The Politicization of Baseball

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The Politicization of Baseball

by Stephen Raher, March 17, 2005 (posted)

Given the news media's love of politics and baseball, it's somewhat worrisome that this week's Congressional hearings on steroids in baseball could become a media circus. A closer reading of the issue, however, does connect the story with several weighty legal principles and even touches on the rule of law in our country.

There's an excellent point to be made that the politicization of baseball is a frivolous waste of time, especially given the more pressing issues that Congress is facing this term (government spending run amok, entitlement reform, military operations, and so forth). Doug Bandow of the Cato Institute deftly makes this case by writing "a free society is inevitably a messy place. Some people do things that others don't like. Some people make mistakes. They may be making bad decisions. But it is far more important to preserve a free society than to stop athletes from making bad decisions."

Nonetheless, Congress does have investigatory powers, and it can subpoena witnesses to appear at hearings. Of course, such power is limited, and the U.S. Supreme Court has found that "there is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress" (Watkins v. United States, 354 U.S. 178 (1957), 187).

But steroids in baseball can be justified "in the terms of the functions of Congress." Steroid use is against the law. The criminalization of steroid use is an unnecessary and unwise law, but it is still the law. While a jury might be free to practice nullification of such a law, this isn't a criminal court. Even the most die-hard drug warrior could hopefully admit that steroids aren't exactly a Schedule I narcotic, but Congress does have the prerogative to pass silly laws so long as they aren't unconstitutional.

Also Congress opened the door for politicization of baseball when it exempted the sport from anti-trust laws. Presumably the readers of this publication generally disagree with some or all of those anti-trust laws to begin with; but, so long as the laws -- and the exemption -- remain in force, there is no end to the Congressional meddling that can occur (and that in and of itself is a good reason to be skeptical of such laws).

The legislature's ability to subpoena witnesses and charge uncooperative witnesses with "contempt of Congress" finds its origins in the emergence of the English parliament. So long as Congress follows the constitution and Title 2 of the U.S. Code, it can craft a legally colorable justification to subpoena the baseball players. The witnesses, in turn, can invoke their Fifth Amendment right against self incrimination. But that's not what the league and the player's union is asserting in their communication with the committee. According to the Washington Post, the witnesses' attorney has called the subpoenas "an absolutely excessive and unprecedented misuse of congressional power." It may or may not be unprecedented. It's probably excessive. But I don't think it's illegal, as the lawyers are claiming. There are many persuasive arguments against the baseball hearings, but they are all political arguments, not legal ones.

I respect the Congress's power to hold these hearings. Simultaneously, I hope that voters loudly voice their objections to this colossal waste of resources.

The Colorado Freedom Report--www.FreeColorado.com