Unwittingly Allied Forces Laid Tobacco Bill to Rest

As pundits do their post-mortems on the sweeping tobacco bill that died in the Senate, Big Tobacco’s immense lobbying and media blitz will probably go down as the immediate cause of death.

But the bill’s demise is as much the story of an odd de facto alliance between tobacco-friendly Senate conservatives and passionate industry foes, who together made the bill appear so radical that it could not pass.

Driven by vastly different agendas and never coalescing in any formal way, these strange bedfellows nonetheless combined to make passage impossible and to preserve the status quo.

In the process, tobacco foes, steeped in a combat psychology, lost a chance to reach many of their long-cherished goals. But, secure in the comfort of their trenches, they also avoided having to face a future with fewer battles to fight.

And the legislative and executive branches maintained their 40-year record of doing almost nothing meaningful about tobacco, once again leaving the problem to the courts.

The tobacco bill had its origins in the giant tobacco peace accord announced June 20, 1997, by industry negotiators, state attorneys general and private antitobacco lawyers.

Intended to settle the biggest of the pending tobacco lawsuits (the claims of 40 states as well as a welter of private class-action suits), the deal would have required tobacco firms annually to pay billions of dollars from higher cigarette prices to compensate the states and fund antismoking programs.

It also would have banned tobacco billboards and other marketing devices, in return for giving the industry substantial legal relief by restricting the types of lawsuits that could be brought.

The industry’s acceptance of the deal was a stunning admission of vulnerability. But the antismoking forces, led by former FDA Commissioner David A. Kessler and ex-Surgeon General C. Everett Koop, quickly shook off their euphoria.

They zeroed in on objectionable provisions, including the idea of giving legal protections to a rogue industry that were not available to anyone else. And there was a general conviction that any deal acceptable to the conniving smoke barons must be bad for the rest of the world.

The Deal Hit a Snag at Congressional Level

Because the legal protections required changing federal law, the deal had to be ratified by Congress. There the pariah industry quickly lost control as demands to end the tobacco “bailout” reached a fever pitch.

Elements within the public health lobby who thought compromise might be possible were repudiated by colleagues and eventually shamed into silence. And the demands of this seemingly united front proved irresistible, shaping the legislation Sen. John McCain (R-Ariz.) steered through the Commerce Committee.

The bill contained the antismoking measures of the June 20 agreement. But by hiking cigarette prices at least $1.10 per pack, it also was almost twice as expensive. More importantly, it eliminated nearly all of the legal protections that were the industry’s reason for coming to the table.

Conservative Republicans were naturally uneasy--their huge donations from the tobacco industry being only the most obvious reason. Raising taxes and imposing tough regulations on business are not what they’re about. Yet open defense of a business that had become politically radioactive was out of the question, so what to do?

Opportunity knocked in the form of the only significant legal protection that had not been stripped away--a ceiling of $8 billion on the amount of damages tobacco companies would have to pay successful litigants in any one year. If that could be amended out, making the bill seem more draconian, moderates might get scared off and the tobacco companies, already engaged in an advertising blitz, would have help in making their case.

Lucky for the conservatives, the liability cap was anathema to most of the antismoking forces, who often described it as “immunity” for the industry. Still, no industry has ever paid out $8 billion in product liability damages, much less on an annual basis. So, while one might argue that the cap was too low--or that, on principle, there should be no cap--the $8 billion limit was hardly “immunity.”

No matter. Public health advocates and their champions in the Senate were death on the cap. So when the conservatives invited them to ride this particular Trojan Horse, they were glad to climb inside.

The removal of the cap only increased the industry’s desperation. But that was not all. Moderate Republicans joined Democrats in voting to increase by billions of dollars the penalties to be paid by the industry if ambitious targets for reducing youth smoking weren’t met.

Finally, conservatives successfully pushed amendments to repeal the marriage tax penalty and divert cigarette tax proceeds to antidrug programs. In the process, they made the bill more “Republican,” but also more unworkable, because the loss of funds for antismoking efforts gave tobacco foes yet another reason to squawk.

So it was that, after four weeks of debate, Sen. Majority Leader Trent Lott (R-Miss.) pulled the plug, declaring that time to complete other business was running dangerously short.

An obvious conclusion is that the antismoking forces, giddy from seeing Big Tobacco battered and bleeding, simply overreached--underestimating the cigarette makers’ remaining strength and overestimating the public’s desire to thrash them.

Then, too, health groups understood that once through the Senate, the McCain bill would probably be diluted in conference with the House. They rationally concluded that the tougher the bill, the less objectionable the compromise would be.

But there was another reason for the all-or-nothing approach. Some of the most zealous tobacco foes were never completely sold on a big tobacco bill. Ambivalent about the fate of the legislation, they were risking little by demanding that it be perfect.

This seemed self-defeating in at least a couple of ways.

The bill lumped in one big package many cherished goals that the antismoking movement had perennially sought but never gained--including a big tax to discourage smoking, strict limits on tobacco advertising, and a huge war chest for counter-advertising and other antismoking measures.

Moreover, health groups themselves would be involved in running the antismoking programs, and in that way had something of a vested financial interest in seeing the legislation pass.

But in a sense, the war culture and psychology of the antismoking movement worked against those incentives.

Increasing the Priority Level

To an unprecedented degree, the McCain bill would institutionalize the war on smoking as a big and lavishly funded priority of government on all levels. Private groups and volunteers have always been at the forefront of the antismoking movement, but with the growth of antismoking bureaucracies, their prominence and the appeal of their call-to-arms would naturally decline.

Moreover, in the antismoking cause, as in other social movements propelled by a keen sense of moral outrage, the image of the scrappy underdog valiantly resisting a despised, all-powerful enemy creates an enormous sense of pride and purpose.

Given the wealth and power of the $50-billion industry, that story line for the most part has been easy to sustain. Yet the notion of a huge imbalance of power is being eroded by events--a trend that would accelerate under the McCain bill’s antismoking regime.

To be sure, health groups still can’t write a $40-million check to bombard the public with their message, as the cigarette makers recently did.

But their movement is no longer just a small cadre of volunteers printing fliers in dim church basements. It is, instead, a small growth industry of sophisticated professionals who are supported by government contracts and foundation grants, and whose message is amplified by purveyors of nicotine gum and patches and smoking cessation clinics. McCain and President Clinton could not say no to the demands of the antismoking forces, which should arrest any doubt about their influence.

As it turned out, however, the traditional story line at least superficially held up. Big Tobacco didn’t like what Congress was up to, and rose up to swat away the threat. The forces of darkness prevail, the plucky insurgents continue their uphill fight, and so the world makes sense. How comfortable and familiar it is.

* TOBACCO REVERSAL

A Florida appeals court threw out a $750,000 verdict against Brown & Williamson. D1