Nicorette for Everyone!

Anti-smoking activists and members of Congress are upset that the Justice Department, in its racketeering case against the major cigarette manufacturers, is demanding a mere $10 billion for a smoking cessation program, instead of the $130 billion that one witness suggested (which, by my rough calculation, would be enough to buy every smoker in America a six-month supply of Nicorette). They see the decision as evidence of political pressure. "It reeks of an administration whose heart really isn't in this case," says Sen. Frank Lautenberg (D-N.J.).

Maybe, but you'd think that lack of heart would have manifested itself somewhere else along the way, such as when the Bush administration decided not to drop the case, which was initiated by the Clinton administration; when the Justice Department spent four years and $135 million preparing for trial; when it presented seven months of testimony by scores of witnesses to support 145 racketeering counts; or when it pressed its demand for "disgorgement" of $280 billion in "ill-gotten gains," a fine greater than the tobacco industry's total stock market value. Pace Lautenberg, it's possible that the Justice Department's lawyers did not want to seem like they were seeking those "ill-gotten gains," which an appeals court has ruled out of bounds, under another name.

Gladys Kessler, the federal judge hearing the case (which wraps up this week), seemed to support Lautenberg's charge when, upon hearing the $10 billion figure, she remarked, "Perhaps it suggests that additional influences have been brought to bear on what the government's case is." Yet she herself has expressed skepticism about the idea of forced subsidies for smoking cessation as a way to restrain the tobacco companies from future fraud.

Kessler seems even less inclined to order remedies that involve monitoring the companies' speech or putting words into their mouths. "What about the First Amendment?" she asked during the government's closing arguments on Tuesday.

I had the same question back in February.