Friday, January 28, 2005

House committee passes the "butt" on smoking ban

Posted by Craig Westover | 2:51 PM |  

In a previous post, I noted that proponents of the statewide smoking ban were better prepared to present their case to the House Health Policy and Finance Committee. That's not to tak anything away from individual presentations made by opponents of the bill. They simply did not have the time, resources, or controlling power that proponents had.

They get a second chance in front of the Commerce and Fiancial Institutions Committee. As a purely academic exercise, a hypothetical opening presentation by opponents of a statewide smoking ban (pre-conditioned by an e-mail to committee members) might go a little bit like this --

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Chairman Wilkin and Committee Members:

The Commerce and Financial Institutions Committee soon will have before it an amended version of House File No. 405 the “Freedom to Breathe Act of 2005.” This bill is passed without recommendation from the Health Policy and Finance Committee. By passing the bill without recommendation, that committee failed to fulfill three basic obligations.

First, the Committee failed to objectively define a "public health risk" in order to determine whether or not secondhand smoke rises to the level of a “public” health issue requiring government intervention.

Second, the Committee failed to ascertain whether or not state government was the proper level of government at which to implement a smoking ban.

Third, the Committee failed to resolve the fundamental issue of perceived conflict between the right of a private property owner to regulate legal activities on his property and the entitlement right of non-smoking patrons and employees to curtail the legal use of private property.

Let me briefly expand these failings.

Some look at health data relating to secondhand smoke and conclude it is just “common sense” to implement some sort of smoking ban in public and “quasi-public” places in Minnesota. But “common sense” is not a criterion of constraint on the power of government to intervene in the lives of those subject to its regulation. One person’s “common sense” is another person’s “foolishness.”

Government intervention in private lives, even for health reasons, must be based on objective criteria, else it is little more than majoritarian infliction of will on a powerless minority.

For the Committee’s consideration, I submit three criteria for elevating a widespread health concern to the level of a “public” health problem requiring government intervention.

1) A person must be exposed to a risk without her consent.

2) The risk affects the community at large -- anyone or everyone must be equally at risk.

3) A reasonable person cannot individually protect himself from the risk.

When the Committee considers these criteria, it will see that they grant government authority to regulate many current public health activities including ensuring clean water, vaccinating against contagious diseases and ensuring a safe food supply. These criteria even justify a smoking ban in a truly public place.

For example, a smoking ban in the capitol is justified in that any person subpoenaed to testify there cannot reasonably refuse and yet does not necessarily consent to exposure to secondhand smoke.

However, the criteria do not apply to “quasi-public” private property. Those patronizing or working in an establishment where smoking is permitted do so with their consent. That establishment’s policies directly affect only those who choose to enter. Any reasonable person can avoid the risk by exercising the free choice not to enter.

Members of the Committee may object to these criteria, but I submit that if the Committee relies on “common sense,” and does not weigh a smoking ban against some set of neutral criteria justifying government intervention in the name of “public health,” it has failed to do its job.

The Committee must also decide if the State is the appropriate level of government at which intervention is necessary.

In that regard, amended HF 405 as passed to the Committee was cobbled together from existing local ordinances and contains terms with accepted meanings within those local jurisdictions but which have no statewide common understanding. Those local ordinances are designed to address specific local conditions, which conflict with statewide situations that they were never intended to address.

The point is, it is impossible to craft legislation at the state level that micromanages economic and cultural activity in local jurisdictions without unintended consequences. While those consequences are simply annoyances to legislators who must go back and tweak the law, they are costly to taxpayers who must foot the bill and can be devastating to business owners inadvertently damaged by necessarily uninformed legislation.

That leads to the final point.

HF 405 is not just a about a “Freedom to Breathe Act”; it is about the American ideal that for more than 200 years has drawn to our country people “yearning to breathe free.”

The inscription on the Statute of Liberty is not a reference to “America, the land of smoke-free bars.” It is a reference to the autonomous right of individuals to pursue their dreams without arbitrary interference from government. That is an issue the Committee cannot avoid.

Ultimately, the validation of any smoking ban law passed by the state will not be decided, pro or con, on the basis of health data. It will not be validated by economic impact. It will be decided in response to court challenges that defend the fundamental autonomous right of individuals to participate in private activities legally beyond the legitimate authority of government.

As currently structured, HF 405 is a petri dish for spawning Constitutional challenges. Failing to consider perceived conflict between the autonomous rights of a private property owner and the entitlement rights of non-smoking patrons and employees would be a gross abdication of the Committee’s responsibility.

Passing the buck to the full legislature and eventually the courts might be the politically expedient thing to do, but it is certainly neither courageous nor ethical. Passing the costs of defending constitutional litigation to taxpayers is unforgivable.

HF 405 carries far more significance than most bills. It is not just about secondhand smoke. It raises important questions about the limits to which government can go in the name of “public” health. It raises important questions about the proper sharing of authority between state and local jurisdiction. It raises important questions about conflict between fundamental autonomous rights and government granted civil rights.

These questions require the hard decisions legislators agreed to address when entrusted with constituent votes. The Health Policy and Finance Committee failed to meet that obligation.