BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
Read the full story here.
On September 17th of 2014, the House Committee on Science, Space, and Technology voted 4-3 to grant subpoena powers to the Committee Chair, useable without consultation of the Committee as a whole. This extraordinary power became available for the first time during the current Congress, with Rep. Lamar Smith (R-TX) serving as Committee Chair. The Union of Concerned Scientists (UCS) expressed concerns about the potential abuse of this power in January of 2015. This summer, the concern has been justified.
Congressional committees have inherent subpoena power as a part of their Constitutional power to investigate. Committees create their own rules for how subpoenas are issued; they are entitled to endow the Committee Chair with that power individually, if they so choose. The number of committee chairs with unilateral subpoena powers increased significantly in the past two Congresses, raising questions about fairness and transparency. As the current instance demonstrates, unilateral subpoena power can also lead to Constitutional questions of states’ rights and federal overreach.
On July 13 of this year, House Science Committee Chair Lamar Smith (R-TX) issued subpoenas to the Attorneys General (AGs) of New York and Massachusetts, and eight NGOs, including UCS, demanding documents and correspondence related to the investigation of the Exxon Mobil Corporation’s use or misuse of climate data. The subpoenas represent an unconstitutional intrusion by the federal government into the state law enforcement arena.
The Chairman and other Republican members of the Committee have complained that the investigation has infringed on the First Amendment Free Speech rights of ExxonMobil. The statements of the Committee’s majority members imply that the goal of the AGs’ investigation is to suppress opposing views on climate science. However, the accusations completely misrepresent the nature of the AGs’ investigation: the science is not in question; the investigation is based on the fact that Exxon failed to report on its own scientific findings to its shareholders, and instead fueled skepticism and denial by downplaying or ignoring the consequences of climate change and its impacts on ExxonMobil stock value.
The science at the heart of the suit, generated by Exxon scientists, supports the almost-universally-accepted understanding that burning fossil fuels negatively impacts the environment and influences climate change. The company’s scientists began reporting these findings over forty years ago, and continued to reconfirm those conclusions well into the 1980s – at which time Exxon adopted the policy of supporting the climate science denial machine to create a debate on false premises, manufactured by a group of conspirators in the fossil energy industries. This has been accomplished through the funding of organizations that deal in denial, and through exaggerating the uncertainty and downplaying the risks associated with anthropogenic climate change.
The denial campaign’s success can be measured by the fact that the majority of Representatives on the House Committee on Science, Space, and Technology contend that climate change is not a real thing. Based on their statements, these members seem to believe that climate science is the result of some global conspiracy among scientists, politicians, and environmentalists. They argue that the suit being brought by the AGs will stifle the free speech of scientists who attempt to refute established climate science – like the type generated by Exxon before the company embraced its current stance.
The irony of climate change deniers worrying about stifling scientific viewpoints is not lost on the AGs or the scientific community. Nor is it a new phenomenon, even within the current Congress. Only last year Chairman Smith subpoenaed the administrator of the National Oceanic and Atmospheric Administration (NOAA) in a fishing expedition for material to fuel his denial, convinced that, among the countless email exchanges between NOAA-affiliated scientists, there must be enough facts to cherry-pick and cobble together a coherent denial argument.
Although NOAA did not comply with the subpoena and has not turned over the material Rep. Smith demanded, Smith apparently lost interest in this battle and let it fizzle out. We suspect he will do the same when none of ten subpoenaed entities meet this arbitrary July 27 deadline.
None of this should imply that the Committee as a whole agrees with the Chair’s choice to issue subpoenas. Minority members have been vocal in their criticism of the Chair, and in their support of the AGs and NGOs. A group statement condemned the subpoenas as part of a “witch hunt,” and Rep. Paul D. Tonko (D-NY) criticized them “as not only highly inappropriate, but also unnecessary.”
In his statement, Rep. Tonko cites a detailed letter sent to the Chairman in June – long before the subpoenas were issued – from Ranking Committee Member Rep. Eddie Bernice Johnson (D-TX). This letter laid out the many legal and factual flaws underlying Chairman Smith’s requests to AGs and NGOs, including disregard of Tenth Amendment states’ rights, multiple violations of First Amendment rights, mischaracterization of legal precedent in support of Chairman Smith’s requests, and abuse of the power of his position to pursue publicity instead of policy.
