Republicans were buoyed Wednesday by constitutional law professors who said subpoenas sent to two state attorneys general by a House panel are legal, while Democrats lamented the investigation as a waste of time and a violation of civil liberties.
The hearing was set to be a referendum on whether subpoenas issued by the House Science, Space and Technology Committee to New York Attorney General Eric Scheniderman, Massachusetts Attorney General Maura Healey and eight scientific groups meet the Supreme Court’s legal threshold.
The 10 subpoenas seek information about investigations by the attorneys general into whether Exxon Mobil committed fraud and covered up what it knew about climate change. None of those subpoenaed have complied.
The most striking testimony came from Jonathan Turley, a professor of public interest law at George Washington University Law School. Turley said he was a supporter of President Obama’s climate actions and voted for him twice. But, the question before the committee Wednesday wasn’t about climate change, it was about law, he said.
“This committee clearly has the ability under Article One to insist on compliance with its subpoenas,” he said.
Republicans hoped to show the subpoenas are valid under the three-pronged test set out by the Supreme Court for congressional investigations. According to that test, the subpoenas need to be issued by a committee with legislative jurisdiction over the subject matter, have a valid legislative purpose and be asking questions pertinent to the investigation.
Committee Chairman Lamar Smith, R-Texas, argued that his committee is investigating if Schneiderman and Healey are taking actions that would have a chilling effect on research and development funding. Research and development funding, with the exception of military and medical funding, falls under the committee’s purview.
The legislation that could be achieved is potentially increasing the amount of federal research and development dollars, and the investigation would show if there is a chilling effect on science that casts doubt on climate change, Smith said.
“The committee has a constitutional obligation to conduct oversight anytime the United States scientific enterprise is potentially impacted,” Smith said. “The documents demanded by the subpoena will inform the committee about the actions of the attorneys general and the environmental groups.
“The documents will also allow the committee to assess the effects of these actions on America’s scientific research and development funding.”
Three of the four constitutional lawyers who testified agreed with Smith’s legal basis for his subpoenas, but one said it’s an unprecedented action that goes beyond the committee’s legal authority.
Charles Tiefer, a law professor at the University of Baltimore and a former acting general counsel of the House, said no House committee in more than 200 years has subpoenaed a state attorney general.
“They’re not doing it and there’s an excellent reason: State attorneys general have their own state sovereign authority, they are frequently elected, they have their own base, their own electoral base and they investigate things Congress can’t,” Tiefer said.
Turley said he didn’t believe that argument held water.
“Something may be unprecedented. That doesn’t make it unconstitutional,” he said.
For Democrats, the hearing was just an exercise in Smith’s ongoing crusade against climate science.
Rep. Eddie Bernice Johnson of Texas, the top Democrat on the panel, said Smith’s previous investigations of the National Oceanic Atmospheric Administration and the Environmental Protection Agency would cause a much greater “chilling effect” on climate science than the one he is seeking to prevent the attorneys general from causing.
Johnson said she was “disappointed and disheartened” by the hearing, which was the “culmination of a politically motivated ‘oversight’ agenda” on Smith’s part.
“The majority’s misguided efforts undermine the science committee’s important and legitimate oversight authority and dramatically increase the public’s distaste and distrust of this body,” Johnson said.
Rep. Suzanne Bonamici, D-Ore., said she was embarrassed to talk about Smith’s investigation to her constituents during the summer break when they asked about what the committee was working on.
She said voters expect committee members to work on fighting the effects of climate change or learning about new forms of renewable energy, not litigating climate change.
“What we’re doing today is not what they expect and not what they deserve,” Bonamici said.
