Search Results for ‘climate rico’

WSJ on climate RICO

An editorial in this morning’s Wall Street Journal is blunt:

Advocates of climate regulation are urging the Obama Administration to investigate people who don’t share their views.

Last month George Mason Professor Jagadish Shukla and 19 others signed a letter to President Obama, Attorney General Loretta Lynch and White House science adviser John Holdren urging punishment for climate dissenters. “One additional tool — recently proposed by Senator Sheldon Whitehouse — is a RICO (Racketeer Influenced and Corrupt Organizations Act) investigation of corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America’s response to climate change,” they wrote.

In other words, they want the feds to use a law created to prosecute the mafia against lawful businesses and scientists. … [RICO] can inflict treble damages upon a defendant. Enacted to stop organized crime and specifically to prosecute individuals tied to loansharking and murder-for-hire, it was long seen as so powerful a tool that the government warned prosecutors to limit its use.

The scientists’ RICO letter was “inadvertently posted” on the website of a group almost entirely funded by taxpayers [Ian Tuttle, National Review Online; Coyote] Rob Nikolewski at Watchdog.org has more on the letter and its aftermath, and quotes me:

Walter Olson, senior fellow at the libertarian Cato Institute’s Center for Constitutional Studies, thinks that’s a dangerous step to take.

“This is core political persuasion,” Olson told Watchdog.org. “If this is illegal racketeering, then potentially an awful lot of things that people debate about are also illegal racketeering … It’s a dangerous power because it won’t be used even-handedly.”

Earlier coverage here, here, etc. Some possible insight into litigation strategies of climate-RICO promoters at Inside Climate News here and here.

“Using RICO against climate change skeptics an attack on free speech”

I’m interviewed at Vermont Watchdog about the truly terrible idea of aiming a civil RICO/racketeering action or investigation against the forces of “climate denial” over wrongful advocacy. The notion seems to have some well organized friends, including Sen. Sheldon Whitehouse (D-R.I.) and, more recently, twenty scientists who recently signed a letter calling for such a probe. “I have no idea how it affects the First Amendment” says one of the letter’s signers, a Vermont scientist, according to a companion report. I should note that when I speak of RICO in the interview transcript, I am referring to the civil-litigation side of the law (“civil RICO”) as distinct from the law’s other wing, “criminal RICO.”

I note, and reject, the idea that the First Amendment protects only truthful speech and thus has no application here because climate skepticism is false. (As Cato and many others argued in last year’s Supreme Court case of Susan B. Anthony List v. Driehaus, controversial speech need not be true to be protected, and in practice an “only truth has rights” rule would give the state a stifling power to punish advocacy in debates that it considers settled.) In substantial part, I note, debate in Washington (and not just in Washington) proceeds by way of advocates’ deployment of half-truths, selectively marshaled data, scientific studies with agendas, and so forth. It is common for both sides to use these techniques. The same techniques are also accepted as standard currency within the adversary process itself, in which the law takes such pride, which makes it particularly absurd to propose defining it as unlawful racketeering to “use dubious information to advance a cause.”

Among those promoting this bad idea: BoingBoing, often regarded as a pro-free-speech site.

P.S. Adapted together with an earlier post into one at Cato at Liberty.

Sen. Whitehouse urges RICO suit against climate wrongthink

Another step toward criminalizing advocacy: writing in the Washington Post, Sen. Sheldon Whitehouse (D-R.I.) urges the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of “conservative policy” groups an apparent target of the investigation as well. A trial balloon, or perhaps an effort to prepare the ground for enforcement actions already afoot?

