Criminalization of Everything
By Steve Lilienthal

A provision of the McCain-Finegold campaign “reform” act holds corporate and union officials who knowingly broadcast advocacy advertising 30 days before a primary or 60 days before a general election for Federal office criminally liable.

What the provision really does is to limit freedom of speech, specifically political speech, shutting off individuals, corporations, unions and other organizations and associations, from participating in the public debate when it matters most – shortly before an election. The fact that the penalty is criminal may indeed be a deterrent. But should an organization's political participation to the public debate during an election campaign be considered a crime? Fortunately, Rep. Roscoe Bartlett (R-MD) and Senator Saxby Chambliss (R-GA) are sponsoring the First Amendment Restoration Act (H.R. 3801/ S. 2702 or FARA) in the House and the Senate to rollback this provision.

Curtailing McCain-Finegold is a high profile case that is likely to draw many sympathizers, not least of whom include the executives and political activists of all ideological stripes who realize that the provision prohibiting them from running broadcast advertising shortly before a primary or general election for Federal office constitutes a gag rule. Unfortunately, FARA did not receive a roll call vote in Congress before the election: however, expect a renewed effort on its behalf next year. Congress, however, is very busy putting new laws on the books in every session, and many such laws have equally severe penalties, even though there may be no compelling Constitutional case to be made for Federal involvement.

A forthcoming book of essays from the CATO Institute (publication date: November 22, 2004), called Go Directly to Jail: The Criminalization of Almost Everything, examines the readiness of Federal legislators to define problems as violations of Federal law in cases where there is no Constitutional jurisdiction. CATO Senior Editor Gene Healey writes,

"Increasingly, legislators are coming to view the criminal sanction as merely another item in their regulatory toolkit. Want to show you're serious about a given social problem, whether it's pollution, corporate malfeasance, or e-mail spam? Make it a crime. In some cases, the criminal law gets invoked for matters more properly handled through civil lawsuits. In others, political actors use it to criminalize behavior that shouldn't be the subject of any legal sanction at all."

Nor is this just a problem at the Federal level. State legislatures are often launch pads for making crimes where none heretofore existed. For instance, should it be "unlawful for any person to appear in public wearing his pants below his waist and thereby exposing his skin or intimate clothing"? The Louisiana House Criminal Justice Committee thought so a few months ago when it approved such a bill that originally sought to penalize dressers in poor taste with a fine of up to $500 or six months in jail or both. The House voted down a revised version of the bill that replaced jail time with three days of community service and the possibility of a reduced fine of $175. No doubt many people agree with the intent of such a measure, but is it an appropriate function of law enforcement to be measuring the length of one's pants? Proper parenting of teen apparel may be a better solution.

The book is written from a definite Libertarian standpoint. There are indeed cases discussed in it in which social conservatives will find themselves cross-pressured given their deep-seated respect for tradition and symbolism. Florida's law against mutilating the Confederate flag, for instance, is not all that different from the intent of those who want a constitutional amendment to prevent flag burning. Nor does Go Directly to Jail directly address important social issues, such as ensuring parental rights in cases involving birth control, an area which many conservatives believe needs stricter regulations particularly as to those clinics that receive federal funding. On the other hand, conservatives have an equally strong respect for the intention of the nation's Founding Fathers, many of whom harbored a sincere desire to have the Federal Government regulate as little as possible.

One of the contributors, Erik Luna, Associate Professor of Law at the University of Utah College of Law, displays his Libertarianism by criticizing the "occasionally obnoxious religiosity of the ‘Moral Majority.'" Yet, there is truth to Professor Luna's arguments in arguing that thoughtless "overcriminalization" of the law serves to weaken the moral force of criminal law itself. No doubt many conservatives are likely to find themselves wishing that more in Congress asked themselves the succinct question that he has formulated: "Is this really necessary or just another crime-of-the-month?"

Another contributor, James V. DeLong, Senior Fellow at the Progress & Freedom Institute, is more diplomatic in making his appeal to conservatives for renewed interest in limited, prudent government. It is one that no doubt will strike many as true. DeLong writes:

"Political conservatives bear a particular burden. They need to reenergize their fight to convince people that the role of government must shrink because government intervention in any area will almost certainly lead not just to economic inefficiency, but also to an expansion of the criminal code and a delegitimizing of law, all of which damages society."

Social conservatives will no doubt take exception to the sweep of this statement yet there is enough basic truth that they should not readily dismiss it completely. Abortion is indeed a serious issue, increasingly recognized beyond those who are members of the "religious right" as the taking of human life. The protection of innocent life is a universal concern within our Judeo-Christian culture and therefore it is indeed a legitimate concern for government to protect the innocent.

At the same time many social conservatives own businesses, own property, and engage in many other activities that, given excessive regulation by the state and increasingly the Federal Government, easily could cause them to feel the heavy-hand of the law crashing down. American conservatism in general places great precedence on the thoughts that lay behind the drafting of the Constitution and it is one that Healey refers to in his chapter examining gun laws. He notes that there are only three "enumerated" crimes within the Constitution: counterfeiting, treason and piracy. He argues that the Federal Government's criminal-law jurisdiction is therefore quite limited. Furthermore, the limits were adhered to in the early years of our nation but over time more and more laws have been enacted.

