Legislative Branch Appropriations Act, 2017--Motion to Proceed
Floor Speech
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Mr. WHITEHOUSE. Mr. President, I am here for the 147th time in my series of speeches urging the Senate to wake up to the consequences of climate change and also to the motives of the outside forces that lull the Senate into persistent somnambulism.
Outside this Chamber, every major scientific society, every one that I know of, of my colleagues' home State universities, all of America's National Labs, our military and security professionals, and NOAA and NASA all agree on the basic science of climate change and broadly support responsible climate action. There may be uncertainty about exactly what year sea level rise will hit what floodmark, for instance, but on the basic idea that climate change is causing seas to rise and floods to come, it is game over.
NASA reported that August 2016 was the warmest August in 136 years of recordkeeping. August tied July as the hottest month the world has seen in the 136 years we have been measuring. More notable, August marked the 11th record-setting month in a row in NASA's data set. Why, in the face of all of that, does this Chamber slumber? Thank the dark influence of the fossil fuel industry.
For years, Big Oil and its allies funded outright denial of manmade climate change. The Union of Concerned Scientists issued this report last year: ``The Climate Deception Dossiers: Internal Fossil Fuel Industry Memos Reveal Decades of Corporate Disinformation.'' The report documents how the big polluters contributed to front organizations and paid scientists to put out junk science contradicting what real, peer- reviewed science and even the industry's own experts knew about how burning fossil fuels affects the environment.
Take ExxonMobil, for example. According to the company's own documents, as recently as 2015, ExxonMobil was still funding organizations that promote climate science disinformation, including the American Legislative Exchange Council, which peddled legislation to State legislatures that included a finding that human-induced global warming ``may lead to . . . possibly beneficial climatic changes.''
At the Hoover Institution, a senior fellow, not a climate scientist, argued that climate data since 1880 supports a conclusion that it would take as long as 500 years to reach a 4-degree centigrade of global warming.
At the Manhattan Institute of Policy Research, a senior fellow writing about climate change said: ``The science is not settled, not by a long shot.''
The CEO of the so-called National Black Chamber of Commerce claimed that ``there has been no global warming detected for the last 18 years.'' Tell that to NASA.
Let's not forget the Pacific Legal Foundation, where a senior attorney attacked EPA's authority to even regulate CO
All of those pronouncements by Exxon-backed organizations, as reports in both InsideClimate News and the Los Angeles Times have confirmed, run counter to what real scientists know. Yet, according to the public affairs guy at ExxonMobil, the company has supported mainstream climate science for decades. Their PR guy said: ``Frankly, we made the call that we needed to back away from supporting the groups that were undercutting the actual risk'' of climate change. Well, that doesn't actually seem to be true.
ExxonMobil's campaign of falsehoods has the attention of several attorneys general, and in today's newspaper, it is revealed that it also has the attention of the Securities and Exchange Commission. Their questions are not unreasonable: Is ExxonMobil actively advancing the notion that its products have little or no effect on the Earth's environment, while at the same time suppressing its own internal research on the effects of carbon pollution, deceiving consumers into buying ExxonMobil products based on false claims? Is the company misleading its investors about its developable oil reserves and long- term prospects in a climate-changed world? It breaks the law to knowingly mislead consumers and shareholders about something material, and climate change is certainly material to ExxonMobil.
As Senator Warren and I recently wrote in the Washington Post, investigations by States attorneys general are making ExxonMobil nervous, and their Republican friends in Congress are riding to the rescue. House Science, Space, and Technology Committee chairman Lamar Smith and his fellow committee Republicans have issued subpoenas demanding that the attorneys general fork over all materials relating to their investigations.
I asked the Congressional Research Service, and as far as they could find, no committee has ever subpoenaed documents in an ongoing State AG investigation.
Setting aside the federalism problem of Congress going after States in a sovereign State function, if they tried this stuff with our Federal Attorney General, they would be rebuffed.
The committee subpoenas also targeted eight organizations, including the Union of Concerned Scientists, the Rockefeller Family Fund, and Greenpeace, ordering them to turn over their internal communications related to what Chairman Smith describes as ``coordinated efforts to deprive ExxonMobil of its First Amendment rights.''
Take a moment to absorb that. States attorneys general are investigating whether a fraud has been committed--something State AGs do every day. As Rhode Island's AG, that is what I did. Sometimes we would uncover fraud and sometimes not. Ultimately, if the evidence warranted it and if the attorney general pursued the case to trial, the question of fraud would be resolved in open court.