Sen. Whitehouse cites as precedent the long legal war against the tobacco industry. When the federal government took the stance that pro-tobacco advocacy could amount to a legal offense, some of us warned tobacco wouldn’t remain the only or final target. To quote what I wrote in The Rule of Lawyers:

In a drastic step, the agreement ordered the disbanding of the tobacco industry’s former voices in public debate, the Tobacco Institute and the Council for Tobacco Research (CTR), with the groups’ files to be turned over to anti-tobacco forces to pick over the once-confidential memos contained therein; furthermore, the agreement attached stringent controls to any newly formed entity that the industry might form intended to influence public discussion of tobacco. In her book on tobacco politics, Up in Smoke, University of Virginia political scientist Martha Derthick writes that these provisions were the first aspect in news reports of the settlement to catch her attention. “When did the governments in the United States get the right to abolish lobbies?” she recalls wondering. “What country am I living in?” Even widely hated interest groups had routinely been allowed to maintain vigorous lobbies and air their views freely in public debate.

By the mid-2000s, calls were being heard, especially in other countries, for making denial of climate change consensus a legally punishable offense or even a “crime against humanity,” while widely known advocate James Hansen had publicly called for show trials of fossil fuel executives. Notwithstanding the tobacco precedent, it had been widely imagined that the First Amendment to the U.S. Constitution might deter image-conscious officials from pursuing such attacks on their adversaries’ speech. But it has not deterred Sen. Whitehouse.

Law professor Jonathan Adler, by the way, has already pointed out that Sen. Whitehouse’s op-ed “relies on a study that doesn’t show what he (it) claims.” And Sen. Whitehouse, along with Sen. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.), has been investigating climate-dissent scholarship in a fishing-expedition investigation that drew a pointed rebuke from then-Cato Institute President John Allison as an “obvious attempt to chill research into and funding of public policy projects you don’t like…. you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.”

P.S. Kevin Williamson notes that if the idea of criminalizing policy differences was ever something to dismiss as an unimportant fringe position, it is no longer.

“They oughta be investigated for RICO!”

“[Disliked person or institution] should be investigated for racketeering!” is the sort of slogan “waved around by morons like a big foam finger at a ball game.” But RICO, or the Racketeer Influenced and Corrupt Organizations Act, is a law requiring proof of “the commission of a whole bunch of very specific federal crimes… not just any crime [but] only the ones on the list.” It “is not a … frown emoji. It’s not an exclamation point. It’s not a rhetorical tool to convey you are upset about something…. RICO doesn’t mean ‘this organization advocates things that are bad for society.'” Wait, there’s no RICO predicate act for climate denial or for being the NRA?

Ken White’s RICO explainer at Popehat observes that civil RICO is overused in court both by pro se litigants and by plaintiff’s lawyers who employ it as “a scare tactic and a propaganda tool.” So overused is it that “judges often have standing orders requiring plaintiffs to explain how and why they are claiming RICO — that’s something judges don’t do for almost any other cause of action…. So why do we still have civil RICO? Mostly because Congress is more scared of being called soft on crime than they are interested in reforming time-wasting abusive statutes.” Incidentally, the cutesy acronym for an anything-but-cutesy law is because “Congress likes acronyms like your great-aunt likes porcelain cats.”

P.S. From Jonathan Adler, Greenpeace, RICO, and what goes around comes around.

Climate advocacy as “racketeering”: they knew

They knew, because their own allies had told them: “As you know, deception/disinformation isn’t itself a basis for criminal prosecution under RICO.” — an official of the Union of Concerned Scientists, writing to the organizers of a campaign to enlist scientists behind a call for a RICO investigation of the fossil fuel industry for its statements about climate change. The letter added, explaining UCS’s unwillingness to back the letter, “We don’t think that Sen. [Sheldon] Whitehouse’s call gives enough of a basis for scientists to sign on to this as a solid approach at this point.” [Reason]

Despite cautions like these, calls for a RICO investigation soon caught on among the political class and an investigation launched by Democratic state attorneys general has now aimed dragnet climate subpoenas at the Competitive Enterprise Institute and, thus far less directly, at nearly 100 advocacy, free-market, and university-based groups. “These include the U.S. Chamber of Commerce Foundation, the George Mason University Law and Economics Center, the American Enterprise Institute, the National Taxpayers Union Foundation, the Cato Institute [which publishes Overlawyered], the National Black Chamber of Commerce, the Federalist Society for Law and Public Policy Studies, the Heritage Foundation, and on and on,” writes Ronald Bailey. CEI responded to the subpoena here (in a brief written by Andrew Grossman) and here, and on May 13 Cohen Milstein, the private contingency-fee law firm representing the attorney general of the Virgin Islands, responded, reserving the right to compel compliance with the subpoena, which demands the production of ten years’ worth of documents.

