Fire Grants and Safety Act

Floor Speech

Date: March 27, 2023
Location: Washington, DC


Mr. WHITEHOUSE. Mr. President, I am here this evening to commemorate the passing of a remarkable individual. I only met her once when I went over to speak at a gathering of the U.S. District Court for the District of Columbia. But on March 16, at the age of 85, Her Honor Judge Gladys Kessler passed away.

She had been quite a trailblazer before she went on the court. She cofounded the Women's Legal Defense Fund, now known as the National Partnership for Women & Families, and she served as the president of the National Association of Women Judges.

In her career, she rendered a lot of very good decisions, but the most memorable one and the one that exemplified some of the characteristics I admired the most about her was the decision that she rendered exposing in detail a conspiracy by the tobacco industry to deceive the American public about the safety of tobacco.

The Big Tobacco scheme is one that we are, I think, pretty familiar with. You pay a lot of phony-baloney for-hire scientists to produce studies making false claims about your product, you hire a web of PR experts and front groups to spread doubt and critique the actual real science that you don't like, and you have paid intermediaries to relentlessly attack and try to smear your opponents.

In the face of this behavior, we had a remedy: the Racketeer Influenced and Corrupt Organizations Act, the RICO Act.

In 1999, the U.S. Department of Justice filed a civil RICO lawsuit against the major tobacco companies and their associated industry groups alleging that the companies, and I will quote the complaint here, ``engaged in and executed--and continue to engage in and execute--a massive 50-year scheme to defraud the public, including consumers of cigarettes, in violation of RICO.''

The case took 7 years, but in 2006, Judge Kessler wrote one of the most impressive opinions I have ever seen from a U.S. district court judge. It was 1,683 pages long. She went through the evidence that the U.S. Department of Justice had marshaled, and she organized it and laid it out in a way that was completely compelling, that completely crushed the defendant tobacco companies, to the point where, when it was on appeal, the U.S. Court of Appeals for the DC Circuit very powerfully upheld it. It is one of the powers of a district judge that, with the authority to find the facts and marshal the evidence properly, you can make virtually bomb-proof opinions, and in 1,683 pages, Judge Gladys Kessler did just that. She found the defendant--here is her quote:

Defendants coordinated significant aspects of their public relations, scientific, legal, and marketing activity in furtherance of a shared objective--to . . . maximize industry profits by preserving and expanding the market for cigarettes through a scheme to deceive the public.

She added:

In short, [they] have marketed and sold their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.

It was a testament--this opinion was--to judicial diligence, and it left a permanent, solid record for history of the campaign of fraud that the tobacco industry had run until that point.

Of course, in order for her to be able to render that decision, there had to be a plaintiff willing to bring the case. So kudos also to the U.S. Department of Justice back then for being willing to take on a defendant as powerful as the tobacco industry. We forget, now that smoking is so much less of a thing, how enormously powerful the tobacco industry was, how its network of suppliers gave it footholds in every State, how its enormous revenues allowed it to cut into this building and manipulate the politics of the U.S. Congress to the great detriment of the health of the American people.

It goes without saying that there is an obvious parallel between the conduct of the tobacco industry leading up to Judge Kessler's decision and the conduct of the fossil fuel industry.

In fact, experts point out that when Judge Kessler's decision shut down the fraud of the tobacco industry, some of the individuals and some of the organizations that had been involved in that fraud simply rebooted themselves as new experts in how to deny climate science.

I hope that we come to a point where today's Department of Justice has the diligence and the fortitude to go ahead with a similar action. But today, this is about Judge Kessler--a woman who saw something going very badly wrong and sat down and wrote a 1600-page decision to put it right. I think it is a pretty terrific example.

And I have a few bits of business, if I may, and then we will open the floor to the other speakers.