Tobacco Industry’s Threats: Provocative, But Legal

The campaign for a November ballot measure to raise California’s tobacco tax is criticizing reported threats it says came from industry lobbyists. The targets are six anti-tobacco bills passed by the Legislature last week.

The threats are provocative. But they’re also legal.

If the anti-tobacco bills become law, the tobacco industry has reportedly warned it will use California’s referendum process to overturn at least some of them: most likely, the measure that would raise the tobacco purchase age from 18 to 21; and the bill that would allow counties to ask voters to impose local tobacco taxes.

That’s a common reaction from well-funded opponents of bills that become law in California. What’s noteworthy is the tactic the tobacco industry says it would use once the referenda are cleared for signature gathering: paying $10 for every voter signature.

That would drive up the cost to qualify every other ballot measure gathering signatures – including the tobacco tax increase, and Governor Jerry Brown’s proposed overhaul of California’s criminal justice sentencing system. The signature-gathering market is already quite expensive and has forced backers of at least one initiative to abandon their campaign. The proponent of a second initiative announced on Monday that he’s pulling the plug.

“This is an industry that will stoop to anything to continue its business model to try to addict kids to a lifelong nicotine habit,” says Jim Knox with the American Cancer Society, which supports the tobacco tax.

Neither the lobbyist accused of making a threat nor his client, the tobacco company Altria, responded to requests for comment. But three experts we spoke with say the threats appear to be perfectly legal.

“Yes, it may sound nasty and they’re fighting, but that doesn’t make it a federal criminal case,” says retired FBI agent James Wedick, who used to investigate corrupt California lawmakers. “It’s one thing if you’re threatening violence, or something else against the law. But as far as politics go, if one side threatens to do something politically to make it difficult for the other side, that’s not against the law.“

“I don’t think it rises to the level of extortion under the California penal code,” says Loyola Law School professor Jessica Levinson. “I think it’s frankly a really explicit version of what happens a lot in Sacramento and in state capitols and city halls throughout the country, which is lobbyists essentially very strongly flexing their muscle and saying, ’Look, if you don’t vote with me on this, here are what the consequences will be.’“

“Although some may find that type of influencing distasteful, it really doesn’t violate the Political Reform Act or any other ethics law,” says Gary Winuk, the former chief of enforcement for California’s Fair Political Practices Commission. He adds there are freedom of speech implications: “You can tell someone, hey, if you don’t vote this way, then I’m gonna put it on the ballot. You have to always balance ethical behavior with still the ability of people to express their opinion.“

In what could be a political countermove, the Legislature still hasn’t sent the bills to the governor – even though they won final approval last week. That means Brown’s 12-day decision period hasn’t begun.

The longer this drag on, the longer it’ll be before the tobacco industry can start paying for signatures – presuming, of course, that Brown signs the bills – which is not guaranteed.

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