Presidential candidates Hillary Clinton and Bernie Sanders are among public figures who have backed calls for a racketeering investigation of fossil fuel companies’ participation in climate debates. I have found no evidence that either has expressed concern about the direction in which such investigations are headed.

Peggy Little on the climate advocacy subpoenas

At the Federalist Society blog, Margaret (Peggy) Little, practicing attorney and director of The Federalist Society’s Pro Bono Center, has published a summary and analysis (parts one, two) of the ongoing criminal investigation of Exxon and its relations with dozens of advocacy groups, university scholars, trade associations and others with whom it is said to have collaborated in the supposedly improper cause of climate “denial.”

As one of the shrewdest analysts of the outrageous tobacco litigation saga, Little is particularly well situated to spot the parallels:

…Nearly every speaker [at the “AGs United for Clean Power” press conference] expressly cited the state AGs’ successful victory over the tobacco industry as a template for this action. One AG called upon other countries, states, communities and individuals to join in this effort. Why the public announcement before the facts come in? Why the global call to arms by this minority of state AGs?

An alert observer will recognize that this press conference follows right on the heels of drastic fiscal crises in many states. The state AGs’ wildly successful settlement with the tobacco industry in the 1990s –which incidentally also deployed foreign countries, dissenting states, cities, towns and health insurers to amass industry-busting claims– shifted a quarter of a trillion dollars to the states and their attorneys, leading to fiscal and governmental bloat that, to borrow a term from the climate activists, is unsustainable. New targets need to be identified and demonized so that this state regulatory confiscation from private industry can continue.

Another echo is the role of private law firms angling for what could be stupendously large contingency fees, a phenomenon that was the driving force of the state tobacco litigation. Little notes the role of prominent class action and tort firm Cohen Milstein, which “has a state AG practice headed by partner Linda Singer, former AG of the District of Columbia. The New York Times has profiled [its] solicitation of state AGs to bring class action and mass tort suits.” Another private attorney involved in the new affair, Matt Pawa, is likewise deep in contingency-fee representations of state attorneys general to pursue ostensibly governmental claims in which public officials would ordinarily be expected not to take a personal financial interest. If the AGs’ press conference was characterized by “hot,” accusatory, prejudicial rhetoric more often associated with plaintiff’s lawyers than with professional prosecutors, this might be why, Little notes.

She also makes clear the deep political illegitimacy and unaccountability of the regulation-through-litigation Fourth Branch these suits are intended to set up:

These extortionate suits are cynically Made to Settle. Professor G. Robert Blakey, a RICO consultant engaged by the Department of Justice to plan the federal tobacco lawsuit, frankly admitted, “this case is not made to win, it’s made to settle.” Both the state and its contingency fee outside financiers are thus in a position to reap enormous rewards with no risk of judicial precedents that would stem the tide of other, like initiatives against other industries. A state is a subsidized political plaintiff, driven by interest groups and ideology and its officers’ political ambitions; it can afford to bring a weak case and pursue it more vigorously than could any private plaintiff. Further, the arsenal of remedies at its disposal—consent decrees, injunctive relief, enforcement powers available under its consumer protection, trade practices and antitrust statutes—are simply not available to a private tort plaintiff. All of which underscores why these contingency arrangements violate the targets’ due process rights.

I wrote a whole book in 2003 — The Rule of Lawyers — on the pretensions of this emerging Fourth Branch of litigators and why they were not consistent with American self-government. For a while — as one after another attempt at a “next tobacco,” from guns to soft drinks, failed to take off — it looked as if maybe our system had learned the lesson and that the scandals would not repeat. If only that were so!

Are the climate-speech subpoenas constitutional?

