Our Fight against Government Intimidation


Americans have heard many promises from presidential hopefuls this year, especially from the two major-party candidates, Hillary Clinton and Donald Trump. But at CEI, we don’t subscribe to a political party. We are partisans of freedom, fairness under the law, and making good policy into good politics. Naturally, we have some concerns about the outcome of this year’s election.

Both major-party platforms have significant problems (see here, here, and here), but one provision in the 2016 Democratic Party platform in particular hits home for CEI. It represents a very troubling trend in politicization of science and government suppression of free speech.

In a section titled “Securing Environmental and Climate Justice,” the platform states:

Democrats also respectfully request the Department of Justice to investigate allegations of corporate fraud on the part of fossil fuel companies accused of misleading shareholders and the public on the scientific reality of climate change.

Does this sound familiar? It does to CEI. On April 7, CEI received a subpoena from U.S. Virgin Islands Attorney General Claude Walker as a part of a similar-sounding investigation of ExxonMobil. Seemingly unaware of the Constitution or the role of competing ideas in a free society, Attorney General Walker leveraged his government authority to attack CEI’s free speech rights. Walker’s subpoena demanded that CEI hand over everything from emails to op-eds to private donor information—anything that had to do with our policy work on climate change—from 1997-2006. His objectives were to shut us up and scare our supporters.

This intimidation campaign was part of a larger effort led by New York Attorney General Eric Schneiderman and his coalition of 17 “Attorneys General United for Clean Power,” who pledged in March to “use all the tools at its disposal” to prosecute those who disagree with their political views on climate change.

But, these investigations are not limited to fossil fuel companies, as one can clearly see from a separate subpoena served on ExxonMobil that demands confidential information about more than 100 scientists, academics, researchers, and organizations that work on climate change policy. When did it become a crime to disagree with a government official?

As Americans, we all have the right to support causes we believe in. That right is protected by the First Amendment. And we’re not alone in our opposition to these subpoenas; it’s welcome news that an August 2016 poll shows a majority of likely U.S. voters agree with CEI and oppose the government investigating and prosecuting those who disagree on how to address global warming.

CEI decided to fight our subpoena. We scored some initial wins, but we’re continuing to fight for sanctions against Attorney General Walker for abusing his authority and violating our free speech rights. Unfortunately, the climate inquisition does not stop there. It’s not limited to a party platform or a coalition of state attorneys general; the First Amendment is also being attacked by members of Congress.

Last month, a group of Senate and House Democrats led by Sen. Sheldon Whitehouse (D-R.I.) and Rep. Ted Lieu (D-Calif.) led an attack on nonprofits, private companies, trade associations, and foundations for disagreeing with them on climate policy. Sen. Whitehouse and his colleagues even took to the Senate floor in an attempt to tout their climate policy enemies list. If it were not so serious, we’d write this off as surreal political theater.

The attacks ranged from misleading to completely false. Sen. Jeanne Shaheen’s (D-N.H.) assignment was to disparage CEI. (Watch Sen. Shaheen’s attack on CEI.)

Shaheen: “…we find that CEI is not an independent organization. It is funded by powerful corporations designed to spread untruths and disinformation on behalf of its corporate sponsors.”

This is nonsense. First, I’m unaware of any entity in America – corporate or otherwise – as powerful as the United States’ government. Unlike Shaheen, who receives a generous salary and benefits, CEI doesn’t receive any funding from the government or taxpayers. Instead, nearly 80% of CEI’s support comes from a diverse group of individuals and charitable foundations, while only 20% comes from businesses. While politicians like Shaheen spout empty rhetoric, CEI’s work is supported and informed by scientific literature, legal analysis, and expert peer-review. At CEI, we support our research and engage reasonably with public critiques of our policy analysis. Not so in the Senate.

Sen. Shaheen went on to criticize CEI for challenging the FDA’s attempt to expand its regulatory authority over tobacco, claiming that we were an instrument of Big Tobacco. In fact, our history shows exactly the opposite.

CEI has been critical of the FDA since the late 1980s for putting its own interests in expanding its power ahead of the public interest. The agency’s attempt to regulate tobacco in the 1990s was an unlawful power grab. In 2000, the U.S. Supreme Court agreed with CEI, when it ruled that the FDA had no power to regulate tobacco. Undaunted, conspiring state attorneys general devised a sweetheart deal for themselves and Big Tobacco. CEI challenged that deal in court on constitutional grounds. We lost, but our lawsuit demonstrated that we stuck to our principles and weren’t beholden to anyone. This is hardly the track record of an organization that lacks independence.

Whether it’s the FDA, the EPA, the TSA, or the IRS, CEI will always be on guard against federal agencies trying to tell Americans how to live their lives. Let’s be clear. If an informed adult chooses risky behavior—whether it is driving, smoking, playing football, or sky-diving—if the risks are known, our laws should allow individuals to make their own decisions. Likewise, the effects of those behaviors are the responsibility of the individual, not government caretakers or programs.

Unfortunately, there is a resurgence of an age-old movement among political leaders to squash Americans’ ability to think and speak for ourselves. They seem to believe that the government knows best and has the right to take individual choices away from us. That is a truly scary thought. For this reason, you’ll find CEI as a signatory on coalition letters like this one, opposing these Senators’ efforts:

The delicate balance of our democracy is preserved when all groups are free to speak in the public square, and ALL Americans should be concerned when agents of the government use their official offices to marginalize political foes.

Courts, not politicians, decide whether someone has broken the law. Members of Congress should know better—it’s shameful to engage in intimidation campaigns and use scare tactics that target private individuals and organizations.

Peter Roff at U.S. News and World Report hit the nail on the head:

This coordinated attack on what the Democrats are calling the "Web of denial" is a hideous affront to the right of a person or an organization to hold and to propagate an opinion running counter to the political interests of the powerful.

Regardless of which policies you support, any assault on free speech is profoundly unjust. And when that assault is coordinated by high-ranking government officials, it’s just plain dangerous.

These alarmists have set a dangerous precedent. According to their actions, it is somehow acceptable for our lawmakers and other officials to target and punish Americans who hold unfashionable views. What politically-charged topic will be next? GMOs? Stem-cell research? Abortion? If we allow today’s climate inquisition to proceed, the “safe” positions one can hold will depend entirely on which politicians are in power at any given time. Considering the candidates in this electoral cycle, this should be easy for everyone to understand.

Let’s set aside partisanship and the winner-take-all nature of elections, and think about the debilitating effects of intellectual intolerance. The open and reasoned clash of ideas is the means by which society develops and advances new ideas.

Around my house, there are few philosophers of greater renown than best-selling author J.K. Rowling. Recently, she put in context the famous insight on the importance of free speech (originally attributed to Voltaire by another leading female author, Evelyn Beatrice Hall):

I find almost everything that Mr. Trump says objectionable. I consider him offensive and bigoted. But he has my full support to come to my country and be offensive and bigoted there. His freedom to speak protects my freedom to call him a bigot. His freedom guarantees mine.

This fight isn’t about CEI or climate change, and it’s certainly not partisan. It’s about preserving the liberties that are the foundations of free society, while the alternative is a road to darkness filled with tyrants both petty and huge.

For more information on this issue, visit CEI.org/climatesubpoena.