The Cigarette, page 18
Banzhaf’s technical achievements reflected the diminishing power of rural districts—a fact that would eventually loosen tobacco’s grip on Congress. Before graduating from law school, Banzhaf had also found time to develop a mathematical model of voting power. Now known as the Banzhaf Index, the model produced new apportionment plans that conformed to the Supreme Court’s “one man, one vote” principle recently established by recent apportionment cases of Baker v. Carr (1962), Wesberry v. Sanders (1964), and Reynolds v. Sims (1964).94 Before Banzhaf reached age twenty-seven, the New York State Supreme Court had cited his analysis and adopted his index as a requirement for statewide apportionment.95 Banzhaf needed no convincing as to his powers of persuasion.
Perhaps the only thing that surprised Banzhaf was how little effort his successful petition to the FCC took. No mathematical modeling was needed—not even a simple ratio of public-health to cigarette ads. There were no rounds of submission to law journals, just three typed pages to the commissioners. This gadfly approach was evident in all of Banzhaf’s appeals. Whether the subject was cigarette advertising or voting power, Banzhaf relished identifying short circuits in the system and crafting an alternative—an engineer’s approach to the law. Banzhaf did not consider tobacco among the most pressing social issues of the day. “If I had to rank them on a scale I would certainly put smoking below such things as the war in Vietnam or the racial issue,” he confessed in 1970.96
But the civil rights and antiwar movements already had their champions. Tobacco, on the other hand, was a corporate Goliath that stood more or less unchallenged by any crusading David. Banzhaf’s was a procedural, almost mercenary, approach to advocacy. “We’re surrounded by a large number of windmills. I don’t look for the biggest or the most important one and make a frontal charge because to a large extent I wouldn’t do any good,” Banzhaf told a reporter in a major profile with the Washington Post in 1970. “I like to look around and find one with a crack down at the bottom and a little loose brick and find where I can yank that loose brick and send the whole thing tumbling down.”97
Banzhaf could occasionally sound like a flamethrower, but in reality his approach to activism was guided by considerations of efficiency. He would pursue tactics within the existing system of law. Banzhaf and Yannacone shared a pugnacious and pithy mantra: “sue the bastards”—a motto as hopeful as it was harsh. It implied a faith in the judicial system to respond to the claims of injured citizens and the clever public interest lawyers who argued on their behalf. Advocates for the environment, consumer protection, and public health worked within the system to improve, not overturn it.98 “What we have to do is show this generation that a great many problems can be solved within the system,” Banzhaf told a Washington Post reporter, expressing a sentiment that belied his twenty-eight years. “There are a great many which are attackable through either the legal system, as we are doing, or through the political system, or sometimes simply through publicity.”99 In this respect, Banzhaf was several shades more conservative than Nader, whom he saw as trying to change the overall system itself. “He’s more apt to try to get a bill through. I’m more apt to file a complaint with an agency.”100
As Yannacone prepared his case against DDT and Nader advocated for the passage of a meat safety inspection act, Banzhaf was doing his best to ensure that the FCC ruling would stand. He faced ferocious opposition from both the tobacco industry and the National Association of Broadcasters, the latter objecting to the government’s mandate that salable airtime be given for free. Such a ruling was a violation of the broadcasters’ First Amendment rights, it argued, and put the United States one giant goosestep closer to a regimented police state.101 Despite petition from the Tobacco Institute and the broadcasters, the FCC declined to review its ruling, deeming it “a simple and practical one required by the public interest.”102
The final decision would rest with the courts. The National Association of Broadcasters filed an appeal at the U.S. Court of Appeals in Richmond—so chosen because of the hearing the industry could expect in a state that produced tobacco, manufactured cigarettes, and was home to Philip Morris. They were horrified to find themselves caught flat-footed once again. Anticipating the move by the broadcast industry, Banzhaf had beaten them to the punch: the young lawyer had flown early one Saturday morning from New York to Washington to file his appeal in person with a judge from the friendlier D.C. Circuit.103 In 1968, the D.C. court upheld the FCC ruling, affirming the Commission’s authority to regulate in the name of the public interest: “for whatever else it may mean, we think the public interest indisputably includes public health.”104
The broadness of the ruling in favor of the Commission infuriated tobacco’s congressional allies. Although the court was at pains to limit its ruling by distinguishing the dangers posed by cigarettes from other types of consumer goods, congressmen nevertheless invoked the specter of the slippery slope. In the House of Representatives, congressmen from the tobacco-growing states launched into an hour-long diatribe against the Commission’s “arrogation of Congressional authority” and “usurpation over the news.” The ruling “opens a Pandora’s box of decisions by the FCC that any individual with a pet peeve is entitled to free time on radio and television,” contended Walter Jones, a representative from North Carolina’s Coastal Plain. “Logic will demand the unlimited extension of the ‘fairness doctrine’ to a virtually endless list of products.”105 In siding with Banzhaf’s and the FCC’s conception of the public interest, the D.C. Circuit threatened the associational order that had empowered congressmen like Jones.
