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It's baseball season, finally, so you know what that meansa hard-fought, months-long competition to see who can win the title of Most Grandstanding Politician, ready to butt the federal government's nose into places it has no business sniffing.
There are many contenders this year. Some early favorites:
John Kerry. The dour Red Sox fan is joining the chorus of anguished souls on Capitol Hill outraged that Major League Baseball has signed an exclusive television deal for out-of-market games with DirecTV...just like the ones previously signed by the National Football League and NASCAR.
What might Congress do to "fix" this agreement between a copyright-holder and a broadcaster? It's unclear, aside from vague threats of more hearings and the absurd possibility that the right to watch baseball games via the television-delivery system of your choosing will be re-classified by the feds as being in "the public interest." But Sen. Kerry has made clear he recognizes no limitations to Congress' ability to do something. Congressional Quarterly captured the Man From Beacon Hill's thoughts recently:
"Baseball as we all know it is an integral part of our culture. Baseball has also benefited from an array of favorable government policies," said Sen. John Kerry, D-Mass. "We should support baseball. I believe baseball also, however, ought to serve the public interest. It's fair to expect that they would provide broad access to their games." Another reminder to one and allnever, under any circumstances, benefit from government policies...
George Mitchell: Not technically a federal politician anymore, though the pride of all Lebanese-Americans was senate majority leader from 1989-95, then U.S. special envoy to Ireland, then until recently chairman of the Walt Disney Company (!), so he can definitely get his phone calls returned on Capitol Hill. Mitchell was named one year ago last week to head up MLB's internal probe into usage of allegedly performance-enhancing drugs, and over the next few months he's going to be grilling individual major leaguers, while his former colleagues in the Senate stand ready to pounce if the process doesn't produce scalps. Like any good ex-fed, Mitchell is clearly frustrated by his lack of personal police power, as evidenced by a recent interview he gave to The Desert Sun:
The Desert Sun: How would you describe the Major League Baseball steroid investigation up to this point? Mitchell's threat would be idle without collusion, however, which brings us to...
Mitchell: It's taken longer than I hoped. I said publicly and privately I don't have subpoena power so I'm not able to compel cooperation with witnesses and interviews and production of documents. [...]
The Desert Sun: The U.S. Congress said they would get involved if Major League Baseball doesn't cooperate. Do you think they will follow through and do you think it's necessary?
Mitchell: That's a decision for them to make, of course, on their own and I would not presume to try to tell anybody in that position what to do. I think what they do will depend in part how complete and thorough my report is.
Sen. Jim Bunning (R-Ky.): The Hall of Fame pitcher-turned Hall of Shame politician has long been one of the most hysterical anti-steroids legislators, arguing (along with Rep. Henry Waxman D-Los Angeles) that baseball's anti-trust exemption somehow gives Congress the right to rifle through players' urine samples (by this logic, L.A. Times employees' drug tests should be open to federal inquiry, since the Tribune Co. has a special exemption to operate KTLA in the same market); and calling for the stats of steroid users (even those who used steroids before they were banned) to be completely "wiped out."
It comes as no surprise, then, to learn from ESPN that Bunning's got Mitchell's back:
Bunning is quick to add that he isn't sure Mitchell and his investigators have "the right tools," meaning subpoena power. He said Mitchell hasn't requested it from Congress, but, "I'm willing, ready and able to...if he asks. We could have a hearing with [Mitchell] present and subpoena as many people [as necessary]...to force people to appear or exercise their Fifth Amendment rights." Sen. John McCain (R-Ariz.): The presidential candidate has long been an advocate of the toughest possible federal drug-testing legislation, and will likely come up with even stricter stuff on the campaign trail, but his enthusiasm over the years has translated into behind-the-scenes bureaucratic changes most people aren't aware of. An interesting recent Washington Post article details how "federal, state and local law enforcement agencies" are sharing privileged information with the quasi-private U.S. Anti-Doping Agency (a nonprofit testing/punishment agency founded and funded by the federal government) to punish even athletes who have never failed a drug test. As law professor Dionne L. Koller put it in the pages of the Baltimore Sun:
To keep "cheaters" from going to the Olympic Games [in 2004], Mr. McCain and the Senate Commerce Committee took the extraordinary step of subpoenaing the documents from the ongoing federal investigation and turning them over to the USADA so that it could ban the accused athletes from competition. Since it's a presidential campaign season in addition to a pennant season, and since Barry Bonds is bound to keep steroids in the spotlight as he chases Hank Aaron's home run record, there's nothing much left to do except pass the peanuts and enjoy the spectacle.
This action was considered unprecedented because prosecutors do not share secret grand jury documents. But for the good of the country and its Olympic image, federal prosecutors did just that. [...]
What is wrong with catching athletes who cheat? Nothing. But if you are a fan of constitutional limits on government power, you should be nervous. The USADA is accomplishing its mission through the use of government power. And through winks and nods, it asserts its "private" status while enjoying the fruits of that government power, without those pesky constitutional side effects.
Matt Welch is assistant editor of the editorial pages.