[Congressional Record (Bound Edition), Volume 145 (1999), Part 16]
[Senate]
[Pages 23557-23559]
[From the U.S. Government Publishing Office, www.gpo.gov]



                      THREE BRANCHES OF GOVERNMENT

  Mr. GRAHAM. Mr. President, I wish to speak on an issue which has 
already been addressed by several of our colleagues earlier in the 
week. Initially, I was reluctant to discuss this matter for fear of 
contributing to a charge of politicization of an issue which, in my 
judgment, should not be thought of as political but, rather, one to be 
judged and decided in the finest traditions of our Nation, the 
relationship of each of the branches of Government carrying out their 
appropriate responsibilities.
  The reticence I had to discuss this issue was overcome when I heard 
some of the comments made about our Justice Department and about our 
Attorney General relative to the decision made to file civil claims on 
behalf of the Federal Government and the citizens of the United States 
against the tobacco industry.
  The purpose of my remarks this afternoon is not to rebut comments 
made elsewhere; rather, it is my purpose to remind our colleagues of 
the bedrock principles upon which this body, upon which our Federal 
Government operates, the rule of law and the separation of powers.
  The level of rhetoric on the question of whether the Federal 
Government should have initiated civil litigation against the tobacco 
industry has been very high. The level of analysis, unfortunately, in 
my opinion, has been quite shallow. In their haste to spring to the 
tobacco industry's defense and to, once again, heap partisan abuse upon 
the Attorney General and the Justice Department, some Members of 
Congress have disregarded the very nature of our system of government.
  I have heard it said the Justice Department suit violates both 
separation of powers and the rule of law. In my opinion, these 
accusations turn the structure of our Government completely on its 
head. Nearly 200 years ago, Chief Justice John Marshall explained the 
powers of our coordinate branches of Government. In Marbury v. Madison, 
the seminal decision which established the concept of judicial review, 
the Chief Justice wrote: The powers of the legislature are defined and 
limited and that those limits not be mistaken or forgotten, the 
Constitution is written.
  The Chief Justice went on to say it is emphatically the province and 
duty of the judicial department to say what the law is.
  For the last 200 years, the American people have understood the 
respective roles of the three branches of Government. As the national 
legislature, our duty as Congress is to find and limit it to the role 
of making law. It is the executive branch's role, in part through the 
Justice Department, to enforce that law. It is the Judiciary's role to 
interpret the law. Each branch of Government must be left to do its 
work without interference from the other branches.
  We in Congress have already done our job. We have made the laws which 
the Justice Department now seeks to enforce. Whether the Justice 
Department ultimately prevails is left to a third branch of Government, 
the judiciary. The only threat to the rule of law in filing this 
litigation on behalf of the American people against the tobacco 
industry is posed by those who seek to step beyond their proper 
relationship and usurp the power granted by the Constitution to other 
branches of Government. It is neither wise nor right for members in the 
legislature to attempt to tell the executive how to enforce the laws or 
to tell the courts how to interpret the laws. If we practice 
jurisprudence by press release, we become lawmakers, law enforcers, law 
judges. If we have learned anything at the end of this millennium, it 
is that such an aggregation of power is the antithesis of the rule of 
law and is, instead, the imposition of tyranny.
  Throughout the world--from East Timor to Kosovo to Cuba--we encourage 
other countries to follow the rule of law. We must do no less here. We

[[Page 23558]]

have the greatest judicial system in the world. It resolves disputes 
based on evidence not rhetoric. Let us allow our court system to 
adjudicate this dispute without congressional interference.
  Undoubtedly there have been instances when individual Members, if not 
a majority of the Senate, have questioned the wisdom of lawsuits 
brought by the Justice Department.
  When powerful industries violate federal law, it is not uncommon for 
them to seek congressional interference. When individuals or groups 
have used their power and privilege to dominate others, and that power 
was challenged by the law, they have shrilled--``foul.''
  Many disagreed when President Theodore Roosevelt's Justice Department 
sued to break up Standard Oil. Similar complaints were heard when 
President Reagan's Justice Department sued AT&T.
  And we can all remember the outcry in some quarters in the 1950's and 
1960's when the Justice Department sought to enforce civil rights 
guarantees.
  While some influential members might have advocated congressional 
intervention, in none of those cases did the Congress step in to 
attempt to tell the Justice Department whom it can or cannot sue. We 
must not do that now.
  Some have asked why Congress was not consulted prior to this suit 
being filed. The questioners appear to have forgotten much of what has 
happened in the last year.
  Setting aside the fact that the Justice Department has no obligation 
to ask Congress for permission to enforce the law, Congress was well 
aware this litigation was under consideration.
  In his State of the Union address, the President discussed the 
possibility of this tobacco suit, by announcing that he had asked the 
Justice Department to prepare a litigation plan against the tobacco 
industry. Specifically, the President said:

       So tonight I announce that the Justice Department is 
     preparing a litigation plan to take the tobacco companies to 
     court--and with the funds we recover, to strengthen Medicare.

