The Cigarette, page 15
Support from the agricultural media was crucial. At its founding, the TGIC received, by its own account, “strong support from the public-service media,” including farm-focused publications like the Progressive Farmer and Farm and Ranch Magazine, and also regional newspapers with an urban reach such as the Richmond Times-Dispatch and the Raleigh News and Observer.176 The TGIC also funneled information through the well-worn channels of farm meetings. It sent local granges, farm bureaus, warehouse associations, bankers, Extension agents, and county committees materials prepared by Hill & Knowlton via the TI.177 Public relations for growers relied on the already existing, state-supported organizations, information channels, and personnel hierarchies. But as a private, corporate entity, the TGIC—founded with goals that were explicitly anti-tax and anti–public health—shrouded its own very statist mechanics in stridently antiregulatory language.
Just as the TIRC funded pro-tobacco studies that the TI then cited as proof positive of medical disagreement over the relationship between smoking and health, so too did the TGIC create a recursive loop of pro-tobacco knowledge. It received information from state and private sources, repackaged that information as grist for the pro-cigarette cause, and redistributed the knowledge back to those same feeder institutions—farm organizations, departments of agriculture, bankers, and tobacco trade organizations.
For instance, in one early publicity blitz, the organization published 80,000 brochures entitled “The First American Heritage,” which were tailor-made for Georgia, Kentucky, North Carolina, Virginia, South Carolina, and Tennessee. For example, Virginia’s “First American Heritage” brochure emphasized the historically and economically indispensable role that tobacco played in the state’s development—from its cultivation in the colonial era through its contribution to state revenues derived from tobacco taxes. The very end of the accordion-style pocket pamphlet proudly proclaimed its sources as “the Richmond Chamber of Commerce, the Tobacco Tax Council, the Virginia Department of Agriculture and Commerce, Virginia Department of Labor, Virginia State Chamber of Commerce, Virginia State Ports Authority, United States Department of Agriculture, United States Department of Commerce, Internal Revenue Service, U.S. Treasury Department.”178 The TGIC relied on the authority and prestige of state statistics even as it sought to establish a parallel, trade-centered counterweight to the right of government to regulate tobacco.
The cigarette manufacturers were the main force behind the TGIC. But the organization cannot be written off as an attempt by industry to “farm the farmers.” Hutson, after all, had been present at the founding of the TIRC. At one early TIRC meeting, Farm Bureau representatives and Burley tobacco growers sat shoulder to shoulder with industry lawyers, PR executives, and Clarence Cook Little, the infamous physician whose commitment to a genetic theory of cancer causation made him the industry’s favorite doctor.179 And, of course, three of the fourteen signatories to the infamous “Frank Statement to Cigarette Smokers” (1954) were representatives of farm groups.
Instead the TGIC represented a new chapter in the relationship between organized growers and manufacturers—a new chapter in the cigarette’s history. Long gone were the days of night riding and thunderous denunciations of the Tobacco Trust. The federal farm program had empowered and organized elite tobacco growers to expand the market for cigarettes abroad, and to defend the smoky status quo at home. The TGIC vindicated Cooley’s earlier calls for “a positive PR program for farmers.”180 With tobacco industry backing, farmers finally had their arsenal of “facts” and “truth” to supply to “the important writers, magazines, and newspapers, of the United States”; they finally had their “speakers bureau” and more than one “well qualified person” ready to present their side of the story.181
* * *
In collaboration with the industry, growers’ rhetoric took on an antigovernment tone, even as flue-cured tobacco growers received a greater level of federal support than any other group of commodity growers. And the TGIC was enabled by government agencies themselves: its leadership and membership rested upon a small group of men who held power within and outside of the agricultural bureaucracy. The apparent hypocrisy of a highly subsidized industry decrying government regulation was no contradiction at all. One could choose to ignore the structuring hand of the state through participation in voluntary organizations like the NCFB and the TGIC. One could view Tobacco Associates’ mandatory assessment as evidence of farmers’ responsibility and ownership over a private program, rather than a compelled surplus disposal mechanism. And with enough help, one could even see the federal tobacco program itself not as a taxpayer-funded subsidy—because, after all, farmers did not receive direct payments from the government, only price supports that they received in exchange for reducing their acreage.
The associational nature of agricultural power—evident in the NCFB, the TA, and the TGIC—was not a simple story of private interest capture, as critics like Wesley McCune and Grant McConnell charged. Rather, the decentralized mechanisms for controlling tobacco established during the 1930s and expanded during the 1940s and 1950s were conceived of as joint ventures between select citizens and the state, shepherded by an elite coterie of men who were sometimes employed formally by government, and other times in the private sector. This allowed private organizations to disavow their political privileges, and even stoke antigovernment resentment against “political opportunists” trying to “legislate tobacco out of existence.”182 Guided by the postwar economic ideology of more—more cigarettes, more smokers, more exports, more quota—grower organizations and the industry drew close. When tobacco farmers finally embraced PR they did so in conjunction with the tobacco industry. At stake was not just a commodity or product. At stake was a way of doing government.