In a sense, Jones was right. The environmental and consumer advocacy movements were highlighting the hidden dangers lurking within the marketplace of American abundance. Nor were those dangers episodic: just as cancer causing agents were built into the very cigarettes being marketed, the “negative externalities” of mass consumption, whether in the form of highway deaths or polluted rivers, were attracting more scrutiny and drawing a crowd. Ralph Nader’s morally upright shadow threatened to extend the reach of the ruling. “Automakers may now expect the ‘Ralph Nader Hour’ devoted to scaring the bejabbers out of drivers,” opined the Indianapolis News. “What of other ‘hazardous’ products?” asked the irreverent Boston Herald. “Congress has legislated far more stringently as to automobiles than it has legislated as to cigarettes,” the paper observed in reference to the recent passage of the Nader-endorsed Motor Vehicle Safety Act of 1966.
Other commercial interests were alerted to their stake in the Fairness Doctrine ruling. Advertising Age speculated darkly that “other Mr. Banzhaf’s [sic], concerned about the hazards of driving high powered motor vehicles, or eating high cholesterol foods, or vegetables grown with the assistance of pesticides and chemical fertilizers, are sure to test the commission’s stamina.”106 The value of reciting this parade of horribles lay not in prediction—the Federal Communications Commission made clear that it was not interested in pursuing other products. It lay in alerting other industries of their shared stake in battling insurgent litigators, and cautioning that the government agencies that had been part and parcel of industry’s success in a mixed economy might no longer be as reliable as once assumed.
Objectors to the Fairness Doctrine ruling needed no warnings about the fickle nature of state support. Suddenly astute students of history, they frequently invoked Prohibition to denounce government intervention in the name of public health. Newspapers across the United States opined that the same mentality that led to the passage of the Eighteenth Amendment was in evidence in the FCC ruling.107 “A Nonsensical Ruling!” opined the Pueblo Chieftain.108 The Women’s Christian Temperance Union was bound to “demand equal airtime to exorcise the Demon Rum or any of his milder alcoholic permutations that toothsome models sip ecstatically for the continued good health of the brewing industry,” predicted the Hartford Times.109 The trade magazine Broadcasting interviewed a Mrs. Fred J. Tooze, the president of the Women’s Christian Temperance Union—the organization that spearheaded the temperance movement in the early twentieth century. Tooze was a perfect caricature of a humorless scold. In an interview that was no doubt intended to bait Tooze by way of illustrating the slippery slope of the FCC ruling, Broadcasting ominously asked “How Far Can Fairness Go?”110 Tooze was enthusiastic about the prospect of securing free airtime temperance messages as a result of the ruling—a strategy that never came to pass.
