The Ambiguity of The American Constitution on Interest Groups
Written By:
Helen Grigoriou
Barbara Tzavaras
Yolanda Pinazo
We have all heard of interest groups and how they are an intregal part of the American democratic system. Interest groups are organized factions that seek to influence public policy. Naturally, they have their own best interests at heart and these often oppose the interest of some other interest group. People have different opinions on the positive or negative contribution of these groups in politics today. Yet, what does the American Constitution, a document that is very important to every American, have to say about these influential organizers?
Surprisingly, not very much. The Constitution does not explicitly address interest groups or offer a way to deal with them. This of course, is very understandable because they were not around during the time of the writing of this great document. That does not mean that the issue of factions was not addressed. As a matter of fact, James Madison was concerned about just this thing. He wrote many Federalist papers and one of the issues he examined was the issue of organized parties and groups. He felt that these groups could cause major divisions in the American society and that this was something that people should be aware of.
Madison warned of the dangers of factions, but he also argued against suppressing them. This might seem somewhat contradictory at first but carefully examination of his views shows that he had a reason for feeling this way. Although he was aware of the dangerous of organized influence, he was also objective enough to realize that limiting the actions of such groups had the potential of limiting the action of the American people as a whole. The fundamental liberty of freedom of speech would be jeopardized.
The First Amendment allows people to petition the government, and lobbying is an organized form of petitioning. Indeed, many people feel that interest groups are a good thing because they broaden representation of the people and evoke healthy political debate when opposing interest groups arise to counter an existing one. Unfortunately, this does not take into account that such organization requires money and therefore poor interest cannot be properly represented. Yet, we cannot deny that lobbying is an intregal part of our political system. There are thousands of lobbyist today who push forth the concerns of various interest groups.
Just because the Constitution does not address this issue, that does not mean that interest groups and lobbyists may do as they please. As a matter of fact, at the turn of this century this very issue was debated and a Seventeenth Amendment was proposed which took to task, among many things, the influence of special interest in the Senate. Although the Amendment failed to get ratified, it shows that the issues present with interest groups are a concern for the government.
Recent restrictions have been placed on the actions of lobbyists and the influence they have over politicians. Legislation allows for public financing of presidential campaigns. Equal amounts are paid to each party strictly for this purpose. This alleviates some of the need to go to outside help, like interest groups, to get money for a campaign. Also, lobbyists must now register under strict guidelines and are obligated to publicly disclose their actions. Every six months, the must provide detailed accounts of the money they have spent and who has received it. There is also pressure placed on politicians not to accept or seek out rewards that might put them at a substantial advantage over their opponents. Politicians must also keep in mind that the public is aware of their actions. This might limit them in offering favors or promising a certain interest group they will vote according to its' concerns if they are paid for their vote.
The interest group system is inherently unbalanced and this is an issue which continue to be addressed. Although the Constitution may not provide clear cut and precise ways to deal with this issue, people are working within its' boundaries when trying to find a solution. We must be aware of the importance of protecting the freedom of speech guaranteed to us by the First Amendment, while trying to balance out the injustices inherent in these organization.
To find out more about the proposed Seventeenth Amendment go to: http://nhumanities.org.Hoebeke.htm
To get more information about interest groups and lobbying go to: http://www.usnews.com/usnews/wash/lobhigh.htm
INTEREST GROUPS AND THEIR EFFECTS ON POLICY MAKING
We have seen over the year's changes taking place in regards to cigarette smoking and how interest groups have influenced our government with decisions on the issue. There is a proposed National Settlement that is currently being debated and the outcome well certainly change peoples lives one way or another.
The American Lung Association (ALA) believes that we need to stop tobacco production before many more people are seriously affected either by they themselves being smokers or merely by being innocent bystanders. This proposed deal will require tobacco companies to released documents relating to health affects to cigarette smoking. The American Lung Association created a Tobacco Advertising Advisory Committee to help in the control and regulate in a way the tobacco industry and their advertising. They propose that the use of human images and cartoon characters should be banned. What they hope to gain from that is that youngsters will not be attracted by these ads to want to smoke or even try to smoke at any given time in their lives. Advertising in publications for ages 18 and over for cigarettes should be limited to black & white ads only showing the products package. There shouldn't be any props or scenery allowed except for the warning label on the box. Not only are smokers risking their health directly by smoking but non-smokers are affected just as much as the former. What we know is that one out of every four smokers dies early because of smoking. We are seeing a lot more places turning smoke-free, because people are beginning to realize that this is serious and that if nothing is done about it many more innocent people will die.
