To liberals, Harry McPherson is a saintly figure. As a longtime aide to Lyndon B. Johnson, McPherson was an important advocate for the civil-rights movement, a dove on Vietnam, and one of the architects of the War on Poverty. In 1965, when marchers were attacked in Selma, McPherson helped persuade LBJ to deploy the National Guard to protect them. Inside the White House, he tried to talk Johnson out of escalating the war.
Today Harry McPherson is a tobacco lobbyist representing Philip Morris, RJR Nabisco, and the three other tobacco companies that have been negotiating a global settlement with the attorneys general of 40 states. McPherson's heavily Democratic Washington law firm of Verner, Liipfert, Bernhard, McPherson & Hand is being paid about $200,000 a month by the tobacco industry, according to the National Journal. As senior partner, McPherson has also helped recruit liberal heroes of a more recent vintage as cigarette lobbyists. The firm recently deployed Ann Richards, the acid-tongued former governor of Texas, to work on the settlement alongside former Senate Majority Leader George Mitchell, who was already on the case. Other well-known Democrats have also joined the tobacco team recently. Carter Eskew, a political consultant who has worked for Sens. Chris Dodd, Joseph Lieberman, and Tom Harkin, is giving media advice to the companies involved in the $368-billion settlement, with the help of others at his Democratically inclined PR firm, the Bozell Sawyer Miller Group.
I t is hard to say precisely what all these big-name Democrats are doing on behalf of the tobacco companies. According to a report in the Dallas Morning News, Ann Richards, who is not a lawyer, recently paid a lobbying call on Sen. Ted Kennedy to encourage him to either support the agreement (which needs congressional approval) or soft-pedal his objections. Richards declined to comment, as did her former Chief of Staff Jane Hickie, a Verner, Liipfert attorney who is one of four lawyers conducting negotiations on behalf of the industry. Mitchell also declined to comment, as did Eskew. None of them has yet filed a lobbying disclosure form that might give additional particulars. McPherson says that his own work involves advising the tobacco companies and lobbying the White House and Congress to support the deal.
Unlike Verner, Liipfert's recently acquired Republican bauble Bob Dole, who is still covered by post-government-employment restrictions on lobbying, Mitchell is free to work his former colleagues. Mitchell was the one who brought the tobacco companies in as clients, and who participated in some of the early negotiating sessions. But McPherson says Mitchell hasn't yet "done much talking" on Capitol Hill because he has been too busy as special envoy to the Irish peace talks. But that distraction hasn't stopped Mitchell from lobbying on other issues. According to a recent issue of Roll Call, Mitchell and Dole worked together on a provision of the budget deal on behalf of Fruit of the Loom. With Mitchell working the Hill and Dole advising backstage, the firm succeeded in striking out a provision supported by President Clinton that would have allowed more apparel imports from the Caribbean.
To see these two former legislative colossi bury their ideological differences and come together on behalf of American underpants is either inspiring or grotesque, depending on your perspective. But while Dole's agreement with the firm is that he won't lobby for the tobacco companies, Mitchell is likely to ply the corridors of the Capitol for them this autumn.
McPherson argues that lobbying on behalf of the tobacco settlement is not the same as working for the tobacco companies under ordinary circumstances, something he suggests his firm would not have done. He says the proposed deal serves the public interest by restricting cigarette advertising and marketing, and by requiring the tobacco companies to cough up billions if youth smoking fails to decline dramatically. "If Congress enacts it in pretty much its current shape, I believe it will be the biggest step forward in public health with regard to tobacco in history," McPherson says. "The tobacco companies have had to come forward with an inconceivably large number of major concessions--committing to change everything about the way they advertise and market cigarettes."
Berl Bernhard, another Verner, Liipfert partner who is an old-time liberal--he worked for Edmund Muskie and at the U.S. Commission on Civil Rights--offers a similar defense of his firm. He says that Verner, Liipfert agreed to take on tobacco clients only after being persuaded that they were ready to mend their ways, and that a global settlement would serve the common good. Bernhard avers that he has been amazed by the billions of dollars the tobacco industry has agreed to pony up. "The amount of money is staggering," he says. "They have gone way beyond where I thought they would go."
In a deal like this, it's not unusual for both sides to claim, as McPherson and Bernhard do, that they're getting the short end of the stick--that's all part of the negotiation. What is truly odd is lawyers suggesting that cutting a lousy deal absolves them of blame for working for creeps. This defense is also preposterous. Like any lawyers, the Verner, Liipfert attorneys are trying to get the best deal they can for their clients. The morality of their participation doesn't depend on how badly they do.
McPherson and Bernhard also stretch the bounds of credulity when they suggest that what they're doing is OK because they're merely working on a settlement, not on traditional tobacco-industry concerns such as preventing regulation. There's no moral distinction here. You settle a case if you believe you'll be better off doing so. And in any event, there's no reason to think Verner, Liipfert's work will be confined to the settlement. An April 23 statement announces that the firm has been retained "to provide counsel in light of the heightened legal and regulatory activities surrounding tobacco products." I asked both Bernhard and McPherson whether the firm would in fact limit its work to the settlement. Both answered in lawyerly fashion that the issue of work on other matters "hasn't come up."
Finally, it is fallacious to suggest that because society may benefit from a compromise with an evildoer, work on behalf of the evildoer is justified. If Verner, Liipfert's lawyers are good--and they are at least well connected--they will strike a better bargain for their clients than the clients would otherwise have got. These lawyers might make the case that even tobacco companies have rights, and that the public interest actually was served by getting these companies a better bargain. But they didn't make that case, at least to me. They themselves appear to accept--or at least to be unwilling to challenge--the widely held assumption that the public interest lies in the worst possible deal for the tobacco companies.
The traditional lawyer's defense--that the Constitution entitles everyone to legal representation--hardly cuts it here either. Working for Philip Morris isn't like defending an indigent murderer in a death penalty appeal. It's more like defending a rich mobster. Philip Morris is going to have decent-quality representation whether or not any particular lawyer decides to sully his hands. And in this instance, the "lawyer" defense is even weaker because Mitchell, Richards, Eskew, and the others are working not just as lawyers, but as lobbyists and media advisers as well. Despite the best efforts of Washington's influence-peddling community, there's still no constitutional right to lobbying or PR. If you can't find a lobbyist, the court won't appoint one for you.
Former Republican National Committee Chairman Haley Barbour, too, is working on behalf of the companies involved in the settlement, and he deserves as much scorn as his Democratic counterparts. But somehow you expect that from Republicans, whereas you don't expect it from big-name national Democrats, especially Northerners like George Mitchell. The only thing you can say on behalf of the liberals is that, while greedy operators on both sides have sold out to the tobacco industry, they alone seem to feel a bit embarrassed about it.