The Public Policy: Criminalizing Business

...The same disregard of the First Amendment is repeated in the administration's arbitrary limitations on pharmaceutical makers to supply off-label information to consumers about their products...

...The initial foray into national health care in 1993 by" the Clintons set a pattern...

...When an administration can disregard without consequence the limits that have traditionally accompanied the vast array of adIninistrative, civil, and criminal tools at its disposal, it will not hesitate to extend its reach to individual behavior and conduct...

...Ultimately, of course, plenty of produets can be dangerously misused, including motor vehicles, knives, matches, alcoholic beverages, power tools, and so on...

...Using regulatory statutes such as the Glean Air Act and the Clean Water Act, the Clinton-Gore EPA has sought to eriminalize negligent conduct, thus placing corporate officials and employees in jeopardy of going to jail for paperwork errors unaccompanied by any intent to commit crimes...

...What is in fact defective about the litigation is the government's legal strategy...

...If the product or sen,ice, however legitimate, is viewed unfavorably by politically powerful elites (read: cabinet officers, sub-cabinet officers, and federal regulators), the company or industry--and its employees--are targeted for harassment, prosecution, and ultimate extinction...

...The administration is allied with city mayors who see an easy way to divert attention from the real causes of crime in their jurisdietions, and who salivate over"found" money to replenish their coffers...

...Administrative errors, some committed by bureaucrats, others no doubt committed by providers, thus set the stage for government use of tools based not on their legal appropriateness, but on their ability to bring opponents--with deep pockets-to heel...

...Adoption of such a theory by the courts would create unlimited liability exposure for all variety of manufactures, dramatically reducing new and existing product development...

...Over centuries of Anglo-American jurisprudence, the courts have never recognized as legitimate the wholly irrational notion that the maker of a product is liable for the improper use to which it might be put by a retail purchaser or subsequent user...

...This level of Big Brother disregard for privacy and Fourth Amendment rights was the kind of obvious overreaching that couldn't be sustained even at this advanced stage of administration callousness...

...If the legacy proceeds unencumbered, American prosperity will suffer in innumerable ways, and we will all be the poorer...

...In secret deliberations, flagrantly violative of government "sunshine" laws, the Clintons and their friends initiated a bmadscale effort to nationalize the health care system of the nation, contrary to free-market principles that had produced a system which is the envy of the globe, and contrary to the express wishes of the American people...

...By abusing legal principles and process, however, something even more important is being eroded: the basic rights of Americans enshrined in our Constitution...

...vN The American Spectator _9 September 2000 51...

...Glass action claims, seeking to have guns labeled as inherently defective, are being filed against the gun makers to shift responsibility from those who pull the trigger to those who make the firearm...

...The administration's cavalier disregard of the First Amendment's free speech guarantee in this case is hardly an isolated example...

...This in fact is the ease with the administration's abusive use of the criminal law as a new and dangerous tool in regulatory enforcement...

...Only when the attack is so blatant as to patently jeopardize the sense of freedom enjoyed by millions of Americans does the administration backtrack...

...Not to be dissuaded when this "reform" was soundly defeated at the polls, the Clinton Justice Department set about to harass health care providers by invoking the Civil War-era False Claims Act to pursue payments for errors in Medicare and Medicaid reimbursement that were presumed fraudulent...

...In each case, the current Washington regime, in close consultation with its friends in the media, concludes these lines of commerce have undesirable BOB BARR represents Georgia's seventh district in Congress...

...Using a statute specifically intended to empower prosecutors to bring organized crime syndicates to justice, this abusive use of RICO demonstrates that when legitimate industries are cast as public enemies, the true victim is not only a company, but each and every member of the public, as the guarantees of the Bill of Rights are cast aside in the name of political correctness...

...Yet that is exactly what this administration seeks to do...

...D espite the constitutional protections afforded Americans to own firearms, the administration has targeted this product and its makers for extinction...

...As a result, many honest health care facilities were threatened with massive penalties that would have bankrupted them...

...On this score, the damage done to our legal system by the Clinton-Gore team threatens to cripple for many years to come the entrepreneurial spirit and individual freedom that have always driven &nerican prosperity...

...Over and over we see that when the administration selects a commercial enemy, the rights of the people vanish...

...n a matter of months, the Clinton-Gore administration will be history, and the stench emanating from its abusive use of public office--from Travelgate and illegal campaign fundraising to perjury and national security scandals--will have a chance to lift...

...Indeed, a study by John Lott of Yale University demonstrated that Americans use guns defensively about 2. 5 million times per year...

...The FDA consistently seeks to choose winners and losers in the pharmaceutical industry by restricting the free flow of information, thus compromising both the rights and the health of Americans...

...Bringing opponents down is the only explanation for the administration's reinvention of antitrust law against Microsoft...