  It would have been hard to be clearer.
  Congress also considered the potential for a federal tobacco suit 
when it protected the states' tobacco settlements from federal 
incursion. In the budget resolution, passed on March 25, 1999, I 
offered a sense-of-the-Senate amendment which stated that the proceeds 
of a successful federal lawsuit should be used to shore up the Medicare 
Trust Fund and help to establish a prescription drug benefit. That 
amendment passed without dissent.
  In March of this year, during debate of the budget resolution, the 
Senate defeated an amendment offered by Senators Specter and Harkin to 
place strings on the states' tobacco settlements. Several Members of 
this body, including myself, stated that if the federal government 
believed it had claims against the tobacco industry, the Justice 
Department was free to bring those claims but that the Federal 
Government should not attempt to recoup State settlement proceeds. The 
matter was discussed yet again when the Commerce, Justice, and State 
Appropriations Subcommittee attempted to impede the Justice 
Department's ability to pursue litigation against the tobacco industry. 
Not only was the offensive report language effectively removed through 
a colloquy, the chairman of the subcommittee expressly acknowledged 
that:

       Nothing in the bill or the report language prohibits the 
     Department from using generally appropriated funds, including 
     funds from the Fees and Expenses of Witnesses Account, to 
     pursue this litigation if the Department concludes such 
     litigation has merit under existing law.

  Quite obviously, the Justice Department has reached the very 
conclusion discussed on the floor of the Senate just a few months ago.
  Surely it is absurd to suggest that the Justice Department somehow 
blind-sided Congress with the announcement of this lawsuit. But again, 
these facts beg the question. The Justice Department does not need my 
permission or your permission, or the permission of anyone else in this 
body to do its job, which is to enforce the law. Conversely, if we 
attempt to prevent the Justice Department from doing its job, we are 
engaging in obstruction of justice. Others have questioned the 
motivation for bringing this suit. I believe the motivation for the 
Attorney General's decision is similar to that of the attorneys general 
in many of our states: to enforce the law--and by doing so--protect the 
American people and particularly the children of America.
  The suit seeks to end the cycle of addiction to nicotine, an 
addiction created in part by false advertising and advertising 
targeting the youth of our country. It also seeks to recompense 
taxpayers for the billions of dollars this addiction has cost them--the 
taxpayers of America. These are motivations which should be celebrated, 
not ridiculed.
  The merits of this case rightfully will be determined in a court of 
law--not in this body, not in the Congress. But since some of my 
colleagues have seen fit to put on their own imaginary black robes and 
pretend to judge this case, I would like to offer a few observations of 
my own.
  It has been argued that the civil RICO statute does not apply in this 
case because tobacco is a legal product. But this argument ignores the 
claims made by the Justice Department.
  The Justice Department does not allege that tobacco itself is 
illegal. Nor does it suggest that the tobacco industry broke the law by 
selling or marketing tobacco products to adults.
  Instead, the Justice Department argues that tobacco companies 
violated the civil RICO statute--a Federal law, of course, enacted by 
Congress--by conspiring to illegally market their cigarettes to 
children and by wilfully withholding critical information from the 
public and the Government.
  The tobacco companies have known for years what we are just beginning 
to learn. If they don't hook you early, they'll never hook you. And if 
they never hook you, their business dies. It's as simple as that. 
Tobacco relies by necessity on addicting our children.
  According to the Centers for Disease Control, 89 percent of all 
smokers begin smoking before age 18. So, Mr. President, does it 
surprise us that the tobacco industry has spent millions of dollars 
each year to addict our children? It certainly should not.
  But whether it surprises us or not, we have an obligation to do 
something about it. In this case, we should simply let the Justice 
Department enforce the laws that we have passed.
  As documents introduced in state court actions have demonstrated, 
some of the marketing efforts of these companies have been directed at 
children as young as 10 years old.
  The fact that tobacco is legal for adults does not give these 
companies the right to market their products illegally to children or 
to misrepresent or conceal information. These allegations, if proven, 
will constitute a violation of the RICO statute.
  I am even more disturbed by another argument made by the pro-tobacco 
forces. They argue that even if the Justice Department can prove the 
tobacco companies lied and illegally marketed their products, the 
Federal Government has suffered no damages because tobacco use imposes 
no net cost to the taxpayer.
  Let me restate that: the Federal Government has suffered no damages 
because tobacco use imposes no net cost to the taxpayer.
  Let us be clear on what is being argued here. Big Tobacco says that 
the taxpayers incur no increased costs because tobacco kills people 
prematurely. Therefore, the industry argues that the taxpayers save 
money by not having to pay out Social Security or Medicare funds to 
Americans whose lives are cut short by tobacco before they reach 65.
  I imagine there might be some who would congratulate the tobacco 
industry for saving us all this money by killing our fellow American 
citizens before they become a burden. I, for one, and I am confident 
the vast majority of Americans, would much rather spend money on Social 
Security and Medicare than have millions of our fellow citizens die a 
slow, a painful, and a premature death.
  Along with being a ghoulish and despicable argument, the industry's 
twisted logic that it has imposed no net cost

