Tobacco-Free Kids Files FEC Complaint Against The Tobacco Industry

Apparent Election Law Violation Influenced Crucial Senate Tobacco Vote

Jun. 29 1998

Washington, DC - Today, the CAMPAIGN FOR TOBACCO-FREE KIDS filed a complaint with the Federal Election Commission against the five major U.S. tobacco companies alleging they violated federal election law by indicating they would mount a television ad campaign in support of senators voting, in effect, to kill the McCain tobacco control bill. he industry’s promise influenced the 57-42 outcome of the June 18 Senate vote on the cloture petition to endthe debate on the McCain bill. The companies named in the CAMPAIGN’s complaint were Philip Morris Inc., RJ Reynolds Tobacco Co., Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., and United States Tobacco Company. Information upon which the complaint is based has been published in The Wall Street Journal, Time and The Washington Post. According to the news reports, just hours before senators were scheduled to vote on cloture, Senator Mitch McConnell (R-KY) informed his Republican colleagues in a closed door meeting that if they voted to kill the tobacco bill, major tobacco manufacturers would defend and reward them by launching a television ad campaign in the fall supporting their actions. "The intent of these promised ads was clearly to influence the outcome of the November elections by providing support and political cover to those who handed the tobacco industry this victory," said Matthew L. Myers, executive vice president and general counsel of the CAMPAIGN. "We are appalled and outraged by this blatant and successful industry attempt to buy the votes it needed." Corporations are expressly forbidden under federal election laws from making "contributions" or "expenditures" in connection with federal elections and candidates are expressly prohibited from knowingly accepting contributions made by corporations. A contribution or expenditure includes direct or indirect payments or "anything of value" to influence a federal election. "The recent news accounts once again underscore the power and influence that Big Tobacco has in Congress," said Bill Novelli, CAMPAIGN president. "In their most recent election cycles, the 42 Senators who voted against cloture accepted nearly four times as much tobacco industry money as Senators voting for cloture. Nicotine and money remain very addictive substances, and for many legislators, they are far more intoxicating than standing up for America’s kids. The five tobacco companies named in the complaint are those that sponsored the $40 million campaign against the McCain bill and presumably are those to which Senator McConnell referred in his remarks. A copy of the complaint is attached. June 29, 1998 General Counsel Federal Election Commission 999 E Street, NW Washington, DC 20463 Dear General Counsel: Pursuant to 11 C.F.R. §111.4, the National Center for Tobacco-Free Kids files this Complaint against Philip Morris Inc., RJ Reynolds Tobacco Co., Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., and United States Tobacco Company for what appears to be a violation of Federal election law, a violation which had a direct and serious impact on the June 18, 1998 Senate 57-42 vote on the Cloture petition to end the debate on S.1415, "The National Tobacco Policy and Youth Smoking Reduction Act." Corporations are expressly forbidden under federal election laws from making "contributions" or "expenditures" in connection with federal elections and candidates are expressly prohibited from knowingly accepting contributions made by corporations. A contribution or expenditure includes direct or indirect payments or "anything of value" to influence a federal election. The Federal Election Commission has defined "anything of value" to include in-kind contributions, including advertisements. 11 C.F.R. §§ 100.7(a)(1)(iii) and 100.8(a)(1)(iv). Based upon reports that have been widely published in the news media, only hours before Republican senators were due to vote for or against cloture on S.1415, Senator Mitch McConnell informed his colleagues in a closed door meeting that if they voted to kill the tobacco bill, the major tobacco manufacturers were promising to mount a television ad campaign to support those who voted against the bill. When Senator McConnell reported that the goal of the tobacco industry’s ads to be run in the Fall after the critical vote was to support and defend those Senators who voted to kill the bill, he clearly demonstrated that these potential ads were not issue ads, but ads intended to influence the outcome of the upcoming election. Communications, like the ads the tobacco industry is reported to have promised Republican Senators it would run, especially when made with the cooperation, coordination, or even just the consent of, or in consultation with, or at the request or suggestion of, any candidate do not qualify under any exception to the campaign finance laws, but rather confer something of "value" that constitutes an illegal "contribution" by the tobacco industry. FEC Advisory Opinion 1988-22. See Also Clifton v. FEC, No. 96-1812 (1st Cir. June 6, 1997) (1997 WL 292145). Rarely is the connection between a campaign contribution and a vote on a critical issue so blatantly linked as occurred in this case. In this case, the quid pro quo was clear and it is clear that it was at least communicated by Senator McConnell, the Chairman of the National Republican Senatorial Committee, to his colleagues just before a crucial vote: Vote for the tobacco industry and the tobacco industry will advertise to help you during the upcoming election. It is the combination of the stated goal of the ads (to support and defend senators who voted with it in the upcoming election) and the coordination and/or cooperation between the tobacco industry and the senators regarding the expenditures reflected in the promised ad campaign during the upcoming election that constitutes a serious violation of the election laws. The facts upon which this complaint are based are contained in several reputable recent media reports and not upon the personal knowledge of the complainant because the tobacco industry’s promises were made and communicated in secret behind closed doors. For example: The Wall Street Journal reported on June 25, 1998: "On the day the Senate killed comprehensive tobacco legislation, Sen. Mitch McConnell stood up at a closed-door meeting of Republican senators to deliver the good news: The tobacco industry would mount a television ad campaign to support those who voted to knock off the bill. Such ads, Mr. McConnell says now, ‘would generally be helpful to people who decided to kill this bill as a big tax increase on working Americans.’ The Kentucky Republican, chairman of the Senate GOP campaign committee, played a prominent role in the bill’s demise last week, his colleagues say, advising Senate Majority Leader Trent Lott of Mississippi that he could eliminate the measure without fear of voter reprisal . . . And the tobacco industry’s $40 million ad campaign against the bill helped convince members that public opinion could be swayed on the issue. . . . Republicans and industry ads will paint the issue as whether voters favor ‘raising taxes to enrich trial lawyer,’ he says." Time Magazine reported in its June 29, 1998 edition similar comments from McConnell: "In the end, it was McConnell who was most persuasive. He told Lott that things had changed since the process had begun in April. His Senate candidates were safe; in tight Senate races, such as North Carolina and Kentucky, defending tobacco would help more than hurt. Besides, McConnell argued, the industry was promising to run ads on behalf of GOP Senators to defend them against charges that they’d killed the bill. The Washington Post reported on June 17, 1997: "In some states, [Republican political consultant] Murphy said, the industry is trying to give cover to conservative senators…." The Washington Post reported on June 18, 1998: "One tobacco ally said the industry assured Republican lawmakers the companies are willing to spend more money on ads between now and election day to continue its anti-tax, anti-big government message." The five tobacco companies named in this complaint are the five companies who sponsored the $40 million campaign against S. 1415 over the last several months and presumably are the companies to whom Senator McConnell referred when he spoke of the promised advertising campaign in support of candidates who voted against cloture in order to defeat this bill. Therefore, we request that the FEC fully and promptly investigate this matter and put an end to the illegal "expenditures" by the tobacco industry on behalf of those senators who voted against cloture on S.1415. Respectfully Submitted, William Novelli, President Matthew L. Myers Executive Vice President and General Counsel (Original notarized)

 

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