Instead of praising the State AGs for doing their jobs within our system of checks and balances, congressional Republicans have leapt in to obstruct the investigation before any evidence becomes public. So far, both the subpoenaed attorneys general and the eight organizations have refused to comply with those subpoenas. I say, good for them. If the committee moves to enforce its subpoenas, the matter will then come before a judge. If that happens, I hope those attorneys general will question whether the committee subpoenas reflect a legitimate governmental effort or are issued on behalf of a private party--indeed, the very private party which is the subject of those attorney general investigations. The law is clear that a legislative committee may pursue even an unworthy legislative purpose, but it is not clear that a legislative committee can lend itself to a private party. Let the court determine whether the House committee is acting as the de facto agent of ExxonMobil.
What might that court consider? Well, first, this is a committee whose chairman has received nearly $685,000 in campaign contributions since 1989 from the oil and gas industry. The remaining committee majority have received over $2.9 million in campaign contributions. I expect that is admissible evidence.
What else might the court consider? The committee asserts ExxonMobil has a First Amendment right that it needs to step in to protect. Interestingly, the shoe has been on the other foot when an attorney general of Virginia was tormenting a climate scientist--indeed, tormenting him so badly that the University of Virginia took that attorney general all the way to the Virginia Supreme Court to make him stop. The committee took no interest in that. Theirs is a First Amendment concern that only surfaces when the fossil fuel industry is the subject of investigation.
What else might the court consider? How about that the entire First Amendment argument the committee makes is a crock. Ken Kimmell, president of the Union of Concerned Scientists, noted that the committee ``makes no allegation that UCS violated any laws or regulations, and [the] claim, that providing information to attorneys general infringes on ExxonMobil's rights, is nonsense.'' Mr. Kimmell is right. It is well-established law that there is a clear line between fraud and First Amendment-protected speech. The dean of the Yale Law School has published an article explaining this. Mr. President, I ask unanimous consent that this article be printed in the Record.
It is likely to wreak havoc on the economy, including, most especially, on the stocks of companies that sell hydrocarbon energy products. If large oil companies have deliberately misinformed investors about their knowledge of global warming, they may have committed serious commercial fraud.
A potentially analogous instance of fraud occurred when tobacco companies were found to have deliberately misled their customers about the dangers of smoking. The safety of nicotine was at the time fiercely debated, just as the threat of global warming is now vigorously contested. Because tobacco companies were found to have known about the risks of smoking, even as they sought to convince their customers otherwise, they were held liable for fraud. Despite the efforts of tobacco companies to invoke First Amendment protections for their contributions to public debate, the U.S. Court of Appeals for the D.C. Circuit found: ``Of course it is well settled that the First Amendment does not protect fraud.''
The point is a simple one. If large corporations were free to mislead deliberately the consuming public, we would live in a jungle rather than in an orderly and stable market.
ExxonMobil and its supporters are now eliding the essential difference between fraud and public debate. Raising the revered flag of the First Amendment, they loudly object to investigations recently announced by attorneys general of several states into whether ExxonMobil has publicly misrepresented what it knew about global warming.
The National Review has accused the attorneys general of ``trampling the First Amendment.'' Post columnist George F. Will has written that the investigations illustrate the ``authoritarianism'' implicit in progressivism, which seeks ``to criminalize debate about science.'' And Hans A. von Spakovsky, speaking for the Heritage Foundation, compared the attorneys general to the Spanish Inquisition.
Despite their vitriol, these denunciations are wide of the mark. If your pharmacist sells you patent medicine on the basis of his ``scientific theory'' that it will cure your cancer, the government does not act like the Spanish Inquisition when it holds the pharmacist accountable for fraud.
The obvious point, which remarkably bears repeating, is that there are circumstances when scientific theories must remain open and subject to challenge, and there are circumstances when the government must act to protect the integrity of the market, even if it requires determining the truth or falsity of those theories. Public debate must be protected, but fraud must also be suppressed. Fraud is especially egregious because it is committed when a seller does not himself believe the hokum he foists on an unwitting public.
One would think conservative intellectuals would be the first to recognize the necessity of prohibiting fraud so as to ensure the integrity of otherwise free markets. Prohibitions on fraud go back to Roman times; no sane market could exist without them.
It may be that after investigation the attorneys general do not find evidence that ExxonMobil has committed fraud. I do not prejudge the question. The investigation is now entering its discovery phase, which means it is gathering evidence to determine whether fraud has actually been committed.
Nevertheless, ExxonMobil and its defenders are already objecting to the subpoena by the attorneys general, on the grounds that it ``amounts to an impermissible content-based restriction on speech'' because its effect is to ``deter ExxonMobil from participating in the public debate over climate change now and in the future.'' It is hard to exaggerate the brazen audacity of this argument.
