A Wednesday hearing in the House is shaping up to be a battle between First Amendment rights and Congress’ subpoena authority in its own investigations.
The House Science, Space and Technology Committee will hold a hearing assessing subpoenas issued by Chairman Lamar Smith, R-Texas, to two state attorneys general and a number of scientific groups. Smith issued the subpoenas earlier this summer to get documents related to the climate change investigations of Exxon Mobil by New York and Massachusetts attorneys general.
New York Attorney General Eric Schneiderman, Massachusetts Attorney General Maura Healey and a number of scientific groups, including the Union of Concerned Scientists, have refused to comply with Smith’s subpoenas. The attorneys general cite federalism concerns, while the groups say their First Amendment rights are being infringed upon.
On Wednesday, four law professors will go in front of the committee and assess whether Smith’s subpoenas are valid. A committee aide said the goal is to show the subpoenas are valid and to force the groups into complying with them given that some of them have not shown they’re willing to work with the committee.
“We’re really seeing an obstruction of a congressional investigation,” the aide said.
Eight organizations, in addition to the two attorneys general, received subpoenas from Smith in July. None has complied, though negotiations are ongoing.
Smith will hope to show that 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.
Smith argued in a letter to the attorneys general this summer 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 is, with the exception of military and medical funding, 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, the letter argued.
The committee aide said the attorneys general aren’t complying with the subpoena due to federalism concerns. The courts have ruled that Congress cannot get involved with legislative or regulatory actions done by a state, but in this case, the committee is asking only for documents.
“We’re not attempting to stop the attorneys general investigation,” the aide said. “We’re simply asking for information. … Our investigations can co-exist.”
Democrats have ripped Smith for months for his climate change-related work in the committee. They have called his subpoenas an unprecedented attack on the rights of the attorneys general to conduct investigations and a persecution of the scientific groups based on their belief in climate change.
His subpoenas last year to the National Oceanic and Atmospheric Administration over a study that showed there was no pause in global warming, as previously thought, placed him squarely in the sights of environmentalists. He also held multiple hearings criticizing the Clean Power Plan and the global deal on climate change.
Sen. Elizabeth Warren, D-Mass., defended her attorney general in a series of tweets this summer. She accused him of sending the subpoenas to protect oil companies that have donated to his campaign.
Now, the groups under investigation see Wednesday’s hearing as an attempt by Smith to justify unconstitutional actions.
Ken Kimmell, president of the Union of Concerned Scientists, said Smith is overstepping his bounds with the investigation. The Texas Republican, who is a climate change doubter, mischaracterizes the work of scientists, and Kimmell said he doubts the hearing will be fair to the attorneys general and groups under subpoena.
“It’s telling that after issuing broad, unilateral subpoenas, he’s now holding a hearing on whether his inquiry is legal,” Kimmell said. “Talk about backwards. However, even if Chairman Smith stacks this hearing with witnesses who will say what he wants to hear, it’s clear he’s on shaky legal ground.”