4
The Challenge of the Public Interest
The tobacco program might not mean much to those to chant, chant, chant nonsense, but it means something to those who remember 10 cent tobacco.
—Hubert Humphrey
We don’t look for voluntary cooperation. We sue people—we sue the bastards.
—John Banzhaf III
IN 1964 it finally happened.1 On Saturday, January 11, surgeon general Luther Terry stood behind a podium at the State Department Auditorium and announced the release of a much-anticipated report on smoking and health. A Saturday address was a departure from the normal order of official press conferences. But the Public Health Service (PHS) knew that the announcement would send tobacco stock prices tumbling, and so Terry’s address was postponed until after the markets had closed. Nine “no smoking” signs had been hastily fastened to the walls of the auditorium where Terry spoke. A handful of the two hundred reporters, government workers, and industry spokesmen—including Terry’s assistant for information—smoked in the hallways outside.2 The surgeon general himself had recently switched from cigarettes to an occasional pipe or cigar.3
The Report announced in no uncertain terms that cigarette smoking was causally related to the American death rate. Smokers had, on average, a nine- to ten-fold greater risk of developing lung cancer compared to nonsmokers; for heavy smokers, the risk was twenty-fold greater.4 Smokers suffered from coronary heart disease, the leading cause of death at the time, at a rate 70 percent higher than nonsmokers.5 Cigarettes were also judged to be the most important cause of chronic bronchitis, and were associated with an increased risk of dying from both chronic bronchitis and pulmonary emphysema.6 Given the magnitude and gravity of the peril posed by cigarettes, the surgeon general confidently predicted that there would be no “foot dragging” by the government in tackling the problem.7
The Surgeon General’s Report marked the high-water mark of the expert-driven, consensus-based policymaking characteristic of the U.S. government since the 1930s and intensified by the Cold War.8 Terry had, after all, gone to great lengths to produce a report that was as politically unimpeachable as it was scientifically rigorous. The tobacco industry’s recent innovations in organized denial highlighted the need for a document that would be understood as authoritative in the face of industry-generated controversy.9 To compose the advisory panel responsible for reviewing the accumulated research on tobacco, Terry’s staff compiled a list of 150 candidates recognized as experts in the fields of pulmonology, cardiology, epidemiology, and statistics. The list was then circulated to the American Medical Association, the American Heart Association, the American Cancer Society, the National Tuberculosis Association, and the Tobacco Institute. Each group could strike any name for any reason. The ten men ultimately appointed to the committee were thus chosen by a process of elimination and consensus (see Figure 4.1). Terry made sure that five committee members were smokers. Throughout 1963, the panel convened in a room at the National Library of Medicine. The air was thick with smoke and the table covered in papers and ashtrays.10 Even the Surgeon General’s Report was the product of a smoke-filled room.
The Report also augured the end of that era. The year 1964 marked the beginning of a wholesale reevaluation of the relationship between the machinery of government and the representation of the governed. Spurred by the civil rights movement and antiwar activism, a great many Americans had become increasingly skeptical of all manner of elite, expert-driven institutions—from doctors’ offices to universities to the smoke-filled chambers of congressional committees. In many ways, Americans were becoming less tolerant of the everyday life of associational government itself.11
Figure 4.1 Luther Terry addresses reporters upon the release of the 1964 Surgeon General’s Report. The Surgeon General’s Advisory Committee on Smoking and Health is seated behind the podium. (Profiles in Science / U.S. National Library of Medicine / NNBDBV)
Over the course of the decade, scholars, lawyers, and activists would launch a powerful critique of the hermetically sealed corridors of power that ran between organized interest groups and the government. Critics advocated, instead, for a broader role for “the public”—not only as the target of policy, but as participants in political decision making. Emerging just as the federal government pledged itself to “remedial action” on cigarettes, the public interest critique shaped the tactics and composition of the anti-tobacco movement. The elaboration of the public interest was a powerful condemnation of tobacco corporatism. It resonated with Americans who had already begun to suspect that modernity—found in suburban tract housing, in the agricultural chemicals that yielded supermarket abundance, in the cigarette—may well come to destroy itself.12
The Participatory Ideal
A few months after the 1964 Surgeon General’s Report was issued, legal scholar Charles Reich published an essay examining what he called “the New Property.” He observed that the growth of the administrative state at the federal and state levels had created not just new levels of wealth, but new categories of wealth.13 “Increasingly, Americans live on government largess—allocated by government on its own terms, and held by recipients subject to conditions which express ‘the public interest.’ ”14 Agricultural subsidies, including subsidies for tobacco growers; franchises for motor carriers, airlines, oil and gas pipelines; broadcast and occupational licenses; direct government contracts; Aid to Families with Dependent Children; unemployment and Social Security insurance—these were but a few of the most obvious forms of property created by what Reich called the “public interest state.”