The slippery slope of bureaucratic meddling and judicial overreach was irresistible to conservatives, who viewed tobacco through the prism of civil rights. By referencing Prohibition, opponents of the ruling were able to suggest that such nanny state action challenged the manhood of the viewing public—their competence, individualism, and fitness for self-rule. James J. Kilpatrick, the Richmond native and nationally syndicated conservative columnist, described the FCC as “mamas and papas” who had reduced Americans to “erring children.” Kilpatrick had spent the previous decade making the case against Brown v. Board of Education, urging Virginia’s governors toward massive resistance to the ruling. What slaveholders in the nineteenth century would have called nullification, Kilpatrick renamed “interposition,” arguing that the states possessed ultimate power under the Constitution, and arrogated the right to “interpose” their authority against the federal government whenever they believed their prerogatives usurped.111 In denouncing the paternalism of the federal government’s tobacco rulings, Kilpatrick aligned tobacco with other catalysts of white resentment: integration, busing, welfare, women’s liberation.112 The fact that tobacco production was fully regulated by the Department of Agriculture—indeed, the fact that the white American middle class had been weaned on federal government programs since the New Deal—was not much observed by patriarchal, culturally conservative critics of tobacco regulation.
“Those Zealots:” Action on Smoking and Health
By 1969, much had changed in Banzhaf’s life.113 He moved out of his parents’ house and quit his job in New York to take up a position at George Washington University’s National Law Center. The location and the flexibility of academic life allowed him to focus his energies on legal action against tobacco. The formal vehicle for those energies was Action on Smoking and Health (ASH), which he operated from his law school office.
ASH was initially organized to assist Banzhaf in the Fairness Doctrine fight, and he secured star sponsorship for the group, which lent it the legitimacy necessary to solicit money for the part-time legal battles of a twenty-eight-year-old. Dr. Donald Frederickson, chief of the Molecular Diseases unit at the National Institutes of Health, sent an early letter of solicitation on ASH letterhead in January of 1968. Describing the recent FCC ruling as “the result of the work of only one man” who was then “struggling to defend the decision in his spare time,” Fredrickson implored readers to give their money or their name-recognition. “Our immediate need is for funds and the names of supporters. Even a nominal contribution will allow the organization to list you as a sponsor.”114
ASH’s earliest sponsors were impressive. They included legendary public relations (PR) man Edward Bernays—perhaps as penance for his role in fashioning cigarettes as feminist emblems in the 1920s in a bid to open up the women’s market.115 Alton Ochsner, the physician who pioneered research into the link between smoking and cancer, also lent his support. So too did senator Maurine Neuberger, the Oregon Democrat with a reputation as a dogged advocate for consumer issues; Edward Koch, who was then just a New York City councilman; and Louis Jaffe, the Harvard Law professor and preeminent expert in administrative law. The prestigious New England Journal of Medicine even broke with its own editorial tradition and encouraged readers to support ASH. “The medical profession has a rare opportunity to help the miniscule financial structure of A.S.H.,” the Journal wrote in an editorial that praised the FCC ruling. “It can do this by direct contribution and by encouraging patients to do likewise.”116 In 1968, ASH raised $75,000.117
For all its star-powered sponsorship, ASH was essentially a one-man outfit. Calling himself the Ralph Nader of tobacco, Banzhaf sought to become the pole star of the anti-tobacco movement. And where Nader had his Raiders—student activists who volunteered to rake the muck of government agencies and big business for evidence of “collusion, corruption, incompetence, and sloth”—Banzhaf had his Bandits. Banzhaf’s Bandits didn’t so much volunteer as were conscripted. In 1970, Banzhaf developed a course in “Unfair Trade Practices” at George Washington University. In it, groups of students were instructed to select contemporary examples of commercial deception, devise a clever acronym for their cause, and pursue a public action—an agency petition, an expose, a protest, or a lawsuit.118
In its first year, “Unfair Trade Practices” resulted in the formation of PUMP (Protests Unfair Marketing Practices), a group that supported a proposed FTC rule that required gas stations to display octane settings, and CRASH (Citizens to Reduce Airline Smoking Hazards), which petitioned the Federal Aviation Administration in support of a Nader initiative to separate smoking and nonsmoking passengers on airlines. But the Bandit group that went furthest in the Banzhaf method was SOUP (Students Opposing Unfair Practices), which alleged that Campbell’s Soup advertisements deceived the public into imagining a thicker, chunkier product because of the strategic use of marbles in soup photography.119
In a 3-2 decision, the FTC ruled against SOUP’s bid to intervene on behalf of the consumer interest. But it did result in FTC intervention against Campbell’s—and, more importantly, in an ample serving of bad publicity for the company.120 These crusades were signature Banzhaf: a mixture of publicity seeking, irreverence, and, not infrequently, irrelevance. These were charges that Banzhaf embraced. Banzhaf’s personal and philosophic mien was fundamentally more pragmatic than that of Ralph Nader, who was an ascetic idealist, total in his commitment to consumer causes. And Banzhaf’s approach was decidedly more ad hoc than those of the environmental lawyers, who embedded their legal activism in a broader ecological critique of industrialization, consumption, and waste. In Banzhaf’s hands—and with the muscle of his students—citizen participation provisions of new environmental laws were leveraged on behalf of the public interest.
