On-again, off-again legislative efforts to improve the environment and reduce the power of Big Tobacco have often included proposals for an excise tax intended to defray some of the health care costs of smoking-related illness and at the same time add to the customer’s cost and thereby reduce the habit. Anti-tobacco litigation came to a head in the 1990s with headline cases against the industry brought in Mississippi and Florida, by the law firm of Richard Scruggs of Pascagoula, MI, and in Minnesota by the firm of Michael Cerisi, resulting in groundbreaking negotiations.
The internal dynamics of direct experience in an earlier effort, a 1970s Senate Health Subcommittee, and in the Big Tobacco cases of modern times, provide historic insights in sidebars from Henry Blackburn.
The Kennedy-Hart Senate Health Committee Tackles Big Tobacco, 1976
[ed. Senators Ted Kennedy and Gary Hart worked closely in their Senate Subcommittee on Health. I got involved when they initiated hearings in the late ’70s on a recurring topic, an excise tax on tobacco, the proceeds of which would be applied to research and patient care for tobacco-related diseases. This tax had been proposed numerous times in Congress and in state legislatures as a reasonable way for the tobacco industry and smokers to help pay for the damage they inflict. The tax is such a logical idea–amid the illogical situation in which government legalizes and subsidizes the production and consumption of an addictive, highly lethal substance–that it never succeeded in the legislature. The following anecdote, a true story, illustrates why.]
The Senate Health Subcommittee staff had arranged a full day of hearings to include an orderly presentation of the evidence of causal relationships between tobacco and many diseases that burden American society. Five of us were to provide this testimony early in the day, a representative of the American Cancer Society, the American Lung Association, and the American Heart Association (me), plus two distinguished bench scientists, Nobel laureates, one in cell biology and the other in oncology. Each of us had prepared concise and fact-filled testimony, backed by documents to be submitted for the Congressional Record, which would provide a firm scientific basis for the excise tax legislation pursued by Senators Kennedy and Hart.
Our medical-scientific contingent arrived a few minutes before the 8 a.m. hearing, finding the massive doors of the senate hearing room still closed and a crowd milling about. This surprised us. We had understood that the hearings would be small and that we might have an active exchange with the senators and their well-informed staffs. As the portals swung open and we entered the formal hearing room, we were beckoned by a staff person to take seats in the front row. There we looked directly up, as in an old English court of law, toward the elevated positions of the senators. After several minutes, they entered, first Kennedy and his bustling entourage, then Hart more modestly.
As the senators were making their grand entrance, we heard a rumble and clatter behind us at the main door and turned to see three large television trundles and booms, one for each major commercial TV network, wheeled into the hearing room. They were led interference by a wedge of governors and congressmen and their staffs from North Carolina, Kentucky, and West Virginia, and these were trailed by representatives and hired consultants of the Tobacco Research Institute. This weighty delegation, mainly of congressional colleagues of Kennedy and Hart, but from tobacco states, plus the dazzling array of NBC, ABC and CBS persons, quickly usurped the hearings.
At 8:10, a spokesman for the delegation, the governor of Kentucky, delivered a carefully scripted, near-histrionic presentation, with quavering voice and crocodile tears. He professed great concern over the plight of the Burley-tobacco farmer on his wretched little plot of loamy clay soil suited only to the culture of tobacco. This proposed tax, he moaned, would “weigh unjustly upon the smallest cog” in the powerful machine of our economy–tobacco–and jeopardize the farmer’s paltry but critical cash crop worth $1,800 annually!
The TV cameras ground away, filming for national consumption this soul-felt pleading of politicians for the lowly dirt farmer. Kennedy and Hart looked on bright-eyed and attentive. With the traditional, exaggerated courtesy of senators to their political colleagues, the gentleman from Kentucky was thanked warmly by the chairs for his “effective summary of this difficult issue,” and assured that his words would weigh heavily on the subcommittee recommendations. The large tobacco delegation was then commended for its attendance and for spending their “valuable time before the committee’s merely routine review of a complex situation.”
The drama and artifice quickly spent, the politicians from the tobacco states and their entourages, with the exception of the expert consultants for the tobacco industry, rose, and along with the TV trundles, lumbered out. The massive hearing room doors were closed, and we were finally in formal hearing.
At that moment, only 8:30 in the morning, the Kennedy-Hart plan for a national excise tax on tobacco products was, in fact, dead as a dormouse. This direct and powerful intervention by politician colleagues made it instantly likely that the proposed legislation would never be “voted out” of the senate committee. Such was the case eventually.
The hearing continued on a lower key through the morning. The five of us scientific representatives made our formal statements. We were quizzed in an intelligent way by Senator Hart and we were fawned upon by Senator Kennedy. They then opened the hearings to other invited participants and the public.
When a statistician long associated with tobacco industry causes rose and cited a few figures questioning our scientific testimony, Kennedy, flushed with feigned anger, quickly put him down. It was so brusque that it appeared he might even arraign and charge the consultant with contempt of Congress. The all-powerful senator, perched far above us in judgment, comfortable in his natural bailiwick, acted kindly to the point of obsequiousness to those of us who testified to what he wanted to hear. He viciously attacked the tobacco industry representatives no matter what they said.
I was not entirely pained, I admit, to hear the tobacco industry lackeys get their come-uppance, but Kennedy’s self-righteous posture and unnecessary derogation of their persons I found insufferable. In a situation where he could have been sincere and diplomatic and still express legitimate doubt about the interpretations and motivations of the industry consultants, he chose to beat up on them, rudely and gratuitously, from his omnipotent high bench. On that morning, any questions I had harbored over the years about Ted Kennedy’s character, while admiring his competent and valuable function as a public servant, were resolved. I saw the senator then as petty and vindictive and without dignity. His legislation had lost and he was already a poor loser.
[ed: I was unfamiliar and unsympathetic, at the time I wrote this story 30 years ago, with the histrionics that may be required of an elected official under such circumstances. It took a quarter century and much careful groundwork to arrive at the landmark settlement between states’ Attorneys General and the tobacco industry in this country at the millennium. That settlement eventually achieved the goals of Kennedy-Hart and much more. It remains to be seen, however, whether it will reduce tobacco smoking here and abroad or diminish the insidious power and profitability of the tobacco industry. The signs so far are not promising. Paradoxically, that industry, a centuries-old tradition in the American culture and economy, is still legitimate, even now that it is a social pariah. (Henry Blackburn)]