The American Lung Association opposes the Tobacco deal, which the U.S. Tobacco companies and Attorney General from several states announced. The proposed settlement, which they announced is a deal that the Tobacco Companies will pay the States an amount of $368.5 Billion dollars over a period of 25 years to treat smoking, related illnesses. Because the deal is very complex the Congress needs to give its approval. Issues such as the FDA (Food & Drug Administration) authority to regulate tobacco advertising and promotion, youth access to tobacco products, environmental tobacco smoke and immunity for the Tobacco Industry from future lawsuit. Given the fact that the industry has been known to lie about danger's associated with tobacco smoke the American Lung Association feels that Congress should not consider the deal because we will be in for more tobacco industry manipulation since there are a lot of flaws associated with that particular deal. Several of these flaws are that the FDA's authority to regulate nicotine, as a drug would be limited. The tobacco companies would still continue to advertise which reaches children and teenagers. The companies would be protected by legal liability. The companies would not be required to reveal internal documents not already released. The money would be tax deductible. The money that they would need to pay as penalties would be easily handled by the industry since it would be set so low. Furthermore, if this deal were to go through the ALA feels that their efforts to educate to the public on the dangers associated with smoking would have all gone to waste because the industry would have legitimate power since tobacco smoke will be seem as appropriate and safe behavior.
The tobacco industry on the other hand feels that this settlement is not such a bad idea for them. With regulation set by Congress in regards to the settlement the industry will have a definite set of guidelines in which to go by to decide what they can and cannot do. To their advantage in a way the legal judgements and payments for people that have sued the industry will be capped at $5 million each year with any excess judgements to be carried over to the next year. This will be able to handle any lawsuits brought against them since the amount is capped every year. Individuals wanting legal action for any wrong inflicted upon them because of tobacco will not be able to sue anyone other than the tobacco manufacturers. The industry will pay $60 million to settle punitive damage but any claims for past conduct will be barred. The money will be used for public health initiatives rather than payments made to individual litigants and their lawyers. If payments by the industry are to exceed the settlement judgement brought on by class action suits they will be barred. Companies such as Phillip Morris, Inc., R. J. Reynolds Tobacco Company and others feel that the settlement will be good also because hundreds of thousands of Americans will continue to be employed and the companies will also continue to contribute to U.S. economy. t The industry on the other hand is not very happy with some people's suggestions for an increase on taxes on tobacco products and they feel it is unfair for their customers and also for their employees.
In conclusion we can see how interest groups affect policy making in the United States by constantly having opposing arguments and ideas on a particular problem in society. Although, they are giving up some "freedom" to get the agreement final the tobacco industries want to put this issue at rest once and for all. For many decades there has been a conflict and a debate on cigarette and tobacco effects on individuals who use them. The industry had kept the truth from the public for too long and perhaps now they are really at the point where the need is there for some kind of a peace offering or resolution to the big debate. It's now up to Congress and the President to decide which way this will go. Clearly even if the settlement goes through many that oppose it such as the ALA will not be very happy but in our society and everywhere in the world a lot of things that happen are not always for the good of the society. Whether the settlement will change the tobacco industry one way or another we'll have to wait and see and perhaps things will become more evident as time goes by.
Addresses
www.epa.gov/iag/pubs/etsbro.html
www.tobaccoresolution.com/index5.html
CONSTITUTIONALITY OF FIRST AMENDMENT ON TOBACCO ADVERTISEMENT:
The Tobacco industry is asserting that it is unconstitutional for Congress to restrict the advertising of Tobacco products.
Therefore , the companies say , in order to for tobacco to be restricted, they must give their consent , which they will not do unless Congress gives them unprecedented special protection from their legal liability.
This memorandum explains why the provisions restricting the advertising and promotion of tobacco products being considered in pending legislation to implement the so- called "global tobacco settlement" pass muster under the first amendment. The memorandum then turns to an analysis of the "commercial speech " doctrine and an explanation of why the advertising restraints under consideration by Congress do not violate the First Amendment.
