israel, in Charlottesville,
Virginia. I am also the father of three children, who were ten,
seven, and five years old when the pandemic swept across our
country.
I mention my religious and family background because I know
how difficult the pandemic was for families and communities of
faith. The burdens we experienced were unprecedented.
I was part of my congregation's senior leadership in the
spring of 2020 when we made the agonizing decision to close our
temple's building, which meant shutting down our preschool and
kindergarten with more than a hundred children, including one
of my own.
We made that decision for a simple reason, which was to
save lives. My father has reminded me of the Talmudic saying,
that ``one who saves a human life is as though they have saved
an entire world.'' In the Jewish tradition, the principle of
pikuach nefesh, the saving of a life, overrides all other
commandments.
When the novel coronavirus overwhelmed hospital systems in
Europe, and when it threatened to do same in our country, faith
communities of all denominations, including my own, made
painful choices to comply with stay-at-home orders, capacity
limits, social distancing rules, and mask requirements.
We did it to save lives. That was in accordance with the
rule of law and with our religious obligations.
Turning now to the legal issues. In my view, the public
health regulations that burdened religious groups during the
pandemic were justified under the First Amendment and related
Federal and state statutes protecting religious liberty, and
there are three main reasons why.
First, state officials generally acted in good faith and
without discriminatory intent. They had to move quickly in the
face of great uncertainty and often under catastrophic
conditions. It is easy to forget how dire things were three
years ago.
When the Supreme Court decided its first COVID-related free
exercise case on May 29th, 2020, Chief Justice Roberts noted,
quote, ``There is no known cure, no effective treatment, and no
vaccine,'' unquote. On the day the Chief Justice made that
statement, nearly 1,100 Americans died from COVID, which had at
that point already claimed 100,000 lives. And that was only the
beginning of the pandemic, which is now responsible for more
than 1.1 million deaths in the United States.
Tragically, faith communities were particularly susceptible
to spreading COVID, gathering indoors in large groups, talking
and singing together for many hours, and sharing meals. All of
these important activities created serious risks, especially
for the elderly.
At the outset of the pandemic, houses of worship were the
sources of COVID clusters in more than a dozen states, and
there are too many heartbreaking stories to recount of clergy
who lost their lives to the pandemic.
When considering the proper balance between protecting
religious freedom and saving lives, it is crucial to remember
these tragic facts. State and local officials could not have
responsibly ignored them.
Second, most COVID public health regulations were and
remain neutral and generally applicable, which is the main
constitutional standard for the Free Exercise Clause of the
First Amendment.
To be sure, public health officials were far from perfect,
but rules about capacity limits, social distancing, and masking
were applied equally to religious groups and to their secular
counterparts.
In terms of risk levels, unfortunately, churches were not
like many retail businesses. It was much more dangerous to
congregate with others and sing with them than it was to pick
up your groceries or drop off your dry cleaning or visit the
bike shop.
When officials did single out religion, it was often to
provide special accommodations, for example, giving houses of
worship more favorable treatment than secular venues, like
theaters, concert halls, sports arenas, which created
comparable risks.
In a few highly controversial cases the Supreme Court
required religious exemptions from stringent social gathering
restrictions, but the Court also rejected claims for exemptions
from capacity limits and restrictions on certain high-risk
activities, like singing and chanting during indoor services.
Nor did the Court grant religious exemptions from orders that
temporarily stopped in-person learning.
With respect to vaccines, Federal courts have rejected free
exercise challenges to mandates for healthcare workers. And
while the Supreme Court was asked to overrule those decisions
on repeated occasions, it has refused to do so.
Third, and finally, even when public health regulations
place distinctive burdens on religious practices, they can
still be permitted under the First Amendment.
Like all other fundamental rights, religious freedom has
limits, especially when exemptions impose harms on other
people. As Justice Robert Jackson once said, the Bill of Rights
is not a suicide pact.
Under current law, particularly when the government has a
compelling interest, such as preventing the spread of a deadly
pandemic, it can impose reasonable restrictions on even the
most cherished and important of our individual liberties, as
long as it does so evenhandedly.
Thank you again for giving me this opportunity to appear
before you, and I look forward to your questions.
Dr. Wenstrup. Thank you.
I now recognize myself for questions.
Let me start by saying that I served in a public health
capacity. I was on the Board of Health in Cincinnati, very
local, and when we addressed issues they were very thought-
provoking when we saw scourges of health events taking place.
But we looked at data. We looked at data and we looked and
took consideration of a patient's rights and their civil
rights. And that was a key component to how we addressed
issues. And it is how it should be addressed.
The United States' response to COVID-19 just failed in so
many serious respects. Many policy directives that were issued
by Federal, state, local just seemed misguided, and actively
harmful, and often just ignored available data and research.
And that is a huge component of this conversation in my
mind, is did we do the right thing, did we look and say: Do the
benefits outweigh the risk? Did we protect people and their
rights at the same time?
Yes, there was a lot of fear. You know, when people have
fear, that is one of the greatest times that they need their
religion, that they lean on their religion, and it helps them
physically and mentally. It is a benefit far greater than a
risk for so many people.
And the confusion over whether you could go to one place or
another weighed heavily on people's minds. I cannot talk to my
rabbi. I cannot talk to my priest. I cannot go see them. But I
can go here and I can go there. This does not make sense. That
is not scientific. And that is the problem that we have.
And the bedside manner, to me, coming from public health
across America, was horrible. I remember in Ohio right away the
health director saying this is extremely lethal, hundreds of
thousands are going to die. And I said, we need this warning.
It is lethal because we know people are dying. But you have no
idea of the rate, of the mortality rate, because no one was
being tested. No idea.
But we started to learn this group is vulnerable, this
group does not seem to be. That did not seem to matter in many,
many cases.
Mr. Tseytlin, I have concern whether it is really ever
appropriate or not for the government to infringe on
fundamental rights guaranteed under the Constitution, and I
would like to get your opinion on that, if it is ever
appropriate. And I think that is an important part of this
discussion.
Mr. Tseytlin. Thank you, Chairman.
The U.S. Supreme Court has held that when the government
wants to restrict fundamental rights, it must satisfy the
highest burden of proof, which is known as strict scrutiny,
which means the government has to have a compelling state
interest and that the means that it uses are narrowly tailored
to achieving that interest. Absent that very stringent showing,
fundamental rights are not to be infringed by government
regulation.
Dr. Wenstrup. So, historically, it is the highest burden of
proof that you would refer to?
Mr. Tseytlin. That is right.
Dr. Wenstrup. Thank you.
Look, there were many directives that seemed unnecessary
and arbitrary and were not applied equally. We have heard you
talk about it. We will hear more about it, I am sure. Stay-at-
home orders kept children--the population that was least
susceptible to COVID-19--kept them from attending school. So
arbitrarily, what we were saying is that education is not an
essential service.
Well, you can say things, that lockdowns save lives or this
and that, and school closures save lives, but not when it led
to an increase in suicides amongst those that experienced the
depression and that that followed it. We have to look at all of
this. This has to be part of the conversation.
And you cannot just arbitrarily save lives without looking
at all the data. Did it save lives, or did it take more lives?
Maybe some of those suicides would not have occurred if they
were in school, if we were not locked down so long.
I am opening that up for questions. I am not sitting here
with all the answers. That is what this Committee is supposed
to do, is to ask the questions and try and give guidance.
The right to peacefully assemble seemed to be protected for
some, but not for others. Specifically, those that were most
against COVID-19 policies, they got restricted, and the same
holds true for the right to free speech.
So, Attorney General, I just want to say, look, opinions
are opinions. They are not necessarily misinformation or
disinformation, they are just opinions.
And you said and referenced it. Did the Biden White House
attempt to strong-arm big tech companies to censor free speech?
Mr. Bailey. Unequivocally, yes.
It is in times of national emergency when we must be most
vigilant to protect our fundamental rights, the rights given to
us by God and codified and enshrined in the United States
Constitution. And contrary to that principle, the Biden
Administration coerced and colluded with big tech social media
to silence Americans' voices in relation to the pandemic.
Dr. Wenstrup. So let me go down the line with each of you.
Do you think it is problematic that the White House pressured
big tech companies to censor speech?
Mr. Bailey?
Mr. Bailey. Yes.
Dr. Wenstrup. Ms. Murrill?
Ms. Murrill. Yes.
Dr. Wenstrup. Mr. Tseytlin?
Mr. Tseytlin. I have not litigated that issue, and I am not
prepared to speak on it.
Dr. Wenstrup. Fair enough.
Mr. Schwartzman?
Mr. Schwartzman. Yes. I think these are unverified
allegations, that litigation is in early stages, and I would
not want to make--draw that conclusion at this point.
Dr. Wenstrup. Well, I think they are going beyond
allegations at this point, Mr. Schwartzman.
These acts arguably weaponized the government against a
dissenting party. And as Justice Gorsuch stated in Mayorkas,
all these instances represent the greatest intrusions in the
peacetime history of this country.
And I think these acts require a serious review of public
health emergency declarations. And while quick unilateral
action by an executive is necessary and appropriate in times of
crisis--I do get that, I understand it, I support it--but there
is no reason why this authority should be without checks and
balances.
And there is no reason why the executive should be able to
implement directives, mandates under the guise of an undefined
crisis. This is not what Congress intended when it passed the
act to allow these things.
Justice Gorsuch wrote his opinion that maybe after nearly
half a century, and in light of what we as a Nation all
experienced, maybe it is a time for another look at these
powers. Congress must review and modernize the outdated act in
order that it prioritize constitutional rights and liberties.
And I think that is a responsibility of this Subcommittee.
And I yield back.
I now recognize the Ranking Member for any questions he may
have.
Dr. Ruiz. Yes. Thank you.
Somehow I thought I joined the Select Committee on COVID
and not the Select Committee on the Weaponization of
Government, but I see that there is a consistent partisan
thread line across all the different ones that is continuing to
be pushed throughout the different committees, including this
one, to my chagrin and disappointment, because I am here to do
serious work to really make sure that we prevent school
closures, that we prevent church closures, that we focus on
science that has helped save lives.
And that is what I was very much hoping that we could get
accomplished in this, and not these accusations that somehow
some groups were targeted versus other, when in fact these
public health measures were scientifically risk-based. Putting
aside the political theatrics and the ideologies, they were
scientific risk based, and we will get into that.
So as a deadly novel airborne virus took hold across the
United States, public health officials across the Nation acted
swiftly to safeguard the health of their communities. Operating
off imperfect and constantly changing information about the
virus and its transmission, officials analyzed risk and
implemented policies to slow the spread of COVID-19.
Professor Schwartzman, during times of crisis like the
COVID-19 pandemic, how does the Constitution balance Americans'
individual liberties with government's imperative to safeguard
public health?
