Constitutional Extortion

This article appeared in the Washington Times on September 27, 1999.

Never trust a politician in search of more revenue. Which is essentially every one of them all of the time. Certainly that is the lesson of the Justice Department's lawsuit against the tobacco industry.

It's hard to be sympathetic to "Big Tobacco." The companies profithandsomelyfrom a product that kills. Why shouldn't the federal government seekreimbursement for costs caused by smoking? "The tobacco companies shouldanswerto the taxpayers for their actions," argues President Clinton.

His argument is superficially appealing, but he should apply theprincipleconsistently. For instance, poor people get into car accidents and thegovernment pays their medical expenses. Why shouldn't Chrysler, Ford andGeneral Motors have to reimburse the Medicaid program?

Some people without adequate private health insurance get injured whilehang-gliding, rock-climbing, skateboarding, surfing, and engaging in anynumberof other risky activities. The Justice Department should sue the productmanufacturers and property owners.

Moreover, the government covers the medical bills of people who are shot,abuse alcohol, fall off of ladders, get injured playing football, trip downstairs, and suffer heart attacks after a lifetime of eatinghigh-cholesterolfoods, red meat and sugar. Washington could fill the courts withreimbursementlawsuits.

However, in all of these cases there is an intervening actor - theinjuredperson. He or she already has a potential cause of action and is entitledtosue. If the "victim" can't win the case, the federal government shouldn'tbeable to do so.

Recovery is often impossible because the person bears substantial if notcomplete responsibility for the injury. Someone who fails to wear hisseatbelt,wants the adrenaline rush of skydiving, enjoys the buzz of drinking, orindulgesin a chocolate-full diet can ill complain when injury or death occurs.

So, too, is it with cigarettes. The tobacco industry has won virtuallyeverysuit against it. It is hard to demonstrate that cigarettes harm anyparticularperson; while they certainly increase the risk of death, as Robert Levy oftheCato Institute has shown, the numbers are routinely inflated by ignoringtheimpact of smokers' other harmful behaviors.

More important, smokers voluntarily assume the risk of smoking. Theprice offreedom is accepting responsibility for the consequences of one's actions.

The danger of cigarettes has been known for decades. Moreover, theydon'tlight themselves and leap into people's mouths. Quitting can be hard, butpeople do it every day. In fact, there are nearly as many former smokersassmokers in America today.

There is an even more fundamental objection to the federal lawsuit. Itisbased on a lie. Smoking does not generate unavoidable, uncompensated costsforgovernment.

First, Washington chose to both provide health coverage forsmoking-relatedillnesses and allow beneficiaries of government programs to smoke, despitetheknowledge that doing so would be costly; the government therefore cannotarguethe expense was forced on it. (Last summer Congress almost decided torefuse tocover veterans' smoking-related illnesses.) Having made that choice,Washingtonshould count the bill as an expense of a free society.

Second, government at all levels has been collecting far more than it hasbeen spending as a result of smoking. The costs of smoking are obvious,butmost are borne by the individual.

Of course, through government programs the public still pays asubstantialamount, but there are counterbalancing cost reductions and revenuecollections.The point is, when people die young the government spends less on other,oftenmore expensive, health care treatments, such as nursing care.

The evidence is indisputable. Duke University economist W. Kip Viscusifigures governments at all levels probably save about about 53 cents a packinnet medical expenses. (The overall gain is smaller but still positiveafterincluding such factors as lost tax revenue.)

Several other researchers published a study in the New England Journal ofMedicine that came to a similar conclusion. They explained: "If peoplestoppedsmoking, there would be a savings in health care costs, but only in theshortterm. Eventually, smoking cessation would lead to increased health carecosts."

Premature deaths from smoking-related ailments are still tragic, ofcourse,but the government's basic claim, that it is losing money due to smoking,isfalse. If Washington hasn't been injured, it isn't entitled tocompensation.

Then there's the already high tax on cigarettes, averaging almost 53cents apack. That is pure government profit.

It's obviously tempting to say: Let the tobacco industry pay. Butconstitutional principles as well as corporate revenues are at stake. Legalextortion has no place in a nation that claims to be governed by the ruleoflaw.