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Excerpted from Howard Phillips Issues & Strategy Bulletin of June 15, 1998

WILL CONGRESS UNCONSTITUTIONALLY CONVICT AND SENTENCE TOBACCO COMPANIES?

J.V. Schwan, a policy analyst for legal affairs at Citizens for a Sound Economy, (Capitol Comment, 5/18/98) observed that when "drafting the Constitution, our Founding Fathers were acutely aware of an elected legislature's vulnerability to shifting political winds, and the potential for opportunists to single out, condemn, and politically punish the unpopular. That is why Article I, Section 9 of the Constitution prohibits the United States Congress from issuing ‘bills of attainder.’ A bill of attainder is a legislative act that inflicts punishment without judicial trial.

"The tobacco industry is unmistakably politically unpopular. Their less-than-forthcoming statements on nicotine and smoking in general leave much to be desired. However, when they've had their day in court – except where legislatures like Florida's and Maryland's have stripped them of their affirmative defenses – they have prevailed before juries."

A BILL OF ATTAINDER WHICH THREATENS THE LIBERTIES OF EVERY AMERICAN

"Unsatisfied by citizen jurors' continuing affirmation of the primacy of individual freedom and individual responsibility, some Members of the U.S. Senate have joined in a bipartisan effort to take the law into their own hands. But the fines included in the McCain legislation, totaling some $122.5 billion, clearly suggest that the Senate is well on its way to enacting legislation that amounts to a bill of attainder that may very well be struck down as unconstitutional. The United States Supreme Court will find a bill of attainder when:

" The legislation identifies a specific group or person: Section 402 of the National Tobacco Policy and Youth Smoking Act clearly identifies a ‘specific group or person.’ It provides, ‘payment shall be apportioned as follows: (A) Phillip Morris-65.8% (B) Brown & Williamson Tobacco Co.-17.3%... .’

" The legislation inflicts punishment on that group or individual. The speeches by Members of Congress and the President of the United States clearly indicate that the purpose of this bill is to punish the tobacco industry by forcing it to pay billions. The alleged ‘wrong’ committed by tobacco is marketing to the youth of America; the punishment is the payment of hundreds of billions of dollars over six years.

" The legislation provides no benefit of trial. Nowhere in the Tobacco Act are the tobacco companies afforded the right to protest or defend against this payment. Hearings on Capitol Hill are not an acceptable substitute for a trial. If the government wants to punish the tobacco companies, the Constitution mandates that they take the companies to court.

"By seeking to punish the tobacco industry through the legislative process, Senator McCain and his allies are establishing a dangerous precedent. Alexander Hamilton expressed this danger best when he wrote: ‘[I]f [the legislature] may banish at their discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe.’"

The Wall Street Journal (6/3/98, p. A18) reports "Senator John McCain's tobacco-tax bill promises to turn a passel of plaintiffs lawyers into billionaires. As if that's not enough, House Republicans Greg Ganske and Charlie Norwood are proposing to open up previously exempt parts of the health-care economy to liability suits. If a Democratic Congress tried to do anything at all like this, Republicans would be rending their garments on the Capitol steps."

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