The Bush administration has finally found a multilateral forum it can respect. Unfortunately, that forum is the Organization of Petroleum Exporting Countries, commonly known as OPEC. On March 11, Energy Secretary Spencer Abraham became the first Cabinet member in United States history to be in Vienna for a meeting of the oil cartel.
It’s nothing new for Cabinet members, and even presidents, to jawbone individual OPEC members in the hopes of lowering oil prices, which is what Abraham sought to do. (Oil prices are currently approaching $40 a barrel.) Abraham did not attend any OPEC meetings, and the official line was that he was in Vienna for a two-day meeting of the International Atomic Energy Agency. But simply by meeting with oil ministers in the city where they were gathered to “stabilize” world oil prices, Abraham lent the price-fixing conspiracy more legitimacy than it has ever enjoyed in the past. It didn’t work. OPEC declined to increase production.
Instead of hovering on the periphery of OPEC, cap in hand, we should be prosecuting OPEC for violating U.S. antitrust law. That was the solution arrived at by Carl and Debbie Prewitt, who own a gas station in Birmingham, Ala., when they filed Prewitt Enterprises v. OPEC. Unfortunately, their lawsuit was thrown out of U.S. district court March 4 on the dubious technical grounds that no legal method could be found to serve papers on OPEC. (For a compelling argument why that isn’t so, by superstar attorney David Boies, click here. Previously, Chatterbox wrote about the Prewitt case here and here.) Will the Prewitts’ attorneys appeal? “No question,” says Michael Straus, a lead attorney on the case.
Even people who think suing OPEC is a dumb idea concede that its activities are a flagrant violation of U.S. law. Spencer Weber Waller, a law professor at Loyola University in Chicago, writes that while it would be wrong to
conduct American foreign policy in a federal courtroom, particularly in light of the aftermath of the attacks of Sept. 11, 2001, there are, in fact, no real doctrinal barriers to doing so. None of the classic international antitrust defenses would be available to the OPEC defendants if such a law suit were brought (however foolishly) by the federal government, nor in all likelihood in a suit brought by either the states or a private plaintiff.
Chatterbox has no particular problem with conducting American foreign policy in a federal courtroom (we’ve done it before) and wishes the Prewitts good luck. In the event the legal case is harder to make than Waller supposes, Sens. Herbert Kohl and Arlen Spector two years ago drafted a “NOPEC” bill explicitly applying the Sherman Antitrust Act to oil cartels created by foreign governments. Alas, it went nowhere. Right now would be a good time to dust it off.