Mr. Schwartzman. Our constitutional tradition going back
decades grants local officials wide discretion and latitude to
make public health decisions, especially state officials who
have plenary police power to promote the health and safety of
their citizens.
They have to conform with the requirements, of course, of
fundamental rights, including the First Amendment. But as long
as the public health regulations are neutral and generally
applicable, which is the prevailing standard under the First
Amendment, they can regulate even in ways that might sometimes
burden those rights. And that, I think, generally speaking, is
what we saw during the pandemic.
Dr. Ruiz. So because we lacked vaccines and therapeutics to
protect people from COVID-19, officials resorted to the limited
set of public health tools that we knew based on our previous
histories with airborne infections and pandemics and scientific
studies could save lives, policies like limiting in-person
gathering or social distancing and requiring masking.
Look, I have said it in the past, it is based on risk
mitigation. The airborne virus spreads from airborne droplets,
mostly from the mouth. The louder you speak, the more you spit
when you speak, the further the virus can propagate to the next
person. It enters through your mouth, nose, eyes, mucosa, and
you get infected.
And then the virus load increases. You become symptomatic;
maybe not. But you have enough viral load where you then spread
it through your mouth to other people. The virus can linger in
the air after a few minutes, and that is how this virus
transmits.
And so these policies did work to reduce the spread or the
rate of the spread of COVID-19 and saved lives. It is basic
science, preventing that spread from one mouth to another
person's mouth is very important.
Look, I have heard statements here and claims that it is
almost like we are trying to rewrite history, that there was
arbitration or these guidelines were unscientific.
So, look, in the defense of public health and the
scientific approach and for what really happened, there are
studies. For example, a study published in the Journal of
Infectious Diseases compared the length of time it took for
COVID-19 cases to double in states with stay-at-home orders
versus states without them.
Look, I am not saying we want stay-at-home orders. We need
to do a better job at being able to protect ourselves during
these deadly pandemics so we do not need them. But we did not
have that information now, and we are squandering the
opportunity to figure it out.
So in this case, an increase in the doubling time is good.
It means that the virus is spreading more slowly from person to
person. This study found that states implementing stay-at-home
orders during March and April 2020 increased the time it took
for the number of COVID-19 cases in their communities to double
by 269 percent.
In comparison, states that did not limit in-person
gatherings in this way only increased their doubling time from
COVID-19 cases by only 60 percent after the initial outbreak.
With a similar goal of reducing the spread of COVID-19,
many communities also instituted policies requiring masking,
which has been shown to reduce the odds of testing positive by
as much as 83 percent.
Professor Schwartzman, is there a legal precedent for state
and local governments to enact these kinds of policies to
protect their constituents during emerging public health
crisis?
Mr. Schwartzman. Yes. Most Federal courts that have
reviewed COVID public health regulations found that states had
a compelling interest in protecting their citizens against the
pandemic and preventing the spread on contagion of this
disease. They recognized the authority of state and local
officials to enact public health regulations, especially when
those were neutral and generally applicable and they applied
widely to various types of industries, activities, businesses,
and so on.
Dr. Ruiz. Thank you.
When President Biden took office and the Administration
worked swiftly to ensure that as many Americans got the
vaccines, okay, that was the key, to resume, to keep people
safe when they gathered, to get people back in churches, get
people back in schools, get people back in jobs.
So as many Americans got the vaccines as possible,
including by requiring it for healthcare workers and Federal
employees, these policies contributed to a 91 percent reduction
in COVID-19 deaths and a 95 percent reduction in COVID-19
hospitalizations across the United States. It helped.
Professor Schwartzman, what does legal precedent tell us
about the merit of these kinds of commonsense vaccination
policies?
Mr. Schwartzman. Again, our precedents support public
health regulations that are related to achieving these
interests in preventing contagion and in protecting citizens'
lives during the pandemic.
Dr. Ruiz. Look, you know, the data is there. The science is
there. They were not arbitrary.
And, look, we talk about fear, and when you create a
narrative that makes it seem like the government is after you
or certain people were discriminated against and it was not
risk based, or certain people were targeted, you are creating
suspicion and paranoia, and you are radicalizing a group of
people who are then going to do anything possible to protect
their own safety.
I mean, this kind of partisan rhetoric needs to stop if we
want America to get back on the right track. So while
overcoming the COVID-19 pandemic required sacrifices from each
of us, the policies implemented to keep people safe were not
intended to infringe upon any person's individual liberties,
nor where they designed with the goal of targeting or
discriminating against any particular community.
So risk-based mitigation efforts, scientifically based, to
reduce a lethal airborne virus from spreading and killing
people. And we need to do a better job at mitigating that
spread so we do not have to shut down schools, so we do not
have to close churches.
This was not an attack on faith. It was said that not
talking to a rabbi or pastors, or you can go here or there, but
these were designed to do that. They were not.
My strength during the pandemic was reading Psalms and
Proverbs in three different translations to gather wisdom and
being able to speak to my pastors on the phone or through
FaceTime. But I missed the fellowship. I missed that. I missed
the gatherings that give me my strength.
So let us work on the scientific approach to have better
equipment, better tools, so that we can continue to worship in
groups and not fear for killing our neighbor who we should be
loving and protecting by preventing the spread of airborne
droplets to them.
With that, I yield back.
Dr. Wenstrup. I am just going to take a moment to address
one of the things the Ranking Member referred to at the
beginning about the purpose of this Subcommittee. And I will
share with him the investigative functions of this Committee.
Number three of the nine listed is the implementation or
effectiveness of any Federal law or regulation applied,
enacted, or under consideration to address the coronavirus
pandemic and prepare for future pandemics. So that is what we
are about, amongst many other things.
And I will tell my friend--and we are friends--that I am
more than happy, if he has some topics that he wants to discuss
further in the future, I am more than happy to have those
discussions with you personally and through Committee.
And with that, I now recognize Ms. Malliotakis from New
York for 5 minutes of questions.
Ms. Malliotakis. Thank you, Mr. Chairman.
Stay-at-home orders and lockdowns, that were arguably
necessary at the beginning of the pandemic due to the lack of
information surrounding this novel virus, they quickly became
less and less justifiable.
As the significant collateral damage they caused
economically, educationally, religiously, and to the physical
and mental health became more apparent, and as many public
health experts began to question their efficacy, these orders
became increasingly problematic. To make matters worse,
political favoritism and unequal application enforcement
reenforced the hypocrisy behind these executive rules.
As noted by Justice Neil Gorsuch, they closed businesses,
schools, and churches, quote, ``even as they allowed casinos
and other favored businesses to carry on.''
Of course, it was not just casinos, but bars, liquor
stores, marijuana dispensaries, and many more were allowed to
stay open, most without restrictions. And this was particularly
the case in the city that I represent, New York City.
Perhaps the most egregious, we had Black Lives Matter (BLM)
protestors and riots in the summer of 2020, where thousands
gathered in close contact, resulted in billions of dollars in
damages, complete lawlessness on some nights in cities across
the country.
And these protests were not only permitted, but they were
encouraged by many of the same officials that shut down schools
and places of worship and had condemned activists who held
outdoor protests against lockdowns in April and May 2020. This
is not science. This is hypocrisy.
Governor Andrew Cuomo not only arbitrarily restricted
places of worship using color-coded, zone-based restrictions,
capping attendance in red zones at just ten occupants, but
singled out and threatened the Orthodox Jewish community,
saying, quote, ``If you are not willing to live with these
rules, then I am going to close the synagogues,'' unquote. He
blamed them for spiking cases in a city of eight million,
calling it an ``ultra,'' quote, ``ultra Orthodox cluster,''
unquote.
A guy named Heshy Tischler is a high-profile Orthodox
Jewish activist. He was arrested in October 2020 on charges
related to inciting a riot following an anti-lockdown protest
in the Orthodox Jewish community. Again, this is months
following all those riots, all those protests, windows being
smashed, police cars being put on fire.
And let us not talk about what happened to those
individuals, because all those charges have been dropped, by
the way, and some of them are even profiting, they are getting
paid by the city of New York for their inconveniences of being
arrested for those riots.
The Supreme Court would ultimately strike down these
restrictions, finding that they violated the First Amendment's
protection of the free exercise of religion.
Mr. Tseytlin, I know that you were involved in this case.
Can you speak to the hypocrisy of Governor Cuomo and Mayor Bill
de Blasio's treatment of religious groups compared to other
secular groups and the protestors?
Mr. Tseytlin. Thank you.
So when we were litigating that case, we heard some of the
same stuff in the legal papers from the State of New York that
we just heard from the Ranking Member: This is science based,
et cetera, et cetera.
Yet they had exclusions for essential businesses and
essential gatherings that were not based even on their own
claims that it was risk based. And we asked them: What are
essential gatherings? Why are other gatherings more essential
than religious worship? They could not tell us.
We said: What are even essential gatherings? They could not
even tell us what this category of essential gatherings was
that was favored over religious worship.
But yet, when the Buffalo Bills made the playoffs, Governor
Cuomo decided that the fans could attend the Buffalo Bills
playoff game in certainly much closer quarters than he was
allowing the religious institutions to gather. So I guess we
learned that attending a football game is more essential than
worshipping.
And so, what we then learned through public reporting,
which would have been part of discovery in the case if the
Governor of New York had not just given in and given us
everything we asked for at the end of the lawsuit, was that the
decisions about the color-coded systems, they were not being
made by public health officials.
When a bunch of public health officials quit Governor
Cuomo's regime, they told the press, well, the Governor was
essentially picking those zones by himself based upon the fear
and based upon his perception that the Orthodox Jews were
causing the problems.
When we were at the U.S. Supreme Court fighting against
these restrictions, we had groups--we had Muslim American
groups came in support, filed an amicus brief in support of us
that said this targeting of religious minorities, blaming them
for the pandemic, is the kind of thing that we have seen
throughout history. And that was what Governor Cuomo was doing
to the Orthodox Jewish community that led to these
unconstitutional restrictions, which the U.S. Supreme Court
struck down.
Ms. Malliotakis. So in my last ten seconds, in your
opinion, he was basing these decisions on his political
preferences, right, or what he thought was important versus
what is equal treatment under the law and science?
Mr. Tseytlin. He was targeting the Orthodox Jewish
community in his statements and in the way he gerrymandered the
districts, and we now know he was not listening to his public
health officials who, when they quit, said so.
Ms. Malliotakis. Thank you.
Dr. Wenstrup. I now recognize Ms. Ross from North Carolina
for 5 minutes of questions.
Ms. Ross. Thank you, Mr. Chairman. And thank you to all the
witnesses for being here.
My colleagues on the other side of the aisle have been
using today's hearing to distort commonsense measures
implemented during the pandemic to protect public health and
reduce the threat of COVID-19, which, by the way, is still with
us. Both of my parents have COVID right now.
They characterize these measures as government overreach
and infringement on the individual liberties afforded to every
person in the United States. And so I would like to spend my
time correcting the record on how they are distorting the
facts.
Though the title of today's hearing, through this title my
colleagues have suggested that public health officials
systematically and intentionally acted in defiance of the
Constitution during the pandemic. This simply is not the case.
In fact, the overwhelming majority of pandemic-era public
health policies, be they suspensions of in-person gatherings or
vaccination and masking requirements, have been upheld by the
courts.
On free speech grounds, they have been upheld for meeting
the standard of viewpoint neutrality. And on free exercise
grounds, they have been upheld for satisfying the neutral and
general applicability standard put forward by Justice Antonin
Scalia.
Professor Schwartzman, could you remind us again of the
meaning of these legal standards?
Mr. Schwartzman. Yes. The phrase ``neutral and generally
applicable,'' which is the standard for free exercise under the
First Amendment, comes from a decision that was written by
Justice Scalia on behalf of the Supreme Court in 1990 called
Employment Division v. Smith, a case involving a Native
American challenge to a prohibition on the use of peyote. And
what it means is that the government is not permitted to target
religious actors for special burdens. It cannot persecute them.
It cannot act with the purpose of discriminating.
But as long as the law is neutral, it is not based on
religious hostility, and is generally applicable, it applies to
a wider range of actors, not only those who are religious, it
is subject to a deferential standard of review. That means that
the Supreme Court will not mandate religious exemptions from
those kinds of laws, which is what characterizes most public
health regulations.
Ms. Ross. Thank you.
And in your testimony you talked about how First Amendment
activities, including speech and religious activities, can be
regulated to safeguard Americans' public health. And as such,
public health policies that meet these standards were upheld by
the Court and were not infringing on the Constitution. Is that
correct?
Mr. Schwartzman. That is correct. In many cases, the
Supreme Court allowed public health regulations to stand. Those
included some capacity limits. The Supreme Court has been asked
to intervene on multiple occasions to invalidate vaccine
mandates on religious liberty grounds. It has refused to do so.
It also let stand an order that required state actors and
public schools and private schools as well not to have in-
person learning over a temporary time period, the winter of
2020. All of those orders the Supreme Court allowed to remain
in place ostensibly because they are neutral and generally
applicable
Ms. Ross. Thank you.
The suggestion that Democrats take for granted the
Constitution and the rights it affords every person is
dangerous, and it is misleading. In fact, it is false. It
undermines confidence in our institutions during times of
crisis and erodes faith in our American system of government.
I would also like to note that churches were not
specifically targeted through public health measures or
synagogues as we have heard implemented by the Biden
Administration, and these measures did not prevent people of
faith from worship. I was able to worship virtually. The faith
community I participate in had outdoor services and we had
parking spaces that were reserved, and people got out their
lawn chairs, and we worshipped together outside safely. Many
religious institutions found innovative ways to enable their
members to continue to practice their faith, be it through
virtual, outdoor, or hybrid options. And many are using them
today particularly for people who we pray for as sick and shut-
in, who can now turn on YouTube or Facebook Live and
participate with their congregations, even with emojis.
So Professor Schwartzman, with my remaining five seconds I
would like to give you just a moment to correct the record on
anything that you might want to share with the Committee?
Mr. Schwartzman. Thanks.
I just want to agree with you that religious communities
had to be creative in responding to the pandemic. I do not mean
to minimize the burdens on them; they were really serious
burdens, but they also acted with a sense that conforming with
public health regulations was important, and often consistent
with their own religious obligations to save lives.
Ms. Ross. Thank you, and I yield back.
Dr. Wenstrup. I now recognize Mrs. Lesko from Arizona for 5
minutes of questions.
Mrs. Lesko. Thank you, Mr. Chairman.
You know I do not even recognize the America that I grew up
in anymore. I know my Democratic colleagues think we are making
up stuff, but there were serious violations that happened that
were upheld by the U.S. Supreme Court. The government did
violate constitutional rights by censoring opposing viewpoints,
mandated vaccines, shut down churches, shut down some
businesses while keeping others open, and right now, our
Department of Justice seems to be targeting conservatives and
not others with unequal justice.
Fighting back against these injustices, quite frankly, is
the main reason that I continue to stay in Congress, I think it
is very important.
I am going to read first what Supreme Court Justice Gorsuch
said, and then I am going to ask a question of Ms. Murrill. In
the Arizona v. Mayorkas case Justice Gorsuch wrote, ``Governors
and local leaders imposed lockdown orders forcing people to
remain in their homes. They shuttered businesses and schools,
public and private. They closed churches, even as they allowed
casinos and other favored businesses to carry on. They
threatened violators, not just with civil penalties, but with
criminal sanctions, too. They surveilled church parking lots,
recorded license plates, and issued notices warning that
attendance at even outdoor services satisfying all state social
distancing and hygiene requirements could amount to criminal
conduct.''
``Federal executive officials entered the act, too. They
used a workplace safety agency to issue a vaccination mandate
for most working Americans. They threatened to fire
noncompliant employees and warned that service members who
refused to vaccinate might face dishonorable discharge and
confinement.''
``Justice Gorsuch also wrote in the Calvary Chapel Dayton
Valley v. Sisolak case: `There is no world in which the
Constitution permits Nevada to favor Caesars Palace over
Calvary Chapel.' ''
So my question to Ms. Murrill: Do you think--well, first of
all, Mr. Schwartzman said earlier that he thought that the
government actions were just. I may be paraphrasing.
Ms. Murrill do you think it is just for the government to
keep casinos like Caesars Palace open, but shut down, or
severely restrict churches?
Ms. Murrill. Absolutely not, and you know, I think it is we
have had a lot of testimony this morning talking about the
broad justification for some of these mandates, and remember,
this went on for three years. It did not just stop and start
and stop in the beginning, and they did not evolve downward in
terms of less restrictions; they got broad--they were broader
and broader and broader. And so, it was never neutral to say
that you can--10 people can gather in a checkout line at
Lowe's, but they cannot stand together at church that is not
neutral, that is arbitrary. And if ten people stood in the line
at Lowe's and held their hands together and prayed, that
actually would not have violated the executive order I do not
think.
And I would like to make----
Mrs. Lesko. Thank you. I have one more question to ask.
Ms. Murrill [continuing]. To the good professor's
responses----
Mrs. Lesko. Yes
Ms. Murrill [continuing]. There is a legal limit on what
the U.S. Supreme Court and the Federal courts can do with
regard to state law, and that drove a lot of the
decisionmaking. So it is simply not accurate to say that
everything was--that got the big checkbook of approval----
Mrs. Lesko. Thank you. I have one more question. I am
running out of time. Sorry.
I am going to read some emails that came from your lawsuit,
Mr. Bailey, in Missouri v. Biden. One of them is from the White
House, and it says: ``Wanted to flag below tweet, and I am
wondering if we can get moving on the process for having it
removed ASAP. And then, if we can keep an eye out for tweets
that fall in this same genre, that would be great.''
Then there was another tweet. White House e-mailing
Facebook pushing them to censor Tucker Carlson.
It says: Since we have been on the phone the top posts
about vaccines today is Tucker Carlson saying they do not work.
Yesterday was Tomi Lahren saying she will not take one. This is
exactly why I want you to know what reduction actually looks
like. If reduction means pumping out more vaccine hesitant
audience with Tucker Carlson saying it does not work, then I am
not sure it is reduction.
So they are kind of threatening Facebook in that case.
Mr. Schwartzman, in his testimony, believes that
coordination between the White House and social media are
unverified allegations.
Do you think they are unverified allegations?
Mr. Bailey. Absolutely not. The emails that you are
describing are the tip of the iceberg that establish not only
coordination, but coercion and collusion from the very top of
the White House across a spectrum of Federal bureaucratic
agencies to establish a vast censorship enterprise that has
gone beyond COVID. COVID was the Trojan Horse. That is the
excuse to get the enemy behind the wall, and it is now
spreading.
This time and the nature of these violations call for the
necessity of a wall of separation to be erected between tech
and state in order to reserve our First Amendment right to free
fair and open debate.
Mrs. Lesko. Thank you.
And I yield back.
Dr. Wenstrup. I now recognize Mr. Mfume from Maryland for 5
minutes of questions.
Mr. Mfume. Thank you very much, Chair Wenstrup, and to the
Ranking Member Ruiz for having this hearing. And I want to
thank our witnesses for being here.
A couple of quick things. First an observation. I just
believe that the title of this hearing is a bit narrow in
scope, perhaps even misleading, to say churches versus
synagogues. But in the district that I represent, there are
churches, there are mosques, and there are synagogues, versus
casinos, I should say.
So if we really are trying to draw a juxtaposition here and
the assumption here is that only churches are affected and,
therefore, only Christians were affected, so perhaps next time
around, we would want to--if we believe in this, we would want
to say churches, mosques, and synagogues.
And let us keep a force also the 1.1 million people who are
not here, who died as a result of COVID. Oftentimes these
hearings and these discussions talk about a lot. We do not
oftentimes talk about them and their families. And I think, as
I have said at every hearing, we have got to do that. We also,
as I have said at every one of these hearings, have to realize
and recognize, I think, that we were dealing with a public
health emergency. And nobody had answers, and everybody was
trying to figure out what was right, what was wrong, how do we
protect each other and one another. I mean, I remember a time
during the pandemic where people were washing their groceries
that were left on their doorstep by a delivery person believing
that there were germs on the Cheerios box that would infect
their family.
So, you know, it just behooves us to remember how strange
those times were, and how we did not know and why it was so
very important that we found a way, until we did know, to
protect people and as many people as possible. It is good to be
a Monday morning quarterback, but the game of life is not
played that way. And there are real winners and real losers,
and the 1.1 million that died and their families are losers.
So I do not know if we ought to be blaming anybody and
using the Constitution as a shield to suggest that in an
emergency we should not do everything that we possibly could to
get out of it.
Now, there is a lot of anger and a lot of angst that I hear
over and over again. I hope this does not devolve into the
Andrew Cuomo show, because that is not what we are about here.
And, you know, I do not have an issue with Mr. Cuomo. He was
not my Governor. But if you do, that is fine.
But the issue here is how do we find a way to talk about
what we did and why it made sense at the time and not to
condemn.
Some of my colleagues have suggested that public health
measures implemented during COVID-19 deliberately placed a
disproportionate burden on communities of faith, hindering
their ability to freely practice their religion. And while
there are variances of that theme throughout the country, one
thing is clear, that churches, synagogues, and mosques found a
way to get around any restrictions that might exist to be able
to worship. Was it corporate worship with 1,000 people in the
same room? No.
But I just find it a little offensive to suggest that as a
Christian, I did not worship, my church did not worship, my
family did not worship. I have got friends who are Jewish and
friends who are Muslim who tell me the same thing, that they
either found a way to do it virtually or, like we did, we would
meet outside as you heard from my colleague during the cool
months, and then when it got cold, we would worship in our
homes with our family members and our neighbors.
So if you really are trying to practice your faith, you are
really not going to let a pandemic and the restrictions that
are imposed at that time stop you from doing it. I just--maybe
I am a different kind of person, but I have seen what is
happening and what continues to happen, and how religions are
practicing worship, and are doing so even now that the pandemic
has come to a conclusion.
So if you look at the Journal of Infectious Diseases, they
compare the COVID-19 spread in states with and without stay-at-
home orders and found out, as we all know, that states with
stay-at-home policies were more successful in slowing the
spread of the disease in the weeks and months following the
initial outbreak than those that did not.
There are some lessons to be learned here. And I understand
the anger and the frustration, but we are in real time when
this was taking place, and this is real time now. So I have
always had a hesitancy of pointing backward and saying, ``This
is to blame, you are the blame, that is the blame,'' when the
key was how do we find a way to save lives? How do we protect
our families and families around us, and how do we use the most
sensible policies at the time to be able to do that, policies
that clearly now have shown to save lives? We just did not save
that 1.1 million Americans that are no longer with us.
I yield back, Mr. Chairman.
Dr. Wenstrup. I would like to take the opportunity to
appreciate your discussion on the title of this hearing
because, clearly, more than one religious faith was negatively
affected through this process.
I now recognize the Chairman of the full Committee, Mr.
Comer from Kentucky, for 5 minutes of questions.
Chairman Comer. Thank you, Mr. Chairman. I want to thank
our witnesses for being here today.
We have heard about radical policies enacted by our state
and Federal Governments in response to the COVID-19 pandemic.
Ms. Murrill brought up the sad fact that in my home state of
Kentucky, they banned drive-in church services, encouraged
Kentuckians to report those who disobeyed. This hardly sounds
like America. Unfortunately, these Orwellian policies and
practices appear to have been carried out at the highest levels
of our government.
During this Select Subcommittee's hearing earlier this
month, I asked Director Walensky a series of questions about
the CDC's involvement in censoring discourse on social media.
Director Walensky testified that she was unable to answer any
of my questions about the CDC's involvement in online
censorship due to it being under litigation in the courts.
Attorney General Bailey, I understand you have active
litigation against the Biden Administration regarding their
participation in online censorship. Is that right?
Mr. Bailey. Yes, sir.
Chairman Comer. Attorney General, do you believe that CDC
and other government officials or agencies worked with Big Tech
to censor dissent about COVID vaccines?
Mr. Bailey. Absolutely.
Chairman Comer. Did they ever recommend or encourage
censoring posts suggesting that vaccines prevent the spread of
COVID-19?
Mr. Bailey. There was an active suppression campaign as
detailed in email exchanges between, at a minimum, the White
House and Big Tech social media corporations from March to May
2021 as recited by one of the other members and offered as
evidence in our suit that demonstrate that the target of the
suppression was anyone that questioned the effectiveness of the
vaccine.
Chairman Comer. So did they ever recommend or encourage
censoring individuals that dissented public views about
vaccines?
Mr. Bailey. Absolutely.
Chairman Comer. Do you believe that CDC or other government
officials work with private companies to influence the
censorship of information about the origins of COVID-19?
Mr. Bailey. Absolutely.
Chairman Comer. Did they ever recommend or encourage
censoring posts suggesting that COVID-19 may come from a lab?
Mr. Bailey. Yes.
Chairman Comer. Wow. Funny that you can answer my question,
but Director Walensky could not.
According to documents released by your office, White House
officials appear to have colluded directly with social media
companies to censor and suppress opposing views related to
COVID-19.
One email appears to show White House Digital Director
Robert Flaherty telling Google that social media companies
having a handle on vaccine hesitancy generally is a concern
that he shared at the highest--and I mean highest--levels of
the White House.
Attorney General Bailey, do you believe it is
constitutionally defensible for the White House to collude with
social media companies to censor opposing scientific
viewpoints?
Mr. Bailey. No. That is targeted censorship by the
government of core protected political speech.
Chairman Comer. So do you believe the Biden Administration
violated the First Amendment?
Mr. Bailey. Unequivocally, yes.
Chairman Comer. Now, what is most shocking about all of
this is that the Biden Administration was censoring facts
simply because they disagreed with them. We know the vaccine
did not stop catching COVID nor transmitting it, and we know
the vaccine has had side effects. And the more we learn, COVID-
19 came from that lab in Wuhan. They censored Americans because
they did not like what they were saying.
Attorney General Bailey, would you agree with that?
Mr. Bailey. Yes. And I believe that in Dr. Anthony Fauci's
deposition, he accurately characterized the President's
position on this matter, and his Administration's position on
this matter. Dr. Fauci could be characterized in his deposition
as saying that if he disagrees with it, if he does not believe
it to be true, then Americans should not have free, fair, and
open debate on that topic. And it is a scary world if the
government gets to determine what is true rather than the
citizens debating those topics and coming to the veracity of
the claims on their own through free, fair, and open debate.
Chairman Comer. Unbelievable, unbelievable. History will
not be kind to the tactics that the Biden Administration used
to censor speech in America simply because they disagreed with
people's viewpoints, especially now that history has shown that
many of those dissenting voices were actually correct on not
just their concern about the vaccine, but also their theory on
the origin of COVID-19.
Thank you again for being here and the work you are doing.
Mr. Chairman, I yield back.
Dr. Wenstrup. I now recognize Mrs. Dingell from Michigan
for 5 minutes of questioning.
Mrs. Dingell. Thank you, Mr. Chairman.
Throughout today's hearing, we have repeatedly heard
mischaracterization after mischaracterization about public
health tools that were designed to keep communities safe,
especially the safe and effective COVID-19 vaccines that helped
save lives. And for all of you--this Committee has heard it--
there is no one that was more afraid of that vaccine than me. I
got Guillain-Barre from a flu shot, and I was scared to death.
And you are talking about I did wash my cereal before I brought
it in the house. I wore gloves. There are videos of me cleaning
my colleagues' seats. I studied and I studied and I studied,
and I talked to doctor after doctor after doctor.
So I want to hear, having said that--and what I am really
worried about at today's hearing and about everything else is
that what is the right of people when you are in a community
setting of--I am going to use measles as an example. We are
seeing the outbreak of measles again in communities, because
people are becoming afraid of having those vaccinations. So
what is individual right versus community right? And I think it
is becoming more complicated, and these discussions contribute
to it.
Right now I want to take a moment to correct the record.
When President Biden first unveiled his national strategy for
the COVID-19 response and pandemic preparedness in January
2021, more than 3,000 people were dying each day from this
virus. At this time, vaccines were the strongest tool we had in
our toolbox to prevent more suffering and more death, and they
continue to be.
It is because of President Biden's steadfast leadership in
standing up--which, by the way, I give credit to President
Trump. He started it. And then we got it, and we got a vaccine
program in our Nation's history. We got this because of
President Trump's work. We got this faster than any we have
seen. We stood up the fastest successful vaccine program in our
Nation's history that were able to save another three million
American lives and prevent another 18 million hospitalizations.
And while the success of the COVID-19 vaccine rollout was
historic, there are lessons we need to learn from this pandemic
that we need to apply for the future public health crisis.
But I will also say to you, the primary lesson is how do we
ensure people are getting accurate, reliable information so
that they can make informed decisions about their health, when
over the course of the pandemic, we did see falsehoods about
COVID-19 and vaccines flourish online, misinformation and
disinformation. The claims that the vaccine will alter your
DNA--by the way, I believed it at first. I went and talked to
about 100 people. I got as scared as anybody did. And doctors
that were really respected said, Debbie, you are crazy. And I
probably was, but I looked at it.
And they also said they would make you magnetic. They
served to dissuade--and, by the way, I also had a family member
that almost died that took hydroxychloroquine. But it dissuaded
people from getting vaccines and protecting their health.
So, Professor Schwartzman, I am going to go back to you. I
want to get your thoughts. In the United States, freedom of
speech is constitutionally protected, right? But does that mean
free speech comes without consequences, particularly when it is
exercised to recklessly amplify dangerous disinformation as we
saw throughout the COVID-19 pandemic?
Mr. Schwartzman. You have a right to freedom of speech.
But, of course, all rights can be abused, and they are abused
in this case through misinformation and disinformation as you
said. The government also has a right to engage in speech of
its own to explain its views, to explain vaccine safety and
effectiveness. They can engage in speech, counterspeech to
correct that kind of misinformation. And it can communicate
messages to private actors who can engage in moderation of
their own.
Mrs. Dingell. So there is a May 2022 Brown University study
that found that the sort of abuse of free speech contributed to
approximately 319,000 preventable deaths. To combat the spread
of this dangerous misinformation, social media companies
maintain their own independent system to verify the types of
claims that I mentioned earlier. While these processes are far
from perfect, they have had the potential to serve an important
role in combating the proliferation of dangerous posts and
videos, many of which still slip through the cracks.
Professor Schwartzman, the constitutionally protected
guarantee of free speech does not apply to private platforms
such as those maintained by social media companies. Is that
correct?
Mr. Schwartzman. That is correct. Under existing doctrine,
social media companies are not state actors who are bound by
the First Amendment. They are given protection for content
moderation under Federal law.
Mrs. Dingell. I have more questions I would like to submit
for the record.
Thank you, Mr. Chair, and I yield back.
Dr. Wenstrup. I now recognize Dr. Joyce for 5 minutes of
questions.
Dr. Joyce. Thank you, Chairman Wenstrup and Ranking Member
Ruiz, for holding this hearing. And thank you to all of the
witnesses for testifying before our Committee today.
This Select Subcommittee on the Coronavirus Pandemic was
convened because Americans deserve answers. They deserve to
know the truth behind the COVID pandemic, and they deserve to
know that we are looking to hold those accountable for gross
mishandlings, erroneous policy decisions, and mass confusion
during a time of national uncertainty.
We are tasked with analyzing and scrutinizing these
failures, what contributed to the rolling out of these
arbitrary policies, and how we could have avoided the millions
of tragic outcomes that resulted only from those rollouts.
Then, and only then, will we be prepared and better equipped to
respond effectively and sensibly amidst other inevitable mass
public health emergencies.
States across our country, including my home state of
Pennsylvania, imposed erroneous policies and restrictions all
in the name of public health. Measures like mandating vaccines
to our frontline healthcare workers, members of our Nation's
military and our children, these mandates had severe
repercussions. I agree with my colleagues that there are
lessons that need to be learned, and that is one of the main
purposes of this Select Subcommittee.
