Lessons in Legislative Manipulation From the Tobacco Industry

The article in the November 14 issue of the New York Times about the extent to which the biotech firm Genetech was able to put their own words into legislators' mouths raises the next logical question: To what extent are corporations in the U.S. actually drafting laws and getting them passed?

We can't deny this is happening, yet few want to talk about it. Tobacco industry documents, though, show exactly how corporations can and do co-opt legislative processes from start to finish, and how successful they are at it. Big Tobacco's success at staving off regulation shows its ability to control legislative processes. The tobacco industry's pioneering work in this area has drawn a road map for other industries showing how to manipulate state and federal legislatures as well.

There are many ways that businesses turn legislative processes to their own advantage. Certainly they lobby to thwart laws they don't like, but they also actively draft and push through laws of their own design, for lots of purposes. Tobacco documents demonstrate this.

Big Tobacco Embraces "Bomb-Throwing"

Starting around the late 1980s, the tobacco industry made a fundamental shift in its legislative strategy from simply fighting bills it didn't like, to actively drafting and pushing legislation designed to head off public resistance to its products. They called it their "proactive strategy" or "throwing bombs." They used it to dissipate opponents' resources, harass them, get out in front of them and keep them from causing more trouble for the industry -- all tactics which are now part of the playbook for other industries that have drawn contingents of opponents, like the health insurance industry, the pharmaceutical industry, the extractive industries, the plastic bag industry and many others. Following are on-the-ground examples of how the tobacco industry applied its proactive legislative strategy.

Tactic #1: If You See a Strong Law Coming, Pass a Weak One

One corporate legislative "bomb-throwing" tactic involves pushing through weak, ineffective laws designed to head off more restrictive ones. A Tobacco Institute paper titled "Proactive Legislation" describes the industry's use of this tactic in state legislatures.

In 1988, the Institute noted that strong public sentiment existed in Colorado for a statewide smoking ban. Support was so strong, in fact, that even the industry's usual ally, the Colorado Restaurant Association, supported such legislation. To head off the public's favored measure, the Institute planned to introduce its own, weak statewide smoking bill "with moderate provisions" that would "institutionalize certain smokers' rights and dramatically weaken one of the strongest statewide GASP [Group to Alleviate Smoking Pollution] organizations in the country." Big Tobacco planned to hide its efforts by arranging for unrelated groups -- trade, professional and business organizations -- to be the bill's primary supporters.

The Institute searched for a friendly legislator to introduce the bill, and identified Colorado Republican legislator Bill Owens (who went on to become governor) as "a friendly member of the House Local Government Committee (consistently favorable to tobacco interests)" who could "offer a substitute bill with desirable provisions with a good chance of having it adopted and passed out of committee ..."

The Institute laid out its strategy for getting the bill through the legislature:

Publicly, tobacco industry advocates should express the position that NO smoking restriction law is desirable. If pressed, they should acknowledge that uniform regulation throughout the state is preferable to the state of confusion which now exists. Privately, our lobbyists would of course encourage legislators' support of the substitute [weak] bill.

Through this and other legislative efforts, the Tobacco Institute staved off a truly effective statewide smoking law in Colorado until fully 18 years later, in 2006.

Tactic #2: Link to an Emotional Issue

Another way corporations get their preferred laws on the books is to link their issue to one that people feel very strongly about, and then leverage that emotion to advance their measure.

Example: Most people strongly oppose discrimination in the U.S. The Tobacco Institute harnessed those feelings to pass laws protecting smoking by portraying smoking as a trait, or a human characteristic, rather than a behavior.

A 1990 letter by Tobacco Institute lobbyist Stan Boman discusses passing "smokers' rights" legislation in Oklahoma. In the letter, Boman portrays smoking as a personal trait, instead of a behavior, by opining that employers who require employees to be nonsmokers subject smokers to "spiteful and unreasonable discrimination in employment practices." Boman wrote that the industry felt "something must be done" about this situation, and added, "as a result, non-discrimination legislation [protecting smokers] has been introduced in 27 states and passed in nine of them." Thus, by 1990 the tobacco industry got laws passed protecting smoking behavior in fully one-third of the states in which they attempted to do so, and were continuing to push for similar laws in the remaining states.

Tactic #3: Introduce bills purely to make opponents waste resources playing defense

In Rhode Island in 1990, the industry planned to introduce a "proactive" bill to create uniform sales, sampling and vending machine regulations, and which would also "preempt local ordinances and forbid bans." The primary purpose of their measure was to "cut off the possibility" that citizens could enact bills regulating tobacco more strictly. An Institute report describing the plan gives away the strategic nature of this bill:

This legislation is unlikely to be enacted; it is intended to dissipate the energies of the anti-tobacco forces and put them on the defensive.