...What becomes acceptable for the government to do to a multi-lnillion dollar business, becomes no less objectionable when the target is a "morn and pop" laundry business, or an employee who has arranged with his employer to work on a computer at home...

...Handguns sold by manufacturers are said to be unreasonably dangerous or "negligently manufactured" because gun makers have not employed administrationfavored features designed to prevent "unauthorized" users from firing guns...

...Through an administration taking legitimate issues, distotting them for the benefit of narrow political constituencies, and then transforming (or in some cases inventing) legal authorities to address its distorted view...

...It is not only large enterprises or major industries that are at risk...

...I~e most abusive use of law in this context, however, must be reserved for the administration's RICO claims...

...Unlike high tech, both commercial enterprises extend back centuries...

...With no legal foundation to pursue lawful tobacco enterprises, the administration, working with trial lawyers and state attorneys general, has simply chosen to ignore existing rights and invented a whole new set of legal obligations and liabilities...

...How did Washington become so permeated with legal abuse...

...Given the reach of federal regulation throughout the economy, such a policy places the Fifth Amendment due-process rights of all Americans in grave danger...

...It then proceeds to unleash the full resources of a vast federal bureaucracy against them...

...After nearly a century on the books as protector of competition, government regulators suddenly discovered that antitrust law could be used to punish successful entrepreneurs, such as Bill Gates and Microsoft, whose cutting-edge technologies were leading to integration and synergies in computer applications...

...In the case of tobacco, government subsidies have existed for decades (including during the Clinton administration), and public awareness of reward and risk (including to health) extend as far back 50 S ep t e m b e r 2 o o o " The American Spectator as its seventeenth-century origins as a controversial but legitimate commercial commodity...

...The firearm holds a constitutionally privileged status unique among commercial products...

...We are prosperous because we are flee, and right now our future freedom depends on defeating the Clinton-Gore unholy war against commerce sinfully being waged in our name...

...Following soon thereafter would be the Constitution's guarantee of the right to bear arms...

...Although it is too early to tell how the Microsoft litigation will end, these extended government investigations and lawsuits guarantee that targets will experience the kind of pain associated with a war of attrition...

...The violence inflicted on the First Amendment by these policies is matched by the administration's denigration of Second Amendment rights in its campaign to abolish the firearms industry...

...True to form, that is precisely what has happened as Clinton-Gore officials boldly "mix and match" their enforcement powers arbitrarily to undermine fundamental civil liberties, increasingly making denigration of due process safeguards the accepted norm...

...In ease after ease, there is no mistaking the legacy of abuse of the law that the Clinton-Gore administration aims to bequeath to the nation...

...However, this administration, like every one before it, leaves a legacy not only by its actions, but also by the policies it has advanced...

...In place of traditional risk and reward, and a neutral system of laws narrowly designed to keep playing fields level, this administration has put in place a radically different paradigm: Business faces legal risk based on the popular political correctness of its enterprise...

...Nothing endangers liberty more directly than relieving government prosecutors of having to prove defendants acted with criminal intent before imposing criminal liability...

...Neither the law nor the economics supports the theory...

...Unfortunately, most Clinton-Gore attacks on commerce and freedom have escaped the public's attention...

...Firearms can be used for a wide variety of sports activities as well as for self-defense, making the product especially valuable-- even life-saving-in many circumstances...

...The variety of commercial activity in the administration's crosshairs comprises a breathtaking assortment: health care providers, software makers, firearms manufacturers, tobacco firms, pharmaceutical companies, and petrochemical producers, among others...

...features that only government can correct, solve, or perhaps dispose of entirely...

...Many Americans were concerned, and properly so, about effective health care delivery...

...How big is the administration's enemies list...

...The abuse often is worst where public attention is low or nonexistent...

...If guns are going to be singled out for a "fix" that cripples their quick, effective use for selfdefense--as the government's technology fixation would do--the very notion of selfdefense is destroyed...

...As a former prosecutor, I am acutely aware of the enormous power of government, once it invokes the criminal law powers of the state, to deprive individuals of life, liberty, and property...

...Indeed, studies have shown that revenue from tobacco taxes clearly exceeds the external costs of smoking-- evidence that negates the supposed claim of financial harm and need for public health cost reimbursement...

...Certainly big enough to encompass not only individual companies and entrepreneurs, but entire industries...

...Firearms and tobacco are cases in point...

...The government's "racketeering" allegations seek to hold tobacco companies newly liable for their advertising campaigns, and seek to force the funding of "corrective speech...

...Under the administration's tortured legal logic, the Medical Care Recovery Act and Social Security Act authorize mass tort litigation against the tobacco industry to reclaim public medical costs associated with industry-related illnesses...

...This was the case when the administration was compelled to retract a Labor Department policy that made employers responsible for the occupational safety and health of their employees even when those workers were working at home...