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 be false.
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 secrecy.
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.
