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Monday, July 04, 2016

Get rid of RICO laws

As long as RICO exists, the government will be tempted to use it to suppress free speech.

W e may be on the verge of a new era in which saying something with which those in power disagree is a criminal offense. Despite recent setbacks for the Virgin Islands AG, the feds are still trying to find ways to prosecute Exxon under RICO for expressing skepticism about global warming.

Some people assume that the prosecutions are merely intended as a shot across the bow: to intimidate corporations into either feigning agreement or remaining silent. But coercing citizens and corporations into silence is no small thing. RICO is a bad law, and until it is repealed the government will continue to use it against its political opponents.

It's not the first time America has gone down that road. Woodrow Wilson's Sedition Act of 1918, an extension of the 1917 Espionage Act, turned anyone who said anything negative about the government or about World War I into a criminal. During the two years it was in effect, it resulted in as many as 1500 prosecutions. RICO has been around since 1970.

Since then, RICO prosecutions have exploded far beyond their original purpose. Nixon signed it as a way to fight the Mafia. But it's been used against banks and Wall Street luminaries who had no connection to the Mafia; against the Catholic Church in the sex abuse cases; and, in perhaps the most egregious example, against pro-life activists who blocked access to abortion clinics. There is no longer a need for a profit motive; almost any action attributable to any group can be molded to fit into the RICO laws.

Wall Street firms used civil RICO prosecutions in the 1980s, despite a four-year statute of limitations, to stop hostile takeovers and leveraged buyouts. RICO has become a loose cannon that turns the law into a tool for revenge against political opponents and business competitors alike.

William Anderson and Candice Jackson called the explosion of federal laws part of a “veritable revolution” in US criminal law: in the beginning, the only federal criminal acts were treason, piracy, and counterfeiting. Now there are thousands of federal regulations which have the force of law. This has resulted in the dissociation of legality from morality, which in turn is undermining respect for the law and for the government.

About RICO they write:

... it has revolutionized federal criminal law and how it has been used—with federal judges, members of Congress, and the press acting as cheerleaders—to overturn the protections inherent in due-process guarantees of the U.S. Constitution ... RICO has enabled federal prosecutors in effect to circumvent the constitutional separation of powers between the national and the state governments.

Anyone who has to deal with the thousands of vaguely written and capriciously enforced regulations knows what this means. You have to act defensively, anticipating that a future bureaucrat might determine that some common practice that is legal today might be deemed illegal tomorrow, and the first you would hear about it is when a guy in a plain dark suit knocks on your door. No intent to commit a crime is needed.

Many conservatives seem to be hoping that this trend can be pushed back and that our friends on the left can somehow regain their common sense. But what if it can't? There are many who believe that lack of common sense is the very reason for the existence of leftists.

Imagine what would happen if some evil, unscrupulous person ... like, oh, me for instance ... were to wrangle his way to power. He might welcome a RICO strengthened by a successful prosecution of Exxon as a golden opportunity to put all his political opponents, and for good measure, all bureaucrats, behind bars.

If indeed making statements about matters of disputed fact is now a crime, it virtually ensures that RICO will become a tool of political oppression. A corrupt leader would feel that not fighting fire with fire would be a form of surrender.

He might feel justified, for example, in going after the news media for their conspiracy to defraud the public by encouraging increased taxation, or going after the New York Times for their false statements about the former Soviet Union. No one can doubt the newspaper profited from them.

Then there is biology, a settled science if there ever was one. I — I mean our hypothetical unscrupulous leader — could make a case that stating a belief that women are physically equivalent to men in combat makes you a biology denier who should be prosecuted. Or that anyone who says that surgery can transform a man into a woman is promoting a falsehood and must be hauled into court on racketeering charges. Progressives espouse many such beliefs that conflict with our scientific knowledge. RICO laws could put them all in prison.

The RICO laws require an ‘enterprise,’ which means that only leaders of groups can be prosecuted. The courts have ruled that governments are not immune; the Key West Police department, for example, has been prosecuted under RICO. Enumerated in the definition of racketeering is bringing in or assisting aliens in illegally entering the country. Who can doubt that the 200 sanctuary cities could find themselves under the shadow of RICO?

It's a bit of a hurdle, admittedly, to demonstrate that a progressive organization has ever been enterprising. But, as RICO prosecutions show, there is no actual requirement for a profit motive. Even if there were, the news media, sanctuary cities, and green energy companies would still qualify. True, no prosecutor could demand hard labor in such cases. Forcing progressives to do actual work may or may not be cruel, but there's no doubt it would be unusual.

Now RICO is being abused again, and this time it's threatening to undermine the First Amendment—our most basic natural human right. There is no room in this country for both. Give RICO a pair of cement overshoes.

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