Citizens' Commission Still Not Revealing the Truth; How Can It Be Expected to Protect the Truth?

In its latest amicus brief, this time filed in support of the American Legacy Foundation's position in a legal battle with Lorillard regarding whether the "truth" anti-smoking campaign violates the anti-vilification clause of the Master Settlement Agreement, the Citizens' Commission to Protect the Truth denies any affiliation with the Legacy Foundation.

In its previous amicus briefs, the Citizens' Commission failed completely to reveal its financial relationship with the American Legacy Foundation. According to the Commission's web site: "Principal funding for The Commission comes from the National Association of Attorneys General (NAAG) through a $1.5 million pass-through grant from the American Legacy Foundation."

Now, the Citizens' Commission is finally disclosing that its funding comes from NAAG through Legacy, but it is denying that it is affiliated with Legacy, basing this claim on the contention that the NAAG funds are being transmitted to the Commission through Legacy purely as an administrative function: "The Commission is not affiliated with Legacy. It is an independent organization developed to serve the public health in connection with tobacco use and prevention. Funding for the Commission was provided by the National Association of Attorneys General, and was transmitted to the Commission through Legacy purely as an administrative function."

The Citizens' Commission's claim that it is not affiliated with Legacy is supported in the amicus brief by reference to a March 18 letter from Attorney General William Sorrell (president of NAAG) to Dr. Joseph A. Califano, Jr., Chairman and President of the National Center on Addiction and Substance Abuse at Columbia University (CASA) and Chairman of the Citizens' Commission, stating: "This letter is to confirm that the funding for the Citizens Commission to Protect the Truth was initially provided by NAAG to the American Legacy Foundation with the belief that they would be used for support to the Commission."

The Rest of the Story

My initial impression upon seeing that the Citizens' Commission did indeed, for the first time in one of its amicus briefs, address the issue of its funding from the Legacy Foundation, was that the Commission was finally revealing the truth and disclosing its conflict of interest in arguing on behalf of the Foundation. However, to my surprise, the Commission does just the opposite: it reveals the funding but then goes on to claim that it is not affiliated with Legacy. Rather than revealing the truth, this amicus brief actually attempts to obscure and hide the truth.

The facts, based solely on admissions of the Citizens' Commission itself, are that:

• "principal funding for The Commission comes from the National Association of Attorneys General through a $1.5 million pass-through grant from the American Legacy Foundation;" and
  
• "funding for the Citizens Commission to Protect the Truth was initially provided by NAAG to the American Legacy Foundation with the belief that they would be used for support to the Commission."

It doesn't take a legal scholar or any stretch of the English language to conclude that the Citizens' Commission receives its funding from the American Legacy Foundation, and that the funding originates from the National Association of Attorneys General. So how can the Commission possibly claim that it "is not affiliated with Legacy"? It receives funding from Legacy. That represents, in its most basic form, an affiliation (and a strong one, at that).

The word "affiliated" is defined as "closely associated with another typically in a dependent or subordinate position." Since the Commission receives funding from Legacy, it follows that the two organizations are "closely associated." And the fact that the Commission's funding comes from Legacy does represent the typical "dependent" position to which the definition refers.

The exhibit (i.e., the letter from NAAG to the Commission) offered in the brief to support the contention that there is no affiliation between the Commission and Legacy demonstrates just the opposite. It makes it eminently clear that the two are strongly affiliated via funding from NAAG to Legacy that was specifically provided to "support the Commission."

The Commission's argument that there is no affiliation between itself and Legacy because the funding from NAAG was transmitted to the Commission through Legacy "purely as an administrative function" is ridiculous. One could just as easily argue that university faculty members who are supported by the Association of Schools of Public Health (ASPH) STEP UP program (which is funded by Legacy through a grant to ASPH) are not affiliated with ASPH because ASPH serves purely an administrative function in transmitting Legacy's funds to the grant recipients.

Moreover, there a number of other reasons why it is ludicrous to argue that the Citizens' Commission is not affiliated with Legacy:

• Attorney General William Sorrell, the President of NAAG, is also the Treasurer and a Board member of the American Legacy Foundation. So even if the NAAG funds went directly to the Citizens' Commission, there would still be an affiliation with Legacy by virtue of Sorrell's dual role as a chief executive of both NAAG and Legacy.
• According to the Master Settlement Agreement, NAAG provides for the very creation of the American Legacy Foundation and two of its representatives automatically sit on Legacy's Board of Directors. Once again, even if NAAG directly funded the Commission, there would still be an affiliation with Legacy by virtue of the fact that NAAG is inextricably tied to Legacy - it is the creator of Legacy.
• CASA, the organization of which Dr. Califano is Chairman and President and which essentially serves as the recipient of funds to run the Commission, is itself funded by the American Legacy Foundation, according to its 2004 Annual Report.

Rather than clarifying and disclosing its conflict of interest in submitting the amicus brief, the Citizens' Commission has now made a deliberate attempt to obscure and hide the extent of its true affiliation with Legacy. In some ways, this is even worse. Previously, the Commission was simply failing to reveal the affiliation. It was an error of omission. Now, the Commission is trying to use a ridiculous argument to obscure or hide the affiliation. This is now an error of "commission."

What is most disturbing about the latest Citizens' Commission action is not just the attempt to obscure the truth. It is the hypocrisy of the Commission representing itself, on the one hand, as an organization dedicated to "protecting the truth," and then on the other hand, trying to mislead a judge about the truth of its affiliation and its apparent conflict of interest in an important legal case.

How can the Citizens' Commission protect the truth if it has so much trouble telling the truth?