At times Banzhaf undermined the potential for anti-smoking advocacy to coalesce as both a legal and a social movement. Some of the lawyer’s early public statements in his capacity as ASH director seemed to deliberately antagonize the existing public-health establishment. Part of the tobacco industry’s advantage in passing favorable legislation in the 1960s lay in the unity of its forces. Tobacco farmers, unionized tobacco workers, distributors, retailers, grocers, scientists-for-hire, advertisers, broadcasters, and industry executives marched in lockstep under the guidance of the Tobacco Institute, the Tobacco Growers Information Committee, and the Council for Tobacco Research.121
The Interagency Council on Smoking and Health, formed in 1964, was the closest thing that anti-tobacco forces had to a unified front.122 The Council was not an aggressive organization. Unlike a true “peak organization” representing a collection of similar organizations within a sector, the interests of the Interagency Council’s members were sometimes at cross-purposes. The major health voluntaries—the Heart Association, Lung Association, and the American Cancer Society—were tactically and culturally conservative. They relied on the goodwill of the broadcasters for free airtime during funding drives, and were large, consensus-based nonprofits, more comfortable with uplift, education, and suasion than with the realm of single-issue advocacy and litigation. Indeed, the Council declined to send the FCC a petition in support of the Fairness rule, perhaps out of an abundance concern for member organizations’ tax-exempt status—since laws prohibited tax-exempt organizations from lobbying, though not from advocacy.123 The Interagency Council was, to Banzhaf, the embodiment of the establishment: hulking, hidebound, and incapable of proactive movement against the tobacco industry.
The Council did, however, sponsor the first ever World Conference on Smoking and Health, which was held at the Waldorf in New York City in September 1967—just a few months after the FCC ruling. The event brought together 500 delegates from thirty-four countries, though the speakers were largely Anglo-American, as the United Kingdom and the United States were the only states that had yet released government reports on cigarettes. Physicians, epidemiologists, educators, clinic directors, and, of course, politicians were eager to take on tobacco outside of the narrow confines established by Congress. Robert Kennedy, burnishing his reputation as a Democratic standard-bearer for health issues, gave the opening address.124 He hailed the FCC ruling as “one of the most promising developments that has yet occurred in the effort to acquaint Americans with the dangers of cigarette smoking.”125 He also urged the Americans in the audience “to organize groups to monitor radio and TV stations to check compliance and to demand it and to complain to the FCC if it is found wanting.”126 Frank Moss, the Democratic senator from Utah whose Mormon faith was cited by tobacco’s supporters as evidence of latent Prohibitionism on the part of public-health forces, sat on one of the Conference’s closing panels. He was also sanguine about the development at the FCC. “In the face of the mounting evidence that seems to me completely overwhelming, I believe we can move forward in this field of equal time [in broadcasting],” Moss said in support.