If ExxonMobil has committed fraud, its speech would not merit First Amendment protection. But the company nevertheless invokes the First Amendment to suppress a subpoena designed to produce the information necessary to determine whether ExxonMobil has committed fraud. It thus seeks to foreclose the very process by which our legal system acquires the evidence necessary to determine whether fraud has been committed. In effect, the company seeks to use the First Amendment to prevent any informed lawsuit for fraud.
But if the First Amendment does not prevent lawsuits for fraud, it does not prevent subpoenas designed to provide evidence necessary to establish fraud. That is why when a libel plaintiff sought to inquire into the editorial processes of CBS News and CBS raised First Amendment objections analogous to those of ExxonMobil, the Supreme Court in the 1979 case Herbert v. Lando unequivocally held that the Constitution does not preclude ordinary discovery of information relevant to a lawsuit, even with respect to a defendant news organization.
The attorneys general are not private plaintiffs. They represent governments, and the Supreme Court has always and rightfully been extremely reluctant to question the good faith of prosecutors when they seek to acquire information necessary to pursue their official obligations. If every prosecutorial request for information could be transformed into a constitutional attack on a defendant's point of view, law enforcement in this country would grind to a halt. Imagine the consequences in prosecutions against terrorists, who explicitly seek to advance a political ideology.
It is grossly irresponsible to invoke the First Amendment in such contexts. But we are witnessing an increasing tendency to use the First Amendment to unravel ordinary business regulations. This is heartbreaking at a time when we need a strong First Amendment for more important democratic purposes than using a constitutional noose to strangle basic economic regulation.
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Mr. WHITEHOUSE. As the attorney general of New York correctly states, ``Fraud is not protected by the First Amendment.''
A number of high-profile legal scholars sent a letter last week to Chairman Smith, condemning the subpoenas as ``misguided.'' The letter argues that the subpoenas are ``invalid and constitutionally impermissible.'' It turns out, according to these scholars, that the First Amendment actually works the other way:
The Subpoenas, and the threat of future sanctions, themselves threaten the First Amendment--directly inhibiting the rights of their recipients to speak, to associate and to petition state officials without interference from Congress.
A copy of the legal scholars' letter to Chairman Smith can be accessed at the Yale Law School website at http://tinyurl.com/ yaleletter.
Rhode Island attorney general Peter Kilmartin and his colleagues have also urged Chairman Smith to withdraw the subpoenas.
Hon. Lamar Smith, Chairman, Committee on Science, Space and Technology, Washington, DC.
Dear Chairman Smith: We write to express our profound concern with the subpoenas issued on July 13, 2016 to our colleagues, the attorneys general of Massachusetts and New York. Through these subpoenas, which we understand you issued without a vote of the Committee, you seek the production of materials developed by the attorneys general in the course of their ongoing respective investigations of potential violations by the ExxonMobil Corporation of state securities and consumer protection laws. You have framed this intervention as ``vigorous oversight'' of state attorneys general and their investigative work. Such oversight would exceed Congress' constitutional authority, and the July 13 subpoenas should therefore be withdrawn.
Your interference in our colleagues' work ignores a ``vital consideration'' under our constitutional system of dual sovereignty: the preservation of comity between the federal government and the states. See Younger v. Harris, 401 U.S. 37, 44-45 (1971). ``Comity,'' Justice Black wrote for the Supreme Court in Younger, means ``a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.'' Id. Any claim of a congressional right to ``oversee'' the work of state constitutional law enforcement officers in fulfilling their core responsibilities under state law disrupts this comity and tears at the essential fabric of our national Constitution.
As attorneys general, we each hold offices established in our states' constitutions or statutes. Our offices are critical to the functioning of our states' governments, and they have deep historical roots. Some of us, like the attorneys general of Massachusetts and New York, hold offices whose origins precede the founding of our country. The state attorney general has been described by the Florida courts, for example, as ``the attorney and legal guardian of the people. . . . His duties pertain to the Executive Department of the State, and it is his duty to use means most effectual to the enforcement of the laws, and the protection of the people, whenever directed by the proper authority, or when occasion arises.'' State of Florida v. Exxon Corp., 526 F.2d 266, 270 (5th Cir. 1976) (quoting Attorney General v. Gleason, 12 Fla. 190, 212 (Fla. 1868)) (holding that Attorney General of Florida had legal authority to pursue federal antitrust action against Exxon and other oil companies without authorization of government agencies allegedly injured by conduct at issue). Several state supreme courts, recognizing the broad discretion conferred on state attorneys general by state constitutions, have aptly described the office of attorney general as a ``public trust.'' See, e.g., Gleason, 12 Fla. at 214; Attorney General v. Morita, 41 Haw. 1, 15 (Haw. Terr. 1955); Commonwealth v. Burrell, 7 Pa. 34, 39 (1847).
