Playing the Smoke and Mirrors Game in the Capitol

In arranging a devil’s deal with the tobacco lobby, the Los Angeles County supervisors have been playing one of the Capitol’s most sophisticated and deceptive games.

The tobacco industry agreed to support an increase in the cigarette tax, with much of the proceeds going to financially strapped Los Angeles County. In return, the L.A. supes lined up behind the industry’s drive for state legislation that would deprive cities of the right to pass no-smoking laws. This also would wipe out L.A.’s new smoking ban, as well as similar ordinances in the state.

Public outrage has shelved the deal for now. But lawmakers could revive it at any time during the current session.

The arrangement between the supes and the tobacco lobby is part of an old Capitol game called “preemption.” By passing a law on a subject, the state “preempts” the field, making it impossible for cities to pass their own legislation.

The most famous example of the preemption game occurred in the early 1980s. It created one of the biggest scandals in Sacramento history.

A fireworks manufacturer, W. Patrick Moriarty, was alarmed by the growing number of municipal laws banning his product. Many people felt that so-called “safe and sane” fireworks were dangerous to the children who bought them. He spent years--and hundreds of thousands of dollars in campaign contributions--to persuade legislators to pass a law preempting cities and counties from passing ordinances against state-approved fireworks. In an extreme gesture, even for Sacramento, he supplied prostitutes to politicians. In their defense, some of the pols later said they thought the prostitutes were public relations women.

Moriarty’s lawmaking pals sneaked the bill through the Legislature, but Gov. Jerry Brown vetoed it. Later, investigative reporters turned the spotlight on the dirty deal and Moriarty ended up in prison for bribery.

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Don’t get me wrong. I’m not accusing the supes of calling in the whores or bribing anyone.

Still, you’d think they’d stay away from playing such a devious game with a cause so contrary to the public’s concerns about health. The county, however, is desperate for revenue. When the possibility of a deal with the tobacco lobby emerged, it was hard to resist.

The drama actually began a few months before the supes jumped in. Last spring, the tobacco lobby joined forces with the hotel and restaurant industries, also strong foes of anti-smoking legislation. Lawyers and lobbyists for the alliance wrote a bill and asked an opponent of smoke-free laws, Assemblyman Curtis Tucker Jr. (D-Inglewood), to introduce it.

This isn’t at all unusual. Most bills are written by lobbyists and given to friendly legislators for introduction. As Tucker explained it, he doesn’t believe Environmental Protection Agency studies that say secondhand smoke is dangerous. And he said a smoking ban “would kill the tourist industry.”

Reading the beginning of Tucker’s bill, you might be deceived into thinking it was anti-smoking. Section 25806 says “except as otherwise provided in this chapter, smoking is prohibited in any public place on and after Jan. 1, 1994.”

The mischief is found in the exceptions. Any restaurant with a capacity of 50 or less would be all-smoking. All other restaurants would be required to allow smoking in 30% of the facility. The same would apply to 25% of the space in arenas and malls, hotel meeting and lodging rooms (unless designated nonsmoking) and gambling clubs.

This would be the statewide standard. No city could pass its own anti-smoking law.

By June, the proposal needed help. The tobacco companies and their hotel and restaurant allies had clout through friendships and campaign contributions. But they weren’t strong enough to overcome the opposition of nonsmokers, 80% of the California population. The nonsmokers are represented in the Capitol by lobbyists as tough as anyone the tobacco industry can put up.

Their bill, by militant nonsmoker Assemblyman Terry B. Friedman (D-Brentwood) banned smoking in any place where people are employed. That means almost anyplace. Just how that would be enforced is a mystery to me. I can’t see a cop in Oroville arresting his boyhood buddy who owns a bar and grill for allowing someone to smoke in his establishment. But, attesting to the power of the anti-smokers, Friedman’s bill passed the Assembly while Tucker’s languished.

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At this point, in late June, the industry hooked up with L.A. County in the infamous deal. If L.A. County would back the preemption features embodied in the Tucker bill, the industry would support a cigarette tax increase.

Key players for the county were County Administrative Officer Harry Hufford, lobbyist Clancy Leland and Board of Supervisors Chairman Ed Edelman. By chance, one of Edelman’s close advisers, his former chief aide Alma Fitch, represents the tobacco industry in the County Hall of Administration and City Hall. She and Edelman talked. “We talked about the need for money,” she said. But she also told me: “The preemption was mentioned.”

The county-tobacco-hotel-restaurant team fought hard, but on Thursday, its deal was in trouble, hurt by bad publicity and the anti-smoking lobby.

The anti-smokers are feeling good, hoping Friedman’s smoking ban bill will pass the Senate Judiciary Committee on Tuesday.

Don’t count on it. The smoking gang still has an arsenal of tricks they can use to weaken or defeat Friedman’s legislation. And although the county-tobacco deal may be near dead, nobody has yet driven a stake through its heart.

As anti-smoking Sen. Diane Watson (D-Los Angeles) said: “Nothing ever dies around here.”