The Politics of Smoking in Federal Buildings: An Executive Order Case Study

Abstract

Executive orders are important presidential tools for health policymaking that are subject to less public scrutiny than are legislation and regulatory rulemaking. President Bill Clinton banned smoking in federal government buildings by executive order in 1997, after the administration of George H. W. Bush had twice considered and abandoned a similar policy.

The 1991 and 1993 Bush proposals drew objections from agency heads and labor unions, many coordinated by the tobacco industry. We analyzed internal tobacco industry documents and found that the industry engaged in extensive executive branch lobbying and other political activity surrounding the Clinton smoking ban.

Whereas some level of stakeholder politics might have been expected, this policy also featured jockeying among various agencies and the participation of organized labor.

THE US GOVERNMENT HAS acted to restrict indoor smoking in only 2 venues: aircraft and federal buildings.^1,2 The health risks of direct and indirect smoking are now well documented,^3–5 and a recent US surgeon general's report declared that there is no safe exposure to secondhand smoke.⁶ In 1997, President Bill Clinton issued an executive order banning smoking in federal buildings, protecting nearly 2 million workers and their patrons from exposure to secondhand smoke.

Tobacco control policy gained considerable national attention during the Clinton administration, with the convergence of grassroots movements, critiques from major health organizations, lawsuits, congressional hearings, and journalistic accounts that described how the tobacco companies knowingly marketed a deadly product while the government was slow to respond.^7,8 In 1994, the Food and Drug Administration (FDA) began to regulate cigarettes as a drug delivery device. The authority of the FDA was challenged by the tobacco industry at every step, until finally the Supreme Court ruled that the agency lacked the proper legal footing.⁹ After his administration had presided over several health policy decisions favoring the tobacco industry,^10,11 President Clinton, as chief of the executive branch bureaucracy, finally banned smoking in federal buildings with Executive Order 13058, signed in August 1997.²

POLICYMAKING BY EXECUTIVE ORDER

American presidents have several tools available to create unilateral policies, including directives, memoranda, proclamations, signing statements, and executive orders.^12,13 Executive orders, the focus of this study, are often used in the routine management of the executive branch agencies, but they also may be used to effect dramatic policy changes.¹⁴ For instance, in 1948 President Harry Truman desegregated the military by executive order, beginning a series of civil rights–related presidential actions.¹⁵ As another example, President Barack Obama closed the controversial detention facilities at the Guantanamo Bay Naval Base on his third day in office.

Presidential executive orders have the force of law unless or until they are overturned by Congress or future presidents. The president will usually cite an underlying legal authority to avoid challenges in court, and judges have typically upheld presidential orders¹⁶ (e.g., current faith-based initiative programs have never received congressional approval but, rather, are based solely on executive orders^17,18).

President Ronald Reagan's executive order on domestic surveillance for intelligence purposes, which included specific guidelines regarding the conduct of the intelligence community, was changed in 2001 under secret instructions from President George W. Bush, who altered the order to allow more covert surveillance.¹⁹ Because modifications of older orders are not necessarily published, a bill intended to increase public notification of executive orders was introduced in the US Senate in July 2008; however, the bill did not pass.²⁰

Executive orders can result in important health policies. In a milestone for health and safety regulation, the Environmental Protection Agency (EPA) was created in 1970 through an executive order of President Richard Nixon. Another example of unilateral executive action for health policy purposes is the “Mexico City policy,” often called the “global gag rule.” This policy, announced by President Reagan in a 1984 memorandum, was formulated to prevent foreign nongovernmental organizations that received money from the United States from advocating or performing abortions. After later being reversed by President Clinton, the policy was reinstated by President George W. Bush in his first days in office,²¹ and then rescinded by President Obama on January 23, 2009. Executive orders are also used to alter structures and political processes to the president's political benefit.^22–24 For example, the Obama administration has reportedly examined potential uses of executive authority to reverse or supersede current policies.²⁵

The process of developing executive orders is not public; orders take effect upon the president's signature, without the scrutiny, comment, or hearings required of most other public policies. For the most part, outsiders are unaware of the internal White House proceedings surrounding the development of executive orders, although presidents may also attempt to legitimize and safeguard their orders with related political maneuvers after a policy change.²⁶ Orders can “wither on the vine” without implementation resources. For instance, after Clinton's 1994 environmental justice order, explicitly designed to identify and address disproportionate environmental effects on minority and low-income populations, the intended benefits of Superfund cleanup for vulnerable groups decreased over the ensuing decade.²⁷ Little is known about the role of the bureaucracy and interest groups in executive order development or how interest groups gain access to the process.²⁶

