February 9, 2017

Time to Wake Up: Something Important

Mr. President, my “Time to Wake Up” speeches—this is number 154—sometimes feel like I’m 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 admit, it can sometimes be discouraging. 

Last week, however, 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 schemes. 

That is great news, and it’s an important event.

There is virtually universal scientific consensus and 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 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 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 multi-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; and to seize that Party, like a hostile political takeover, and turn the Republican Party into the industry’s own political arm.  It turns out 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” that would result to those who crossed them.  That’s how they play in the political branches.  Truth doesn’t matter to them; truth is their adversary. 

But you can’t play that way in court.  That’s why last week’s victory was so 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 can’t buy a judge’s good will or bully a jury into compliance.  Tampering with a jury is a crime; judges can’t 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 concerned. 

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 the industry wants.  That’s why they launch legislative subpoenas at attorneys general, in what even Texas newspapers have called out as unseemly abuse of government power. 

That’s 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 they believe are responsible for misconduct.

That’s why their 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 hearing—that the First Amendment ends where fraud begins.  Fraudulent speech, including fraudulent corporate speech, is not protected by the First Amendment. 

Mr./Madam President, I ask unanimous consent to enter into the Record a June 2016 Washington Post op-ed by Yale Law School Dean Robert Post titled “Exxon-Mobil is abusing the first amendment.” 

It makes this industry crazy to be in court and to have to tell the truth, so they will fight desperately on.  $700 billion a year in subsidies makes it profitable to “lawyer up” by the boatload for this fight, and litigate to their damnedest.  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’s 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 abuse of 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 democracy they were building. 

So there stand the courts, and 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.