It's time to redirect anger with the tobacco companies to the bill the Senate Commerce Committee passed 12 days ago. In its rush to punish the tobacco industry, the panel has thumbed its nose at the Constitution - and at individual liberty.
Forget they're tobacco companies for a moment. It would also help to forget for a moment that this is the U.S. Imagine instead that we've moved back in time to the Soviet Union. That's a better framework to understand what's happening in the Senate.
The government has all but declared a group of legal businesses an enemy of the state. A group of legal businesses has been all but been declared an enemy of the state. For that, comrade, a high price will be paid. It starts with firms signing away their constitutional rights in consent decrees inked with the states.
The bill's authors, including the normally sensible John McCain, R-Ariz., have written in exceptions to the Constitution that they hope companies will ''agree'' to. Then firms will be forced to fork over more than half a trillion dollars to the government during the next 25 years. And the government will limit the firms' marketing it says they employ to induce kids to use this product, which is legal for adults to use.
The dictates continue. If kids don't cut their use of this product by at least 60% over the next decade, the companies will be held responsible for that, too - and will have to shell out up to $3.5 billion more per year.
And like most Soviet-style schemes, this one works at cross-purposes. The government can't wait to get its hands on the companies' money. So it can't punish the companies to the point of bankruptcy.
This is the U.S. Senate talking, not the Politburo.
The popular term for all this is a ''deal.'' It's no such thing.
A deal did once exist. Last summer, the industry and 40 state attorneys general gave Congress a plan for a $368.5 billion payout by the companies in exchange for a shield from further lawsuits.
The industry did the math and figured that the money was worth the lawsuit immunity.
But for the Senate, $368.5 billion wasn't punishment enough. The Senate regarded the accord as a starting point.
''The tobacco bill approved by the Senate Commerce Committee by a vote of 19 to 1 was never intended to be a 'deal' with the industry,'' McCain said.
And a deal it won't be. The nation's four major tobacco firms said Wednesday they would oppose the half-trillion-dollar fine and the limits on their liberty, especially since virtually no lawsuit shields are in the bill.
As much as we believe smoking should be discouraged, this bill is not the way to do it. And we're letting the Constitution guide us.
First Amendment. We think the industry made a crucial mistake last year when it agreed to give up its free-speech rights in advertising. While courts have been less generous toward commercial speech than political speech, it is still protected under the Constitution.
The measure also forces the Tobacco Institute and Council for Tobacco Research - both industry arms - to disband. Funny, the First Amendment we read guarantees the right to peaceable assembly.
Fourth Amendment. In our eyes, the bill's creation of a national depository of tobacco company documents violates the spirit of the Fourth Amendment's guarantee against unreasonable searches and seizures.
A court order for particular papers may be one thing, but lawmakers' demands for nearly everything from here into the future is another matter altogether.
Eighth Amendment. A case can be made that the penalties imposed amount to violating the Eighth Amendment bar on ''excessive fines imposed.''
While this amendment usually pertains to penalties imposed by the judiciary, the legislative branch's judge-and-jury role here smacks of something else the Founding Fathers abhorred and banned: bills of attainder.
Such measures are forbidden because they single out parties for punishment through legislation.
Beyond the Constitution, this bill bans the use of taxpayer funds to combat barriers other countries may erect against U.S. tobacco. So even though the product is legal and exportable, the U.S. government would not fight unfair trade limits against it.
Of course, the entire package is a tax increase passed on to lawful, adult smokers. Under the $516 billion Senate bill, taxes on cigarettes will rise another $1.10 a pack over five years.
What about the spending side? Would the revenue reimburse states for treating sick smokers? Some of it. Would money be spent on nonsmoking-related programs? Certainly.
Sen. John Kerry, D-Mass., already has won the right to reserve funds for spending on child care. Only a weak sense-of-the-Senate resolution directs where the rest of the funds go.
But it's not clear all the programs to curb teen-age smoking that are funded in the bill will work. The youth of America have been lighting up in ever higher numbers ee Poligraph below) in recent years. That shows that government has little real say over personal choices - even bad ones.
Spreading the anti- smoking gospel is commendable. Trampling on the Constitution is not.