Smoking Ban Is Hazardous to Capitol Rules

Lawmakers repeatedly have bent the rules as they attempt to win passage of legislation allowing smokers to continue lighting up in bars and casinos beyond Jan. 1, when such smoking is due to be banned.

The rules deal with the nuances of lawmaking, and so they aren’t normally the stuff of press conferences or news accounts. But the degree to which the rules have been twisted shows the extent to which lawmakers will go to win passage of a bill they and their political patrons truly want.

Even Assemblyman Dick Floyd (D-Wilmington), who carried the first version of the bill early in the year--there have been three versions so far--is looking askance at the lengths to which the measure’s backers have gone.

“It’s a dirty deal all the way through,” Floyd said. “It’s very protective of several big industries.”

The smoking bill’s trek is not unlike other measures that seem dead, then emerge in the closing hours of legislative sessions and sometimes slip by with little notice, except by the special interests that want them enacted. This one, however, has attracted the intense interest of anti-smoking activists, who are lobbying to kill it.

The measure’s most vocal backers are bar owners. But the power behind the bill is a potent combination of tobacco industry lobbyists and the state’s major card rooms and horse tracks, all of whom are major campaign donors.

The bill, SB 137, could come up for a vote as early as today. It is backed by most Assembly Republicans and enough Democrats to make passage likely in the Democrat-controlled lower house. The bill must then go to the state Senate, where it faces a tougher fight.

Although some of its supporters made clumsy missteps along the way, the drive to bring the bill to a vote also is a prime example of crafty legislative navigation.

In recent days, its backers have avoided committees that might have sunk it and steered it instead to one especially friendly Assembly committee, which easily approved the bill and sent it to the full house.

The bill now is being carried by its third author, Sen. Ken Maddy (R-Fresno), a veteran who is among the most influential and practiced lawmakers in either house.

The bill would permit smoking in bars and casinos for at least another year. It would be the second extension granted for such establishments since the Legislature imposed the statewide smoking ban in indoor workplaces in 1995.

“You’re talking about a middle-American, workingman’s phenomenon,” Maddy said of smokers who relish lighting up in bars and casinos. “They have a right to enjoy what they want to enjoy, even though it may be killing them.”

Health groups such as the American Cancer Society oppose the bill, along with the California Medical Assn. and the California Labor Federation. They contend that bar and casino workers face higher risks of cancer and heart disease as a result of secondhand smoke.

But while organized labor and doctors are not without their clout, Assembly Speaker Cruz Bustamante (D-Fresno) is siding with gambling and tobacco interests, although he insists he is defending small bar owners.

“The reason so many [supporters] are interested really is not about tobacco companies. It’s about small business,” Bustamante said in an interview.

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If the bill dies, Bustamante said, smoking inside bars and card rooms will be prohibited Jan. 1. Customers “are either going to have to outside in the street and smoke, or you’re basically going to lose business,” Bustamante said.

But Floyd, who is not sure how he will vote, is skeptical that the motivation is to help small businesses: “They can phrase it as the little bar on the corner. But the little bar on the corner has no clout in here, not like the race tracks, not like the major clubs, and I’m close to several clubs.”

The bill’s journey began when Floyd proposed exempting bars for another year from California’s landmark 1995 ban on smoking inside enclosed workplaces. That bill failed to get past its first hurdle, dying in the Assembly Labor Committee, whose chairman is Floyd.

Ordinarily, that would have been the end of it. But freshman Assemblyman Edward Vincent (D-Inglewood) entered the fray, declaring that Hollywood Park, a major source of revenue for Inglewood, would be harmed by the smoking ban. He proposed legislation virtually identical to Floyd’s.

After some false starts, Vincent’s bill won Labor Committee approval, thanks to Assemblyman Carl Washington (D-Paramount) and Assemblywoman Sally Havice (D-Cerritos). Both had voted against Floyd’s bill, but changed their minds and voted for Vincent’s bill.

However, Vincent had other problems. Under the Legislature’s rules, the bill was approved by the committee too late in the session for it to be considered this year.

To get the bill to the full Assembly for a vote, he needed a rule waiver, which requires a two-thirds vote of the 80-member house, or 54 votes. Although the measure appears to have majority support in the Assembly, Vincent could not obtain the necessary 54 votes to have the bill heard.

Enter Ken Maddy.

During a nighttime floor session two weeks ago, Vincent, with Maddy’s approval, “hijacked” one of Maddy’s bills, SB 137, an otherwise innocuous and virtually unrelated measure dealing with horse racing at county fairs. The bill was pending in the Assembly and had met all the required deadlines.

Vincent, with the Assembly’s approval, deleted the language about county fairs and replaced it with his bill to permit smoking in bars and casinos.

This bit of legerdemain had political impact.

The smoking ban is in the state Labor Code, because its aim is to protect workers from the ills of secondhand smoke. However, the Maddy bill deals with the entirely separate Business and Professions Code.

That ensured that the bill would not be heard in the Labor Committee, where there might have been a fight. Rather, it went to the Assembly Governmental Organization Committee, which deals with the Business and Professions Code--and routinely supports gambling, liquor and tobacco interests. True to form, that committee approved the bill last week on a lopsided 11-2 vote.

There was more.

As originally written, the bill sought to require that the state Division of Occupational Safety and Health (Cal/OSHA) write standards for safe levels of smoke in bars and casinos within a year, or else smoking in them would be banned.

Writing such standards would have cost the agency money. Because of the cost, the bill would have needed to win approval in the Assembly Appropriations Committee, the powerful committee that reviews all measures that cost money.

Appropriations Chairwoman Carole Migden (D-San Francisco) opposes the bill, raising the specter of another fight.

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To get around that, Maddy simply rewrote the section that would have cost money. The bill no longer requires Cal/OSHA to draft standards for smoke in bars. No work requirement means no cost, which meant no hearing in Appropriations.

“The amendments were crafted obviously to keep it out of Appropriations,” Maddy said. “If you give it to the whole house, it would probably pass. If you put it in a committee, that’s a way of killing a bill.”

For his part, Bustamante says he has done little to bring the bill to a vote--although other lawmakers believe he is a driving force.

“Mr. Vincent had a bill,” Bustamante said. “All he asked of me was to give him an opportunity to have his bill heard. The bill was heard. . . . Have I had my hands all over it? The answer is, ‘No.’ The answer is that I have given Mr. Vincent some latitude.”

All the ins and outs could be for naught. If the Assembly approves it, the bill must go to the Senate. There, Senate President Pro Tem Bill Lockyer (D-Hayward), the most powerful member of the upper house, predicts it will fail.

Maddy shrugs off that possibility. “If it gets over here [in the Senate] and dies, it dies,” he said.

Floyd is not so sure about its fate in the upper house. “We’ll see about that,” he said.