A unique source of data—the tobacco industry document archive—allowed us to conduct a case study of one interest group's involvement in the development of an executive order. Because the tobacco industry monitors national tobacco-related policies and attempts to influence the decision-making process,²⁸ we suspected that internal tobacco industry documents would reveal new information about President Clinton's policy on smoke-free federal buildings. Previous studies of the document archive, which includes internal memoranda and other records of industry participation in the health policy process, have revealed that the industry uses political and other strategies to influence the decisions of executive branch agencies.²⁹

METHODS

The tobacco company papers were made public after litigation brought by the state of Minnesota and Minnesota Blue Cross Blue Shield. The Master Settlement Agreement of 1998 required that they be made electronically available.³⁰ An archive of nearly 50 million pages, now containing several document collections, is maintained electronically at the University of California, San Francisco (http://legacy.library.ucsf.edu).

Taking an interpretive approach, we used the document archive to conduct a specific case study of an executive order policy decision.³¹ Using historical methods, we searched documents in 2005 and evaluated and organized them chronologically.³² We employed a snowball technique with keywords such as “federal buildings,” “executive order,” and other relevant terms to search the collection. The information was supplemented with other public documents such as government Web site materials and news accounts.

RESULTS

The tobacco industry documents revealed the history and politics of banning smoking in federal buildings (Table 1). Tobacco control activists suggested the policy as early as 1971.³³ In 1974, the US General Services Administration (GSA), which manages the operations of federal buildings and issues regulatory rules and guidelines accordingly, issued new guidelines that banned smoking in conference rooms, elevators, auditoriums, and shuttle vehicles and provided for nonsmoking areas in cafeterias, work areas, and medical care facilities. In addition, however, the guidelines affirmed “a person's right to smoke.”³⁴

TABLE 1.

The Road to the Smoking Ban Executive Order: Key Events

Year	Event
1972	Surgeon general recommends limits on smoking areas
1974	GSA issues guidelines on (very limited) smoking restrictions in federal buildings
1985	Senator Ted Stevens (R, AK) proposes legislation on smoke-free federal buildings
1986	Publication of surgeon general's report on hazards of secondhand smoke to health
1986	Publication of National Academy of Sciences report on hazards of secondhand smoke to health
1986	New GSA guidelines limit smoking in federal buildings but allow smoking areas
1991	DHHS Secretary Louis Sullivan drafts executive order banning smoking in federal buildings
1993	EPA risk assessment links secondhand smoke and cancer
1993	Executive order proposed again by DHHS Secretary Sullivan
1993	Representative James Traficant (D, OH) convenes hearings; bill on smoke-free federal buildings passes House only
1996	FDA issues final rule regulating cigarettes (later invalidated by Supreme Court)
1997	Representative Traficant (D, OH) reintroduces legislation
1997	President Bill Clinton signs Executive Order 13058

Note. GSA = General Services Administration; DHHS = Department of Health and Human Services; EPA = Environmental Protection Agency; FDA = Food and Drug Administration.

In 1985, Senator Ted Stevens (R, AK) introduced legislation that would have required separate smoking areas for buildings in all 3 branches.³⁵ The legislative hearings on the Stevens bill were widely reported, but the legislation did not proceed any further.³⁶ Economists from George Mason University, who had received funding and support from the tobacco industry,³⁷ prepared an analysis of the Stevens smoking restrictions that estimated the cost to taxpayers would be more than $500 million.³⁸

In 1986, reports from the National Academy of Sciences and the surgeon general concluded that secondhand smoke is harmful to health.^39,40 That year, the GSA requested comments on stronger rules that were similar to the Stevens proposal, with smoking banned in many public areas of buildings and restricted to smoking areas.⁴¹ The Tobacco Institute responded with its own comments in opposition, as well as by organizing letters to be sent to the GSA from representatives of trade associations and unions; these individuals were told by the Tobacco Institute that “the ‘letter count’ is almost 10-1 in favor of the regulations.”⁴²

