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.