The letter also notes the unsettling parallels between ExxonMobil’s reputed misrepresentations about climate science and the tobacco industry’s denial of the health threats posed by smoking, of which its own scientists had long been aware. It further draws deliberate parallels between Chairman Smith’s actions and those of the House Un-American Activities Committee of the 1950s, during the communist witch hunts under Sen. Joseph McCarthy (R-WI) – whose precedent is cited by Chairman Smith as justification for his actions. In sum, the letter provides ample proof that the Chairman’s understanding of his own, his Committee’s, and Congress’ powers is not only severely flawed, but also a threat to the very freedoms it purports to defend.
In response to Chairman Smith’s initial requests for documents relating to the AGs’ investigation of ExxonMobil, several of the AGs pointed out that they are investigating fraud, and fraud is not protected speech. They thus argue that it is therefore the Chairman’s subpoenas and the inherent intimidation they carry with them that are infringing on AGs’ and NGOs’ First Amendment rights of free speech, free association, and to petition public officials – not to mention the Due Process questions inherent to unilateral subpoena power.
The subpoenas follow a barrage of requests for the same documents – those exchanged between the NGOs and the AGs regarding ExxonMobil and climate science. The AGs objected to the requests as abuses of power, citing overreach of a federal committee into state law enforcement. UCS responded similarly, noting that such requests violate the group’s First Amendment rights, and noting that not only are UCS’s scientific findings publicly available, but UCS welcomes a dialog with the Committee provided that dialog is not compelled.
Regardless, Chairman Smith issued the subpoenas.
UCS argues that subpoenas leveled against an organization against which no criminal allegations have been or could reasonably be made violate the First Amendment on several levels. Furthermore, work prepared in anticipation of a lawsuit is protected under attorney-client privilege – a fact that should be known to Chairman Smith, who has a law degree.
As a scientist who fears his or her research will be rejected purely on political grounds may well consider pursuing other areas of research; a scientist who expects to be called to appear before a Congressional Committee every time his or her work sparks controversy will cease to be productive; a scientist or scientific organization who has to pay for legal representation will not have the resources to conduct the best research.
Chairman Smith’s use of a unilateral subpoena – while legal – suggests obscure motives. Then again, given the petroleum industry’s financial contributions to Smith’s and other deniers’ political campaigns, maybe these motives aren’t so obscure after all. In response to the subpoena of Massachusetts AG Maura Healey, Senator Elizabeth Warren (D-MA) chimed in with a critique of the Chairman and his allies, noting the $675,000 the Texas Republican has received from fossil fuel interests. This is government transparency, but not in the way that benefits the public.
The House Committee on Science, Space, and Technology should not be in the business of suppressing science or state law enforcement, but Chairman Smith’s use of unchecked subpoena power to interfere with legitimate research and legitimate communication between private entities and public officials can serve no other purposes. Chairman Smith and his allies have taken a viewpoint – climate change denial – that is in the smallest minority among the scientific community, originating from sources funded by fossil fuel interests and consistently refuted by peer-reviewed research. Yet, through the actions of Chairman Smith and other deniers in powerful positions, they are intent upon putting a misguided thumb on their side of the scale.
In any event, without a reasonable suggestion of wrongdoing, the subpoenas issued by Chairman Smith are an abuse of power, and can only be described as partisan political posturing.
The Government Accountability Project and its Climate Science and Policy Watch program have experience with government agencies attempting to intimidate through the use of subpoenas. The risks posed by such government action are numerous, and go beyond the direct impact on subpoenaed individuals or organizations. For example, subpoenaed documents may expose government employees who provide researchers or journalists with evidence of fraud, waste, or abuse, thus exposing whistleblowers to persecution and preventing such individuals from effectively making their cases. This in turn inflates the risk to the public that is inherent when abuse of power remains hidden. It is a concern that GAP and CSPW take very seriously.
Unchecked subpoena power is a threat to government transparency and to the functioning of a democracy. It can stunt whistleblowing, science, research, investigation, and journalism. The example set by Chairman Lamar Smith should be a warning about the witch hunt emanating from his Committee, and about unilateral subpoena power generally.
Environmental Counsel Adam Arnold worked with GAP’s clinical program while earning his J.D. from the University of the District of Columbia’s David A. Clarke School of Law, is a member of the Maryland Bar, and has an LL.M. in International Environmental Law and International Organizations from American University’s Washington College of Law.
CSPW Senior Climate Policy Analyst Anne Polansky has 30 years of experience in public policies relating to energy and the environment, with a strong focus on climate change and renewable energy