Apparently the tobacco lobby was aware of the content of the letters being received by the agency during the open comment period, prompting it to mobilize opposition letters. An internal Tobacco Institute memorandum reported that at least 12 labor unions and organizations were “encouraged to file comments. To the extent that we can, we will assist them in drafting their comments.”⁴³ Both the National Federation of Federal Employees and the American Federation of Government Employees sent comment letters opposing smoking restrictions and favoring a more voluntary or ad hoc policy.^44,45

In announcing its new rules in December 1986, the GSA reported that the policy had been redrafted in response to these comments, as follows:

the major distinctions between the regulations released today and the earlier version are the sections that allow for corridors, lobbies and restrooms to be designated as smoking areas.⁴⁶

The policy did not reflect the surgeon general's recommendations that separate smoking areas could not adequately protect nonsmokers from harm.⁴⁰ Other tobacco document research has shown that the tobacco industry influenced ventilation standards, arguing for “accommodation” of smokers in the workplace.⁴⁷

In a memorandum, the president of the Tobacco Institute reported great success in influencing the GSA restrictions, claiming that 59% of the comments opposed the proposals, that the opposition of 3 unions and 19 economists was important, and that one union representative met personally with the GSA administrator and was promised concessions.⁴⁸ The same memo claimed the Tobacco Institute mobilized most of the public comment letters in opposition. Another document explained that tobacco company interests worked closely with the labor unions.⁴⁹

Once the new rule was enacted, labor unions claimed full collective bargaining rights over how this rule, similar to any management work rule, would be enforced given the discretion provisions of the agency in question.⁵⁰ In fact, when the US Department of Health and Human Services attempted to entirely ban smoking from its buildings in 1987, the labor unions challenged and overturned the policy because it neglected their rights to negotiate working conditions. The judge sided with the labor unions, citing the provisions of the 1986 GSA regulation and its statement on collective bargaining rights.⁵¹

In 1991, President Bush's health secretary, Louis Sullivan, drafted a proposed executive order making all federal government–controlled space smoke free. The draft order was circulated by the director of the Office of Management and Budget (OMB) to 22 federal agencies and offices for comment.⁵² The RJ Reynolds and Philip Morris tobacco companies also received drafts of the executive order from an unknown source. Memos revealed that the tobacco executives were alarmed; in one memo, the director of government affairs at RJ Reynolds mentioned that the president was “receptive” and that the proposal was a “real problem.”⁵³ His counterpart at Philip Morris asked members of Congress for help because this serious development would “have tremendous implications for our future Hill battles and indoor air regulatory problem.”⁵⁴

In February and March 1991, the OMB received letters opposing the order from the Agriculture,⁵⁵ Defense,⁵⁶ and Interior⁵⁷ departments; the GSA⁵⁸; Senator Wendell Ford of (D, KY)⁵⁹; and the Public Employees Division of the AFL-CIO.⁶⁰ In addition, the Public Employees Division was itself the recipient of a letter-writing campaign from its member unions. We found letters in the tobacco industry archive sent to the Public Employees Division from 7 member unions, suggesting that industry lobbyists coordinated the effort. The letters were sent from the Bakery, Confectionery and Tobacco Workers⁶¹; the Sheet Metal Occupational Health Institute⁶²; the Laborers' International Union of North America⁶³; the International Association of Machinists and Aerospace Workers⁶⁴; the United Brotherhood of Carpenters and Joiners⁶⁵; the National Association of Letter Carriers⁶⁶; and the International Brotherhood of Firemen and Oilers.⁶⁷

The comments were shown to the Department of Health and Human Services, which sent a detailed response to the OMB.⁶⁸ At least one news account described the heightened involvement by interest groups such as tobacco companies and labor organizations, as well as the infighting among competing agencies.^69–71

The executive order was never signed nor issued. According to one news story, Labor Secretary Lynn Martin opposed the order, claiming it would confuse, replicate, and jeopardize the simultaneous efforts of the Occupational Safety and Health Administration (OSHA) to develop a rule about secondhand smoke in the workplace.⁷²

In January 1993 the Bush administration, having failed in its bid for reelection, had 1 month remaining under “lame-duck” conditions. On January 7, the EPA released its report on the health risks of exposure to secondhand smoke, and so health groups called upon the administration to reconsider the smoking policy in federal buildings.⁷³ On January 8, a proposed executive order again began to circulate.⁷⁴ The American Farm Bureau Federation sent a strong letter of opposition to the Agriculture Department.⁷⁵ William Reilly, Secretary of the EPA, was expected to urge the president to sign the order.⁷⁶ The Tobacco Institute gave the executive order a “40 percent chance” because the Department of Justice would not sign off.⁷⁷ Again the executive order was never signed.

