Powell and the Tobacco Corporations Show the Way

By 1971, Lewis Powell was a director of more than a dozen large corporations, including Philip Morris Inc., a global manufacturer and seller of cigarettes. Powell joined the Philip Morris board of directors in 1964, when the corporation sought to mitigate the US Surgeon General’s report about the grave dangers of smoking. Powell remained a director, and an executive committee member, of the cigarette company until his appointment to the Supreme Court in 1971. Powell also advised the Tobacco Institute, a lobbying and misinformation shop that was stripped of its corporate charter in the 1990s after decades of using phony science and false statements to create a fraudulent “debate” about smoking and health.

The cigarette corporations’ response to public efforts to address addiction, smoking, and health is a big part of the larger story of how corporations undermined the Constitution and American democracy. The tobacco companies, with Powell’s encouragement, began testing the ideas that Powell urged upon the US Chamber of Commerce in 1971. By a campaign of aggressive resistance to efforts to address the devastating social and public costs of its lethal products, the cigarette corporations created a model. As a director and an executive committee member of Philip Morris, Powell shared responsibility for the fraudulent attack on the conclusions of scientists and the surgeon general by the cigarette industry and for its false insistence for years that “no proof” showed cigarettes to be unhealthy.

Hints of this work can be seen in the Philip Morris annual reports issued during Powell’s tenure as a director. We now know, thanks to recent findings of a federal judge, that many of the assertions in these annual reports were knowingly false. According to the reports themselves, these statements and others were made “on behalf of the board of directors,” including Powell:

1964:“The industry continues to support major research efforts directed towards resolving the many unanswered questions on smoking and health.”

1967:“We would again like to state that there is no biological proof that smoking is causally related to the diseases and conditions claimed to be statistically associated with smoking … no proof that the tar and nicotine levels in smoke are significant in relation to health.”

1970:“Often the scientific information which is relied on to indict cigarette smoking is of dubious validity.”

Powell endorsed these false statements as a director and executive committee member. He also actively encouraged the disinformation campaign, congratulating the Philip Morris CEO for the company’s “attacks” (as the industry called it) on the American Cancer Society and urging the CEO to “restrain” the “extremism” of the Cancer Society and scientists.

Absent proof, it might be reckless to say that Philip Morris and the other tobacco corporations engaged in a willful, aggressive, wide-ranging conspiracy and racketeering enterprise so that the corporations could sell more products that kill people. Now that the evidence is in, however, we know that this is exactly what happened. We know, thanks to scientists, victims of the conspiracy, state attorneys general (both Democrats and Republicans), the US Department of Justice (under both Presidents Bill Clinton and George W. Bush), and Judge Gladys Kessler and a panel of US Court of Appeals judges appointed by Presidents Ronald Reagan, Bill Clinton, and George H. W. Bush.

In 2006, the US Department of Justice took the cigarette corporations to trial, alleging that they had engaged in a racketeering conspiracy. Eighty-four witnesses testified in the nine-month trial, and hundreds of internal corporate secrets were finally exposed. When the verdict came in, Judge Kessler concluded that “overwhelming evidence” proved that the cigarette corporations “conspired together” to fraudulently deny that cigarettes caused cancer, emphysema, and a long list of other fatal diseases; to manipulate levels of highly addictive nicotine to keep people smoking; to market addictive cigarettes to children so that the corporations would have “replacement smokers” for those who quit or died; and that they “concealed evidence, destroyed documents, and abused the attorney-client privilege to prevent the public from knowing about the dangers of smoking and to protect the industry” from justice.

As counsel to the cigarette industry and as a Philip Morris director, Powell already had begun testing the use of activist-minded courts to create corporate rights. In one case in the late 1960s, Powell argued that any suggestion that cigarettes caused cancer and death was “not proved” and was “controversial.” According to Powell, the Federal Communications Commission wrongly violated the First Amendment rights of cigarette corporations by refusing to require “equal time” for the corporations to respond to any announcement that discouraged cigarette smoking as a health hazard.

Even the US Court of Appeals for the Fourth Circuit, based in the tobacco-friendly South, rejected this claim. Although Powell lost that time, he went on to win far more than he could have imagined after he got on the Supreme Court and helped change the Constitution.

Powell’s 1971 memo to the US Chamber of Commerce laid out a corporate rights and corporate power campaign. The Chamber and the largest corporations then implemented these recommendations with zeal, piles of money, patience, and an activist Supreme Court. In equating corporations with “We, the People” in our Constitution, no justice would be more of an activist than Lewis Powell after he joined the Supreme Court in 1972.