What limits does the Constitution place on Congress’s power to subpoena communications between private actors and state attorneys general? That question lies at the heart of an ongoing controversy between nine science advocacy organizations, several state attorneys general, and the House Committee on Science, Space & Technology’s Chairman, Rep. Lamar Smith (R-TX).
The controversy arose last summer after the Union of Concerned Scientists (“UCS”) and several news organizations published reports revealing that dfossil fuel companies understood the risks of climate change many decades ago. Rather than publicly acknowledge and address those risks, the companies apparently engaged in a surreptitious campaign of misinformation to deny and minimize the threat of climate change. Pointing to the reports, UCS and other science advocacy organizations approached state attorneys general and encouraged them to open investigations into whether the companies had engaged in fraud. New York Attorney General Eric Schneiderman was persuaded and opened an investigation in November 2015. On March 29, 2016, a number of other states joined the effort.
House Representative Lamar Smith, Chairman of the House Committee on Space, Science & Technology, was not amused by the investigations into the major players in an industry that has donated nearly $600,000 to his campaigns since 1998. On July 13, 2016, he issued subpoenas duces tecum to the state attorneys general and nine science advocacy organizations, including UCS, demanding that the recipients produce all communications amongst the groups and state attorneys general regarding the investigations dating back to January 2012 by July 27, 2016. Smith explained that his committee intended to conduct oversight of an alleged conspiracy to deprive ExxonMobil and other fossil fuel companies of their First Amendment rights.
The subpoena recipients uniformly refused to comply with Smith’s subpoenas. The state attorneys general responded that basic principles of federalism preclude Smith from interfering with ongoing state investigations; the science advocacy organizations invoked their First Amendment rights of speech, assembly, association, and petition as defenses to Smith’s unduly broad subpoeanas. Others also weighed in on the impropriety of Smith’s subpoenas. On August 3, 2016, the entire Massachussetts Congressional delegation sent Chairman Smith a letter “urg[ing him] to drop this damaging and pointless exercise in Congressional overreach.” And on August 9, Senators Sheldon Whitehouse and Elizabeth Warren published an op-ed in The Washington Post, accusing “Big Oil’s masterclass” of “rigging the system.”
To date, Smith and his Committee have taken no action to force compliance with his subpoeanas. To do so, Smith’s Committee would need to report a resolution of noncompliance to the full chamber, and the full chamber, in turn, would need to authorize the U.S. Attorney for the District of Columbia to initiate contempt proceedings under 2 U.S.C. §§ 192, 194. But a federal district court cannot enforce an invalid Congressional subpoena. So the question stands: are Smith’s subpoeanas valid?
Setting aside the subpoeanas to the state attorneys general, I think the answer is no. In late August, Dave Schulz, Jack Balkin, and I drafted a letter to Chairman Smith on behalf of a coalition of scholars, advocates, and litigators to explain why the subpoenas he issued to the science advocacy organizations are unconstitutional. We argued that Smith’s subpoenas to the private organizations are invalid for at least four reasons.
First, the subpoeanas violate fundamental separation of powers principles. Congress is neither a prosecutor nor a court and therefore cannot subpoena the science organizations in order to punish them for allegedly conspiring to violate Exxon Mobil’s First Amendment rights. Second, Smith’s committee lacks the specific delegation of authority necessary under Supreme Court precedent to issue subpoeanas that intrude on recipients’ First Amendment rights. Third, even if Smith’s committee did have the requisite authority to issue the subpoenas, the subpoenas don’t meet the balancing test the Supreme Court laid out for legislative subpoenas in Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963). Fourth, Smith’s subpoenas run afoul of basic federalism principles, including the anti-commandeering doctrine, the Republican Guarantee Clause, and clear-statement preemption rules.
On September 14, the Committee held a hearing on its authority to issue and enforce Smith’s subpoenas. Professors Jonathan Turley, Ronald Rotunda, and Elizabeth Price Foley testified that Smith’s subpoeanas are valid, if unwise. Professor Charles Tiefer testified that Smith’s subpoenas are invalid. At present time, the Committee has taken no action to enforce its subpoenas.