Similarly, a 1994 Philip Morris (PM) memo written by Ellen Merlo, PM's Senior Vice President of Corporate Affairs, shows that PM has abused state legislative processes purely to harass opponents. Merlo describes how PM combatted local smoking restrictions and increased cigarette taxes in California in 1994. PM's strategy was to "create a flurry of legislative activity to confound the antis [public health advocates] by introducing various bills and measures to put them on the defensive ..." Merlo's words show that PM would tie up state legislatures with essentially meaningless bills solely to antagonize public health advocates (the "anti's"). She also demonstrates PM's confidence in its ability to introduce legislation at will. This memo was circulated to executives at the highest levels of Philip Morris.

Tactic #4: Introduce "Trojan bills"

The tobacco industry will also hide its preferred measure in a bill about a completely unrelated topic, and many legislators will have no idea about the origins and real purposes behind these "Trojan" bills.

Example: in 1995, Philip Morris disguised "smokers' rights" legislation as property rights legislation. First, PM framed smoking restrictions as a "government taking" of private property. This allowed them to link smoking to property rights -- a hot-button issue, particularly in western states. A telltale 1996 PM email shows that PM introduced a "property rights" bill that would effectively prevent smoking bans statewide. Incredibly, PM's bill did not even contain the words smoking or tobacco. Instead, the wording prohibited placing "burdens on individual property owners to achieve general public purposes," which included protecting public health. The bill put the burden of proving harm to public health on local government, an expensive obstacle to enacting a smoking ban. Pam Inmann, PM's Colorado lobbyist, emailed PM executives in 1996 about the "takings" bill that the company successfully introduced in Colorado's legislature. Inmann wrote:

Tomorrow barb will fax you a cc [copy] of SB 69 [a private property "takings" bill]...I think this will work on smoking bans in the future..."

PM's takings bill was introduced and was passed by Colorado's Senate and House of Representatives, but was ultimately vetoed by then-Governor Roy Romer.

Tactic #5: Analyze and Exploit Every Part of a Legislator's World

A 1993 PM presentation called Grasstops Government Relations is a tutorial about how PM influences legislators. PM uses an "Influence Wheel" that contains sections representing legislators' ideology, beliefs, media, special constituents, voters, pet causes and charities, to show how the company scrutinizes every facet of a legislator's world and how the company influences them at every possible juncture. For example, PM helped legislators create and strengthen alliances with individuals and groups to reinforce their hold on office; indulged their desire to be associated with good works and helped them be seen at sporting and cultural events. PM even investigated legislators' spouses' favorite charities and donates to them. PM indulged legislators with trips to "promotional and cultural events" in nice locales, including foreign countries. In short, PM finds every possible way to help legislators get what they want -- and believe they need -- thus earning their loyalty.

At the same time, Grasstops Government Relations shows how PM shifts the focus of tobacco issues to help legislators avoid discussing tobacco issues in a framework of public health:

...Finally, we try to change the focus on the issues. Cigarette tax become[s] an issue of fairness and effective tax policy. Cigarette marketing is an issue of freedom of commercial speech. Environmental tobacco smoke becomes an issue of accommodation. Cigarette-related fires become an issue of prudent fire safety programs. And so on.

I am certain that this list represents only the tip of the iceberg of legislative tricks used by industry to manipulate legislators and legislation. The tobacco industry's influence on lawmaking in the U.S. has been pervasive, and shows that corporations draft their own legislation, get their preferred measures introduced at will, and obtain passage for them at a remarkable rate.

How Many of our Laws May Have Been Drafted and Passed by Corporations?

There is probably no easy way to quantify corporate lawmaking in the U.S., but industry documents give us an idea of its extent.

PM sets its goals high when working to enact laws of its own making. In 1994, Ellen Merlo of PM gave an internal speech in which she stated PM planned to enact laws in all 50 states that would stop cities and towns across the U.S. from passing their own smoking laws. In her speech, Merlo boasted that by October of 1994, PM had successfully passed its laws in 29 states -- well over half the country.

This article considers the manipulative activities of just one industry, and over just a few years. Many other industries now have more than enough money to exert the same influence -- the pharmaceutical industry, the insurance industry, the chemical industry, the food and drink industries, and so many more. I know of no study that has examined the origins of state and federal laws to find out just how many came about due to corporate conniving.

Corporations will continue to wrest control of our country's legislative processes away from the people and co-opt it for themselves, but we out number them. It's time to join together to ensure, as Abraham Lincoln so memorably said in his 1863 Gettysburg Address, that "government of the people, by the people, for the people, shall not perish from the earth."