In fulfilling this public trust, we are each accountable in multiple ways to the people of our states. Most of us were elected directly to our offices by the people we serve. State legislatures write and enact most of the laws that our offices enforce, including securities and consumer protection laws like the ones that give rise to the investigations in New York and Massachusetts that you have proposed to ``oversee.'' Moreover, we are accountable to the courts of our states, which, on innumerable occasions over the course of our states' histories, have ruled both for and against us and our predecessors on issues of federal and state constitutional law, on issues of statutory interpretation, and on other issues.
``[O]ur Constitution establishes a system of dual sovereignty between the States and the Federal Government.'' Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). Under that system, the federal government is one of limited powers, and, under the Tenth Amendment, ``[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'' It is fundamental to our system of dual sovereignty that, as the Supreme Court has said, ``States are not mere political subdivisions of the United States.'' New York v. United States, 505 U.S. 144, 188 (1992). Indeed, ``State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government's most detailed organizational chart. The Constitution instead `leaves to the several States a residuary and inviolable sovereignty.' '' Id. (quoting The Federalist No. 39).
In light of our nation's commitment to the preservation of a system of dual sovereignty, it is not surprising that, despite centuries of investigative and prosecutorial activity by state attorneys general in which constitutional objections have been raised, you have not identified a single valid precedent, from any period of our country's history, for the ``vigorous oversight'' of state attorneys general that you are now proposing to undertake. Difficult enough are cases where Congress proposes to regulate subject matters arguably reserved to the states, and where there may be some analytical difficulty entailed in drawing ``distinction[s] between what is truly national, and what is truly local.'' United States v. Morrison, 529 U.S. 598, 617 (2000). Your investigation, though, would go further. The stated purpose of your investigation is to oversee state constitutional officers themselves and the manner in which they fulfill their responsibilities under state law. Who oversees state officials is a matter ``of the most fundamental sort for a sovereign entity,'' because it is ``through the structure of its government'' that ``a State defines itself as sovereign.'' Gregory v. Ashcroft, 501 U.S. at 460 (holding that Congress could not, through laws prohibiting age discrimination, regulate the retirement age for state judges). Our national Constitution and our respective states' constitutions neither anticipate nor tolerate a structure under which Congress arrogates to itself the authority to oversee investigations conducted by state attorneys general.
Your proposed ``vigorous oversight'' does not merely interfere with our work and the work of our colleagues. You also purport to supplant the role of state legislatures and state courts. We cannot understand on what basis you seem to assume, for example, that state courts in Massachusetts will be unable to resolve the constitutional objections that ExxonMobil, through skilled counsel, has already lodged there. State courts, not Congress, are the appropriate arbiters of any state law claims brought by the attorneys general of Massachusetts and New York against ExxonMobil and of any constitutional objections that ExxonMobil might assert.
The Constitution establishes ``a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.'' Younger, 401 U.S. at 44. Your proposed oversight of state constitutional officers cannot be squared with these essential principles of federalism, nor can your attempt to oversee the resolution of alleged constitutional issues arising from the ongoing investigative activities of state attorneys general undertaken under state law. We therefore urge you to withdraw your subpoenas, refrain from attempting to exercise further oversight, and allow state attorneys general and state courts to perform their constitutionally prescribed roles. Sincerely, Brian E. Frosh, Maryland Attorney General; George Jepsen, Connecticut Attorney General; Douglas Chin, Hawaii Attorney General; Jim Hood, Mississippi Attorney General; Peter F. Kilmartin, Rhode Island Attorney General; Kamala D. Harris, California Attorney General; Karl A. Racine, District of Columbia Attorney General; Janet T. Mills, Maine Attorney General; Ellen F. Rosenblum, Oregon Attorney General; William H. Sorrell, Vermont Attorney General; Mark R. Herring, Virginia Attorney General; Bob Ferguson, Washington Attorney General.
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Mr. WHITEHOUSE. Congressional investigations and hearings have a unique ability to focus a nation's attention and bring facts of public importance to light. These subpoenas, however, appear intended to impede lawful State investigations. They do not advance the First Amendment, they trample on it.
Senator Warren and I offered a suggestion to the House committee in our Washington Post piece:
If this House Committee is so concerned about the First Amendment rights of ExxonMobil, call a hearing, invite ExxonMobil executives to testify, and give them the opportunity to speak. What better way to protect a person's right to speak freely than to give that person a forum to speak, right here in Congress?
They can come in, say whatever they want to say, and answer questions. I know I would love to hear what they have to say.
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