Clinton-Era Legislative Proposals

In 1993, Representative James Traficant of Ohio, chairman of the Public Buildings and Grounds Subcommittee of the Committee on Public Works, convened hearings on proposed legislation to completely ban smoking from federal buildings.⁷⁸ In response, Philip Morris planned to testify and brief its friends in Congress.⁷⁹ The issue was featured on the television program Good Morning America.⁸⁰ The Tobacco Institute prepared a memo regarding OSHA officials' testimony at the hearings.⁸¹ OSHA supported the bill.⁷² Tobacco industry law firm Covington & Burling provided the Tobacco Institute with draft alternative legislation that essentially codified the existing GSA rules on separate smoking areas.⁸² The Traficant committee approved the stronger smoking restrictions by voice vote. The House passed the bill that year by acclamation.⁸³ It was sent to the Senate, which took no major action, and the proposal died there.

Some members of Congress continued to show interest in the legislation. In 1997, the office of Senator Frank Lautenberg (D, NJ) conducted a survey on smoking policies in federal buildings. They found that legislative buildings had minimal limits, many executive branch buildings had bans and limits, independent agencies had some limits but were mostly nonresponsive, and the judicial buildings had minimal limits.⁸⁴ Congressman Traficant reintroduced his legislation in July 1997, but there were no hearings in the then-Republican Congress, and no further action was taken.

Clinton's Executive Order

The tobacco documents contain few clues regarding expectations of an executive order on smoking in federal buildings developing under President Clinton. One policy item that may have contributed to the development of an executive order was hazardous duty pay for Department of Veterans Affairs (VA) personnel exposed to secondhand smoke. A 1994 unlabeled summary memorandum included in the tobacco industry files revealed that, after a dispute with labor unions, the VA paid environmental differentials to workers at residential facilities that allowed smoking.⁸⁵

The settlement with the unions was temporary, however, and the VA asked the Office of Personnel Management for a government-wide decision on hazardous pay for secondhand smoke exposure. According to this same memo, the Office of Personnel Management preferred an “outright ban on smoking in federal facilities,”⁸⁵ and the Department of Health and Human Services was exploring drafting an executive order. Previous tobacco document research demonstrates that the tobacco industry closely follows and collects comprehensive materials on any issue or policy proposal that could be a threat to business.⁸⁶ The failure of our archival search to detect documents in the tobacco industry files on a Clinton executive order aside from the VA issue suggests that the 1997 executive order banning smoking in federal buildings was developed without input from the industry, unlike the previous proposals.

In fact, a search of newspaper accounts during the Clinton administration was more fruitful than a search of the tobacco document archive. In 1993, the idea of an executive order on federal buildings was mentioned in the press.^87,88 Approximately 4 years later, in August 1997, news of an imminent executive order from Clinton appeared in the press. The August 5 edition of the Washington Post reported that the administration planned to ban smoking inside all federal buildings as well as in courtyards and within 50 ft (15 m) of doorways.⁸⁹ The tobacco industry documents contain a copy of an August 5 e-mail quoting the following Associated Press report:

President Clinton is preparing to sign a long-awaited executive order banning smoking in federal executive branch buildings, say anti-tobacco groups told to be on standby for the ceremony.⁹⁰

The final order left outside space restrictions to the discretion of agency heads and allowed for separately ventilated rooms with negative exhaust systems—rooms that no employee could ever be required to enter—to be designated as smoking areas.² Outdoor restrictions were limited to areas near air-intake ducts. There is no evidence from the public record suggesting why the outdoor restriction was weakened. Cessation programs were encouraged by the order. The order was signed on August 9, 1997, and announced during the president's weekly radio address, with an additional address from Vice President Al Gore.⁹¹ The smoking ban was the main example in a USA Today story on executive orders that appeared that same week.⁹² The official order was published in the Federal Register on August 13, and the GSA published its guidelines on October 20.⁹³ The implementing guidelines were issued without further revision.

The tobacco industry drafted a detailed response to the executive order after the fact. The report, found in the RJ Reynolds collection without clearly identified authorship, called Clinton's action “redundant,” “unreasonable and extreme,” and “restrictive.”⁹⁴ It challenged the underlying science on secondhand smoke exposure. The document also listed state-level policies on smoking in government buildings: 13 states had banned smoking, 32 had some restrictions, and 5 states had no policy (the list excluded Maine but included the District of Columbia). The presence of this analysis suggests that the tobacco industry anticipated that states would follow the federal example.

