statute might alter the federal state balance in some respects.'

28/

This precise argument about federalism was, however, specifically laid to rest by the Supreme Court in Turkette. There, the Court, holding that the term "enterprise" in RICO encompassed both legitimate and illegitimate enterprises, specifically addressed the federalism issue. Noting that 18 U.S.C. § 1961(1) included within its list of predicate

29/

acts a significant number of acts criminal under state law, the Court stated:

[T]he language of the statute and its legislative history indicate that Congress was well aware that it was entering a new domain of federal involvement through the enactment of this measure.

***

The view was that existing law, state and federal, was not
adequate to address the problem, which was of national
dimensions.

As the hearings and legislative debates reveal, Congress was
well aware of the fear that RICO would "mov[e] large substan-
tive areas formerly totally within the police power of the state
into the Federal realm." 116 Cong Rec 35217 (1970). (remarks

28/ Id. at 21.

29/ The Court noted:

RICO imposes no restrictions upon the criminal justice systems
of the States. See 84 Stat 947 ("Nothing in this title shall
supersede any provision of Federal, State, or other law impos-
ing criminal penalties or affording civil remedies in addition to
those provided for in this title"). Thus, under RICO, the States
remain free to exercise their police powers to the fullest con-
stitutional extent in defining and prosecuting crimes within
their respective jurisdictions. That some of those crimes may
also constitute predicate acts of racketeering under RICO, is
no restriction on the separate administration of criminal
justice by the States. 452 U.S. at 586, n.9.

of Rep. Eckhardt). See also id., at 35205 (remarks of Rep.
Mikva); id., at 35213 (comments of the American Civil
Liberties Union); Hearings on Organized Crime Control before
Subcommittee No. 5 of the House Committee on the Judiciary,
91st Cong, 2d Sess, 329, 370 (1970) (statement of Shelden H.
Eisen on behalf of the Association of the Bar of the City of
New York),307

The Turkette Court concluded with this admonition:

There is no argument that Congress acted beyond its power in so doing. That being the case, the courts are without authority to restrict the application of the statute. See United States v. Culbert, 435 U.S. 371, 379-80, 55 L. Ed.2d 349, 98 S.Ct. 1112 (1978).

In light of Turkette, the District Court's argument reduces itself to the notion that RICO can never be applied in a case where rate making is part of the subject matter of the litigation because Congress did not specifically mention that subject matter in the legislative history. Apart from RICO, that argument is untenable as a matter of general statutory construction, for it turns the process upside down. Legislative histories, not texts, would constitute the law. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395 (1951) (Jackson, J.) (statute, not legislative history, voted on and signed). It calls to mind the "wag," who said, "When the legislative history is doubtful, go to the statute." Greenwood v. United States, 350 U.S. 366, 374 (1956) (Frankfurter, J.).

The Supreme Court has, however, repeatedly taught that the plain meaning of the statute controls. Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980) ("This Court frequently has observed that a statute is not to be confined to the 'particular application[s] ... contemplated by the legislators." "); Harrison v. PPG Industries, Inc.,

30/ 452 U.S. 576, 586-587.

31/ Id. at 587.

446 U.S. 578, 592 (1980) ("In ascertaining the meaning of a statute, a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark."); Albernaz v. United States, 450 U.S. 333, 341 (1981) ("Congress cannot be expected to specifically address each issue of statutory construction which may arise."); Standefer v. U.S., 447 U.S. 10, 20 n.12 (1980) ("It is not necessary for Congress in its committee reports to identify all of the 'weeds' which are being excised from the garden.").

The Court has also specifically addressed the District Court's concerns about judicial struggles with Civil RICO's application, quoting with approval in Sedima the Seventh Circuit's conclusion that:

[T]he fact that RICO has been applied in situations not
expressly anticipated by Congress does not demonstrate ambi-
guity. It demonstrates breadth. Haroco, Inc. v. American
National Bank and Trust Co. of Chicago, 747 F.2d 384, 398 (7th
Cir. 1984), aff'd, 406 U.S. 606 (1985). 473 U.S. at 499.

