In the late 1970s, Exxon Mobil Corp. hired scientists to study global warming. These scientists warned the company that burning fossil fuels would cause global warming that would be “catastrophic (at least for a substantial fraction of the earth’s population).” The scientists said that global warming would damage the economy and Exxon Mobil’s assets, leading to “hard decisions regarding changes in energy strategies.”
Instead of telling its investors and customers about these impending “hard decisions,” however, Exxon Mobil funded other scientists who were willing to publicly deny the science of climate change. The company now claims that it did not try to “bury” the results of the early research and says that the allegations are based on the research’s “loaded language and the selective use of materials.” After the early warnings, Exxon Mobil doubled down and sold fossil fuels as the energy of the future. As a result, it grew to become one of the largest oil companies in the world.
Exxon Mobil facing fraud investigations
Nearly 10 years ago, the company agreed to stop funding climate change denial in response to shareholder pressure. But a 2015 investigation by The Guardian found that since then, the company has given millions of dollars to members of Congress who denied climate change, as well as to a corporate lobbying group that also rejects the overwhelming consensus of climate scientists.
Exxon Mobil is now facing fraud investigations from at least five attorneys general—with the support of at least a dozen other attorneys general. The company and its allies in Congress have claimed that the attorneys general are trying to silence legitimate scientific debate, thus infringing on the company’s right to free speech.
The attorneys general, however, are investigating claims that Exxon Mobil defrauded its shareholders and customers. The Massachusetts attorney general is investigating whether the company violated a state law prohibiting “unfair or deceptive acts or practices in the conduct of any trade or commerce.”
The First Amendment clearly does not protect lies or fraudulent statements. Generally, an individual or company commits fraud if they knowingly make a false statement—but only if they intend another party to rely on the statement and if that party does, in fact, rely on it. Although these investigations may show that Exxon Mobil’s actions satisfy this legal standard, several Republican politicians insist on using the First Amendment to justify an assault on the independence and authority of the attorneys general, the chief law enforcement officers in their states.
House committee assaults states’ authority in effort to protect Exxon Mobil
The U.S. House Committee on Science, Space, and Technology has taken the unprecedented step of demanding that the New York attorney general’s office turn over “all documents and communications” related to the investigation. The chair of the committee, Rep. Lamar Smith (R-TX), acknowledged that the House has never before subpoenaed a state attorney general about an investigation. Rep. Smith has received large campaign donations from Exxon Mobil and other fossil fuel companies.
Not content with ignoring the science of climate change, these members of Congress are also using a false interpretation of the First Amendment to justify interfering with the authority of these state officials. The attorneys general have argued that the committee’s actions violate the 10th Amendment, which states, “The powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people.” In other words, the federal government only has the powers that the Constitution specifically grants to it. But the states have broad “police powers,” which generally include any legislation or executive action to protect residents that is not prohibited by the Constitution.
Congress has never before intervened in an ongoing investigation by state prosecutors, and these baseless concerns about chilling free speech do not justify this unprecedented action. The committee recently claimed that it has a role in ensuring that the attorneys general are not pressuring the “private sector … to make research funding decision based in part on a desire to avoid burdensome state investigations and … coercion.” The committee also claimed that the committee could legislate to “correct” any “imbalance in scientific inquiry” resulting from the fraud investigations. The Massachusetts attorney general responded that the committee’s legislative authority is “limited to scientific findings made or funded by federal government agencies, not by private corporations, such as Exxon.”
Abandoning states’ rights in favor of Big Oil’s rights
Many of the members of the House science committee who support the subpoena have previously expressed support for states’ rights. Rep. Smith has even held hearings on alleged violations of states’ rights by the Environmental Protection Agency. In 2014, he wrote a blog post arguing that “state regulators know how to protect the environment within their borders better than federal employees in Washington D.C.” Rep. Smith’s campaign manager once described him as “a strong believer in the 10th Amendment.”
Another member of the committee, Rep. Bill Johnson (R-OH), has warned that the federal government is eroding or threatening states’ rights in several areas: education, marriage equality, and broadband internet. He also sponsored a 2012 bill to limit federal authority over coal mining, and he voted for a 2013 bill to protect states’ rights to regulate fossil fuels by limiting federal authority over fracking.
While serving in the Virginia state legislature, Rep. Barbara Comstock (R-VA) of the House science committee signed a letter to Congress arguing that federal actions were violating the 10th Amendment. Rep. Bill Posey (R-FL), also on the committee, co-sponsored a bill in 2011 that would allow states to sue the federal government for violating the 10th Amendment.
A recent editorial in the Los Angeles Times warned that with the Exxon Mobil subpoena, the committee was “setting up … a potential constitutional battle of federal jurisdiction versus states’ rights, an issue in which the Republicans have historically landed on the side of the states.” The actions of the House committee suggest that this time, however, that is not the case.
The Constitution outlines all of the powers of the federal government and leaves everything else to state and local governments. It says nothing about politicians in the House of Representatives misconstruing the First Amendment to justify interfering with states’ enforcement of laws that protect investors and consumers. Sen. Sheldon Whitehouse (D-RI) recently wrote, “The constitutional principle of federalism requires ‘proper respect’ to states’ constitutional functions.” State officials must be able to enforce fraud and consumer protection laws without worrying about whether Congress will intervene or try to shut them down.
Billy Corriher is the Director of Research for Legal Progress at the Center for American Progress.