The George W. Bush administration left the policy in place, and Secretary of Health and Human Services Tommy Thompson banned the use of tobacco on all Health and Human Services campuses (buildings and grounds, including outdoor space) in 2004.⁹⁵ The federal government owned or leased approximately 347 million square feet (31.2 m²) of office space in about 8700 buildings nationwide in 2006,⁹⁶ and it employed about 1.9 million full-time civil servants in 2005.⁹⁷ In addition to covering all of these workers, the smoking restrictions in the executive order covered the countless visitors to federal offices as well.

DISCUSSION

This case study of the smoking ban in federal buildings illustrates the public health policy implications of executive orders. Given our finding that outside interests are sometimes invited in and given the chance to comment, as the tobacco industry was in this case, public health experts should think strategically about how to participate in the executive order process. Executive orders result in health policies both large and small, including those affecting government workers and facilities. The process is formally closed to the public and may feature interagency jockeying, and abandoned orders may never be made public. In the case of the smoking ban, the key gatekeepers were OMB and the Department of Justice. The tobacco industry was concerned about the precedent the executive order would set for other indoor air policies because of its potential to inspire similar action from state and local governments and the private sector.

At present, 29 states do not allow smoking in government worksites, and 6 allow separately ventilated areas.⁹⁸ Three states—Kentucky, Texas, and West Virginia—have no restrictions. A comparison of the 1997 industry list (which inexplicably omitted Maine) with policies today shows that 4 states have moved from no restrictions to at least separately ventilated smoking areas, and 21 others have eliminated separate smoking areas altogether.⁹⁴

The executive order is a pathway around Congress, which still has not restricted indoor smoking from its buildings or from the judiciary. Of course, several members of Congress represent tobacco-growing states or receive campaign contributions from the tobacco industry, which have been shown to be positively associated with pro-tobacco voting.⁹⁹

Labor unions were among the stakeholders included in this process, which revealed additional information about the role of organized labor in health policy. The administration of George H. W. Bush was under pressure by labor unions to forgo the policy change in 1991. US labor unions have often been divided and weakened over health policy questions,^100,101 and predicting the role of labor in tobacco health and safety policy is difficult. The links between the tobacco industry and organized labor have been revealed in previous work.¹⁰²

Labor unions have often, but not always, sided with the tobacco industry. On a few important tobacco policy questions, such as airline smoking and the major OSHA indoor air quality rulemaking of 1994 through 2001, labor unions or factions thereof have endorsed the public health position.^10,103 The George H. W. Bush administration supported collective bargaining rights in forgoing the smoking restrictions. In contrast, other Bush executive orders were anti-labor, and many of these orders were overturned by President Clinton.¹⁶ In the case of the smoking executive order, the unions were mobilized by the tobacco industry to delay smoking restrictions.

Interagency competition on policy questions creates a special brand of politics within and among bureaucratic agencies.^104–106 Our findings suggest that the OMB engaged in bureaucratic competition to stop the policy proposal on smoking in 1991 by soliciting comments from other agencies and interest groups. The Department of Justice also seemed to wield critical veto power over the executive order, indicated by the suggestion that if the department's lawyers were not on board, the White House would not sign the order.

By providing an increased understanding and further evidence of the interest group politics involved in executive orders, our results should contribute to filling the research gap identified by Warber²⁶ and Howell¹⁰⁷ in their recent studies of unilateral presidential power. Although supposedly closed to outside influence, our findings suggest that executive orders are yet another point of access for regulated industries and other self-interested parties. In instances in which the tobacco industry has monitored an issue, as with the case of policies to restrict indoor smoking, the archive is likely to contain correspondence from others interested in the issue, such as labor unions, other business groups, and nongovernmental organizations.^29,108 Although we have described the tobacco industry's efforts to block executive orders restricting smoking, we cannot definitively determine the effects of these efforts on the final outcome in the absence of interviews or other documentary evidence.

In future studies, researchers could compare policies produced by executive orders with more openly produced regulatory rules to search for additional information about the influence of private interests on government policy. These studies would lead to better evaluations of the effectiveness of more open policy processes, such as the “sunshine laws” that allow increased access to policymaking and government information.