But what the state created in the name of the public interest, it could also take away.15 Indeed, the power of government largess—whether in the form of a broadcast license, admission to the state bar, an old age pension, or public welfare assistance—had legalized the abandonment of the Constitution: those in a position of dependence upon the government were, in many cases, found not to enjoy the protections of the First, Fourth, or Fifth Amendments.16 Writing with a particular regard for the way loyalty oaths enforced an ideological conformity as a condition for the receipt of gratuities, Reich rather dramatically analogized modern American political economy to feudalism. “Just as the feudal system linked lord and vassal through a system of mutual dependence, obligation, and loyalty,” Reich wrote, “so government largess binds man to the state.”17
Tobacco growers were far from Reich’s own consciousness, but they well understood the dynamics that he described. For the past three decades, the right to grow and sell tobacco had been an exemplary form of “new property.” For Reich, some state-society interaction led to the diminution of rights for individuals or disfavored firms, and some facilitated partnership that allowed select private entities to act as branches of the government.18 Undergirded by affluence and executed by layers of bureaucracy, associational governance was responsible for an “utterly joyless” political landscape that offered no refuge to “the spirit of man.”19
Reich’s romanticism was tempered by his faith that institutions could be reformed. To safeguard the freedom of the individual in collective society, Reich proposed transforming government largess into rights—claims that an individual could make upon the state. A right to government support would safeguard an individual’s independence by establishing “a secure minimum basis for individual well-being and dignity in a society where each man cannot be wholly the master of his own destiny.”20 The only way to make man independent in a collective age would be to transform benefits into entitlements.
“The New Property” was hugely influential. It remains the most cited article ever to appear in the Yale Law Journal, its influence extending well beyond the echo chamber of academic citations. Justice William Brennan drew upon the essay in a 1970 decision that held that welfare benefits resembled property and not government grants, thereby establishing a higher bar for their termination.21 Equally important, Reich’s yearning for authenticity inspired a generation of young lawyers who also imagined that agencies and courts could be sites where the broad public interest could find affirmation.
Reich understood the value of state-created gratuities; he had seen firsthand what government could do for America’s largest corporations. After graduating from Yale Law School in 1952, he clerked for Supreme Court Justice Hugo Black during the term in which the Court handed down Brown v. Board of Education. He then joined the prestigious firm of Arnold and Porter, a den of the District’s indigenous political creature, the “Washington lawyer”—a consummate insider, offering his clients access and influence on Congress and administration officials while zealously advocating for their interests before administrative agencies or the D.C. Court of Appeals.22 Five years at Arnold & Porter gave Reich “a ringside seat from which to observe the operation of private corporate power … intertwined with the exercise of the federal’s government’s regulatory authority.”23 Those five years also provided ample exposure to the nexus of the law and the economy—the “corporate state,” as Reich and other critical observers would term it—and the young lawyer had his fill. Reich returned to Yale in 1960, and spent the rest of the decade teaching at a law school that grew frothy with student demands for institutional reform.24
The Greening of America (1970) solidified his reputation as a scholar-guru to the counterculture, but Reich was, above all, a liberal.25 As “New Property” demonstrated, Reich viewed the federal government as the essential guarantor of economic security. But he saw a perversion of democracy in the cozy relationships that existed between some regulatory agencies and the industries they stewarded—relationships that effectively blocked the door to broader public participation in the administration of national resources. His 1962 essay “The Public and the Nation’s Forests” was a critical appraisal of the government’s stewardship of national forests. “The power to make fundamental policy for the publicly-owned forests has fallen to small professional groups,” despite the fact that all Americans had “a major stake in forest policy.”26 The problem lay in the closed-door nature of agency decision making, which left little opportunity for public participation and even less for substantial judicial review of agency decisions. The problem lay in the circuitry of associationalism itself.
At Yale Law School, students formed the first environmental law organizations, explicitly citing Reich as a major inspiration.27 By the end of the 1960s, this type of critique had inspired a new field of legal practice: public interest law. Public interest lawyers sought to represent people, ideas, and even objects (a famous 1972 essay by Christopher Stone inquired “Should Trees Have Standing?”) that were left out of the normal channels of political power. This critique of federal agencies, particularly in connection with the environment and natural resource allocation, would become increasingly salient through the 1960s, giving rise to the modern environmental law movement.28 Public interest law stood as a rebuke to a system in which corporations, well-funded interest groups, and politically favored constituencies held disproportionate power.
Scholars of government in the 1960s were increasingly characterizing interest groups and the agencies with which they interacted as two sides of an “iron triangle”—a metaphor for the unholy political geometry that existed between interest groups, regulatory agencies, and Congress, ensuring that policy was passed and implemented for the benefit of a small, organized cadre of moneyed elites. Condemnation of the business orientation of politics spanned the ideological and disciplinary spectrum. New Left critics of “corporate liberalism” and right-wing market-oriented critics of “regulatory capture” shared a deeply felt skepticism of the independence of government from vested interests.29