[[Page 23559]]

on the American taxpayer has also been properly rejected on public 
policy grounds.
  In January of 1998, the trial court in the Minnesota State suit 
against the tobacco industry upheld the motion of the State of 
Minnesota for summary judgment, effectively stating that the State of 
Minnesota had established its case with no further evidence required.
  In granting this motion, Judge Fitzpatrick ruled the tobacco industry 
defendants could not use the fact that they killed people prematurely 
to their advantage in defending against the suit.
  Predictably, the friends of tobacco also make another slippery slope 
argument. If the Justice Department can sue tobacco companies, they 
say, what other industries will not be safe? Will fast food or beef or 
dairy industries be the next in line?
  This argument is truly offensive. It is an affront to me personally 
and should be an affront to all legitimate owners of businesses, large 
and small, who contribute to this Nation, instead of destroying its 
health. My family happens to have been in the dairy business for almost 
70 years. I take great offense at the comparison between the tobacco 
industry and the dairy industry. Neither the dairy industry, the beef 
industry, fast food industry, nor any other is comparable to tobacco. 
The tobacco industry is unique. Only the tobacco industry has 
stonewalled and lied to the American public and the American Government 
for half a century about the known addictive nature of its products. If 
anyone in this body wants to argue that the dairy or beef industries 
are analogous to big tobacco, then I invite them to come down to the 
Senate floor and let's have that debate. Better yet, go to Florida or 
Wisconsin and tell cattle and dairy farmers they should be treated like 
big tobacco, an industry which depends on destroying the health of our 
children in order to succeed.
  Let's spend a moment talking about those children. When all the legal 
arguments and all the political rhetoric fall away, our children 
remain. They, not lawsuits, not politicians, are our most important 
concern. It is our children who have been the targets of a predatory 
effort by the tobacco industry to entice them into an addiction which 
will eventually kill them.
  We also know that early cigarette habits are directly related to 
other drug use. A 1994 Surgeon General report showed that cigarettes 
are a gateway drug, a significant risk factor to increased incidents of 
alcohol and illicit drug use.
  This report highlighted the relationship of teenage smoking as a 
precursor to the use of alcohol and drugs, including recent data from 
the National Institute on Drug and Alcohol Abuse's ``Monitoring the 
Future'' project which showed that 33 percent of those surveyed 
admitted to starting drinking at the same time they started the use of 
tobacco. This same survey also indicated that 23 percent of the 
respondents began using both cigarettes and marijuana in the same year.
  Importantly, 65 percent of the respondents smoked cigarettes before 
they used marijuana. This relationship was more pronounced for cocaine: 
98 percent of individuals who used cocaine first smoked cigarettes. 
Putting an end to the tobacco company's illegal marketing efforts 
toward our Nation's youth will reduce children's smoking. This, in 
turn, will go a long way to helping combat the use of other illegal 
drugs.
  I know the Justice Department's suit is not a panacea. It will take a 
combination of litigation and legislation to solve this problem.
  A court, for instance, cannot grant enhanced Food and Drug 
Administration authority to classify nicotine as a drug and cigarettes 
as a drug-delivery device, a powerful tool to prevent the tobacco 
industry from manipulating the product to addict even more people. Only 
Congress can give the Food and Drug Administration that authority.
  Should Congress find the tobacco industry responsible for the high 
rate of youth smoking, Congress may have to impose penalties on big 
tobacco based on the industry's failure to meet statutorily defined 
youth smoking reduction targets. A court cannot bind future entrants 
into the tobacco market to marketing and advertising restrictions which 
were entered into by the previous participants in the tobacco industry 
through a consent decree. That may also require congressional 
involvement.
  I stand ready to work with my colleagues on all of these and other 
necessary legislative issues, but this suit is, however, an important, 
a useful step in enforcing the rule of law. It is important in 
protecting our children and our grandchildren.
  I am proud to call Janet Reno a friend. As an American, I applaud her 
for her hard work, for her tenacity, and courage in the face of fierce 
partisan opposition. I say thank you, Madam Attorney General, on behalf 
of all of America's citizens.
  I thank the Chair. I yield the floor.
  Mr. MURKOWSKI addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. MURKOWSKI. Mr. President, I believe the combined leadership has 
come to the floor and we should give them our undivided attention at 
this time because I am sure they have something very important to 
advise the Senate. I will refrain from recognition and defer to my 
senior colleagues.
  The PRESIDING OFFICER. The Senate majority leader.
  Mr. LOTT. Mr. President, I thank the distinguished Senator from 
Alaska for allowing us to enter into some unanimous consent agreements 
and some colloquy that we have been working on for quite some time. I 
understand the Senator from Alaska may want to continue after we 
complete this.
  Mr. MURKOWSKI. I thank the majority leader, but I understand Senator 
Akaka has been waiting longer than I, so I will defer to Senator Akaka 
following the leadership pronouncements.

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