The Wall Street Journal
If I had my way there would be laws restricting cigarettes and handguns.
But Congress won't even pass halfway measures. Cigarette companies have
admitted they produce death sticks, yet Congress won't lift a finger to stub
them out. Teenage boys continue to shoot up high schools, yet Congress
won't pass stricter gun controls. The politically potent cigarette and gun
industries have got what they wanted: no action. Almost makes you lose
faith in democracy, doesn't it?
Apparently that's exactly what's happened to the Clinton administration. Fed
up with trying to move legislation, the White House is launching lawsuits to
succeed where legislation failed. The strategy may work, but at the cost of
making our frail democracy even weaker.
The Justice Department is going after the tobacco companies with a law
designed to fight mobsters--the 1970 Racketeer Influenced and Corrupt
Organizations chapter of the Organized Crime Control Act. Justice alleges
that the tobacco companies violated RICO by conspiring to create an illegal
enterprise. They did this by agreeing to a "concerted public-relations
campaign" to deny any link between smoking and disease, suppress internal
research and engage in 116 "racketeering acts" of mail and wire fraud,
which included advertisements and press releases the companies knew to
A few weeks ago, the administration announced another large lawsuit, this
one against America's gun manufacturers. Justice couldn't argue that the
gun makers had conspired to mislead the public about the danger of their
products, so it decided against using RICO in favor of offering "legal advice"
to public housing authorities organized under the Department of Housing
and Urban Development, who are suing the gun makers on behalf of their
three million tenants. The basis of this case is strict liability and negligence.
The gun makers allegedly sold defective products, or products they knew or
should have known would harm people.
Both of these legal grounds--the mobster-like conspiracy of cigarette
manufacturers to mislead the public, and the defective aspects of guns or
the negligence of their manufacturers--are stretches, to say the least. If any
agreement to mislead any segment of the public is a "conspiracy" under
RICO, then America's entire advertising industry is in deep trouble, not to
mention health maintenance organizations, the legal profession, automobile
dealers and the Pentagon. And if every product that might result in death or
serious injury is "defective," you might as well say goodbye to liquor and
beer, fatty foods and sharp cooking utensils.
These two novel legal theories give the administration extraordinary
discretion to decide who's misleading the public and whose products are
defective. You might approve the outcomes in these two cases, but they
establish precedents for other cases you might find wildly unjust.
Worse, no judge will ever scrutinize these theories. The administration has
no intention of seeing these lawsuits through to final verdicts. The goal of
both efforts is to threaten the industries with such large penalties that
they'll agree to a deal-for the cigarette makers, to pay a large amount of
money to the federal government, coupled perhaps with a steep increase in
the price of a pack of cigarettes; and for the gun makers, to limit bulk
purchases and put more safety devices on guns. In announcing the lawsuit
against the gun makers, HUD Secretary Andrew Cuomo assured the press
that the whole effort was just a bargaining ploy: "If all parties act in good
faith we'll stay at the negotiating table."
But the biggest problem is that these lawsuits are end runs around the
democratic process. We used to be a nation of laws, but this new strategy
presents novel means of legislating--within settlement negotiations of large
civil lawsuits initiated by the executive branch. This is faux legislation, which
sacrifices democracy to the discretion of administration officials operating in
It's one thing for cities and states to go to court (big tobacco has already
agreed to pay the states $246 billion to settle state Medicaid suits, and 28
cities along with New York state and Connecticut are now suing the gun
manufacturers; it's quite another for the feds to bring to bear the entire
weight of the nation. New York state isn't exactly a pushover, but its
attorney general, Eliot Spitzer, says the federal lawsuit will finally pressure
gun makers to settle. New York's lawsuit is a small dagger, he says. "The
feds' is a meat ax."
The feds' meat ax may be a good way to get an industry to shape up, but its
a bad way to get democracy to shape up. Yes, American politics is rotting.
Special-interest money is oozing over Capitol Hill. The makers of cigarettes
and guns have enormous clout in Washington, and they are bribing our
elected representatives to turn their backs on these problems.
But the way to fix everything isn't to turn our backs on the democratic
process and pursue litigation, as the administration is doing. It's to
campaign for people who promise to take action against cigarettes and
guns, and against the re-election of House and Senate members who won't.
And to fight like hell for campaign finance reform. In short, the answer is to
make democracy work better, not to give up on it.