Without doubt many of these laws have been added for good reason. However, many laws have been added that extend well beyond the purview of the limited conception expressed by the Constitution. The American Bar Association has found that forty percent of the Federal criminal laws enacted since the Civil War have been enacted within the last thirty-four years Such laws, the contributors argue, often represent the "criminalization of everything."

Wetlands policy as administered by the Environmental Protection Agency provides a perfect example. One example that should resonate with many property owners is the couple whose septic tank was leaky, which led to each receiving six months in jail and a substantial monetary fine. The Duells were wiped out financially even though it is by no means certain that their leaky tank polluted any waters.

Even those who advocate for protection of certain Constitutional liberties need to be fully cognizant of what they are supporting and its impact on other provisions within the Bill of Rights. In his chapter "There Goes the Neighborhood," Healey discusses the Bush Administration's implementation of "Project Safe Neighborhoods," which aims at cracking down on citizens who commit firearm offenses which were usually prosecuted in state courts, but, under this law, would now move to a Federal court and receive much harsher treatment, including imprisonment out-of-state. The Project's progenitor was an a initiative called "Project Exile," which was launched in Richmond, Virginia, which raised the level of prosecution for firearm offenses from state crimes to Federal crimes, a move that many 2nd Amendment supporters, including the National Rifle Association, heralded as cracking down upon the real abusers of guns: criminals. At the same time, the 10th Amendment was ignored by those in Congress, including many conservatives, who supported "Project Exile." Healey expresses concern that this program in its embrace of Federal prosecution for crimes once considered to be the legitimate purview of the states easily could lead to escalation of similar Federal statues dealing with hate crimes, sexual assaults and child abuse.

A byproduct of a measure such as "Project Safe Neighborhoods" is that it diverts the Federal courts into other matters what once were the purview of the state courts, contributing to the growing backlog of cases to be heard in Federal courts. Chief Judge Richard L. Williams, U.S. District Court for the Eastern District of Virginia (which encompasses most of Virginia's population), put it more colorfully, complaining that Project Exile, the forerunner to the national program, has "transformed [our court] into a minor-grade police court."

Healey takes on some gold-plated names of conservatism and libertarianism who embraced Project Safe Neighborhoods. He takes a swipe at social-issue conservatives for supporting the Federal overturning of state laws dealing with assisted suicide and medical marijuana but he is absolutely firm in his belief that Federalism is suffering because too many conservatives and libertarians are "fair-weather friends." What he writes, however, is thought-provoking and his criticisms should not be readily dismissed.

Other chapters in the book include examine how the Federal Medicare program encourages seniors to become tipsters, reporting their physicians for alleged abuse of the voluminous, indecipherable Medicare guidelines; mandatory sentencing guidelines; and the excessive enforcement of environmental laws by EPA aimed at reducing pollution.

The book does not provide any specific solutions, but one that Healey mentioned in an interview was proposed by Rep. Don Manzullo (R-IL) three years ago. His "Federalization of Crimes Uniform Standards Act of 2001" (H.R. 1998 in the 2001-2002 Congressional session) would have established a commission to review the Federal Criminal Code and then submit to Congress a report on whether individual offenses are "within core Federal responsibilities," whether efforts by state law enforcement have proven themselves inadequate, and what burdens they might impose on the Federal courts.

Rep. Manzullo explained the rationale for his bill: "The idea behind this (legislation) is to set a standard definition to what constitutes a federal crime. The current method seems to be that a federal crime is whatever Congress deems it to be, without any true consideration of the constitutional issues involved." He argued that our nation was evolving two separate law enforcement systems complete with different penalties and that federalization had brought about significant backlogs in Federal courts. More money for more Federal judges was an inappropriate response; a more appropriate one would be greater use of "our constitutional system of federalism and separation of powers."

The bill died a lonely death, never receiving a hearing in committee. Certainly, in cases involving Federal usurpation of state powers for domestic, non-terrorist related crimes the "Federalization of Crimes Uniform Standards Act of 2001" remains quite relevant. Healey notes that the 9/11 attacks led some commentator to advance the notion that Federalism has become obsolete. He refutes such thinking, arguing that "The constitutional distinction between what is properly local and what is properly national has never been more important, Combating the international threat of terrorism is a job for which the Constitution provides the federal government ample authority in the form of the power to declare war and to punish offenses against the laws of nations." At stake, he says, is our Constitutional heritage of limited government.

Growing federal budget deficits have led to renewed calls among conservatives and libertarians for a return to "first principles." The urgency of doing so runs beyond mere dollars and cents but involves respect for the proper differentiation of appropriate responsibilities between the States and Federal Government in law enforcement and what truly constitutes a crime.

Steve Lilienthal is Director of the Center for Privacy and Technology Policy of the Free Congress Foundation.

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