Let us address COVID in children. Children were subject to
the same vaccine mandates for the coronavirus, a virus that we
know did not affect young and healthy individuals in the same
manner that it did our vulnerable population. These mandates
exposed our youth, our children, to potentially harmful side
effects of the messenger ribonucleic acid (mRNA) vaccine.
Ms. Murrill, your testimony was riveting. In that testimony
you state that these mandates were absolutely unnecessary and
likely did far more damage than good.
Can you please expand on this and the impact that it had on
your home state?
Ms. Murrill. Yes. Thank you for that question.
You know, I have both my official experience and my
personal experience with the mandates. And on the official
side, we saw rapidly expanding mandates that we believed and
that we issued opinions about saying that they violated state
law, the State Constitution and the Federal Constitution.
On the individual side, my son received the Pfizer vaccine
when he was 17. And after the second dose of the vaccine, he
landed in pediatric ICU for a week with myocarditis,
pericarditis and spent a week in the hospital as a result of an
adverse effect of this vaccine.
And I have heard testimony here today about studying and
studying and studying. I, too, studied the information that was
available. The problem was all the information was not
available because government was censoring the information that
was available. And so people's decisionmaking was impacted by
that, and we made decisions that put us and our children at
risk.
My child now has a permanent annual visit with a
cardiologist, and it was a $100,000 medical bill. This could
have been stopped by conducting simple blood tests on minors
and conducting accurate research instead of trying to implement
and defend the government's decision to vaccinate minors when
the research did not support that.
Dr. Joyce. Transitioning to the fact that many states
forced businesses who they deemed were, quote, ``nonessential''
to shut their doors, these nonessential businesses, the mom-
and-pop shops that line many main streets in any town
throughout the United States were forced to close. And,
unfortunately, some of them never reopened.
These small businesses are essential. They are essential to
the communities that they serve, to the livelihoods of the
people and families who own them, and to those who are employed
by them.
In fact, according to U.S. Bureau of Labor statistics, more
than 30 percent of small businesses in my home state of
Pennsylvania closed their doors due to a government mandate,
and all the while allowing large corporations, like Target, to
keep their lights on, their doors open, and their registers
flush with cash.
Ms. Murrill, this hearing is about examining the
constitutionality of Federal, state, and local government
actions in their response to the COVID-19. Is there any sound
justification for any of these three levels of governments to
prioritize a multibillion-dollar company, like Target, over the
small businesses that are the backbone of so many communities?
Ms. Murrill. None. And it does enormous damage to our
country to destroy those small businesses, and leave standing
only these big box businesses where you have taken out really
what is the backbone of our communities, the small businesses
that operate across the country.
Dr. Joyce. I agree. And I think that is the purpose of the
Select Subcommittee, to shine a light on these problems that
have been created by these mandates.
Mr. Chairman, my time has elapsed, and I yield back.
Dr. Wenstrup. I now recognize the Ranking Member of the
Full Committee, Mr. Raskin, for 5 minutes of questions.
Mr. Raskin. Thank you, Mr. Chairman.
Professor Schwartzman, if public health authorities flag
dangerous medical misinformation or disinformation online for
private tech companies, which have their own independent
processes for assessing and addressing misleading content
online, does that constitute a violation of the First
Amendment?
Mr. Schwartzman. Under existing doctrine, it does not. The
government is entitled to engage in speech of its own, to take
its own viewpoint and to communicate that viewpoint to private
actors, including social media companies. I do not know of any
court or jury that is reached a final decision to contradict
that conclusion.
Mr. Raskin. Well, does not that accord with common sense?
The police can speak to the public, the fire department can
speak to the public, the water department can speak to the
public. Is there something that would uniquely disable public
health authorities from speaking to the public?
Mr. Schwartzman. No, that is correct. Representatives of
our government are elected to speak to the public about all of
these views.
Mr. Raskin. All right. Some of my colleagues have decried
censorship during the pandemic, but posts and videos pushing
unfounded, scientifically unfounded claims about COVID continue
to rack up views online. For example, Media Matters found that
just 18 videos with lies about COVID-19 were viewed 20 million
times. These are not just extreme opinions. They are
falsehoods.
No credible study has substantiated GOP claims that their
viewpoints are being censored online. In fact, in an October
2021 internal report from Twitter found that in six out of
seven countries studied tweets posted by accounts from the
political right receive more algorithmic amplification than
tweets from the political left.
In fact, a comprehensive report completed by NYU Center for
Business and Human Rights found that by many measures,
conservative voices often are dominant in online political
debates. For example, outlets like Fox News and Breitbart
received the most interactions on Facebook posts, more than any
other media outlet on the platform.
Mr. Chairman, I request unanimous consent to enter this
report into the record.
Dr. Wenstrup. Without objection.
Mr. Raskin. Look, my friends, real government censorship in
America is coming from the right. GOP-run legislatures are
passing laws to stop teaching about slavery, reconstruction,
Jim Crow laws, White supremacy in our history. And right-wing
groups are working all over the country to censor books like
``The Handmaid's Tale,'' ``1984,'' ``Beloved,'' even my book
``We the Students,'' which was sponsored by the Supreme Court
Historical Society, has been removed by the Texas State Board
of Education.
According to the American Library Association, last year
alone saw the highest number of attempted book bans since ALA
began compiling data about censorship in libraries more than 20
years ago. The more than 1,200 attempted bans last year
constitute more than twice the already record-breaking number
of attempted bans in 2021.
Now, do these attempts to remove books from the library or
to censor curriculum or to punish teachers for teaching about a
forbidden or taboo subject, do all of these actually raise
serious First Amendment problems, Professor Schwartzman?
Mr. Schwartzman. They do. To the extent that the government
is engaging in message-based or viewpoint discrimination and
coercing private actors to conform with the government's view,
they do raise serious First Amendment concerns.
Mr. Raskin. All right. Well, why do you think the language
of censorship is being used to describe totally normal activity
by public health authorities to get the word out about a
pandemic by people who are themselves implicated in trying to
censor books and curricula and teachers?
Mr. Schwartzman. I think what is going on is an attempt to
use the word ``censorship'' to suggest that the government is
engaging in coercion of private actors when, in fact, what is
happened is that social media companies and others are forming
independent judgments about content moderation. And yet, on the
other side, as the examples you have given suggest, we see
serious efforts to curtail private speech.
Mr. Raskin. All right. I wanted, at least, start to get
into the whole question of free exercise of religion. The
Supreme Court in the Oregon v. Smith case laid out the general
test, which is if you have a neutral universally applicable law
that incidentally burdens religion, that does not violate free
exercise. But if you have a law that deliberately sets out to
oppress religion or violates someone's right of worship, that
does. That is the Church of the Lukumi Babalu Aye case, right?
Okay. So if I get another moment, Mr. Chairman, I would
like to talk about whether we are talking about incidental
burdens or deliberate efforts to restrict people's religious
expression.
Thank you for your indulgence. I yield back.
Dr. Wenstrup. Go ahead and answer his question.
Mr. Schwartzman. I would just say yes, that correctly
describes the constitutional test, and what we are talking
about, in most of these cases, are incidental burdens on
religion, and not direct targeting.
Dr. Wenstrup. I now recognize Dr. McCormick from Georgia
for 5 minutes of questions.
Dr. McCormick. Thank you, Mr. Chairman.
You know, I cannot speak to everybody's experiences during
this pandemic, but I can only speak to my own, specifically, as
an emergency medicine physician who served during the entire
pandemic, somebody who was censored, somebody who is censored
on multiple platforms for having my own opinion in medicine as
a professional. I consider myself an expert since I have
treated thousands of COVID patients, and I have studied the
literature, studied the science. Nevertheless, somebody on the
other side of the universe of foreign application have been
able to censor me, and I thought that was very unfair.
I want to talk about the constitutionality of that a little
bit. And since you guys are the experts, you will be able to
give me insight on to that. It is interesting--by the way, I
would also note that almost everything that I said that I was
censored for has turned out to be true, even by the admission
of people that we have interviewed during these hearings. So I
just want to add that as an interesting caveat of what we are
censored for, because it turns out that opinions are necessary
by medical professionals in order to determine what is true as
we debate the science, if you will.
With that said, specifically in Big Tech companies, and
constitutionally and protected speech, Mr. Bailey, would you
mind elaborating on some of the specific findings so far from
the Missouri v. Biden case that would just apply to the
constitutionality of what I just addressed?
Mr. Bailey. Absolutely. First let me say that there are
numerous examples where President Biden himself, Vice President
Kamala Harris, other officials with the White House, including
former press secretary Jen Psaki, have explicitly called for
the repeal of Section 230 of the Communications Decency Act,
which is a boon to social media corporations, an enormous
financial benefit to these corporations if the corporations do
not enhance their censorship policies. Then agents, acting on
behalf of the Federal Government, go to social media, make more
specific targeted requests of censorship. It is a relationship
of coercion and collusion. It is not Big Tech acting on their
own, that would be bad enough. But in this instance, as we have
demonstrated through more than 1,400 numbered paragraphs of
specific allegations backed up by evidence and documents that
are available in our lawsuit. It is targeted, it is specific,
and it is at the behest of the Federal Government. And as Ron
Flaherty, the Director of Digital Communications at the White
House, opined, it goes all the way to the very top of the White
House. It has grown so far that they need to establish
additional bureaucratic structure to manage it.
But the remedy for disfavored speech in this Nation has
always been counterspeech, as you point out, not government
censorship. In fact, government censorship is counterproductive
to the public's pursuit of truth. The founders knew that. That
is why they included it as the very First Amendment in the
United States Constitution.
And I would also point out, as I stated, that it is in
times of crisis and emergency when we must be most vigilant in
protecting those sacred and foundational rights.
Dr. McCormick. Thank you for your testimony. I could not
agree with you more wholeheartedly, especially, once again,
seeing how unfair and biased the censorship has been as far as
my experience has gone, especially since the evolution of this,
the opinions, and the science throughout history has shown that
a lot of times a dissenting opinion ends up being the truth.
As I mentioned before when I was censored about things that
sometimes turned out to be true, can you also elaborate on the
constitutionality of the forced mandates of masks by Federal,
state, and local governments, Mr. Bailey?
Mr. Bailey. Absolutely. Free speech is about not only
speaking, but acting a certain way as well, and we have got to
be vigilant in protecting that. And when we see forced mask
mandates that are not backed up by science or evidence, when we
see the suppression of conversations about the effectiveness of
masks, those undermine the rule of law, and they reduce the
credibility of the outcome of the conversation because it is an
unfair debate. It is a one-sided debate. And when the
government uses its heavy hand to suppress that speech, people
cease to trust the outcomes, and it undermines the rule of law
and faith and confidence in the government.