Despite the District Court's misgivings, RICO's design and purpose are clear. The substantive standards of RICO reflect the substantive elements of its predicate acts, each of which is a crime. It then seeks to enforce these standards, not only by criminal sanctions, but civilly through a private attorney general enforcement mechanism. Agency Holding Corp., 483 U.S. at 151; Shearson/American Express, 482 U.S. at 241; Sedima, 473 U.S. at 493. Private plaintiffs under RICO entity such as Suffolk County private prosecutors. The District Court's implied exception approach to RICO threatens to make this private enforcement mechanism sterile in large areas of our nation's life.

-

-

especially a local government

act, therefore, for more than themselves; they act as

Congress was well aware of the overlap between RICO and state law. Turkette, 452 U.S. at 586. Because Civil RICO enforces criminal standards, and requires a showing of a "pattern" of such offenses, which may well require a plaintiff to prove multiple

injuries not only to himself but to others, Civil RICO — and the private plaintiff -- serve an important public function. No court of law ought to lightly frustrate it. In enacting Civil RICO, Congress provided an express claim for relief. Its circumscription in the manner attempted here by the District Court is not only bad policy, it is improper, ignoring the teaching of Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 748 (1975): the judiciary may not circumscribe [an express claim for relief] ... because of any disagreement it might have with Congress about the wisdom of creating so expansive a liability."

C.

The Supreme Court in Sedima put it succinctly:

RICO is to be read broadly. This is the lesson not only of
Congress' self-consciously expansive language and overall
approach,... but also of its express admonition that RICO is
to "be liberally construed to effectuate its remedial purposes",
... The statute's "remedial purposes" are nowhere more
evident than in the provision of a private action for those
injured by racketeering activity. (Citations omitted.)

THE ADOPTION OF AN IMPLIED REGULATED ACTIVITY EXCEPTION TO RICO
WOULD DEPRIVE MANY CRIME VICTIMS OF AN EFFECTIVE REMEDY.

Article III of the Constitution does not grant a court power to redraft legislation because of its "appraisal of the wisdom or unwisdom of a particular [legislative] course...." " Diamond v. Chakrabarty, 447 U.S. 303, 318 (1980) (quoting TVA v. Hill, 437 U.S. 153, 194 (1978)).

Nevertheless, an examination of the policy considerations implicated by Congress' chosen course of action in 1970 is required by this Supreme Court's jurisprudence indicating that plain meaning may be departed from to avoid absurd or surprising results. See, e.g., United States v. Ryan, 284 U.S. 167, 175-76 (1931) (civil forfeiture provision

32/ 473 U.S. 479, 497-498 (1985).

narrowed to give it "a sensible construction"). The language chosen by Congress in RICO is "neither absurd nor surprising." Turkette, 452 U.S. at 587. See also In Re Rouse, 221 N.Y. 81, 91, 116 N.E. 782, 785 (1917) (Cardozo, J.) ("consequences cannot alter statutes but may help to fix their meaning.").

The current controversy over RICO has not centered on its possible civil application in the areas of violence, the provision of illicit goods and services, or the corruption of unions and governmental entities. Instead, the controversy has focused almost exclusively on the commercial fraud area. In 1970, however, Congress focused RICO on "fraud." 84 Stat. 922. It found that traditional "sanctions and remedies" were "unnecessarily limited in scope and impact." Id. at 923. It was well aware, in short, that "existing law, state and federal, was not adequate...." Turkette, 452 U.S. at 586. Although almost two decades have passed since RICO became law, the task remains a formidable one. Braswell v. United States, 108 S.Ct. 2284, 2294 n.9 (1988) ("White-collar crime is 'the most serious and all-pervasive crime problem in America today. . . .' Although this statement was made in 1980, there is no reason to think that the problem has diminished in the meantime.").

In 1974, the Chamber of Commerce of the United States published a comprehensive study of fraud. The Chamber estimated the direct economic cost of fraud as follows: