University of Pennsylvania Law School
The tobacco industry's gambit did not fail because Congress refused to trade its law-making authority for money. Rather, it failed, at least for the time being, because the parties could not agree on terms. Perhaps another industry (with a better public image than tobacco) will have better luck. Congress may have proved itself a difficult bargaining partner, but it has also demonstrated its willingness to negotiate. Before Congress goes any further down this path or other government entities decide they can bargain their law-making authority for money or other goods, we, as a nation, should consider the wisdom of such horse-trading. The tobacco deals spawned a lively national debate about public health, the dangers of nicotine, the FDA's power to regulate, the industry's right to advertise, the size of attorneys' fees, and the regressive nature of a tobacco consumption tax. That debate did not include, however, a discussion of whether the government should trade it's law-making authority for money. It is now time for that discussion to begin. To all those inclined to minimize this problem by pointing out that as a practical matter law-making is always a market commodity, we answer that not everything that is, should be. The existence of black and grey markets does not necessarily mean it would be a good idea to create a white one. We believe it is not.
Susan P. Koniak & David Dana,
Bargaining in the Shadow of Democracy
University of Pennsylvania Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2136