Dr. McCormick. So you consider it unconstitutional?
Mr. Bailey. In many instances. I would need more facts and
specifics.
Dr. McCormick. And specifically I would like to point out
that maybe it has some constitutionality, but in the same sense
that this is why it is very important that we pick the right
government officials that actually lay down these laws and
guidelines. That is why elections matter.
Beginning in 2000--I am almost out of time, so I will have
to submit my last question online, because I want to respect
the time for the hearing.
Thank you.
With that, I yield.
Dr. Wenstrup. I now recognize Mr. Moskowitz from Florida
for 5 minutes.
Mr. Moskowitz. Thank you, Mr. Chairman. And thank you to
the Committee for letting me waive on.
In a previous life, before I got here, I was the director
of emergency management for the State of Florida and handled
the first 18 months of the COVID response for Governor
DeSantis. And I worked with both administrations. I worked with
the Trump Administration all the way until he lost the
election, and then I worked with the Biden Administration in
the rollout of the vaccine.
I can tell you what both administrations did extremely
well. I can tell you what both administrations did extremely
poorly. But what I cannot, for the life of me, understand, is
that every time we talk about COVID, we talk like it started on
Joe Biden's inauguration day, like COVID-19 started on January
15.
Mr. Schwartzman, just to remind everybody who is watching,
who was President when COVID came from China and infiltrated
the country?
Mr. Schwartzman. President Trump.
Mr. Moskowitz. Okay. And so I know we forget that when we
ask the questions about what government did and government's
response and was it proper. There were two administrations that
had a response.
And so let us dive into that. You know, do we forget that
the Trump Administration was so unprepared for the pandemic
that they literally had to change the expiration dates on PPE,
masks, gowns, gloves, things that had expired that they told
doctors and nurses, Oh, yes, yes. Do not worry about the
expiration date. We will have the CDC just change--the FDA just
change the expiration date.
And, in fact, we had to turn to the country, China, that
allowed the virus to come here for almost all of our supplies.
So the country that allowed the virus to come here that killed
over a million Americans, we had to turn to them for our entire
response. It is probably why Trump said, I do not know, things
like: China has been working very hard to contain the
coronavirus. The United States greatly appreciates their
efforts and transparency. It will all work out well. In
particular and on behalf of the American people, I would like
to thank President Xi.
By the way, I will only do that once because I did this in
a previous committee. He does that for like a whole month, like
20 times.
You know, I want to bring up something else because I found
it an interesting conversation. We have a First Amendment in
this country, which is what we can do, but I want to ask Mr.
Bailey a question of what we should do.
Mr. Bailey, we can debate things in this country, but I
want to ask a should question, and I am going to use an extreme
example. Okay. So I am not trying to set you up.
Do you think we should debate whether the Holocaust
happened in this country? I know we can debate it. Do you think
we should debate it?
Mr. Bailey. I think we should fight to protect core
political speech in this Nation, even disfavored speech, and
the best remedy is counterspeech, not government censorship.
Mr. Moskowitz. So you agree with me that we can debate it.
I agree we can. I am not disagreeing. Do you think we should?
Do you think we should debate whether the Holocaust happened,
whether six million Jews were killed, ten million people? Do
you think we should debate whether Hitler was a bad guy? Should
we debate that?
Mr. Bailey. That is not an issue in the lawsuit that we
filed that I am here to talk about, and I will stand by my
answer.
Mr. Moskowitz. Okay. My point--and I understand why you did
not want to answer, because I know your answer. No, we should
not debate it. You do not want to say that because it shows
that there is a distinction of whether we can debate things
under our rights versus whether we should debate them, because
should debating them could cause a lot of harm, and that is
what happened in COVID. We can debate things in this country,
but there was a whether we should debate them and whether the
``should'' would cause tremendous harm.
I want to turn to something else. Donald Trump said this:
My Administration is recommending that all Americans, including
the young and healthy, work to engage in schooling at home,
avoid gatherings in groups of ten or more, avoid discretionary
travel, avoid eating and drinking at bars and restaurants and
public food courts.
That was his slow-the-spread recommendations, no more than
groups of ten. He extended those recommendations to April 30.
Well, you know what came before that? Easter. It was Donald
Trump who recommended to all of the Governors in this country
to not be open for Easter because you could not gather in
groups of ten or more.
So the first one to close the churches, to affect religion
was not Joe Biden. It was Donald Trump, when he recommended to
the Governors to not allow people to gather in places of ten or
more.
And so, what I do not understand is we should be talking
about how this stuff never happens again. I agree with you,
there are things that happened that should never happen again.
But the way we make sure they do not happen again is by
preparing, is by fixing the supply chain issues, by making sure
we are ready to face the next pandemic. We should be doing it
on a bipartisan basis rather than just continuing to be
aggrieved.
I yield back.
Dr. Wenstrup. I now recognize Ms. Greene from Georgia for 5
minutes of questions.
Ms. Greene. Thank you, Mr. Chairman.
I would like to remind my colleagues across the aisle that
President Trump said 15 days to slow the spread. 15 days is
quite different from six months, one year, a year and a half,
and even more. 15 days; big difference. And then he said
reopen.
So just want to make sure that everybody is clear on that.
We cannot rewrite history----
Mr. Moskowitz. Would the gentlelady yield?
Ms. Greene. No, absolutely not.
We want history to remain truthful.
Mr. Schwartzman, I listened to your testimony, and you said
like all fundamental rights, religious freedom has limits,
especially when exemptions impose serious harms on other
people. As Justice Robert Jackson once said, according to you,
the Bill of Rights is not a suicide pact. You said under
current law, particularly when the government has a compelling
interest, such as permitting the spread of a deadly pandemic,
it can impose restrictions on even the most cherished and
important of our individual liberties as long as it does so
evenhandedly.
Mr. Schwartzman, casinos were mandated to cap at 50 percent
capacity, but yet churches were capped at 50 people, did not
even matter how many people were in their congregation.
Do you consider that evenhandedly?
Mr. Schwartzman. I am not a public health official----
Ms. Greene. That is a ``yes'' or ``no,'' Mr. Schwartzman.
Mr. Schwartzman. Well, I think that is a question that you
would have to ask Nevada state officials. And the Supreme Court
when it decided Calvary Chapel on July 24, 2020----
Ms. Greene. Mr. Schwartzman, I am asking you. I am asking
you do you consider, in your opinion, that evenhandedly?
Mr. Schwartzman. The Court recognized I think that 1,100
people in the United States died the day that the Supreme Court
made that decision, and it was for local officials to respond
to those conditions on the ground as they saw fit and----
Ms. Greene. Mr. Schwartzman, shutdowns that supposedly
prevent the spread of a virus caused suicides to increase in
every single age group, of all ages, but especially the highest
in teenagers.
So do you consider that evenhandedly?
Mr. Schwartzman. I would say when the Supreme Court decided
the New York case, 2,200 people died that day. When it decided
the school closing case in December, 3,500 people died that
day.
Ms. Greene. So, Mr. Schwartzman, you believe that teenagers
should commit suicide because people with comorbidities, such
as obesity, and people at very high risk of dying from COVID-19
is okay as long as the Supreme Court says so?
Let us move on.
Mr. Schwartzman. Absolutely not.
Ms. Greene. Liquor stores and marijuana dispensaries stayed
opened, stayed open, liquor stores and dispensaries, but gyms
had to close. And obesity was one of the leading comorbidities.
That is not evenhandedly. That is actually wrong that they shut
down gyms.
Let us talk about was it right to put COVID patients in
with our grandparents and parents in nursing homes, actually
murdering them. Do you consider that evenhandedly?
Mr. Schwartzman. With respect. The risks of the various
kinds of activities that you are describing varied greatly in
public health officials, used scientific assessments and data
to distinguish those kinds of activities and to regulate
accordingly.
Ms. Greene. So you are talking about, like, Dr. Richard
Levine, the man that calls himself supposedly Rachel Levine,
when he pulled his own mother out of nursing homes in
Pennsylvania, but in his job he was able to create the order to
keep COVID patients in the nursing homes instead of sending
them to hospitals. He pulled his own mother out. So officials
like him were the experts.
So do you consider that evenhandedly?
Mr. Schwartzman. I am not familiar with that case.
Ms. Greene. Well, you should be familiar with it. It is
pretty bad. He is our Deputy Secretary of Health and he should
not be.
Governments coordinated with social media to censor COVID
misinformation, especially like mine when I put up the fact
that there were an exorbitant amount of reports on the Vaccine
Adverse Event Reporting System (VAERS) reporting system over
the COVID vaccine, but yet, there were very little about other
vaccines. And then the government coordinated with social media
companies to make sure people like me had our accounts
suspended while they allow porn to proliferate, anyone is
allowed to attack Donald Trump, anyone is allowed to say
anything else as long as they stuck with the talking points of
COVID and did not spread COVID misinformation.
I am sure you have a Supreme Court case to quote on that.
Do you consider that fair that the government coordinated with
social media companies to censor the First Amendment rights of
Americans?
Mr. Schwartzman. In fact, there is no Supreme Court
decision on this question. And there are, as far as I know, no
Federal court decisions that have found any kind of final
judgment or based on any kind of jury verdict any kind of
collusion on the grounds that you are describing.
Ms. Greene. You are so misinformed. There is actually
plenty of proof that the government colluded with social media
to censor people, and I am one of them right here, and I was a
sitting United States Member of Congress.
I want you to know the Bill of Rights is not a suicide
pact. It is important because it protects our rights.
I yield back. Thank you, Mr. Chairman.
Dr. Wenstrup. I now recognize Mr. Garcia from California
for 5 minutes of questions.
Mr. Garcia. Thank you, Mr. Chairman.
Well, first, in reference to what we just heard, that was
incredibly appalling, transphobic, jokes about suicide. And, of
course, these attacks on religion and on the response today
have been really, really hard to hear and hard to see.
And I know we have been talking a lot about religion and
our rights as Americans, and so, I think we should probably
review that a little bit and actually talk about what actually
somebody and a Member of the Subcommittee has actually said
about religion.
Ms. Greene. Point of personal privilege.
Mr. Garcia. I just want to--I am just----
Ms. Greene. He is attacking my character.
Mr. Garcia. I have not attacked anyone's--I have not said
anyone's name actually, so I am not attacking anyone's
character.
But let us go ahead and read some of these quotes that a
Member of this Subcommittee has actually said. These are public
quotes about religion. Let us go through those. I will start
with the first one--personally, by the way, I am Catholic. I am
proud to be Catholic, and I take this quote as very offensive.
The quote goes: ``Satan's controlling the church. The church is
not doing its job.'' This comment was made just in 2020 by a
Member of this Subcommittee.
