Baseball vs. Congress: The Showdown Looms

There is a steroid problem in this country, and professional baseball is partly to blame. This is what Congress would have you believe, as it has issued subpoenas to 11 individuals involved with Major League Baseball, including Mark McGwire, Curt Schilling and Bud Selig. The subpoenas, which require the players to testify before Congress or face possible contempt charges, come on the heels of the same individuals declining "invitations" to appear before the House Government Reform Committee.

Major League Baseball and the players have said that they will not comply with the subpoenas, as Congress has no jurisdiction to hold such hearings or compel such testimony. In response, at least one member of Congress has said that this is "a national public health issue" that Congress has the authority to regulate.

So if the issue goes to court, will Congress or Baseball win in this clash of the titans? I have done a review of the law,* and it seems that Congress does indeed have such a power. My review, though, was cursory, and so I would appreciate any comments or notice of possible errors.

Though unstated in the constitution, it is uncontested that Congress has the power to conduct investigations in accordance with its primary function of passing laws. Thus, if a constitutional law could result from an investigation or hearing, then a hearing is a proper exercise of congressional power. Arguments that legislation will not result from an investigation, or that invalid legislation will result, does not relieve Congress of this power. In addition, Congress can hold hearings to determine if existing legislative schemes are functioning as intended. Congress cannot, however, investigate matters of purely private concern.

In the situation at hand, it appears that legislation could result from this investigation. Under its commerce power, Congress could pass stricter laws relating to steroids and other performance-enhancing drugs, using the testimony given as evidence of how steroid use has become prevalent in society. And remember, this committee may not stop at professional players -- it might also subpoena individuals from the college or high school level to submit further evidence of a national epidemic.

If Congress has the power to hold the hearings, it likewise has the power to issue subpoenas compelling individuals to testify. An individual compelled to appear must do so, or be liable for contempt (2 USC s192). An individual can claim the 5th Amendment protection against self-incrimination, but only if a criminal charge can result from the testimony. Refusal to testify cannot be based on the grounds that the testimony will disgrace the witness. In addition, while Congress may not compel disclosures for the purpose of aiding the prosecution of pending suits, its authority to seek information for its own purposes is not limited on the grounds that such information could be of relevance in those suits. Thus, it also seems as if the 11 individuals here must appear, or face contempt charges. Some may refuse to answer on 5th Amendment grounds, but only if their answers could result in criminal prosecution. For others, such as the team executives, there likely will be no grounds on which to avoid answering the questions.

But even if Congress has this power, why in the world are they going after baseball? As many commentators have noted, does Congress really have nothing else to do? How about Social Security? How about confirming a few judicial nominees? Professional athletes use performance-enhancing drugs. I don't think we need a congressional hearing to determine this. Too often, though, congressional hearings are held not for the purpose of passing legislation, but for legislators to get an issue, or themselves, into the spotlight. These subpoenas have already generated a lot of press, and some House members that are up for re-election in 18 months may need the publicity. Others may want to be "tough on drugs" or "looking out for our youth." What better way to win an election?

Despite these potentially impure motives, baseball should tread lightly in this matter. As I have noted, the law is on Congress's side. And baseball should be wary of angering Congress, which has the power to revoke the often-reviled antitrust exemption that professional baseball enjoys. Angering key legislators does not seem a good move for baseball at this point, although disgracing the game through admissions of steroid use could arguably be worse.

I am not sure what the final result of this showdown will be. Congress might back down and let this issue fade away. After all, the institution probably does not want its power to hold hearings limited by a skeptical federal court. However, Congress does not like to have its authority questioned, and now that it has been, the legislators may stop at nothing to ensure these hearings take place. In addition, there are many applauding Congress for calling baseball to task. Thus, the public may have more interest in discovering baseball's dirty little secrets than concern over wasted tax dollars. What emerges at these hearings remains to be seen, but no matter what is said, it likely will not be good for baseball.

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* This legal analysis is based largely upon Najaran, 77 Am Jur 2d United States, s.14-18. For those that do not know, Am Jur is a legal encyclopedia. The points made are based on the holdings of numerous cases, many of them Supreme Court cases, but in the interest of simplicity and aesthetics, I have not listed the citations.

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