Months into Senate term, Eric Schmitt’s biggest political wins have come from his last job

Sen. Eric Schmitt, a Missouri Republican, spent the past week taking a victory lap.

On the Fourth of July, a federal judge said the Biden administration can’t encourage social media companies to delete posts from their platforms or meet with them to discuss content moderation policies.

The injunction was part of a lawsuit Schmitt brought more than a year ago, when he was Missouri attorney general, alleging that the White House violated the First Amendment by colluding with social media companies to suppress conservative speech about COVID-19 regulations and false claims about the 2020 presidential election.

“White House officials, CDC & others are stopped cold. We need to continue the fight to take down the Vast Censorship Enterprise,” Schmitt wrote on Twitter. “Their view of ‘misinformation’ isn’t an excuse to censor. This is the most important free speech case in a generation. Freedom is on the march.”

It was Schmitt’s second court victory in as many weeks. The previous week, Missouri’s role in the case challenging President Joe Biden’s plan to relieve some Americans of up to $20,000 of their student loan debt was central in the Supreme Court’s decision invalidating the plan.

Both suits were launched while Schmitt was campaigning for U.S. Senate. Now — having successfully won the role after a campaign where his stump speech included a line, cribbed from Texas Gov. Greg Abbott, a former state attorney general, that his job was to wake up and sue the Biden administration — Schmitt’s first year in office has been defined more by the work he did as Missouri attorney general than legislative accomplishments in Congress.

“They certainly distinguish him among his colleagues in the Senate,” said John Hancock, a former chairman of the Missouri Republican Party. “And, you know, a Senate career is a career. It’s a long-term proposition. New senators have to build relationships. They have to garner respect.”

It’s common for new senators, particularly those in the minority party, to have limited success in their early years in office. The Senate has a long history of favoring seniority — it was once Senate tradition for new members to wait months before speaking in the chamber.

Schmitt was the last of the new senators to offer his first bill, aimed at restricting the number of regulations the executive branch can create. It has not moved through the Senate.

His office is quick to point out that the legal victories complement his proclaimed mission in the Senate to give Congress more of the power it has ceded to the executive branch.

“Tackling the administrative state and protecting freedom of speech are two of his top priorities, both of which were affirmed by court rulings these past couple of weeks, and both issues are now gaining steam on Capitol Hill,” said Chris Nuelle, Schmitt’s communications director. “Sen. Schmitt looks forward to continuing to lead the charge and introducing further legislation to stop the out-of-control growth of the administrative state and preserve freedom of speech.”

Both of Missouri’s U.S. senators — Schmitt and Josh Hawley — served as the state’s attorney general before being elected to the Senate at a time when attorneys general have been able to build political capital through suing the federal government.

The lawsuits he filed are now being handled by Missouri Attorney General Andrew Bailey, a Republican who was appointed to the position by Gov. Mike Parson after Schmitt was elected to the Senate. Bailey, too, has made a point of going after the Biden administration with lawsuits.

“With the court as receptive as it is now to political cases, that even when they don’t have a real case or controversy to rule on, it is an incredible opening for the very politicized system to take advantage of,” said Caroline Fredrickson, a constitutional law expert and professor at Georgetown Law. “And for those attorneys general who want to jump on the the openness of the Supreme Court to hear these cases.”

Missouri — specifically the Missouri Higher Education Loan Authority — was central to the U.S. Supreme Court decision blocking Biden’s student debt cancellation plan. Because the state created MOHELA, as the loan agency is known, and would potentially lose money used for scholarships, Chief Justice John Roberts said it proved the state would be harmed by the program. The three liberal justices said MOHELA, which has the ability to sue and be sued, should have brought the case on its own.

“I would say there’s a majority on the court that is — as are Republicans generally — suspicious of what they call the administrative state,” said Russell Wheeler, a senior fellow at the Brookings Institution’s governance studies program. “And, that being the case, they are probably willing to allow fairly loose standing rules to let the attorneys general have their way. I don’t know any other way to look at it.”

But where the country’s highest court scaled back executive power in the student debt case, it was a single federal judge in Louisiana who has blocked the Biden administration from communicating with social media companies over content moderation. The administration, which took office after false claims about the integrity of the 2020 presidential election helped spark an insurrection on the Capitol, has been vocal about fighting what it calls misinformation and disinformation on social media.

Schmitt and Louisiana Attorney General Jeff Landry filed suit claiming the White House had used the social media companies to suppress speech, under the threat of removing legal protections for social media companies. It would take an act of Congress to change the law that currently protects those companies from being sued over what users post, called Section 230.

Judge Terry Doughty, a Trump appointee who in 2022 blocked a COVID-19 vaccine mandate imposed by the Biden administration, appeared to favor Schmitt’s argument that the administration had targeted conservative speech.

“This case is full of this judge’s idea of symbolism,” Wheeler said. “He issued on July 4. Come on. The only reason he did that is because it was Independence Day. And he starts out with this quote from Voltaire and then all this other stuff, which is, in my view, typical of a judge who’s trying to show off.”

Doughty has yet to issue his final ruling on the case and the Department of Justice is expected to appeal his injunction. On Thursday, White House press secretary Karine Jean-Pierre said the White House disagreed with the ruling, but didn’t want to get in front of the Department of Justice.

“Our view remains that social media platforms have a critical responsibility to take action or to take account of the effects of their platforms are having to the American people but make independent choices about the information they present,” Jean Pierre said. “They are a private, as you know, entity, and it is their responsibility to — you know, to act accordingly.”

As the White House defends itself from lawsuits launched by conservative attorneys general, it’s working in a landscape often skeptical of the way it wields executive power. Schmitt and Landry filed their social media case in a Louisiana District Court where four out of the five judges were appointed by Trump. If the White House appeals, it will go to an appeals court that is considered one of the most conservative in the country. Then it would go to a Supreme Court where conservatives have a 6-3 majority.

“The executive branch is clearly in a very different situation than it was 20 or 30 years ago, when the assumption was that the government pretty well worked by delegation of authority, and people accepted that,” Wheeler said. “That has become a very iffy proposition anymore and there are states attorneys general and judges who are willing to to give force to it.”

Both Doughty and the Supreme Court have helped Schmitt accomplish some of what he hopes to achieve through legislation — which Fredrickson criticized as the court determining issues that should be determined by elected politicians, a similar argument to one Schmitt has used against federal agencies that promulgate rules.

“Unfortunately, the Supreme Court seems to be trying very hard to wrest power away from the other two branches, and unbalance that system rather than appropriately deferring to the elected branches,” Fredrickson said.

Those legal victories have helped Schmitt build his name early on his Senate career. Already he’s appeared on conservative stations to tout his victory and he’s portrayed the lawsuit against the Biden administration’s content moderation involvement as a pivotal case for free speech.

“The politics behind this is excellent for Schmitt,” said Jean Evans, the former executive director for the Missouri Republican Party. “It’s part of why he was elected in a tough primary, it’s because he’s proven to be working for the people. And that’s been his whole thing to push back against government control.”