New York Attorney General Eric Schneiderman is pursuing an investigation of the Exxon Corporation in part for making donations to think tanks and associations like the American Enterprise Institute and American Legislative Exchange Council, which mostly work on issues unrelated to the environment but have also published some views flayed by opponents as “climate change denial.” Assuming the First Amendment protects a right to engage in scholarship, advocacy, and other forms of supposed denial, it is by no means clear that information about such donations would yield a viable prosecution. Which means, notes Hans Bader of the Competitive Enterprise Institute, that the New York probe raises an issue of constitutional dimensions not just at some point down the road, but right now:

A prolonged investigation in response to someone’s speech can violate the First Amendment even when it never leads to a fine. For example, a federal appeals court ruled in White v. Lee, 227 F.3d 1214 (9th Cir. 2000) that lengthy, speech-chilling civil rights investigations by government officials can violate the First Amendment even when they are eventually dropped without imposing any fine or disciplinary action. It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for investigating citizens for speaking out against a housing project for people protected by the Fair Housing Act.

In another case, in which a company had been sued seeking damages over its participation in trade-association-related speech, a federal appeals court found that the pendency of the lawsuit all by itself caused enough of a burden on the firm’s speech rights that the court used its mandamus power to order the trial judge to dismiss the claims, a remarkable step.

Moreover, Bader writes, a string of federal precedents indicate that the constitutional rights Schneiderman is trampling here are not just Exxon’s but those of the organizations it gave to, which have a right to challenge his action whether or not the oil company chooses to do so:

These groups themselves can sue Schneiderman under the First Amendment, if Schneiderman’s pressure causes them to lose donations they would otherwise receive. Government officials cannot pressure a private party to take adverse action against a speaker.

Meanwhile, writing at Liberty and Law, Prof. Philip Hamburger of Columbia Law School takes a different tack: the subpoenas imperil due process and separation of powers because they issue at the whim of Schneiderman’s office. Earlier ideas of constitutional government “traditionally left government no power to demand testimony, papers, or other information, except under the authority of a judge or a legislative committee.” In more recent years executive subpoena power has proliferated; so has the parallel power of lawyers in private litigation to demand discovery, but the latter at least in theory goes on under judicial supervision that can check some of its abuse and invasiveness. Extrajudicial subpoenas by AG offices are particularly dangerous, Hamburger argues, because of their crossover civil/criminal potential: the targets do not enjoy a high level of procedural protection when “attorneys general claim to be acting merely in a civil rather than a criminal capacity,” yet the same offices can and do threaten criminal charges. Especially dangerous is New York’s Martin Act, a charter for general invasion of the private papers of anyone and anything with a connection to New York financial transactions.

An attorney general’s concern about fraud or the “public interest” is no justification for allowing him to rifle through private papers. When he thereby extracts the basis for a criminal prosecution, he evades the grand jury process. When he thereby lays the groundwork for a civil enforcement proceeding, he evades the due process of law, for there ordinarily is no discovery for a plaintiff until he commences a civil action. Even worse, when a prosecutor uses a subpoena to get a remunerative settlement, it is akin to extortion — this being the most complete end run around the courts.

Previously on the probe here and here (and earlier here and here), and on the New York attorney general’s office here and here.

[cross-posted from Cato at Liberty]

Another step toward climate speechcrime: New York subpoenas

Months of agitation promoting a government investigation of supposedly wrongful advocacy on the issue of climate change have begun to pay off. As Holman Jenkins [paywall] notes, purportedly levelheaded Democrats and environmentalists are now jumping on the bandwagon for a probe of possible unlawful speech or non-speech by energy companies and advocacy groups they’ve backed. Perhaps the most remarkable name on that list is Hillary Clinton, who said the other day in New Hampshire, referring to Exxon, “There’s a lot of evidence that they misled people.” That’s right: Hillary Clinton, of all people, now wants to make it unlawful for those who engage in public controversy to mislead people.