Here is another recent quote, the Politico report ahead of
the 2020 elections. The same Member of the Subcommittee said
that Muslims, quote, ``do not belong in our government.'' I
also find that very offensive.
This same representative of the Subcommittee has mocked and
vilified Muslim Members of Congress saying they represent--and
I quote--``an invasion of our government and accuse them of
being terrorist sympathizers because of their religion.''
This same Member of the Subcommittee claimed that Jewish
bankers were starting wildfires with lasers from space. And the
same Member compared vaccine requirements to the Holocaust.
And so these attacks being made by this Member I find
pretty disgusting comparatively looking at the record of what
this Member has actually said.
But we have been talking about the pandemic, or that is
what I thought we were going to talk about today. So let us
talk about the pandemic and focus on the President who was
actually there when the closures first started. And that was,
of course, former President Donald Trump.
Now, Donald Trump has also made numerous bigoted statements
about Muslims, Jewish people, and many others. We have all seen
those press reports. I will not go through them in my short
time today. But this hearing is about COVID, and so let us talk
about what actually the President did.
And really briefly, Mr. Schwartzman, will you concur that
when the closures first started, including at religious
institutions, that the President was actually Donald Trump?
Mr. Schwartzman. Yes, of course.
Mr. Garcia. And let us talk about some of the highlights.
Out of the gate, Donald Trump and his Administration stumbled.
They got testing wrong early on due to the Administration
opted, as we know, to use its COVID testing protocol that
contained design issues that set us back in our early testing.
Tests were nowhere to be found. On PPE, Trump put his son-in-
law, Jared Kushner, in charge of the supply chain task force. I
mean, come on. He put together a group of volunteers that knew
nothing and none had experience about supply chains or
distribution experience at all. That is the task force that the
President put together. Huge failures on PPE and getting access
across the country to cities like mine where I was mayor of. In
fact, Republican Governor Larry Hogan said at the time--and I
quote--``Waiting around for the President to run the Nation's
response was hopeless''.
And so we have got to be honest with the American people
about what Trump actually did during that time and some of the
things that Donald Trump said. In fact, some of them are right
here on this board. He said that we had it totally under
control, quote. Quote, ``One day it is like a miracle, it will
disappear,'' end quote. Another quote, ``It is going away.''
And another one, ``It will go away and we are going to have a
great victory.''
That was the mood and the statements made by the President
that actually ordered many of these closures that all of you as
witnesses are discussing today and that my Republican
colleagues seem to love to forget that it was actually
President Donald Trump that was there that actually led all of
these closures that began happening.
So I think that if we really want to get to the bottom of
what the pandemic closures were about, I think President Trump
should be the one actually addressing these questions at this
hearing.
So I just want to say, finally, that the direct result of
this incompetence that happened in that Administration, which,
by the way, President Biden helped fixed, cost as many as
200,000 lives that were lost needlessly in those first few
months during the pandemic.
And so, we want to talk about religious discrimination. We
want to talk about preparedness for the pandemic, but we refuse
to talk about the failures of the Trump Administration and how
it cost lives in this country. That is what started this mess.
That is what we should be talking about.
And with that, Mr. Chairman, I yield back.
Dr. Wenstrup. I now recognize Ms. Tokuda for 5 minutes of
questions.
Ms. Tokuda. Thank you, Mr. Chair. I would like to yield my
time to Mr. Raskin.
Mr. Raskin. I thank the gentlelady for yielding.
I appreciate the comments of Mr. Garcia, who reminds us
that the closures began under the Trump Administration--at the
same time, actually, that President Trump was aggressively
defending the Chinese Government and praising President Xi for
his wonderful and speedy response to the coronavirus. And we
have more than 20 statements in which President Trump praised
the Chinese Government and their cooperation and his effective
work with China.
But back to you, Professor Schwartzman.
We established that in the Oregon v. Smith case the Supreme
Court upheld the ban on peyote use even though it did
selectively burden the religious practice of adherents of the
Native American religion, because it was a general ban that
applied to everybody. It only really hurt one religion, but it
was something that applied to everybody.
And the Court--Justice Scalia actually said that the test
of a free exercise violation is whether it is part of a
neutral, universally applicable law or whether it is adopted
for the purposes of interfering with someone's worship and
religious practice.
The counterpoint case is the Church of Lukumi Babalu Aye
case where there was an ordinance in Florida that was
gerrymandered to target the Santeria religion and their live
slaughter of animals, saying, well, if slaughter of animals is
bad it should apply across the board, including in
supermarkets, on farms, and so on, but this is just targeted at
this particular church.
So in order to clarify what is going on with COVID-19, we
need to look at what the character of the different laws are.
If a law said that people could not gather in groups of more
than 15 and it applied to theaters, coliseums, weddings,
funerals, church and synagogue and mosque services, political
rallies, newspaper floors, factory floors, football and
baseball games, would that violate the free exercise of
religion?
Mr. Schwartzman. I think, as the Supreme Court interpreted
the First Amendment in Employment Division of Oregon v. Smith,
the peyote case that you mentioned, and in Lukumi, a law of
that kind would not violate the First Amendment because it
would meet neutral and generally applicable.
Mr. Raskin. Okay. And if a jurisdiction adopted a law that
was just targeted at churches, saying that you cannot gather in
groups of more than 15 in churches or synagogues or mosques,
but it does not talk about football games, baseball games,
factory floors, theaters, coliseums, other public events, would
that violate the free exercise of religion?
Mr. Schwartzman. Yes. That would clearly fall under the
standard that the Court adopted in Lukumi and it would be
discriminatory.
Mr. Raskin. Okay. So viewed charitably, at its very best,
the purpose of this hearing is just to underscore what the
Constitution already dictates, which is that governments in
their pursuit of public health cannot selectively target
churches for regulation, but have to make neutral, universally
applicable public health regulations. Is that right?
Mr. Schwartzman. That is correct.
Mr. Raskin. Okay. And if there are any that appear to be
selectively targeted at religion, those have been struck down
or should be struck down. Would you agree with that?
Mr. Schwartzman. I would.
Mr. Raskin. Okay. So what are we really doing here? Well,
we are here to state a truism about the Constitution, and then
somehow to try to impugn the Biden Administration, which, as my
colleagues have pointed out, inherited the nightmare and
catastrophe of COVID-19 from Donald Trump.
His own COVID-19 adviser, Deborah Birx, has said we have
lost hundreds of thousands of people in our country because of
the reckless mismanagement of the pandemic when it first
started by Donald Trump, who was living in absolute fairytale
world, saying that it would disappear by Easter, it would
magically go away overnight, everybody should just take
hydroxychloroquine, inject yourself with bleach.
I mean, it is hard to recapture the lunacy of that period.
But that is how it all began. And I am just amazed that our
colleagues would think even to have a hearing and bring this up
when it stands as such an embarrassment and debacle and
disgrace in terms of the last Presidential Administration.
And it is the Biden Administration which finally got in
control of COVID-19 and has allowed us to take off the masks
and end the distancing and send the kids back to school, which
the whole country, of course, wanted. But they would prefer to
polarize it and divide the country over these matters.
I yield back to the Chairman.
Dr. Wenstrup. I would now like to yield to Ranking Member
Ruiz for a closing statement if he would like.
Dr. Ruiz. Yes. Thank you.
Over the course--by the way, amazing. What did you get, a
single, two RBIs, what inning was it, in the congressional
Baseball Game?
Dr. Wenstrup. Were you watching the game?
Dr. Ruiz. I was watching the game. I saw those runs coming
in.
Dr. Wenstrup. It did go over your head, did not it?
Dr. Ruiz. Bring some levity into this. All right.
So over the course of today's hearing--he is a good
ballplayer, by the way--over the course of today's hearing we
have heard many accusations about the intent, like motivation,
and implications of lifesaving public health measures during
the COVID-19 pandemic, from social distancing to masking to
vaccine recommendations. It is like we are stuck in the mud.
At end of the day, these measures were implemented to save
lives during a deadly pandemic--a deadly pandemic--that
ultimately claimed over one million lives in the United States,
millions more hospitalized, and so many still suffering from
long COVID symptoms.
When the COVID-19 pandemic took hold we were up against an
impossible enemy, one that would not just one day, quote,
unquote, ``go away like a miracle,'' as President Trump said.
No, this was an enemy that we needed to work together to
defeat.
And let us just be clear. Another pandemic can and will
come, and we may see another public health threat like COVID-19
in our lifetimes. And every day that this Select Subcommittee
turns a blind eye to this future threat or focuses on
priorities with little impact, that we hold hearings that
relitigate the past, again doubting vaccines or social
distancing or masks, and that we promote harmful messages that
undermine our public health, then we endanger the people we are
sworn to serve and represent.
So let us just be clear about the facts. Public health
policies were applied neutrally, based on risk, not with the
goal of targeting people of faith. They are not coming after
you or of a certain ideology. There was no weaponization other
than trying to defeat a virus. Masks are effective at
preventing transmission from an airborne virus, preventing the
droplets from one person's mouth escaping into the air and
infecting another person. It is not just common sense, the data
shows it.
And vaccines, for people without any contradictions, are
safe. And there are people with contraindications that the FDA
has determined through their studies that should not be taking
a vaccine.
I implore this Select Subcommittee to turn things around. I
really do. Stop elevating harmful messages and please just
focus on the public health to prevent and prepare for the next
pandemic.
Look, let me just reiterate, social distancing is a risk-
mitigating, science-based factor. Data proves that people who
are further apart are safer from the spread of this airborne
virus.
When we create a narrative that the social distancing was
somehow targeting people of faith versus others, then it is
going to create a defensive reaction and doubts on whether or
not this is based on real science and it is a partisan
political witch hunt against people that are being targeted,
when in fact it is risk based, applied neutrally.
People will then not want to abide by social distancing or
use common sense and disregard these, and therefore they put
themselves at risk and others at risk.
Masks. Again, masks block airborne droplets from escaping
somebody's mouth. And if everybody wears it, the amount of
airborne droplets from people's mouths decrease, and therefore
you have decreased transmission and the spread of a virus.
If we start to cast blame on masks or doubt that they work,
a simple mask, a simple tool, then people will not want to wear
masks, putting others at risk if they are carriers of this
virus.
Saying things like the vaccines just do not work, we know
now, like, there is some data showing that vaccines do not
work. In fact, every single piece of data has shown and real-
life experience has shown that vaccines help prevent the spread
of this virus. It helps decrease death. It has helped decrease
hospitalizations. And for some people it prevents getting the
virus, and for some people it prevents spreading the virus, in
fact a lot of people.
So by casting blame and speaking about these--focusing on
these dangers of the virus, or saying they do not work, people
are going to be less inclined to take the vaccine when we know
that they work.
