COLUMN -- Stubborn facts — and a stubborn defense of principle to go with them

Thursday, February 8, 2007


John Adams' defense of British soldiers accused in the 1770 Boston Massacre (and of the greater principle of due process) gave us his oft-quoted observation, "Facts are stubborn things, and whatever may be our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence."

Facts are still stubborn things.

Last week, the Health and Human Services Committee of the Minnesota House held a hearing on the Freedom to Breathe Act — otherwise known as the statewide smoking ban. In defense of a greater principle, Reps. Laura Brod, R-New Prague, and Tom Emmer, R-Delano, took on the cause of bar and restaurant owners who dare exercise their private property rights and permit smoking in their establishments. It was a good, old-fashioned political butt whipping. Brod and Emmer shredded the arguments of bill sponsors Thomas Huntley, DFL-Duluth, and Dan Severson, R-Sauk Rapids.

Unfortunately, the attitude that the end justifies the means is also still stubborn.

Ruled by its inclinations, the dictums of its passions and an altered state of facts and evidence, a 12-6 majority in that committee advanced the statewide smoking ban to the Commerce and Labor Committee.

Even if one favors a comprehensive statewide smoking ban, one ought be embarrassed by the bill passed out of the Health and Human Services Committee. Not only did ban supporters do a poor job of justifying the necessity of a statewide smoking ban, the Freedom to Breathe Act is a jumble of inconsistencies and potential unintended consequences.

And therein lies the problem: When legislation is predicated on inclinations and passions and justified by an altered state of facts and evidence, not only is the result unnecessary legislation, it's bad legislation.

The case can be made that all legislation is invariably subject to interpretation. If there aren't loopholes, some smart lawyer will create them and some "activist" judge will validate them. That may be true as far as it goes, but the assumption ought to be that legislators have done their best to create a tight piece of legislation. When legislation is fact-based and addresses compelling state issues, that's generally the case. When it follows the dictums of passion, it ain't necessarily so.

Brod, Emmer and others raised numerous implications and potential unintended consequences of the Freedom to Breathe legislation. Does the bill inadvertently affect private homes used for business? Does public law that provides Minnesota the authority to enforce "criminal and prohibitory law" on American Indian reservations affect the legislation's attempt to exempt tribal casinos from the ban? When does a patron violation become a violation for which the establishment owner is criminally liable?

Normally, such issues are resolved in the committee process. Last session, eminent domain reform that limited when government could take private property for a public use passed through eight committees before earning a floor vote. This year, when Brod raised the question of what committees would be hearing the Freedom to Breathe Act, Huntley said he had no idea what the path might be, but he "would just as soon send it to the floor as soon as we can."

If the objective were crafting a bill that best served Minnesotans, then, as Brod suggested, it would pass through committees on local government affairs and public safety as well as commerce. But if the purpose of the bill were simply to ban smoking, then, as is Huntley's inclination, the quicker it got to the floor, the better — especially after Brod and Emmer shredded every health and economic justification for a smoking ban, save two.

By the time the committee was ready to vote, Rep. Ken Tschumper, DFL-La Crescent, was justifying the trumping of private property rights with the only undisputed argument ban supporters could muster — secondhand smoke smells bad.

Rep. Tina Liebling, DFL-Rochester, finally clarified the real motivation behind the Freedom to Breathe Act — she declared a statewide smoking ban necessary to "set behavior norms" for all Minnesotans.

"I hear a train a' comin' — it's roaring round the bend," the American Lung Association's Pat McKone sorta sang, giddily concluding her pro-ban testimony with a fitting metaphor for a bill being railroaded through the committee process despite inconsistencies, unintended consequences and confused justifications.

Brod, Emmer and stubborn facts will get another shot when the legislation goes to the House floor for debate. The outcome may not be any better, but when gutsy legislators persevere against intrusive government, one can always hope.