JACK SPENCER: Covering butts is the issue, not protecting health

Legislation in the Michigan House would permit restaurants and taverns to allow smoking in outdoor venues. This would apply to the patios or porches on which some of these types of establishments serve food and drinks.

Supporters of the measure argue that it is a property rights issue. The loudest opponents of the bill argue that it is a health issue. Wait a minute — haven’t we heard this debate before?

The answer is “yes.” We heard it a few years ago when Michigan’s smoking ban was being debated. In spite of the rhetoric that debate generated, the real battle was less about public health and property rights than it was about politics, competing interests and clout in Lansing.

In 2009, Jennifer Granholm was governor and the Democrats controlled the Michigan House. Granholm supported the smoking ban and so did most Democratic lawmakers. At the time the House was controlled by the Democrats; which meant the only place a ban could be blocked from passage was in the GOP-controlled Senate.

Enough Republican and Democratic senators supported a smoking ban to assure passage in the Senate. However, Senate Majority Leader Mike Bishop opposed the ban and refused to bring the measure up for a vote.

For Granholm and the Democratic lawmakers, supporting the smoking ban was a political winner. It would be untrue to claim that most Democrats didn’t see the ban as a public health issue, they did. However, in the short run, their political needs would have been best served if the Republicans could be blamed for failing to pass a smoking ban.

The Republicans were aware of the political situation. In the end they passed a ban. But the way the details of the ban were hammered out had little to do with public health considerations. They were the result of infighting and negotiating that revolved around issues of competitive advantage.

Polls showed a majority of voters, especially senior citizens who turn out to vote in high percentages, supported a ban. To a key segment of these voters the main issue was that they didn’t like being exposed to cigarette smoke when they went out to lunch or dinner. It’s likely that they couldn’t have cared less whether the ban included the kinds of bars and taverns they never visited.

For a number of bars, taverns and bowling alleys a ban could potentially seriously damage their businesses. Many of these places had well-established customer bases comprised of smokers.

One solution to the smoking ban issue might have included finding a way to define which businesses would be hurt by a ban. If that could have been accomplished, businesses with the most to lose might have been exempted from the ban or granted a grace period of a few years before the ban would be applied to them. Yet, several factors prevented this from happening.

Restaurants, including fast-food chains, which generally have quick turnover customers who come in, eat and leave, stood to gain from a broadly-applied smoking ban. With such a ban they would lose less of their customers who smoked because their comparators — the bars and taverns — wouldn’t be able to allow smoking either.

This explains why the Michigan Restaurant Association adopted a position that simply stated “just treat us all equally.” By promoting this position it was simply doing its job, which was to represent the best interests of the sort of businesses that comprised a majority of its membership.

In this battle the mostly small and independently owned bars and taverns didn’t stand a chance. They were completely out-gunned by other interests that could afford to be represented by lobbying groups in Lansing.

In the second half of 2009, the Republicans were beginning to sense that 2010 could be a great election year for them. They wanted to clear the decks of anything that might diminish that advantage. To their way of thinking, the smoking ban was an awkward problem that should be disposed of.

Ultimately, the only reason to hold out against a ban was the core belief in property rights. That wasn’t enough to stand in the way of what was otherwise a political avalanche favoring a ban. Bishop finally gave in to the pressure. He allowed the ban to be brought up for a vote and it passed.

Yet, even then, the issue wasn’t resolved. Detroit Democrats wanted to exempt Detroit casinos from the ban. Their argument was that the Detroit casinos had to compete with the Indian casinos across the state, which under federal law, would not be covered by a state-enacted smoking ban. The Republicans said “fine — we’ll exempt the Detroit casinos.”

Simply put, the Detroit casinos had enough clout in the legislature to protect their competitive interests; independent taverns and bars didn’t.

The Detroit casino exemption briefly caused trouble with out-state House Democrats who wanted the ban to cover all businesses. Then, after wavering a while they relented; realizing the untenable political position they’d be in if they could be blamed for killing the ban.

When the ban passed many Lansing insiders predicted that more exemptions would be approved in the future. Among the more obvious would be VFW and American Legion posts, as well as outdoor facilities. It remains to be seen whether these predictions prove to be accurate. But in each case the real political battle will have virtually nothing to do with public health.

Jack Spencer is Capitol Affairs Specialist for Capitol Confidential, an online newsletter associated with the Mackinac Center for Public Policy (MCPP). MCPP provides policy analysis. The political analysis represented in this column does not necessarily reflect the views of the Mackinac Center.