So that is why, when we are stuck in this mud of whether
social distancing was arbitrary, or that it is not scientific,
or that it does not work, or masks the same, or that
propagating fear on a vaccine in a mass level, then you are
actively discouraging the actual tools that will help prevent
not only their lives, but the lives of other people--prevent
people from getting sick or dying and preventing other people
from getting the virus and dying.
So you see, during a pandemic it is not easy to simply say
it is my right and I am not going to participate and I am
willing to take the high risk of getting infected when getting
infected could possibly infect somebody else and can kill
somebody else if you are reckless and having the virus, being
sick, knowing it could be COVID, going into a crowded area and
spreading it to everybody else. What about those individuals
who are taking a science-based approach and trying to mitigate
their harm?
So I implore this Committee to seek answers to these
following topics.
What are the best practices or preventative measures that
kept schools and children safe?
What were those phased, layered mitigation practices that
the CDC recommended that actually worked so that we can equip
our schools now for the next airborne pandemic so that we do
not have to shut down schools?
Next question. What are the best practices in preventing
droplets from a person's mouth carrying viruses and spreading
it in the air?
Are there technologies that we can use?
Is there a certain amount of precautions that we can do so
that we do not have--we have another mitigation effort, so we
do not have to close schools or businesses or places of
worship?
A next question that we can focus on in this Committee that
is of high impact to prevent a next pandemic and mitigate the
harm: the vaccines.
Beyond debating whether the vaccines are good or bad or
harmful--because the science now shows that this vaccine worked
and it helped us get back into schools, into jobs, and reopen
our communities, we did not have to do social distancing when
you have your vaccine.
So this is the question. What did the Trump Administration
do well in the Warp Speed project to develop the vaccines as
quickly as they did, so that we can replicate it in the next
pandemic?
And what did the Biden Administration do well in the
largest vaccination campaign in history that got us back in
schools, back in churches, so that we--and do we have the
infrastructure in place to do it again and replicate it and
maybe learn from it and do better at it?
How about another question. So let us assume that the virus
leaked from a lab. It is a possibility. Right now, the data is
inconclusive. Some say yes. Some say it is animal transmission.
Do we have the appropriate international incentives,
guidelines, safety standards, and agency agreements
internationally for inspections, transparency, in order to
prevent a lab leak of this magnitude from happening anywhere in
the world? What are the ramifications? What are the
accountabilities?
Another question, because I was asked if we have any. Let
us say this was an animal transmission. Now, do we have the
appropriate international agreements and infrastructure set up
to identify the highest-risk locations of where animals can
transmit viruses to humans, have screenings, appropriate
screenings and testings?
Do we have an international group of agreements where we
can work collaboratively to rapidly contain a virus of this
magnitude so it does not spread from that host area, including
our own country?
What did we learn about travel?
What did we learn about being able to identify an early
virus and prevent it from moving that we could do better?
You see, these are questions of high impact. These are
questions of high priority that directly lead to the question:
How can we prevent the next pandemic? How can we mitigate the
harm of the pandemic? And how can we refine our basic public
health tools that work, but mitigate some of its harm?
That is where I am hoping we can get to, but we are one
quarter past this Congress, and we have been focusing on these
more partisan questions and making partisan accusations of
partisanship, of somehow social distancing was a tool to
suppress religion because they are--somehow people of faith are
political foes of the Biden Administration, which is an
extreme, woefully inaccurate, partisan game, narrative here,
that was mentioned, not exactly in those words, but that were
mentioned.
So with that, I appreciate my friend, his grace in giving
me so [inaudible]. I yield back.
Dr. Wenstrup. I thank the Ranking Member, and I thank you
for the suggestions and trying to create the tone that I think
that we need for this Committee. This Committee should
investigate and gather facts and be able to make
recommendations, possibly suggest legislation, but establish
protocol and a process.
I have said since the beginning, this is an after-action
review, lessons learned, and develop a path forward, in hopes
that, if there is another pandemic, that we might be able to
predict it, prepare for it, protect ourselves from it, and
maybe prevent it.
And I understand, we have all agreed, we all know at the
beginning, we are erring on the side of caution. I am
supportive of that. But it does not mean we do not look back in
retrospect. And some of that may involve some litigation. More
of it may just involve, well, how can we do better?
We should be looking at things if the country of origin is
lying about what is going on, lying to us, lying to the WHO, we
need to investigate how we engage with the WHO and these other
countries.
Today is about freedom and constitutionality and
inconsistencies. And there were clear inconsistences on what
was going on around the country, different rules on gathering.
As I look at what I heard today, government does not
collect many taxes from churches, but they do from NFL games
and they do from casinos. Is that the reason for the decision
being made? I think it is important that we question that.
There may be an underlying motive to allow this thing to happen
and this other not to happen.
We have to take a look at overall health, not just COVID.
That was the problem from the very beginning in our country as
we addressed this pandemic. Everything was about the virus.
Every day it was about the virus. It was not about the effects,
the other effects that came from lockdowns, and other people's
health.
I had a sheriff call me and tell me that a guy just 71
years old was scheduled to have his painful hernia surgery, and
it was canceled. It was canceled. He committed suicide he was
in so much pain. There were no cases in that county at the
time.
We have to take a look at these things, these
inconsistencies that lead to greater harmful effects and
violations of our civil rights and constitutional rights. If we
are doing things that enhance suicide and depression,
especially among a group that is at low to no risk of COVID,
that is not good public health. We have to look back and say,
``Did we make a mistake?'' and admit to it if we did and be
better the next time. The next pandemic may not look anything
like this, so our process has to be clear.
And I will say that direct and indirect censorship is un-
American. Debating hypothesis and debating opinions is
American. Censorship is what I grew up learning what the USSR
was about, not what America's about.
If opinions of any of these Members on either side of the
aisle were taken down because you put them on your website, and
I may disagree with my friend on some opinion in this process,
but he puts it up on his website, I should not have the ability
to take his opinion down just because I do not like it or just
because I want to propose a different narrative. That is what
our government is about, debating anyway, and we should have
that opportunity.
Here is my opinion on the mandates. It increased hesitancy
amongst Americans. That is my opinion. Because Americans, for
one, do not do very well with, ``Because I told you so.'' They
are pretty resistant to that. Just ask your kids once they hit
about five years old.
But I will tell you, I have been promoting all the time,
what happened to the doctor-patient relationship? And from the
very beginning I said America should be hearing from the
doctors treating COVID patients, not politicians and not people
in the lab. And that is where I think we went awry.
We had a little get-together Frank Luntz put together.
These were all vaccine-hesitant people. When we sat and talked
to them about the vaccine, and I talked about potential side
effects, I talked about the efficacy, I talked about who is
most vulnerable and why, and I talked about how you can still
get COVID even if you get the vaccine but you are less likely
to get sick, this is what the trial showed, but that does not
mean you will never get COVID, to a person they all said, ``I
just want to be educated, not indoctrinated, and now I am less
hesitant to get it.'' We did not conduct ourselves that way,
and a mandate certainly does not do that.
If you want to make a guideline, say the guideline is go
and talk to your doctor about what is best for your particular
health, because we know certain people were vulnerable, other
people were not. You may have allergies. Mrs. Dingell talked
about that. She got Guillain-Barre. She was a perfect example.
When she talked to her doctor, she felt at ease. We did not do
that as a government. And that, to me, is one of our biggest
problems.
We talked today about supply chain. If you would have told
me when I was a surgeon in Iraq that my protective equipment
and my pharmaceuticals relied on an adversary, China, I would
say, ``How did our military get here?'' Bad enough the civilian
side did that.
We are not independent when it comes to our health anymore.
We are dependent on China for our medicines down to the active
pharmaceutical ingredients. And, by the way, that was not just
under one administration. That was under Republican
Administrations and Democrat Administrations where we let our
supply chain get out the door.
Look, it was important that the Select Subcommittee on the
Coronavirus hear from notable public officials. We are grateful
that you testified before us today regarding potentially
unconstitutional actions taken by Federal, state, and local
authorities, and some of them were unconstitutional as deemed
by the Supreme Court.
I would like to thank all of you for being here today. You
were not here just for a lecture from the two of us, I do not
think. I do want to thank you for that.
And we heard concerning testimony about government
overreach and some defense of it today. We heard about the
lengths that states had to go to so they could defend the
individual liberties of its citizens from mandates that
stripped them of their rights and silenced their dissents. We
are allowed to contest our government. It is what our Founders
had in mind.
Let us not be deceived. There has been an attempt to censor
speech, speech you do not like, challenge to your message, that
counters your narrative. It is documented. We need to address
this. We need to address this as a Congress, not just this
Committee, but as a Congress in general.
The power of the people nor their representatives should be
usurped during a crisis, and what should have united us as a
country became politics and divided us tremendously.
This Committee has a responsibility to the American people
to speak up for those whose First Amendment rights were
stripped and any other rights that they feel were taken away
from them during this pandemic, especially--especially--when
things that were imposed were contrary to the science and to
the data. It is our responsibility to look at that.
So we need to investigate these matters, and it deserves
the highest standard of review, because it is no small thing
for the government to impose on individual liberties, not in
the United States of America. Maybe somewhere else, but not
here, because most of the people in this country came to this
country because they wanted to get away from governments that
did just that. And that is our history.
Churches, synagogues, mosques were shuttered, citizens
encouraged to tell on their neighbors if they were found to
participate in religious services. This is wrong. Religious
freedom is the ability to practice your sincerely held beliefs
and how you see fit to worship. It is not a guideline for how
you may practice as outlined by the government.
And, by the way, I will say this as a Catholic,
``virtually'' you cannot receive the sacraments that are very
near and dear to you in the Catholic faith. You cannot do that
virtually.
Houses of worship were closed. Casinos were open. Liquor
stores. We have heard it all today. We have discussed so much
of this.
We have concerns that the Occupational Safety and Health
Administration (OSHA) exceeded its authorities. But it is in
times of national emergencies when we must be vigilant in
protecting our God-given rights that are enshrined in our
Constitution. As Benjamin Franklin responded when asked on what
sort of government the delegates had created at the
Constitutional Convention, he said, ``a republic, if you can
keep it.''
We need to keep it. It is worked better than any other
government ever known to mankind.
The Select Subcommittee on the Coronavirus Pandemic will
continue to investigate the implementation or effectiveness of
any Federal law or regulation applied, enacted, or under
consideration to address the coronavirus pandemic and prepare
for future pandemics. I think this hearing was an essential
step in doing so. I thank you all for your participation today.
With that, and without objection, all Members will five
legislative days within which to submit materials and to submit
additional written questions for the witnesses, which will be
forwarded to the witness for their response.
If there is no further business, without objection, the
Select Subcommittee stands adjourned.
[Whereupon, at 12:33 p.m., the Subcommittee was adjourned.]
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