THE RECORD ON TOBACCO USE BY MINORS
According to the FDA 9 the Food and Drug Administration ) , each day 3,000 children under the age of 18 begin to smoke regularly . Of the 3,000 children a day who become addicted to tobacco , no fewer than 1,000 will die prematurely as a tobacco use. Well over 80% of adult smokers started when they were children or adolescents ; very few people start smoking after the age of 21.
Thus , the FDA's finding that tobacco targeted to children often plays a pivotal role in adolescent's decision to use tobacco products. The sophisticated marketing tactics used by the tobacco industry prey on this highly vulnerable population that , by and large , is not capable of fully appreciating the gravity of the health risks inherent in tobacco usage.
Without any doubt the tobacco companies have long targeted the youth market. The most clear evidence of this is the notorious R.J'Reynolds "Joe Camel" campaign. Thirty percent of three- year olds and 90% of six-year olds understood that Joe Camel was a symbol for smoking.
Confronted with substantial evidence of this sort , the FDA concluded that tobacco advertising has a powerful impact on children and that the persuasiveness and imagery used in tobacco advertising erodes the ability of adolescents to understand the significance of the health risks and the strength of the addictive power of tobacco products.
GENERAL FIRST AMENDMENT PRINCIPLES
The "commercial speech " doctrine is a relative newcomer to constitutional jurisprudence. As recently as the early 1970's , the law was quite clear that the First amendment did not protect commercial speech. It was not until the Supreme Court's landmark ruling in Virginia State of Pharmacy v. Virginia Citizens Consumers Council , Inc., (1976) , that the court held that commercial speech - speech that proposes a commercial transaction- is entitled to some degree of First Amendment protection , although significantly less protection than core political speech.
Since 1980 , every commercial speech has been evaluated under what has come to be called the "Central Hudson " analysis.
That text inquires:
-first , whether the speech concerns a lawful activity or is misleading
-second, whether the government's asserted in regulating speech is substantial.
-third, whether the restraint directly advances the government's interests : and
-fourth, whether the legislation is no more extensive than necessary to serve the government;s interests.
THE FIRST AMENDMENT DOES NOT ENTITLE THE TOBACCO COMPANIES TO MARKET THEIR PRODUCTS TO MINORS
Under the central Hudson analysis , regulating the advertising and promotion of tobacco products is acceptable under the first amendment for two fundamental reasons : first , the restraints seek to prevent the tobacco industry from persisting in illegal efforts to market their products to minors ;and second , the restraints are an eminently reasonable way of achieving Congress' legitimate goal of reducing the number of children who begin using tobacco.
_Tobacco Advertising Can Be Strictly Regulated Because It Relates To An Illegality-- Selling Tobacco Products To Minors.
The First Amendment does not protect commercial speech that proposes or is related to an illegal transaction. The first and most basic reason why the advertising provisions pass muster the First Amendment is because they are designated to bar the tobacco companies from continuing to illegally market their products to minors.
We know now that most smokers are initiated into tobacco use as children and become addicted as children, although selling tobacco products to minors is illegal.
_The Government's Interest Is Substantial
There can be little question about the substantiality of the government's interest in preventing the addiction of children to tobacco products.
The FDA has concluded that limits on advertising will avert the addiction of between 25% and 50% of the children at risk. Preventing the addiction of 250,000 youngsters or more each year is surely a governmental interest of the highest order.
Indeed the Court has often held that protecting children from harmful messages "is an extremely important justification " for imposing restraints.
A" DEAL"WITH THE INDUSTRY WOULD NOT FORECLOSE CHALLENGES TO AD RESTRICTIONS
Some argue that the advertising restrictions proposed in various bills would survive First Amendment attack.
Those who support the tobacco deal have argued that they may not. Others argue that if the restrictions could pass constitutional it would take many years of ligitation and delay which should be avoided.Their plan is to give the industry protection from its legal liability and in exchange the industry will sign consent decrees "voluntarily" promising not to challenge the restrictions.
CONCLUSION:
At bottom , the industry 's plea for limitations on liability comes down to the bald proposition that, if congress wants the industry to stop marketing to children , it has to give the industry the immunity it craves.
Congress should not enter into this bargain , and nothing in the First Amendment compels it to do so.