TOBACCO SUIT SHOULD GO UP IN SMOKE

There are no practical remedies for certain of Bill Clinton's many abuses of power. But President Bush has a golden opportunity to reverse one of them by directing the Justice Department to dismiss the government's lawsuit against the tobacco industry.

Now before any of you liberal readers (I know there are at least a few of you out there) convulse into a knee-jerk tirade against tobacco, remember that all companies, no matter how unpopular, are entitled to constitutional protection.

When Bill Clinton first launched his political and legal war against the tobacco companies, he told us he was doing so on behalf of taxpayers. Smokers, he insisted, cost taxpayers money, and tobacco companies have exploited smokers by making cigarettes more addictive.

What about Clinton's premise that smokers cost taxpayers money? Well, according to a well-respected study by Harvard economist W. Kip Viscusi, smokers actually save taxpayers money because, on average, they die at an earlier age than nonsmokers, which results in substantial savings in social security. It may sound cold, but it's true.

A June 1999 Congressional Research Service report confirmed that since smokers statistically die prematurely they save the federal government approximately $29 billion each year in health care costs.

And get this, directly from the report: "All in all, smoking has apparently brought financial gain to both the federal and state governments, especially when tobacco taxes are taken into account. In general, smokers do not appear to currently impose net financial costs on the rest of society."

Besides, the federal government hardly has clean hands to prosecute a lawsuit against tobacco companies. The government has been collecting taxes on tobacco and has subsidized tobacco farmers for years. Indeed, Clinton's punitive taxes on tobacco resulted in the government receiving a greater share of the profits from cigarette sales than the tobacco companies.

The government has long been aware of the risks of smoking. In 1965, Surgeon General Luther admitted, "It is our responsibility to point out that cigarette smoking is a great national health hazard, and to give you the citizen the best available scientific information with which to make up his own mind about smoking." Did you know that the military, until 1974, distributed cigarettes to servicemen with their C rations, provided discounts on cigarettes at post exchange stores and mandated smoking breaks? It also removed health warnings required for the retail market on tobacco products distributed within the military system.

Let's not fool ourselves, folks. This lawsuit had nothing to do with an innocent federal government protecting victimized taxpayers. Nor was it about protecting children, Clinton's favorite political prop. It was about transferring further wealth from tobacco companies into the government coffers to be used according to the statist appetites of President Clinton.

Worse than all of this, though, was the extra-constitutional means Clinton employed to pursue the tobacco industry. He was unable to prevail upon Congress to participate in his anti-tobacco crusade, so he decided to pressure the Reno Justice Department to do an end run around Congress and make policy through the courts.

Surprise, surprise. To her short-lived credit, Janet Reno initially declined to play ball. In April 1997, Reno, in testimony before the Senate Judiciary Committee, admitted that the federal government had no authority to bring a civil suit against tobacco companies to recover Medicare expenditures made by the government on behalf of people with tobacco-related illnesses. "The federal government," confessed Reno, "does not have an independent cause of action (to recover health care expenditures)." Not to worry. Clinton just bided his time. Ultimately, he prevailed upon Reno, in September 1999, to reverse herself and file the suit.

Last fall, Judge Kessler dismissed outright two of the three counts of the government's claim. She allowed the third count, a racketeering (RICO) claim, to survive. President Bush and General Ashcroft now have an opportunity to extinguish it as well.

This week it was reported that the Justice Department is requesting a staggering $57 million to finance this litigation, without which, it warned, it will have to dismiss it.

I wish that instead of letting the case die from lack of funding, President Bush and General Ashcroft would affirmatively dismiss it on principle and announce that they will not allow the executive branch to pursue Clinton's vendetta against tobacco. They, unlike their respective predecessors, will hopefully respect the separation of powers doctrine and leave policy-making to the democratically elected Congress and not the courts.

~David Limbaugh is a Cape Girardeau lawyer, author and syndicated columnist.