[Congressional Record (Bound Edition), Volume 163 (2017), Part 1]
[Senate]
[Pages 968-970]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             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.

[[Page 969]]

  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:

               [From the Washington Post, June 24, 2016]

               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

[[Page 970]]

     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.

                          ____________________