The first high-profile law enforcer to bite, it seems, will be Eric Schneiderman, whose doings I’ve examined at length lately. “The New York attorney general has launched an investigation into Exxon Mobil to determine whether the country’s largest oil and gas company lied to investors about how global warming could hurt its balance sheets and also hid the risks posed by climate change from the public,” reports U.S. News. Show me the denier, as someone almost said, and I will find you the crime: “The Martin Act is a nearly empty vessel into which the AG can pour virtually any content that he wants,” as Reuters points out. More on the Martin Act here and here.

At Forbes, Daniel Fisher notes the possible origins of the legal action in an environmentalist-litigator confab in 2012 (“Climate Accountability Initiative”) in which participants speculated that getting access to the internal files of energy companies and advocacy groups could be a way to blow up the climate controversy politically. Fisher also notes that Justice Stephen Breyer, in the Nike v. Kasky case dismissed 12 years ago on other grounds, warned that it will tend to chill advocacy both truthful and otherwise by businesses if opponents can seize on disagreements on contentious public issues and run to court with complaints of consumer (or presumably securities) fraud.

Perhaps in this case chilling advocacy is the whole point. And very much related: my colleague Roger Pilon’s post last week, “Whatever Happened to the Left’s Love of Free Speech?“; Robert Samuelson (“The advocates of a probe into Exxon Mobil are essentially proposing that the company be punished for expressing its opinions.”)

Free speech roundup

  • Understanding the liberal-conservative gap on what “free expression” means [Ronald K. L. Collins]
  • Foes of Yik Yak “want universities to ban the very app that gives marginalized students a voice on campus” [Amanda Hess, earlier] No-platforming: “It is an anti-Enlightenment movement.” [Claire Lehmann on Germaine Greer case] At UCLA, administrators and activists are attacking the core right to free speech [Conor Friedersdorf]
  • “If you know what you’re doing, you bring in the litigators before you start running your mouth.” [Popehat on game developer’s lawsuit threats, language]
  • “Climate change, Galileo, and our modern Inquisition” [Edward Dougherty, Public Discourse/MercatorNet on climate RICO] “Veteran campaigner Bill McKibben and Democratic presidential candidate Bernie Sanders demand the Obama administration launch a criminal investigation [over Exxon’s allegedly improper issue advocacy]… victory over deniers and climate criminals is always just around the corner” [Holman Jenkins, Jr., WSJ, paywall]
  • In Denmark, courage of cartoon editors belatedly recognized, yet fear governs press [Jacob Mchangama, Politico Europe]
  • Federal judge: First Amendment forbids Kentucky officials to shut down parenting column written by N.C. psychologist on grounds that it constitutes practice of psychology in Kentucky without a license [Caleb Trotter, Pacific Legal Foundation]
  • “To Tweet or Not to Tweet: How FDA Social Media Guidelines Violate the First Amendment” [Kirby Griffis and Tamara Fishman Barago, Washington Legal Foundation]

Environment roundup

  • Finally, some progress? White House releases “Housing Development Toolkit” urging local policymakers to expand by-right development, accessory dwelling units, pro-density rezoning [Jonathan Coppage, Washington Post; Vanessa Brown Calder, Cato]
  • And see related: “Parking Requirements Increase Traffic And Rents. Let’s Abolish Them.” [Brent Gaisford, Market Urbanism] “America’s Ugly Strip Malls Were Caused By Government Regulation” [Scott Beyer]
  • And yet more, stranded in Seattle: “Micro-Housing, Meet Modern Zoning” [Vanessa Brown Calder, Cato]
  • California: “Coastal Commission Abuse Smacked Down by Court” [Steven Greenhut]
  • “If firms refused to take direction, FDR ordered many of them seized.” For climate change advocate Bill McKibben, RICO-for-deniers is only the start [New Republic] Fan at New York Times eyeing McKibben to win Nobel [Timothy Egan]
  • “Midnight Monuments: The Antiquities Act and the Executive Authority to Designate National Monuments” [Federalist Society podcast with Donald Kochan and Charles Wilkinson]