- The Washington Times - Thursday, December 13, 2001

Three years ago, the Clinton administration attacked the tobacco industry with greedy fervor after realizing that Congress, the constitutionally-authorized instrument of taxation and regulation, would not vote to pass legislation raising the federal tax on tobacco products.

Former Clinton Labor Secretary Robert Reich noted in a Wall Street Journal op-ed, "Fed up with trying to move legislation, the [Clinton] administration is launching lawsuits to succeed where legislation failed. The strategy may work, but at the cost of making our frail democracy even weaker." Rather than pursue constitutional methods of redress, Mr. Clinton used the Department of Justice to pursue his own social agenda. He hoped a lawsuit would force tobacco companies to raise prices to pay for their defense, further discouraging the purchase of their products.

If frivolous lawsuits weren't a dime a dozen, the following history of this lawsuit would elicit surprise and conclusive action, in that prompt order. It still should, although the subject matter in question tobacco products rouses a distracting variety of social sentiment and leftist aggression, further impeding timely resolution. These days of terrorism and war provide a political (if not reasonable) opportunity for federal lawmakers to re-evaluate frivolous litigation against tobacco industries, when resources are needed for homeland security. President Bush can set an example of good leadership by ordering the Department of Justice to drop the lawsuit, thereby signaling that his administration, like Ronald Reagan's, will not tolerate the abuse of law to satisfy the whims of social stigma.

Two years prior to the Clinton attack on the tobacco industry, then-Attorney General Janet Reno announced that the Justice Department could not find a federal cause of action and that "we need to work with the states" to resolve settlement issues. States settled, and the tobacco industry will pay out $250 billion over 25 years. Mr. Clinton forced Miss Reno to file a federal lawsuit anyway, a tactic that required the Justice Department to convince just one judge in Washington rather than 535 congressmen, that the federal case had merit.

The driving rhetoric behind the lawsuit against the tobacco companies was that medical costs necessitated monetary recovery by litigation. In his 1999 State of the Union address, Mr. Clinton declared that the purpose of the federal lawsuit against the tobacco companies was to "strengthen Medicare." Since then, the D.C. District Court has thrown out all of the government's claims for recovery of health care costs, including those incurred while claimants were Medicare recipients.

One last part of the Clinton-era lawsuit survives to waste federal resources and divert attention away from pressing national concerns like terrorism: allegations by the federal government that tobacco companies engage in racketeering.

Allegations of racketeering have no ground in fact for a number of reasons. First, the government may seek monetary disgorgement from tobacco companies only for profits both ill-gotten and long in the past. The taxation of tobacco products has generated billions in "profit" for the government. If tobacco company revenues may be classified "ill-gotten" and subject to disgorgement, government revenue must be classified in like manner. Instead, government revenue is used to fund frivolous lawsuits like this one.

Additionally, ill-gotten and long in the past profits are subject to disgorgement only if it can be proven that these gains will be used "to fund or promote the illegal conduct" in the future, an opinion that originated with the Second Circuit Court and with which the District Court hearing the government's case agreed. Tobacco companies willingly entered into the states' $250 billion Master Settlement Agreement, including binding consent decrees and injunctions prohibiting future racketeering of virtually any kind. Future "illegal conduct" of the kind specified by the last prong of the Clinton-era lawsuit is unlikely given this context. Nonetheless, these allegations persist.

The persistence of the Clinton administration's social agenda is demonstrated by Acting Assistant Attorney General Stuart Schiffer testifying just days before September 11 that the Justice Department needs $50 million in additional resources next year to fund the tobacco lawsuit, an increase that does not account for the use of Criminal Division, FBI, and Civil Division's Office of Litigation Support resources. Without funding a single day in court, $50 million will pay for 15 new full-time staff to work on the case against the tobacco companies, for a total of 38.

Attorney General John Ashcroft delivered a major speech Nov. 8 recommending a series of reorganizing and mobilizing changes to the Justice Department for the purpose of addressing the threat of future domestic terrorist attacks.

Rather than waste resources on a frivolous lawsuit against tobacco companies, the attorney general and Mr. Bush should make their intentions clear and drop the federal lawsuit in favor of priorities with merit and substantial cause for action, like fighting terrorism.

Conservatives expect leftist presidents to issue personal vendettas of public harassment via the Justice Department; a lawsuit filed against IBM during the dying days of the Lyndon B. Johnson administration persisted through both the Nixon and Carter administrations. Only Mr. Reagan had the nerve to order the suit dropped in response to decades of wasted taxpayer dollars amounting to a product of nothing. Mr. Bush has an opportunity to show similar leadership by ending the federal lawsuit against tobacco companies.

Damon B. Ansell is vice president for policy and Emily Sedgwick is state project manager at Americans for Tax Reform.

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