- The Washington Times - Saturday, October 2, 2004

I am not a smoker, except for an occasional cigar — a good cigar. I think smoking is bad. Cigarettes kill people. I think society should work to stop kids from smoking. I am glad secondhand smoke is illegal in confined places like airplanes.

Despite these views, I am also certain the Justice Department’s latest lawsuit against tobacco companies is (a) legally laughable, and (b) a detrimental move that will have serious repercussions down the road. I still hope the litigation’s legal defects will doom it before it becomes public policy.

Why do I feel this way? Simple. I happen to think people are personally responsible for their actions. I believe individuals should be given choices, be allowed to make those choices and have to live with their consequences.

From a legal standpoint, the notion of applying racketeering statutes to overzealous marketing executives is a perversion of the law. The statutes’ goal when written was prosecuting organized crime. This means the Justice Department essentially is taking a law meant to apply to John Gotti and trying to use it to bankrupt a lawful industry that has become politically incorrect.

They could as easily use it to torment the used car industry for misrepresenting the reliability of automobiles. The idea tobacco firms are on a par with the mob may please some antismoking lobbyists, but no one in real America seems to buy it.

Furthermore, anyone who thinks cigarette-makers haven’t been punished enough for their actions clearly has been living under a rock for the last decade. Tobacco companies have been systematically squeezed by governors, attorneys general, senators, big city mayors, and county commissioners and trial lawyers. Smokers now pay significantly more for cigarettes to compensate for the costs of this litigation.

In essence, the increase in cigarette prices is a new tax enacted through the courts without a single elected representative ever having the opportunity to vote on it. Where are the “taxation without representation” opponents in this battle?

Now, you may think, if you aren’t a smoker, you shouldn’t care. If so, you might want to ask yourself what other products share similar traits of being (a) habit-forming and (b) dangerous if abused. Immediately, I can think of fast food, liquor, fast cars, the Internet, caffeine, prescription drugs, steak dinners, beer and dozens of others. Remember the legal system works on precedent. A principle established in this case will undoubtedly be applied in other cases down the road.

There is a very high likelihood these lawsuits will — if allowed to continue — eventually bankrupt the American tobacco industry. If we reach this point, it will constitute a significant failure of America’s system of government. In short, we will have discarded separation of powers, and violated the fundamental belief in the capacity of individuals to make their own decisions that our Constitution was crafted to protect.

So, why the sudden interest on the part of the Bush administration in bashing smokers? I can answer that with three words: “money” and “swing voters.” The government has already spent more than $135 million on this case, but that pales in comparison to what might be collected at its conclusion. These new funds could then be used to buy votes with new programs, to say nothing of the benefits of bashing a publicly despised industry. Much of the burden of these lawsuits will fall on Southern states (heavy with tobacco growers and processors), where Mr. Bush already enjoys a strong political position, thereby minimizing damage to his campaign. In return, the administration picks up voters in swing states where a constituency that is much less conservative than the Deep South would be inclined to applaud a president who beats up on “big business” and appears “sensitive” to nonsmokers and their allies.

We can only hope our legal system sees this lawsuit for what it is, since our political system has thus far failed to do so.

Bob Barr, a former Republican member of the U.S. House of Representatives from Georgia, is a columnist for United Press International.

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