By Dave Kopel & Glenn Reynolds
National Review Online, January 30, 2003 10:35 a.m. More by Kopel on the drug war.
When John Ashcroft was nominated for attorney general, his political enemies spent a lot of time mocking him for belonging to a denomination that does not allow its members to engage in dancing. Since taking office, Mr. Ashcroft has done absolutely nothing to infringe upon the rights of people who like to dance. Tom Daschle, however, is now pushing legislation that could send dance promoters to federal prison for up to 20 years. Daschle's anti-dancing legislation is a mean-spirited assault on youth culture, and an extreme violation of principles of federalism.
Last year, there was a big push in Congress to enact the so-called "RAVE Act," sponsored by Rep. Lamar Smith (D., Tex.) as H.R. 5519 and in the Senate by Joseph Biden (D., Del.). Both lead sponsors were very forthright; the very title of the bill announced its intention to go after "raves" — dance parties popular with Generations X and Y.
But the "RAVE Act" aroused enormous opposition, so much so that the Senate Judiciary chairman withdrew his co-sponsorship of the bill.
This year, the same act is back; but this time it's concealed deep within an immense, omnibus bill sponsored by Tom Daschle — the so-called "Justice Enhancement and Domestic Security Act of 2003" (S. 22). That Act includes some antiterrorist measures which are important and which ought to be debated in separate bills (for instance, authorizing military tribunals for al Qaeda warriors).
But S. 22 is also larded with numerous anti-civil-liberties proposals, including ballistics testing for all new firearms, and anti-gun-show language making gun shows presumptively illegal except when authorized by the Bureau of Alcohol, Tobacco and Firearms. Daschle's S. 22 is the contemporary version of the 1994 Clinton crime bill, a bloviated monster that was far too large for either Congress or citizens to be able to understand its contents.
And the "RAVE Act" reappears too — only this time, the word "RAVE" never appears in a title. Rather, the "RAVE Act" language is found in sections 5131-36, under the misleading title "Crack House Statute Amendments."
The Daschle bill extends the federal "crackhouse law" — which makes it illegal to maintain a building for purposes of drug consumption — to cover musical performances and other events of a temporary nature, and to make liable even those who make their premises available at no charge. The idea is to make the promoters of musical events liable for drug consumption at those events — even when the consumption is entirely incidental, and has nothing to do with any action by the promoters. The legislation is, in effect, an admission of failure by the Drug Enforcement Agency: Unable to control drug use, it's looking to force concert promoters and theaters to do it, on pain of imprisonment.
As amended by Daschle, the "crackhouse law" would make it a 20-year federal felony to "manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance."
This language is broad enough to encompass not only rave promoters and disc jockeys, but also bar owners, hotel or motel owners, concert promoters, tour bus or cruise ship operators — and even home owners. Literally read, the statute would even apply to a homeowner whose teenagers occasionally smoked marijuana on the property.
The existing track record of the "crackhouse law" offers no reason to be confident that overzealous prosecutors will not push the law to the extreme limits of its language. As we detailed in a previous column, the then-U.S. attorney of New Orleans brought felony "crackhouse" charges against the owners of the historic State Palace Theater. Jordan argued that the sale on the premises of "drug paraphernalia," such as glowsticks and even bottled water, was somehow evidence that the owners were colluding in drug consumption at dance parties.
But in truth, those who use drugs, or sell drugs, at raves and concerts are responsible for their own actions, and it makes no more sense to blame the concert promoter, or the owner of the hall, for their activities than it does to blame the owner of a hotel in whose convention center illegal campaign donations are made for campaign fraud. Nor does it make sense to blame cruise-ship operators or homeowners.
The word "rave" appears nowhere in the criminal language, but shows up only in section 5136 (still under the "crackhouse" title), which authorizes the Drug Enforcement Administration to be appropriated more tax dollars "to educate youth, parents, and other interested adults about the drugs associated with raves."
Most of the Daschle bill — including his misnamed "crackhouse" amendments, as well as the current crackhouse law — is a gross abrogation of federalism. If people operate facilities that lure drug users in disproportionate numbers, the traditional remedy is a public nuisance action, brought by the local district attorney in state court.
The crackhouse law and the Daschle extension replace that remedy — which has been considered adequate for well over a century — with an extremely harsh federal criminal statute. This isn't because local authorities have been complaining that the problem has interstate dimensions that elude them. Indeed, drug use — at a concert, or in a bar, or in a home — is by its nature a very local activity. This isn't a statute about interstate drug sales, but about local drug use or possession.
the failure to reduce Ecstasy use, federal bureaucrats and their
congressional allies are now looking to attack easy-to-find public
targets. Some have even admitted that their real target isn't drugs
per se, but rather the "rave culture" — even though some earlier
efforts at prosecuting rave promoters have been enjoined
on First Amendment grounds.
This legislation is the latest stage of mission creep for federal law enforcement, aided and abetted by members of Congress who should know better. As the Musician's Guide to Drug Policy Reform observes, empire-building federal bureaucrats have been whipping up culture-war hysteria against musicians ever since Henry Alsinger blamed "swing" music (and its practitioners, such as Glenn Miller) for marijuana use.
Under a federal system, it is supposed to be state and local governments, and not the federal government, that deal with matters of local law enforcement. There's nothing in the Constitution authorizing the federal government to waste taxpayer money "educating" the public about the dangers of swing music, rave music, or any other form of music.
We are continually reminded, as a justification for restrictions on civil liberties, that we are at war. But, precisely because we are at war, we cannot afford to have the Justice Department and federal law-enforcement authorities wasting their time on the kind of trivia represented by much of S. 22, including the misnamed "crackhouse" provision. The Constitution gives Congress and the federal government the duty to provide for the national defense; to allow them to exercise never-granted powers over local crimes and music styles is to undermine that essential focus on national defense.
— Dave Kopel is an NRO contributing editor and research director at the Independence Institute. Glenn Reynolds, otherwise known as Instapundit, is a law professor at the University of Tennessee.