The House Science, Space and Technology Committee, chaired by Lamar Smith, R-TX, recently issued subpoenas to several state attorneys general, seeking documents relating to state investigations initiated against scientists, non-profit organizations and businesses that have had the audacity to question climate change. The Committee is concerned that these state investigations are designed to chill the constitutional rights of free speech and association. After the state attorneys general refused to comply with the Committee's subpoenas, last week the Committee held a hearing to discuss what it should do in response to the states' refusal to comply. I was honored to have had the opportunity to testify and demonstrate that the Committee has ample power to enforce its subpoenas.
The state investigations began last fall, when New York Attorney General Eric Schneiderman announced he was opening a sweeping query into whether Exxon Mobil had committed fraud or misled investors by allegedly covering up knowledge about the possible connection between fossil fuels and climate change. The initial spasm of support from attorneys general in other blue states abated, but Schneiderman and Massachusetts AG Maura Healey pressed ahead, issuing subpoenas on ExxonMobil and various groups in hopes of finding some evidence to back up their suspicion of a vast, right-wing conspiracy to commit climate fraud.
Exxon turned over thousands of documents showing, among other things, that the company’s scientists had been free to contribute their findings to inform the public debate going back to the 1970s. The company’s truthfulness was inconvenient to Schneiderman’s premise, no doubt. In the meantime, a number of groups pushed back against the states' subpoenas, asserting that the inquiry was designed to chill their dissent on climate change and hence, their First Amendment rights.
As chairman of the House committee with jurisdiction over scientific research and development, Smith became concerned about the state investigations' chilling effect on scientific inquiry and dissent, and accordingly asked the state attorneys general to produce their communications with each other, environmental groups and the Obama administration leading up to their investigations.
Schneiderman pushed back, refusing to comply with the Science Committee's subpoenas and charging that the Committee was “courting constitutional conflict” by failing to show “a due respect for federalism.” Healey similarly denounced the Committee's subpoenas as “an affront to states’ rights." Both Schneiderman and Healy asserted they did not have to comply because their communications are protected under the attorney-client privilege.
The Supreme Court has long accepted that, as a necessary part of Congress's exclusive constitutional power to legislate, Congress has a "power of inquiry," including the right to enforce its request for information via punishment for contempt. In McGrain v. Daugherty (1927), the Court held that “the power of inquiry—with the process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Similarly, in Barenblatt v. U.S. (1959), the Court stated that the scope of Congress’s power of inquiry “is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”
So long as Congress is seeking information on which legislation may be had, its inquiry is valid, and entitled to the power of supremacy. So when state attorneys general such as Schneiderman and Healy claim that federalism can stop the Science Committee's subpoenas, they are wrong.
Federalism divides government power between the federal and state governments not to protect "states rights," per se, but to better protect individual liberty. So when the Science Committee issues subpoenas to state officials—including state attorneys general—those state officials cannot hide behind the word "federalism" and expect it to shield them from congressional scrutiny regarding whether they are abusing their power to chill First Amendment liberties. Moreover, while Congress cannot commandeer state executive (or legislative) officials, a congressional subpoena does not conscript state officials and force them to carry out a federal program.
As for the AGs’ privilege assertions, Congress is not obligated to recognize privileges grounded in state law, such as the attorney-client or work product privileges. State law privileges simply are not binding on the federal government.
The prevailing media narrative about big energy companies conspiring to destroy the planet allows little room for balanced reporting or rational debate. For example, a Daily Caller News Foundation examination of campaign finance data that found Schneiderman has received tens of thousands of dollars in campaign donations from individuals, environmental activists, and even lawyers who stand to profit from a legal judgment against Exxon. Additionally, billionaire George Soros and his family donated $251,000 to Schneiderman’s political campaigns since 2006. Soros has also funded the Tides Foundation, which funds various left-wing environmental groups who have urged Schneiderman to investigate climate skeptics. Despite such inconvenient truths about the possible political motivations behind the state AGs' investigations, the media chooses to highlight, over and over again, only the contributions by oil and gas companies to politicians such as Chairman Smith.
Preserving and enforcing Congress's constitutional authority to issue subpoenas and protect citizens' First Amendment rights should be considered more important than one's personal views on climate change. Indeed, Professor Jonathan Turley of George Washington University law school, who testified with me before the Science Committee this week, acknowledged that while he supports action to fight climate change, he nonetheless agrees that the Committee “clearly has the ability” to exact compliance with its subpoenas.
Regardless of where one stands on climate change, when Congress issues subpoenas against state officials on a topic for which legislation may be had, assertions of states' rights or privileges give way because of the Supremacy Clause. No state official—whether judicial, legislative or executive—has a right to resist a legitimate congressional demand for information.