Creating a Climate of Intimidation

The Constitution provides a couple of ground rules for hashing out our political disagreements.  One of the most critical is that, under the First Amendment, the government cannot target its opponents.  Unfortunately, some have recently sought to undermine this bedrock free speech principle.

Proponents of more significant regulation of carbon dioxide emissions are frustrated because they haven’t been able to achieve their goals through lawful means.  After President Obama’s election, one the first laws he pushed was a cap-and-trade bill.  Congress overwhelming rejected this proposed law.  Then, President Obama’s EPA attempted to circumvent Congress by enacting a rule that would effectively require a nationwide cap-and-trade regime.  The Supreme Court quickly halted this rule as likely unlawful.

A group of Attorneys General from States supporting EPA’s rule have responded by targeting those they see as responsible for their political defeats on this issue.  In a press conference just a month after the Supreme Court halted EPA’s rule, these Attorney Generals threatened to use their powers to advance EPA’s stalled agenda.  As New York Attorney General Eric Schneiderman explained, these actions are a response to allegedly “highly aggressive and morally vacant forces that are trying to block every step by the federal government to take meaningful action.”

He continued: “we’re sending a message that, at least some of us—actually a lot of us—in state government are prepared to step into this battle with an unprecedented level of commitment and coordination.”   He then made clear that this “commitment and coordination” would involve investigating and potentially prosecuting those they viewed as being on the other side of this political issue.

Several of these Attorneys General are already following through on this threat, launching wide-ranging investigations against ExxonMobil.  They have sought forty years of records, including communications with groups that they consider to be their political opponents on this issue.

These Attorneys General have defended their action as seeking to ferret out “fraud,” e.g., the underselling of the problems associated with carbon dioxide emissions.  A simple point refutes this defense.  As noted in a recent letter from thirteen Attorneys General that oppose these investigations, including Wisconsin Attorney General Brad Schimel, “[i]f it is possible to minimize the risks of climate change, then the same goes for exaggeration.”  The Wall Street Journal then echoed the same point. Al Gore—a featured speaker at the press conference announcing the investigations—has made a fortune from his documentary film, An Inconvenient Truth, even after several of its claims proved false.  But, of course, Gore and his allies know that they have nothing to fear from these inquests, even though Gore’s claims have influenced the public policy debate and his own bottom line.  Only one side is being targeted.

Even more troubling, these investigations are part of a broader scheme of intimidation on this particular issue.  Just last year, Sen. Sheldon Whitehouse (D) of Rhode Island called for the United States Department of Justice to initiate a Racketeer Influenced and Corrupt Organizations Act (RICO) investigation against companies he deemed insufficiently concerned about carbon dioxide emissions.  RICO is a law designed to impose extremely severe punishments on organized gangsters.  Former Secretary of State Hillary Clinton, the presumptive Democratic Party nominee, has also urged the Department of Justice to investigate.

The message is as subtle as a brick.  If you are thinking about speaking out against the next cap-and-trade bill, litigating against the next unlawful EPA rule, or writing an op-ed like this one: watch your back.  Some with governmental power will dub you as defending “highly aggressive and morally vacant forces,” and then use their vast power against you.

Our Country’s founding principles demand better.  Policy disagreements must be settled through a robust exchange of ideas.  These debates should not be influenced by the governmental actors intimidating their opponents with politically motivated investigations

Misha Tseytlin is Solicitor General of Wisconsin.