Chemical McCarthyism

By Matt Welch, Reason. Posted March 15, 2005.

Does your urine belong to Congress? Should private citizens not suspected of any wrongdoing be hauled up to Capitol Hill and grilled under oath, on live TV, about what substances they've put in their bodies?

Congressman Henry Waxman sure thinks so. The Los Angeles Democrat is convening hearings Thursday, March 17 on the pressing national security issue of ballplayers using performance-enhancing steroids. Last Wednesday, subpoenas were sent out to seven current and former Major League Baseball players to testify about their hormones in front of the oxymoronic House Committee on Government Reform.

Only one player, recent retiree Jose Canseco, has enthusiastically accepted the committee's invitation, though he's lobbying hard for immunity. By crazy coincidence, the former Bash Brother has a new, factually-challenged and universally-panned bestseller on the market, titled Juiced: Wild Times, Rampant 'Roids, Smash Hits, and How Baseball Got Big.

"Canseco's allegations about steroid use by Mark McGwire and other baseball players have received enormous media attention," an apparently envious Waxman wrote in his Feb. 24 letter requesting the hearings. "Many of the individuals have denied the accusations. Mr. Canseco insists his information is accurate. ... There is a simple way to find the truth in this matter. ... [H]ave them testify under oath."

Using the enormous power of the federal government to arbitrate literary disputes seems a little much. We wouldn't dream of forcing George W. Bush to swear on the Holy Bible just because Kitty Kelley reported that he snorted coke at Camp David, yet a private citizen's alleged use of a substance that's actually legal (with a prescription) is enough for Washington to set the wheels of publicity-masquerading-as-justice in motion.

And this isn't just a case of arrogant athletes getting their comeuppance – it potentially affects half the national labor force. Besides dragging Sammy Sosa and Jason Giambi on camera to recite the Fifth Amendment, the committee has issued a subpoena to Major League Baseball that, according to the L.A. Times, requests "results of drug testing since 2003," and "the names, disciplinary action taken and reason for suspension for all drug-related violations since 1990."

In other words, Congress is asserting its right to your drug tests, even if they were conducted based on a private agreement between employer and union, and even if the results – including disciplinary action – were understood at the time to be secret. About half of all employers test for drugs, and an estimated 50 million tests are performed each year. Should the federal government have the right to subpoena your private medical records?

That's hardly the only power-grab in this show trial. Waxman's committee (which is chaired by the equally distasteful Virginia Republican Tom Davis), literally believes it can investigative anything and everything it wants to. "Under the rules of the House," Davis and Waxman wrote Major League Baseball on Thursday, "the Committee on Government Reform may at any time conduct investigations of any matter."

Interestingly, baseball may end up mounting the first sustained attack on the committee's license to conduct fishing expeditions. Historically at each other's throats, team owners and the players union have joined forces under the same lawyer, Stanley Brand, who has vowed to fight the subpoenas on jurisdictional and constitutional grounds, all the way up to the Supreme Court.

"That would be limitless jurisdiction," Brand told told reporters after receiving the Davis/Waxman letter. "There would be nothing they couldn't look into ... . If that is the case, they don't have to have rules on jurisdiction because these guys can do whatever they want."

Cracks have already appeared in baseball's tenuous solidarity. Boston Red Sox pitcher Curt Schilling (who has no idea why he was subpoenaed) and White Sox slugger Frank Thomas have already said they'll testify. But Brand is at least talking a tough game about chalking a line in the sand.

For once, the urinalysis enthusiasts in the nation's sports pages are not joining as one to cheer on the feds. Epithets like "witch hunt" and "grandstanding politicians" are being tossed around, and for the first time in my memory, sportswriters are expressing concern about privacy rights and the long reach of Uncle Sam.

"I think they feel empowered to do whatever they want," Philadelphia Phillies pitcher Randy Wolf said last week, while emphasizing that he opposes steroid use. "You look at what they did with the 'confidential' drug tests that we had ... they said, 'Eh, we don't care if it was confidential or not. We're going to do what we want with it.'

"It's kind of a 1984 deal where basically, they want to know everything you're doing at all times, and because we're in the public spotlight our civil liberties are flushed down the toilet. It's chemical McCarthyism."

Matt Welch is an associate editor at Reason. His work is archived at mattwelch.com.

Liked this story? Get top stories in your inbox each week from AlterNet! Sign up now »