WHY THE TOBACCO DEAL SHOULD, AND MUST, BE OPPOSED
The major tobacco companies have decided to withdraw their participation in the legislative attempt to end cigarette smoking in the United States. That makes sense. Tobacco may be bad for you, but the prohibitionist frenzy that has seized the nation is worse.
The notion that cigarettes are evil is the flip side of "defining deviancy down," because it falsely makes a moral issue out of using a substance that may harm the body but not the soul. As many Americans continue to subject genuinely evil behavior to what Alan Dershowitz called "The Abuse Excuse" - blaming evil on chemical imbalance, Twinkies, spanking, whatever - they instead focus their outrage on a substance that is a health hazard, not a moral hazard.
When the tobacco companies decided to engage state-level government officials in a secret negotiation, they made what may have been the worst blunder in modern corporate history because they essentially bought in to the "abuse excuse."
The industry had argued aggressively and effectively in court for 30 years that no tobacco consumer could honestly claim to be ignorant of the health risks involved in smoking. The companies succeeded time and again in the courtroom for two reasons. First, because cigarette packs carry those Surgeon General labels, juries agreed that consumers were duly warned. Second, juries were faced with the fact that many of the plaintiffs in these cases had many decades in which to quit smoking, and unlike millions and millions of other smokers, refused to do it.
The companies began to fear that their litigation strategy was beginning to fail in the increasingly prohibitionist atmosphere. They were worried about the impact of a massive class-action suit. And they faced a new threat from the attorneys general of 41 states, all of whom were preparing to sue them for the supposedly hefty health-care costs their states were bearing as a result of smoking.
That is the biggest scam of them all - for, to be frank about it, the fact that smokers on average live eight fewer years than non-smokers actually helps to keep health-care costs down.
So the companies thought they would do something brilliantly clever. They decided to pay what amounted to the biggest bribe in American history - $368.5 billion - to the states and the ambulance-chasing trial lawyers that the attorneys general had hired to conduct litigation warfare. (One of those lawyers, Mississippi's Richard Scruggs, stood to earn $1 billion from the deal.)
In exchange, the firms would be immune from class-action lawsuits; individual lawsuits would be permitted, with collective damages in those cases "limited" to the astonishingly large sum of $5 billion a year.
The companies were too clever by half. Somehow they failed to take into account the fact that, although the deal was struck with the state attorneys general, it would take congressional legislation and a presidential signature to make many of its provisions possible.
And once the companies had basically agreed that smoking was a social ill and assumed some measure of legal and moral responsibility for the behavior of smokers, it was open season on them. There isn't an elected official alive who would risk arguing the moral points made in this editorial when the tobacco companies themselves are no longer willing to make such arguments.
Senators, led by soon-to-be presidential candidate John McCain, asked themselves:
Hey, why should the companies be exempt from class-action suits, anyway? And why only $368.5 billion to the states? Why not, oh, $516 billion in a federal-government trust fund? After all, the national government's health-care expenses are far greater - and this way, no trial lawyer is going to become a billionaire because his best friend is the attorney general of Mississippi, for Pete's sake.
And so the Senate this week passed a bill that, if agreed to by the House and signed by the president, would lead to the bankruptcy of the tobacco companies in a matter of years. They now say they will fight it, and we're glad. This legislation sets an absolutely horrific precedent that must not stand.
In the first place, we believe that, without the consent of the tobacco companies, the legislation constitutes a "taking" of private property and is therefore unconstitutional under the provisions of the Fifth Amendment.
More important, we believe the prohibitionist logic of the legislation is illegitimate. The federal government cannot be permitted to eradicate an entire industry by means of fines, deliberately onerous regulation and massive overtaxation.
Even though 25 percent of the population continues to smoke, the morally obtuse demonization of tobacco has crippled the industry that produces it.
That's show business. But just because tobacco has become unfashionable doesn't give Washington the right to do outrageous violence to the Constitution or to the American free-enterprise system.