By Peter Roff • Washington Examiner
As a general rule, Americans do not like to be told what to do. They will tolerate it, especially when the government makes threats or issues some rule that make sense in the infinite scheme of things, but they’re not happy about it most of the time. This country was founded as a sort of experiment in entrepreneurship — in the commercial sense as well as in the political arena.
Over time, however, the entrepreneurs have given way to the paper-pushers. The bureaucratic impulse to regulate nearly everything that moves has brought what former British Prime Minister Margaret Thatcher used to call the Nanny State home to our shores.
As a result, the ordinary American businessman who was once a virtual king of all he or she surveyed has been forced to turn to the courts to seek relief from the stranglehold that regulatory agencies, legislative bodies and the do-gooders among us have on American small business.
For example, in 2012 a group of independent tax preparers sued the Internal Revenue Service to stop the imposition of a federal licensing scheme. In 2013, the Drake’s Bay Oyster Company sued the U.S. Department of the Interior just to be allowed to remain open — and whether it will or not is still up in the air.
And for most of the Obama administration, businesses and trade groups have been at odds with the U.S. Environmental Protection Agency as the EPA has promulgated rules governing everything from air to water in what has been described by some as an attempt to put the government ultimately in charge of just about every commercial activity in the United States.
Fortunately, as in the recent MAPS case before the United States Supreme Court, there are still some judges and justices who understand that the role of government should be limited and that regulations must undergo a cost and benefits test to make sure they are really in the public interest.
This has forced the bureaucrats and the other Nannystaters, who are really of a kind all their own, to be smarter about how they advance their agenda. They still rely on nonprofit good government pressure groups, ivory tower academics and hired guns with law degrees to advance their agenda, but in a more insidious and invidious fashion.
Sometimes, to illustrate the point further, pressure groups like the Sierra Club will bring suit against the federal government on some point of law, reasonably certain that the EPA or the Department of Justice will choose to settle rather than litigate. This tactic, referred to as “sue and settle,” effectively rewrites laws and regulations without the input of legislators or the public and may, as is the case with a number of current actions against the big banks, prove to be financially lucrative for the organizations bringing the complaints.
Another way the private sector is getting squeezed involves nonprofit groups that receive federal funding who attack “disfavored” private businesses — basically ACORN’s entire playbook before it was defunded and allegedly disbanded — in order to get them to pay out settlements, change their business practices or go out of business altogether.
This is going on right now in Nebraska, where the Nebraska Cancer Coalition, an organization that is a recipient of funds from the federal Centers for Disease Control, is running a campaign called “The Bed is Dead” with the objective of convincing consumers not to use the services of tanning salons in the state.
In this case though, the targeted small businesses are fighting back. Seven small business owners operating 30 tanning salons in Omaha and Lincoln have brought suit against the NCC, accusing it of defamation and violating the Nebraska Deceptive Trade Practices Act.
The case will turn on whether the plaintiffs can prove that the NCC made false, misleading and defamatory statements that were harmful to their businesses and to the indoor tanning industry as a whole. Unfortunately, the case means science is once again being dragged into the courtroom, only this time it is the subjects of the misinformation who are bringing suit rather than those who propagate it.
Typically, it is the pro-regulatory side that uses science as an excuse for legal action in order to achieve by judicial fiat what cannot be gained through legislative bodies or regulatory agencies as they do in “sue and settle” matters.
This is an unfortunate and costly practice that slows innovation, impedes economic growth and is bad for consumers — even while such suits are being brought allegedly in their interests. Most judges do not have the training or the background in the hard sciences needed to determine which of the witnesses from among those giving expert testimony are right and who is wrong.
The actions of these pressure groups are deplorable. At the end of the day, these nonprofits are ultimately responsible to their donors, but their activities are also subsidized by the American taxpayer, which makes cases like this one the business of Congress.
The precedents established by these cases will influence the relationship between science, the government and the marketplace for some time to come. Truth, which appears to be on the side of those claiming to have been defamed, is often enough of a defense to carry the day. Asking judges to decide which science is true, however, is a risky proposition that generally should be avoided. If federal grants recipients have to have their proverbial wings clipped to stop these baseless campaigns, then so be it.
Peter Roff is a senior fellow at Frontiers of Freedom, an organization that advocates for freedom of choice in critical sectors of the American economy currently under assault from the Nannystaters.