Gretchen Goldman
Former Contributor

This morning the House Committee on Science, Space, and Technology held a hearing to discuss its legal authority to issue subpoenas its Chairman had already issued.  Yes, you read that correctly. House Science Committee Chairman Lamar Smith held a hearing this morning to investigate his own investigation. And the hearing was as bizarre as that sounds.

Being at this hearing was like being in an alternative reality—a reality where ExxonMobil wasn’t being investigated for fraud and where the Committee Chairman had the authority to demand communications between nonprofits. To be honest, I didn’t expect much different, but they certainly created a false picture of the issue at hand.

Let’s back up a little. If you need to be caught up, Chairman Smith has launched an investigation into investigations by several state attorneys general into whether Exxon Mobil committed fraud for knowing about the public health risks of burning its products but failing to act. For more details, you can read my FAQ blog here.

An unconstitutional and unpopular investigation

This is the first Congress in which the House Science Committee Chair has unilateral subpoena power, meaning that he/she does not need to work with or even inform the minority party before issuing subpoenas. UCS raised concerns about this expansion of power early on, and the record shows that indeed those concerns were warranted as the Chairman Smith’s actions have proven to be an abuse of power.

Prior to today’s hearing, Chairman Smith has received widespread criticism for this sweeping use of his newly granted subpoena power to target the Union of Concerned Scientists and eight other nonprofit organizations. For anyone not keeping a running tab, I’ve made a handy bulleted list of opposition to the Chairman’s actions.

  • Just yesterday a group of 14 constitutional scholars and civil liberties organizations, including the Floyd Abrams Institute for Freedom of Expression at Yale Law School, released a scathing letter, slamming the chairman’s actions. The letter called the subpoenas to UCS and other nonprofit organizations “invalid and constitutionally impermissible.” and said that they “violate the separation of powers, exceed the committee’s delegated authority, abridge the First Amendment, and undermine fundamental principles of federalism. . . The subpoenas should not have been issued and should not be enforced.”
  • A statement from the Leadership Conference on Civil and Human Rights, a leading coalition that works on promoting and protecting civil and human rights, condemned the Chairman’s actions as an attempt to intimidate advocacy groups.
  • Yesterday Chairman Smith was also hit with criticism from the open government community, including the Government Accountability Project and the org coalition, a group that works on transparency and good government issues.
  • Other groups from across the political spectrum, including both the R Street Institute and the Center for American Progress, have also weighed in, criticizing the Chairman’s actions.
  • A letter from 2,143 scientists around the country condemned the investigation as a “misuse of power” that could hurt the ability of scientists to act in the public interest.
  • A letter from nearly 32,000 citizens also condemned the investigation and asked Chairman Smith to withdraw the subpoenas.
  • At a press conference earlier this morning former Department of Justice lawyer Sharon Eubanks noted, “The fossil fuel industry, like the tobacco industry, has played a major role participating in a fraudulent scheme to deceive the American public about the harms of its products. Lamar Smith is seriously misguided in his suggestion that Exxon—or any corporation—has a constitutional right to lie. Companies do not engage in protected speech when they commit fraud, and the subpoenas issued by the House Science Committee, demanding information they have no legitimate right to inspect, themselves threaten the First Amendment.”
  • Also this morning, a former member of the House Science Committee Brad Miller weighed in, condemning the committee’s abuse of oversight and investigatory authority. Importantly, he would know, as he was the chairman of the subcommittee on investigations and oversight from 2007-2011.

A hearing of yesmen and yeswomen

At the hearing, the House Science Committee majority had stacked the deck with witnesses that would echo their viewpoint and validate the subpoenas that the committee had already issued. This was expected. Unfortunately, the majority went even further and mischaracterized the situation at hand. While the hearing discussion veered off into lofty language on freedom of scientific inquiry, it largely overlooked the fact that ExxonMobil is being investigated for fraud.

Multiple members of the majority, as well as their witnesses, based their arguments on a false premise: That ExxonMobil scientists are being attacked for research that contradicts the idea of climate change. This is the opposite of what’s happening. ExxonMobil scientists, like virtually every other scientist who has investigated the question, found that the risks to the global climate from the burning of fossil fuels were potentially catastrophic. Then ExxonMobil executives not only chose not to change their business model based on this scientific research, they embarked on a campaign to spread disinformation on climate science and block climate action. That’s the fraud here. There’s no punishment for scientific disagreement, because the scientific disagreement being claimed doesn’t exist.

Bringing facts to bear

As Representatives Katherine Clark and Donna Edwards noted during the hearing, the issue at hand is whether ExxonMobil mislead its shareholders and the public when it continued to sell a product it knew to be harmful. This is what the state attorneys general’s investigation is about.

Others helped bring us back to reality too. Representative Suzanne Bonamici wondered why the committee is “making this a priority when there are so many other issues that deserve our attention and our action.” Her colleagues, including the only Ph.D. scientist on the committee and in the entire Congress, Representative Bill Foster, echoed this sentiment as well.

Representative Paul Tonko expressed concern over the threat that these types of “scare tactics” could have on the “vital work of many organizations,” including UCS.

Ranking Member Eddie Bernice Johnson, Representative Zoe Lofgren, and Representative Donna Edwards, continued to hammer home that the chairman’s unprecedented actions are not within the committee’s jurisdiction.

And Representative Don Beyer, along with many of his colleagues mentioned above, continued to question the misrepresentation of the action being taken by the state attorneys general, emphasizing that it’s not the scientists at Exxon Mobil that are being investigated for their research. As Mr. Beyer pointed out, it’s not okay to ignore existing research and say different things to your investors. After all, that’s fraud.

Interestingly, one of the majority witnesses, law professor Jonathan Turley in his written testimony admits that Smith’s investigation of nonprofits is problematic and affirms the nonprofits’ first amendment rights. He writes, “The First Amendment guarantees, among other rights, the rights to speak freely, to petition the government, and to associate with others for the advancement of beliefs and ideas.” He continues, “[T]argeting public interest groups have an obvious chilling effect on free speech and association. As a prudential matter, Congress should avoid the investigation of public interest organizations in their advocacy efforts.”

A history of intimidating scientists

It’s worth remembering that Chairman Smith was previously ineffective in his gratuitous subpoena issuing. Last fall, Chairman Smith issued a subpoena to scientists at the National Oceanic and Atmospheric Administration (NOAA) asking for all correspondence, notes, and other materials from the last seven years related to the work of certain NOAA climate scientists, motivated by their authorship on a paper published in Science last year. NOAA sent a letter back outlining the publicly available data and research methods, resources, and other communications that Chairman Smith already had access to and ultimately did not comply with his subpoena.

We heard members and witnesses from both sides say today that we shouldn’t target scientists for the results of their research, because it could have a chilling effect. This is true. To be clear, state Attorneys General haven’t gone after scientists in this case, but that is exactly what Chairman Smith did when he targeted NOAA scientists. His claims of standing up for science are hard to take seriously given his record.

Circling the wagons

What we saw today was a circling of the wagons. At the end of the hearing, Smith was no closer to establishing clear authority to carry out his investigation. It was a thinly veiled attempt by Chairman Smith to justify what is now widely understood to be an overreach of his legal authority and an effort to protect an oil giant from being held accountable to the law.  Now I’ll step back into reality.