The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“CLIMATE CHANGE” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S331-S333 on Jan. 17, 2017.
The Department is one of the oldest in the US, focused primarily on law enforcement and the federal prison system. Downsizing the Federal Government, a project aimed at lowering taxes and boosting federal efficiency, detailed wasteful expenses such as $16 muffins at conferences and board meetings.
The publication is reproduced in full below:
CLIMATE CHANGE
Mr. WHITEHOUSE. Mr. President, in my ``Time to Wake Up'' climate speech--this is No. 154--I sometimes feel as if I am out here banging hopelessly against a tightly locked, barred, and soundproofed door. I make them anyway because, at a minimum, I want history to know what happened here when people look back and ask what the hell went wrong with American democracy. But I do admit that it can sometimes be discouraging.
However, last week something important happened. A public servant won a victory against a massive special interest. A court in Massachusetts allowed the attorney general of that Commonwealth to obtain files and records from the ExxonMobil corporation about its climate denial enterprise.
That is great news, and it is an important event. There is virtually universal scientific consensus--and even alarm--about climate and oceanic changes caused by burning the fossil fuel industry's products. In the face of that concern, the fossil fuel industry has gone to the mattresses to defend its business model. It is defending what the International Monetary Fund has described as a $700 billion--billion with a ``b''--annual subsidy just in the United States.
To defend a prize of that magnitude, the industry has set up an array of front groups to obscure its hand and to propagate fake science designed to raise doubts about the real thing. With that fake science, they dupe the public and provide talking points for their political operatives. The front groups are a tentacled Hydra named after everyone from Cato to Madison, Jefferson, and Franklin, to George C. Marshall. The resemblances between this fossil fuel climate denial operation and the tobacco fraud scheme are profound, and these resemblances are noted often, including by the lawyer who won the tobacco case. Yes, the Department of Justice won that case.
At the same time, the fossil fuel industry has taken advantage of the political weaponry handed to them by five Republican appointees on the Supreme Court. This industry has used the unprecedented political power bestowed on mighty special interests by the Citizens United decision to extirpate--root out--any Republican support for climate action. When I got here, there was plenty of Republican support for climate action, but after Citizens United that changed. They have seized that party like a hostile political takeover and turned the Republican Party into the fossil fuel industry's political arm. It turns out that you can do this on the cheap, compared to losing a subsidy of $700 billion a year.
This whole scheme reeks of mischief and self-interest, but in political forums the industry is such a powerful behemoth that it can block proper hearings, spout calculated misinformation, cloud up the truth, lobby to its heart's content, refuse to answer questions, pile up the spin doctors and front groups, buy and rent politicians, and threaten to end careers of anyone who crosses them--and they do. They made an example of Representative Bob Inglis and bragged of the political peril--their words--that would result to those who crossed them. That is how they play in the political branches. Truth doesn't matter to them. Truth is their adversary.
But you cannot play that way in court. That is why last week's victory was important. Court is different. In court you have to speak truthfully. Your lawyers can be sanctioned for lying in court. In court, your testimony is under oath, and you can be cross-examined. In court, evidence can be demanded and must be produced. In court, you cannot buy a judge's good will or bully a jury into compliance. Tampering with the jury is a crime. Judges cannot meet secretly with one side. No money can change hands, and biased judges must be recused.
Sir William Blackstone was the best-known jurist in England and America at the time of the Revolution. Trial by jury, he said,
``preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.''
No wonder powerful and wealthy ExxonMobil wants no part of that. This industry has gotten used to saying things with no accountability, dodging the truth, hiding the evidence, and using the massive weight of their political might to see to it that Congress has just the right bias wherever fossil fuel interests are a concern.
This Massachusetts ruling is a chink of light--and a welcome one--as darkness falls over an executive administration stuffed with nominees from the climate denial fringe, wrapped tight in the political tentacles of fossil fuel interests.
It makes the fossil fuel folks crazy to be called into court and to have to stand annoyingly equal before the law when they are used to being the big behemoth, able to tell everyone what to do or pay them or threaten them to do what industry wants. That is why they launched legislative subpoenas at attorneys general and what even Texas newspapers have called out as unseemly abuse of government power.
That is why they rush to the oil patch for judges who will interfere in investigations by attorneys general, even suggesting that attorneys general should not pursue cases against corporations whom they believe are responsible for misconduct because believing that is prejudicial.
Think of that. That is why the industry PR machine creates and propagates magical theories about the industry's First Amendment rights, when it is black letter law--admitted even by Senator Sessions in his Judiciary Committee hearing--that the First Amendment ends where fraud begins. Fraudulent speech, including fraudulent corporate speech, is not protected by the First Amendment. It is not now, and it never has been.
To clarify this point, I ask unanimous consent to have printed in the Record a June 2016 Washington Post op-ed by Yale Law School dean Robert Post titled ``Exxon-Mobil is abusing the first amendment.''
There being no objection, the material was ordered to be printed in the Record, as follows:
Exxon-Mobil Is Abusing the First Amendment
(By Robert Post)
Global warming is perhaps the single most significant threat facing the future of humanity on this planet. 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 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.
Mr. WHITEHOUSE. Mr. President, it makes this industry crazy to be in court and to have to tell the truth, so they will fight desperately on. The $700 billion a year in subsidies makes it profitable to ``lawyer up'' by the boatload for this fight and to litigate to their damndest. So this is not over, but this may be the moment when the truth finally found a path around the ramparts of our well-kept congressional indifference and began to find its way into the daylight.
That is one of the reasons the Founding Fathers gave us independent courts and juries. ``Representative government and trial by jury are the heart and lungs of liberty,'' wrote John Adams. Independent courts and trial by jury were a big deal to the founding generation. The Founding Fathers had a keen sense of history and of politics and of the mischief of conniving men. They were deeply concerned about corruption--corruption of the body politic by interests and factions.
They knew the Bible and had read Isaiah's warning of how ``the faithful city has become a whore,'' with ``princes'' that are
``companions of thieves.'' They knew about abusive power. They could envision an interest become so powerful as to overwhelm the executive and legislative branches of government and bend those branches to its will. They could envision a special interest so powerful that it could buy its own presses and confuse or beguile the public with propaganda and nonsense. They could envision special interests so powerful as to abuse and distort the very democracy they were building.
So there stand the courts and there stands the jury, the places in our system of government where money has no sway and where evidence, testimony, and truth rule the day.
God bless America.
I yield the floor.
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