The Senate committee was not such a sure thing. The six Republicans were reliable enough, for this was clearly a crucial issue for Senator Thruston B. Morton of Kentucky, second-ranking GOP member of the committee, former chairman of the Republican National Committee, and current chairman of the fund-dispensing Senate Republican campaign committee. On the Democratic side, however, the only member whose political life required defense of the tobacco industry was Ross Bass of Tennessee, a freshman. Early in the hearings, Senator Vance Hartke of Indiana, another Democratic committee member, emerged as a tireless cross-examiner of those who opposed the industry's point of view. When questioned about Senator Hartke's seeming devotion to a cause of minimal importance to his own state, his aides took pains to explain that his interest did not stem from his longtime friendship with Clements, as some believed, or from the fact that Clements' campaign committee had given Hartke vitally needed election funds. Hartke himself said that he had come to the hearings thinking that there "must be some connection" between smoking and health, but came away "completely astonished" to find that the connection had not been proved. This gave the industry eight sure votes, and there were others on tap. What it wanted, however, was for the bill that went to the floor to have the support of Chairman Magnuson and of as many committee members as possible.
The industry's task was more difficult than it might have been if Senator Maurine B. Neuberger, Democrat, of Oregon, had not won a seat on the Commerce Committee when Congress opened in 1965. Mrs. Neuberger had long called for closer federal regulation of cigarette merchandising. Now she had an opportunity to challenge the witnesses who appeared before the committee and to proselytize her colleagues. To offset the attempts to undercut the FTC rulings, Mrs. Neuberger introduced legislation giving congressional sanction to what the FTC was trying to do. But in this she stood virtually alone.
The industry's presentation at the Senate hearings was masterful. Bowman Gray, chairman of the board of R. J. Reynolds, appeared for the industry, which carefully did not bombard the committee with too many tiresome witnesses, and the tone of his testimony was more in sorrow than in anger. Mr. Gray pointed out that the tobacco companies were "profoundly conscious" of the health questions and were zealously researching the problem; that "many distinguished scientists...are of the opinion that it has not been established that smoking causes lung cancer or any other disease"; that "millions of persons throughout the world derive pleasure and enjoyment from smoking" (as if someone were proposing to abolish the right to smoke); and that the central purpose of advertising was to compete among products, not to induce people to smoke. Mr. Gray said that the industry was naturally opposed to warnings both on labels and in advertisements, but his testimony was interlarded with the "howevers" and "ifs" that signaled the industry position: If a label is required, have Congress require it, and spell out its terms, rather than leave this to the dangerous FTC or the health-conscious Health, Education, and Welfare Department, parent agency of the PHS. And if Congress requires the warning label, it should not interfere with "the right to advertise--an essential commercial right": "I am confident that the Congress will reject this extreme proposal."
Throughout the hearings, the industry, with the help of friendly senators, carefully built a record designed to show that medical opinion was split over the Surgeon General's report--despite the fact that no medical group has ever denied its validity and only a small minority had dissented--that whatever Mrs. Neuberger or the FTC wanted to do was "extremist," and would wreak havoc in a basic American industry as old as Jamestown; and it made very effective use of the "excess" argument. According to this argument, excessive smoking may be dangerous, but so is excessive drinking, or overeating, or driving too fast. Would Congress want to put warnings of possible death on liquor, food, and automobiles? Where would it all end? This line of reasoning ignored the fact that the Surgeon General's report was not talking only about excessive smoking, and in fact stated that no safe level of smoking could be established. But the technique worked very well.
The committee quickly disposed of Mrs. Neuberger's, and the FTC's, approach on a 12-2 vote and settled down to the real issue, which was how long to suspend the effect of the FTC's ruling on advertising. Chairman Magnuson and a number of the committee's members were opposed to suspending it permanently, as the House had done, for this, too, was "extremist," and unseemly, for the rule-making authority of the regulatory agencies is supposedly independent of Congress. Where there is conflict, the issue is supposed to be decided in the courts. Moreover, although the permanent suspension may have been something devoutly to be wished by the cigarette industry, it was not something realistically to be expected. After some seesaw voting, Morton, Bass, and Hartke agreed with Magnuson to vote out a bill to require a label on packages by the following January and to suspend the advertising for three years after that. In the committee's report to the Senate, only Mrs. Neuberger objected to the suspension.
The united front of the committee and canny confusing of the issue undermined Mrs. Neuberger's attempt in the full Senate to reduce the time of suspension. As the time for the voting approached, a number of senators honestly believed that all they were about to do was to join the Commerce Committee in taking the heroic step of warning the public about the health dangers in smoking. Despite last-minute efforts by Mrs. Neuberger, Senator Robert F. Kennedy, their aides, and David Cohen, a lobbyist for the Americans for Democratic Action, to explain what else was involved, her amendment was defeated 29 to 49. The Senate then went on record to pass the bill by a vote of 72 to 5.
Meanwhile, the House committee had behaved predictably, voting out a bill to require a label on the side of the package and to bar the FTC permanently from requiring a warning in ads. The only surprise was that Mr. Harris and his colleagues felt compelled to indulge in a blatant breach of congressional etiquette to get the bill passed. One quiet Tuesday afternoon, with no prior notice, with only a few members on the House floor, and with the bill's principal opponent, Representative John E. Moss of California, out of town (but with the tobacco strategists in the gallery), the bill was called up. Moss, the sole member of the Harris committee to dissent in the committee's report and one of the Democratic Party's House whips, had had an understanding with the House leadership, or so he thought, that the bill would not be brought up until Thursday, two days later. Moss was flying back from Europe while the bill was being debated and arrived at Dulles Airport a half hour after the House passed the bill by a voice (unrecorded) vote.
Though some were surprised at the speed with which the House conferees acquiesced in the Senate's shorter ban on the FTC requirement for the warning in cigarette advertising, it was the logical thing to do for a number of reasons, among them columnist Drew Pearson. Mr. Pearson had begun to sniff out what was going on in the cigarette fight, and on the day that the House-Senate conferees first sat down to work out their differences, his column in the morning Washington Post was headlined, "Steamroller Goes Through House." This was not the sort of image that the tobacco companies were seeking. In addition, the companies knew that even a permanent ban would not be all-protective in the event more and more research showed direct links between smoking and disease, and if the public became sufficiently aroused. Also, Senator Magnuson was standing firm for the Senate's terms.
The best strategy at this point, then, was to accept the Senate bill--with two exceptions--and to go away quietly. The first exception was that the House conferees would not accept the Senate's provision that the label be on the front of the package (though there is reason to wonder how many know what is printed on the front or the side of cigarette packages other than the brand name). After some haggling, the Senate and House conferees decided to require that the warning "appear in conspicuous and legible type," but not to require that it be placed anywhere in particular, just that the place "be conspicuous." The second request--and this, too, was granted--was that the ban on the FTC action should expire on July 1, 1969, rather than on January 1. This way, there will once again be time for Congress, with another presidential election year just behind it, to go to bat for the cigarette industry and filter the "harmful elements" out of any new proposals.